Vehicle Rental Supply Agreement

1. Customer Service.  Supplier shall honor all reservations made through the Booking Channels according to Supplier’s rules and policies in effect at the time the reservation is made.  Supplier acknowledges that providing superior customer service is essential not only to the success of its business but also to the reputation and integrity of EI and its Affiliates, and shall provide the highest level of customer service to customers that book with Supplier through the Booking Channels.

 

2. Third Party Rights.  Further, Supplier agrees to honor all reservations made through EI or any of its Affiliates and, to the extent that the reservation is made by such an Affiliate:  (a) such Affiliate is a third party beneficiary of the Agreement, (b) such Affiliate has, in connection with such reservations, all of the rights and remedies of EI under the Agreement, and (c) the Agreement may be enforced by EI, such Affiliate, or both.

 

3. Unavailable Bookings.  In the event a car rental is unavailable according to a confirmed reservation, Supplier shall arrange, at its expense, for a suitable alternate car rental and shall reimburse the customer for any additional expense incurred therefore in a manner at least as favorable to the customer as generally offered by Supplier to its other customers.  In addition, EI shall be credited with the alternate car rental booking based upon the rental rates quoted at the time of reservation.

 

4. Customer Inquiries.  In response to all customer inquiries or complaints, including those referred to it by EI or its Affiliates, Supplier shall provide a formal written response to EI, shall contact the complaining customer within two (2) business days, and shall make commercially reasonable efforts to promptly resolve the complaint

 

5. Advertising to EI’s Customers.  Supplier shall not use information returned to EI’s system to attempt to or to persuade or induce a customer utilizing the Booking Channels to make a reservation outside of the Booking Channels or to cancel a reservation made through the Booking Channels for re-booking through any other means.  Supplier shall not make, and shall not allow any entity that Supplier distributes its car rentals through to make, promotional or merchandising reference to EI or any of its Affiliates’ trademark in any way except with the express written permission of the EI for each such use, including making a reference in any promotion or advertisement that does not directly refer to EI or its Affiliates, but could be understood by a reasonable person as referring to EI or its Affiliates.

 

6. CRS Booking Fee.  For reservations through the Booking Channels that also pass through a CRS, the amounts due to EI under this Agreement shall not include any booking fee that would be due to the CRS separately pursuant to the applicable agreement between Supplier and such CRS.  Supplier shall be required to make the CRS booking fee payment directly to the applicable CRS for such transactions.

 

7. Trademarks.  Supplier hereby grants to EI and its Affiliates a limited, nontransferable, nonexclusive license to use the trademarks, service marks, logos, trade names and copyrights of Supplier and its Affiliates (collectively, the “Marks”) solely for the purpose of

promoting Supplier.  Supplier hereby represents and warrants that it has the full and exclusive right to grant or otherwise permit EI and its Affiliates to use the Marks as set forth in this Agreement, and that it is aware of no conflicting third party rights.  Except as set forth in this Agreement, the right to license and use the Marks shall remain exclusively with Supplier, and neither EI nor its Affiliates shall have any right to grant sublicenses.  EI and its Affiliates shall use the Marks exactly in the form provided and in conformance with any Supplier trademark and logo usage guidelines that Supplier may provide to EI or its Affiliates in writing from time to time.  Other than the rights specifically granted herein, no right, title or interest in the Supplier’s or its Affiliates’ Marks is transferred to EI or its Affiliates.  Neither EI nor its Affiliates shall take any action inconsistent with Supplier’s or its Affiliates’ ownership of their Marks, and any benefits accruing from use of such Marks shall automatically vest in Supplier or its Affiliates, as applicable.  Neither EI nor its Affiliates shall form any combination marks with Marks.  Any violation of this Section 7 of these General Terms and Conditions would not be a material breach.  Provided, however; that Supplier may terminate the foregoing trademark license if EI breaches this Section 7 and fails to cure such breach within fifteen (15) days’ written notice of such breach by Supplier delivered to EI.  Notwithstanding anything to the contrary herein, in its keyword purchasing activities, Expedia agrees not to outrank an advertising or sponsorship position triggered in Google, Yahoo, MSN, Ask, AOL and Looksmart with respect to the following Supplier trademarks: “Thrifty”, “Thrifty Car Rental”, “Be Smart, Buy Thrifty”, “Drivewise”, “Thrifty.com”, “The Sensible Alternative”, “Blue Chip”, “True Blue Pride”, “Best of All, It’s Thrifty”, “Thrifty Rental Car”, Thrifty Rental Cars”, “Thrifty Car Rentals”, “Blue Chip Rewards”, “SmartBiz”, “Dollar”, “Dollar Rent A Car”, “Dollar Makes Sense”, “Dollar.com”, “Dollar Travel”, “Dollar Tours”, “Dollar Car Rental”, “Dollar Car Rentals”, “Dollar Rental Car”, “Dollar Rental Cars” “Home of Our Lowest Rates”, “Fastlane”, “Dollar Express Rewards”, “Dollar Express”, “Dollar 4Business” and “Right on the Airport. Right On.”.  Supplier agrees not to outrank an advertising or sponsorship position triggered in Google, Yahoo, MSN, Ask, AOL and Looksmart with respect to the following Expedia trademarks: [“EXPEDIA”, “EXPEDIA.COM”, EXPEDIA TRAVELS”, “EXPEDIA TO GO”, “TRIPCONTROLLER”, “TRAVELLER OPINIONS”, “NEWTRADE”, “WWTE”, “WHERE TO FIND THE ONE OF A KIND”, “DON’T JUST TRAVEL. TRAVEL RIGHT”, OR “TRAVELSCAPE”].  Supplier represents to Expedia that Supplier shall not place restrictions on Expedia’s keyword bidding activities that are more restrictive than those that Supplier places on any other Third Party Booking Channels.

 

8. Reporting of Bookings.  Through NPC or other mutually agreed upon method, Supplier shall deliver to EI electronic reports detailing the booking information for each car reservation in a record layout format that contains the information specified in Exhibit G or such other format as is reasonably satisfactory to EI.

 

9. Audits.  Supplier agrees to keep all proper records and books of account and all proper entries therein relating to any calculations to be made by Supplier under this agreement for up to thirty-six (36) months from date of rental.  EI may cause an audit to be made, at its expense, of

Supplier’s applicable records in order to verify such calculations provided to EI no more than twice per year.  Such audit may be conducted by EI’s accounting department after not less than 72 hours prior written notice to Supplier, and shall be conducted during regular business hours at Supplier’s offices and in such a manner as not to interfere with Supplier’s normal business activities.  If an audit reveals an underpayment of five percent (5%) or more, then Supplier shall promptly pay the amount of the underpayment to EI and reimburse EI for its reasonable costs and expenses related to the audit. If an audit reveals an overpayment of five percent (5%) or more, then EI shall promptly pay the amount of the overpayment to Supplier.

 

10. System Connection, Ownership and Management.  The connection between Supplier’s internal reservation system and reservation services to EI shall initially be made through the Worldspan Computer Reservation System (“CRS”).  Such connection may in the future be made through other means in addition to or in lieu of the Worldspan CRS including, but not limited to, connection through one or more other CRSs.  Each party shall be responsible for all costs and expenses related to maintaining its computers, networks, communications, and connections, including without limitation those between Worldspan, EI’s systems, and Supplier’s internal reservation system.  Each party acknowledges that nothing in this Agreement constitutes an assignment or transfer of any right in the systems, software, networks or intellectual property of the other party.

 

11. DISCLAIMER.  EI DISCLAIMS, AND SUPPLIER HEREBY WAIVES, ALL WARRANTIES WITH RESPECT TO EI, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

12.  LIMITATION OF LIABILITY.  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR WITH THE DELAY OR INABILITY TO USE EI’S BOOKING CHANNELS, OR FOR ANY INFORMATION, PRODUCT OR SERVICE OBTAINED THROUGH EI, OR OTHERWISE ARISING OUT OF THE USE OF EI’S BOOKING CHANNELS, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IF EI IS, IN ANY EVENT, FOUND LIABLE TO SUPPLIER FOR ANY DAMAGES, THEN SUPPLIER’S REMEDY SHALL BE LIMITED TO THE AMOUNT OF ANY FEES OR CHARGES PAID BY SUPPLIER TO EI FOR ALL TRANSACTIONS RELATING TO THE MATTER FOR WHICH THE LIABILITY HAS BEEN DETERMINED.  EI SHALL NOT BE RESPONSIBLE FOR OR LIABLE TO SUPPLIER DUE TO THE FAILURE OF ANYONE WITH A RESERVATION OR PURCHASE MADE THROUGH EI TO REMIT PAYMENT TO SUPPLIER FOR SUCH RESERVATION OR PURCHASE OR FOR ANY OTHER DISPUTE BETWEEN SUPPLIER AND ANY USER OF THE BOOKING CHANNELS OR ANYONE ELSE.

 

13. Governing Law, Jurisdiction and Venue.  This Agreement is governed by the laws of the State of Washington.  Supplier consents to the exclusive jurisdiction and venue of courts in King County,

Washington for all disputes arising out of or relating to the subject matter hereof.

 

14. Relationship.  No joint venture, partnership, or employment relationship exists between Supplier and EI as a result of this Agreement.  Neither EI nor Supplier shall hold itself out as representative, or employee of the other party.  Except as expressly provided herein, this agreement is intended for the benefit of the parties hereto and no other party shall claim rights hereunder, whether as a third party beneficiary or otherwise.

 

15. No Waiver.  No term hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.  Any consent by any party to, or waiver of, a breach by the other, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.

 

16. Assignment. Neither EI nor Supplier may assign, hypothecate, pledge or sublicense any of its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may assign to an Affiliate without written consent.

 

17. Notices.  Any notice required by this Agreement or otherwise made shall be made by prepaid first class U.S. mail or recognized overnight delivery service (or by email or fax provided that such notice is also sent via first class U.S. mail or recognized overnight delivery), addressed as follows:

 

If to EI:

Expedia, Inc.

Attn:  Michael Flory

3150 139th Ave. S.E., Suite 500

Bellevue, WA  98005

Fax:   ###-###-####

Email: ***@***

 

If to Supplier:

Dollar Thrifty Automotive Group, Inc.

Attn:  Charlie Coniglio

5330 E. 31st Street

Tulsa, OK  74135

Fax:   ###-###-####

 

With copy to:

Expedia, Inc.

Attn:   General Counsel

3150 139th Ave. S.E., Suite 500

Bellevue, WA  98005

Fax:   ###-###-####

 

 

With  copy to:

Dollar Thrifty Automotive Group, Inc.

Attn:  General Counsel

5330 E. 31st Street

Tulsa, OK  74135

Fax:   ###-###-####

 

A party may change its address for notice by providing written notice to the other party as provided herein.

 

18. Entire Agreement; Modifications.  This Agreement and any Ad Insertion Agreement executed pursuant to this Agreement constitute the entire understanding and agreement between EI and Supplier and it supersedes all prior, contemporaneous or subsequent oral communications between the parties with respect to the subject matter.  This Agreement may only be amended or modified in a writing signed by the party sought to be bound by the amendment or modification.  If any term of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall continue in effect without the invalid or unenforceable term.