AFFILIATE PROGRAM AGREEMENT This agreement ("Agreement") contains the complete terms and conditions regarding your participation in Hotels Direct Network, Inc. ("Us", "Our" or "We") affiliate program and the establishment of links from your website(s) to the Co-Branded Site, as defined below. For purposes of this Agreement, "you" means the person or entity described in the application seeking to participate as an affiliate in our affiliate booking program described herein ("Affiliate Program"). THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US AND BY EITHER (i) CLICKING ON THE "ACCEPT" BUTTON AT THE END OF THIS AGREEMENT or (ii) SUBMITTING A SIGNED COPY OF THIS AGREEMENT TO US, YOU ARE ACKNOWLEDGING THAT YOU HAVE CAREFULLY READ AND UNDERSTAND THE TERMS SET FORTH IN THIS AGREEMENT AND YOU, UPON ACCEPTANCE OF YOUR APPLICATION BY US, AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. OUR ACCEPTANCE OF YOUR APPLICATION AND OUR AGREEMENT TO BE BOUND TO THE TERMS OF THIS AGREEMENT WILL BE SIGNIFIED BY THE FIRST TO OCCUR OF EITHER A WRITTEN E-MAIL OR FACSIMILE SENT TO YOU BY US AFFIRMATIVELY STATING THAT YOU HAVE BEEN ACCEPTED IN TO THE AFFILIATE PROGRAM ("NOTIFICATION OF ACCEPTANCE"). 1. Marketing of Our Products (a) Marketing of Our Products. You agree to market the hotel products offered by Us, as well as other travel products such as car rental, air ticket and cruise products which may be made available from time to time ("Our Products"). You agree to market Our Products through the use of Our Links (as defined in Paragraph 1(c) below) from your website(s) as listed below your name on the application and other website(s) established by or operated by you or your affiliates in the future as submitted by you to Us from time to time (the "Affiliate Sites") to the Co-Branded Site (as defined in Paragraph 1(b) below). (b) Co-Branded Site. We will establish and maintain a website (the "Co-Branded Site"), which shall contain Our Products and provide booking and selling capability via credit card transactions over an encrypted internet session. The Co-Branded Site will be presented and made available in such manner as to provide your branding identity in a form reasonably requested by you. We will operate and maintain the Co-Branded Site at Our expense. You grant to Us a limited license and right to use your Marks (as defined herein) in connection with the creation and promotion of the Affiliate Program and coordinating activities and performing services associated with the operation of the Affiliate Program. The limited non-exclusive license and right to use your Marks shall terminate automatically upon the termination of this Agreement. (c) OUR Links. We will establish a unique URL for the Co-Branded Site, which will enable Us to track booking transactions that occur through the Co-Branded Site. We will provide you with one or more files and/or text or image links to be used to navigationally link or pass queries from the Affiliate Sites to the Co-Branded Site (collectively referred to as the "Our Links"). From time to time We may mutually agree to use other graphical links, including links customized for or by you. All graphical links to the Co-Branded Site must be approved by Us in advance of their use. As used in this Agreement, a "link" is any hyper text mark-up language (HTML) element that enables a user to navigate from one party's website to another party's website by clicking on the element or that initiates another function that enables functions and/or data to be exchanged between two or more unrelated computing systems residing in separate network domains. We grant you a limited license to display Our Links and accompanying authorized trade and service marks as delivered to you from time to time for the purpose designated in this Agreement. We reserve all Our rights in such marks. The authority to display and use Our Links is a limited non-exclusive license that terminates automatically upon the termination of this Agreement. (d) Location of Our Links. You shall place Our Links on your Affiliate Sites in a prominent and easily identifiable location for visitors or users of your main or home page, and on any other page relating to contact, directions or address information, or pages that contain topical information regarding geographic destinations, landmarks, travel, hotel accommodations, dining or leisure activities. (e) Exclusivity. During the Term (as hereinafter defined) of this Agreement, you shall not, either directly on the Affiliate Sites, or indirectly through any link or advertisement, offer any travel product similar to any of Our Products then offered through Our Links. If at any time We offer additional travel products, you agree that they shall be included in the Affiliate Sites, and you shall immediately remove any competing products that you may have included or present thereon, unless previously authorized by Us in writing. 2. Commissions Payable to You by Us (a) Commission Calculation. For all travel products and services booked with Us via your Affiliate Sites and through the Co-Branded Site during the Term (as hereinafter defined) of this Agreement, We will pay you a commission calculated as set forth below: (i) You will be entitled to earn 60% of the standard commissions paid to and collected by Us from the suppliers and/or distributors of Our Products that are booked and sold through the Co-Branded Sites via the Affiliate Sites (the "Participation Commissions), subject to the terms and adjustments provided below. You understand that commission amounts that suppliers agree to pay Us may change from time to time, and do not include any commissions in respect of taxes, tax recovery charges, service fees and customer adjustments that are charged or imposed by suppliers, or Us in the case where Our Products are provided on a net rate basis ("Net Rate Products"). In the case of a Net Rate Product that is sold, an implied standard commission rate of 10% of the gross price (exclusive of the taxes, charges and impositions referenced above) shall apply for purposes of calculation, except, in the case where the retail margin percentage (after discounts, credits or other deductions or concessions) is less than 10%, then in such case the standard commission rate shall be deemed to be the retail margin. Our Product is deemed to be sold if and only when (i) the end-user consumer actually consumes the service or product being sold and (ii) the end-user consumer fully and finally pays the supplier for Our Product. For purposes of determining your Participation Commission for any sale, the amount of such sale will only be those amounts reported as commissionable by the supplier or its commission reporting or settlement agent. You will be deemed to have earned your portion of the commission that We earn when We actually receive a commission payment from the supplier. You recognize and understand that certain suppliers of Our Products may from time to time report sales that differ from the booking information reported by Our systems due to a variety of factors, including the subsequent cancellation of the transaction by the end-user consumer, the failure of the end-user consumer to consume Our Product that is purportedly reserved, booked or sold via the Co-Branded Sites, changes or re-bookings of Our Products by the consumer either directly with the supplier of the product or through other systems to which We are not connected or which otherwise do not notify Us of such changes. You agree that We do not represent or warrant the reliability or accuracy of any information reported by suppliers, or their financial condition or ability to pay commissions which may be due and owing to Us. You agree that in no case shall We have any obligation to pay to you any amounts that are not paid to Us in respect of sales of Our Products through the Co-Branded Sites, and We have no obligation to take any actions against such suppliers to enforce the payment or collection of any such amounts. Without regard to any other provision of this Agreement, We will have no liability to remit to you any amount, whether or not earned, which is collected by Us from a supplier for any sale where the commission when paid is more than one hundred and eighty days past due under the terms of the applicable sales commission agreement between Us and Our supplier. (ii) You understand and agree that with respect to each booking transaction for any of Our Products, We are responsible for a booking processing fee of one dollar and fifty cents ($1.50)) per passenger, seat or room (as the case may be) for all of Our Products, other than cruise and tour products (in which case the transaction fee is ten dollars ($10.00) per passenger). The processing fees for sales of Our Products through your Affiliate Sites will be deducted from the amounts of any Participation Commissions payable to you. If the amounts of the transaction processing fees are increased at any time, you may elect to terminate this agreement by notifying Us in writing within thirty (30) days after the date you are notified of the increased fees, or they are first applied and reported, whichever comes first. In no case will you owe any amount to Us for transaction processing fees in excess of the amount of Participation Commissions which are payable to you, and We will pay and be responsible for any deficiency which may arise. We will provide call center support for end-user consumers who book through the Affiliate Sites during Our standard support hours as in effect from time to time. To the extent the average duration for telephone support exceeds 3 minutes per end-user consumer in any month, We may recover the costs of such excess support time at the rate of seventy-five cents per minute plus Our per minute toll free telephone service charges. These costs will be deducted from the amounts of any Participation Commissions payable to you. In the case of booking and reservation transactions that are fulfilled over the telephone, a processing charge of $5.00 per booking shall apply and shall be deductible from Participation Commission amounts. You understand that Our ability to offer a competitive Participation Commission amount is based upon electronic processing efficiencies, and that the additional processing fees for telephone bookings are due to additional transaction processing costs that We incur. To the extent We elect, at any time, to impose a service charge upon end-user consumers for telephone bookings, you understand and agree that you have no claim to any portion of such fees. (iii) Interactive mapping services through MapQuest with Points of Interest shall be provided as an optional inclusion, unless otherwise declined in writing by you. It is highly recommended that you not decline mapping services, because it is a highly attractive feature that public users enjoy. Mapping service usage will be provided at a fee of five cents per map generated. This fee may change from time to time based upon the license charges imposed by MapQuest. Use of mapping services shall be limited to use in connection with Our Products. Similarly, to the extent that additional 3rd party content services are made available, We may recover your allocable portion of such costs incurred by Us to provide such additional information services, again, provided, in no case will you be liable for any amount in excess of any Participation Commission amounts earned by you during the term of this Agreement. (b) Transaction Covered by Commissions. Participation Commissions are paid only on transactions that originate through the Co-Branded Site. No commissions shall be paid on subsequent bookings by the same end-user consumer unless that subsequent booking is made through the Co-Branded Site. We will not offer your end-user consumers any financial inducements to circumvent the Co-Branded Site. (c) Commission Payments. We will pay your Participation Commissions not later than the 15th day of each month immediately following the month in which We receive actual payment of the applicable commission from the supplier. 3. Amendments, Term, Warranties, Liability, and other Provisions (a) Term. Unless earlier terminated in accordance with the terms of this Agreement, the term of this Agreement will be three (3) years from the date that you have been accepted into the Affiliate Program by US as indicated on the Notification of Acceptance and shall thereafter be renewed on a year-to-year basis unless terminated in writing by either party prior to the last month of the initial term and any renewal term ("Term"). (b) Termination Rights. This Agreement may be terminated by either party in the event of a breach of any of the terms of this Agreement, provided that if the breach is capable of being cured, the breaching party shall be given thirty (30) days to cure such breach prior to any right of termination arising. We reserve the exclusive right to terminate this Agreement at any time, for any reason, with or without cause. However, We will remain liable to pay to you any Participation Commissions that are earned from sales of Our Products up to the date of termination even if the actual date of consumption and full and final payment occurs after such date of termination. (c) Absence of other Warranties. Neither party makes any express or implied warranties or representations, except as expressly provided in this Agreement. Each party represents and warrants that (i) it has the right and authority to enter into this Agreement and to comply with and perform its obligations hereunder (ii) it has not entered into any other agreements inconsistent with its performance under this Agreement; and (iii) during the Term of this Agreement, it shall be in compliance with all applicable laws, rules and regulations. We represent to you that the Co-Branded Sites will operate in a good working order, free from material error, defects and malfunctions and in accordance with industry standards. We do not warrant and EXPRESSLY DISCLAIM the accuracy or completeness of any and all information, whether of a descriptive nature or otherwise, regarding any service or product offered. (d) Assignment. You agree that you shall not directly or indirectly assign your rights or obligations under this Agreement, in whole or in part, to an unrelated third party without Our prior written consent, which consent will not be unreasonably withheld. Any assignment without Our approval shall be null and void. (e) Prohibited Activities. It is agreed that during the Term of this Agreement neither party shall (i) engage in spamming activities that relate or refer, directly or through links, to the other party, (ii) place material on any site linked to any site of the other party that is materially not appropriate for general and family viewing, such prohibited materials shall include adult materials, sexual materials, materials advocating violence or hatred, or any material the display of which may be a federal and/or state crime. (f) Publicity and Marks. Each party shall (i) submit to the other all advertising, written sales promotions, press releases and other publicity matters relating to this Agreement (other than such materials disseminated solely on an internal basis) in which any of the other party's trade name, trademark, service mark, logo or other similar indicia of identity or source (collectively, "Marks") are used and (ii) not publish or use any such advertising, sales promotions, press releases or other publicity matters without the other party's prior written consent. Each party shall comply with the other party's requirements regarding the format and placement of its Marks. Neither party shall take any action to register or otherwise interfere with the other party's interests in its Marks. Unless specifically provided for herein, neither party shall adopt or otherwise use any trademark, trade name, service mark, logo, or symbol that is similar to, or likely to be confused with, any of the other party's Marks. Each party's use of the other party's Marks shall inure to the benefit of the other party. (g) Liability Limitations. In the event either party shall be liable to the other for any matter arising out of or related to this Agreement, the amount of damages recoverable against the other shall not include, nor will the other party be liable for, any indirect, incidental, consequential or punitive damages of any party, including third parties. In no event shall either party's liability exceed the greater of (i) $10,000 (U.S.), or (ii) the amount of Participation Commissions actually paid pursuant to this Agreement. The provisions of this section will survive the expiration or earlier termination of this Agreement. This Section shall not apply to (i) either party's obligations set forth in Section 3(i) below, (ii) breaches by a party of its obligations in Section 4 below, or (iii) the willful or reckless acts or omissions of a party, its agents or employees. Notwithstanding the foregoing, no limitation of liability shall apply with respect to any claim that arises out of your fraudulent, criminal or other intentional misconduct, or your breach of misappropriation of any trademark, copyright or other intellectual property of any third party, or your intentional or tortious interference, or participation therein with a third party, with Our contractual rights or customer relationships. (h) Dispute Resolution/Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Connecticut, without regard to the conflict of laws rules of any jurisdiction. The parties shall first attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation. If the parties are unable to resolve the dispute by negotiation, either party shall have the right to submit the dispute to binding arbitration ("Arbitration"). Such Arbitration shall be conducted under the rules of the American Arbitration Association's Commercial Arbitration Rules. The arbitrator will be selected by agreement of the parties. If the parties cannot agree on an arbitrator, an arbitrator will be designated by the American Arbitration Association. Any arbitrator so designated must be acceptable to all parties. The arbitrator shall have the authority to award compensatory damages only. The award rendered by the arbitrator shall be final, binding and non-appealable, and judgment upon such award may be entered by any court of competent jurisdiction. Other than those matters involving injunctive relief as a remedy, including during a pending Arbitration, or any action necessary to enforce the award of the arbitrators, the provisions of this paragraph shall be a complete defense to any suit, action or other proceeding instituted in any court with respect to any dispute, controversy or claim arising out of or related to this Agreement, or the creation, validity, interpretation, breach or termination of this Agreement. Each party shall be responsible for its own expenses, including legal fees, incurred in the course of the Arbitration. The fees of the arbitrator shall be divided evenly between the parties. The Arbitration shall be conducted in Hartford, Connecticut. The provisions of this paragraph will not prevent either party from seeking (i) equitable relief regarding the other party's breach of its confidentiality provisions of the Agreement or (ii) specific performance of the other party's material breach of its obligations under this Agreement. Both parties agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their responsibilities under this Agreement that are not affected by the dispute. (i) Indemnification. Each party agrees to indemnify, defend and hold the other party, its directors, officers, employees and agents harmless from and against any and all costs, liabilities, expenses, judgments, damages and other losses (including, without limitation, reasonable attorney’s fees, costs, judgments, awards, settlement amounts and expenses with respect thereto) arising from any third party claim or action that is caused by, or results from, (i) a breach of any of the party's representations or warranties contained in this Agreement, (ii) the party's willful misfeasance, bad faith or gross negligence in the performance of or failure to perform as provided in this Agreement, (iii) any claim made by any third party that the use by a party of any of trademarks or trade names of the other party as permitted by this Agreement infringes any trademark or any other intellectual property or proprietary right of such third party, (iv) any claim made by a third party that the indemnifying party’s website, or any data, software, method, service or material provided by the indemnifying party, (1) infringes any patent, copyright, trademark, trade secret or any other intellectual property or proprietary right of such third party, or (2) violates any applicable law including, without limitation, any right of privacy. In the event an indemnification obligation arises under this Agreement, (i) the party seeking indemnification (without limitation on the indemnifying party’s indemnity obligations) shall use reasonable efforts to notify the indemnifying party promptly of the claim (provided, however, that the failure of the indemnified party to provide timely notice will only relieve the indemnifying party from its obligations hereunder to the extent that such late notice prejudiced its defense or resulted in increased losses); (ii) the indemnifying party shall assume defense of the claim with counsel reasonably acceptable to the party seeking indemnification; (iii) neither party shall enter into a settlement or other resolution of the claim that imposes liability on the other party without the other party’s prior written consent; and (iv) the party seeking indemnification shall, at the indemnifying party’s expense, provide reasonable cooperation to the indemnifying party in defending or settling the claim. The obligations in this <B>Section 3(i)</B> shall survive the expiration or earlier termination of this Agreement. 4. Confidentiality We and you each agree to keep confidential the other party's Confidential Information, and that the Confidential Information will not, without the other party's consent, be disclosed in any manner whatsoever, in whole or in part, and shall not be used other than as contemplated by this Agreement. The information contained in this Agreement and any and all information regarding the booking engine technology, including users manuals, report layouts, administrative screens and functions constitutes Confidential Information of Ours. Further, each party will share the Confidential Information with only those persons within its company (and its advisors) who need to know the Confidential Information for the purpose of assisting in the performance of the Agreement and who are informed of, and agree to be bound by the terms hereof as if a party to, this Agreement. For the purposes of this Agreement, "Confidential Information" shall mean information that is marked "CONFIDENTIAL," "RESTRICTED" or "PROPRIETARY," or which by its nature or context should be reasonably understood to be confidential information of such party or its licensors or subcontractors. Without limiting the foregoing, Confidential Information shall include non-public, confidential, and proprietary information, including information regarding pricing, commissions, rates, terms, vendors, programs, processes, and practices, relating to a party's business operations or pursuant to this Agreement. Confidential Information does not include information that (i) is or becomes publicly available other than as a result of acts by the other party in violation of this Agreement, (ii) is already in the possession of the other party prior to disclosure of that information, (iii) is or becomes available to the other party from a source that, to that party's best knowledge, is not bound by a confidentiality agreement prohibiting such disclosure, or (iii) is independently developed by the receiving party. The receiving party may disclose the disclosing party's Confidential Information as required under applicable law or regulation; provided, however, that (i) the receiving party must give the disclosing party prompt written notice prior to such disclosure (where permitted by law) and make a reasonable effort to obtain a protective order against such disclosure, and (ii) any such disclosure shall be limited in scope, nature and degree to that deemed necessary by competent counsel. The obligations in this Section 4 shall survive the expiration or earlier termination of this Agreement 5. Advertising (a) Predatory Web Advertising. You agree to prohibit your website(s) from predatory advertising methods. Predatory advertising is defined as any method that creates or overlays links or banners on websites, spawns browser windows, or any method invented to generate traffic from a website without that website owner's, knowledge, permission, and participation, including the use of spyware, adware or other malware. (b) Keyword Advertising. Unlike other operators who want to limit your ability to effectively market your services, you may engage in keyword advertising, even if it is competitive with any retail sites we may directly operate or own. 6. Referral Fees Unlike other operators, you may solicit and refer other participants to Our network. In such case, We will also pay you a referral fee. The referral fee shall be an amount equal to ten percent (10%) of the Participation Commission, less applicable deductions, that are paid to the referred affiliate participant. In order to qualify and earn a referral fee, the referred affiliate must disclose your name in writing as a bona-fide referring party on its Affiliate Program Agreement or otherwise confirm the referral in writing within five (5) days of the date the Affiliate Program Agreement was submitted to Us. In no case will referral fees be earned or recognized if the referral confirmation is not received by Us prior to the date when the new participant first displays Our Links on any of its sites. 7. Force Majeure NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN TO THE CONTRARY, YOU AGREE THAT WE SHALL NOT BE LIABLE FOR THE FAILURE TO PROVIDE ANY OF THE GOODS OR SERVICES HEREIN SET FORTH IF SUCH FAILURE IS DUE TO ANY CAUSE OR CONDITION BEYOND OUR REASONABLE CONTROL FOR SUCH TIME THAT SUCH CONDITION PERSISTS. SUCH CAUSES OR CONDITIONS SHALL INCLUDE ACTS OF GOD OR OF A PUBLIC ENEMY, ACTS OF THE FEDERAL, STATE OR LOCAL GOVERNMENT OR AGENCY IN EITHER A SOVEREIGN OR CONTRACTUAL CAPACITY, FAULT OF CUSTOMER OR CUSTOMER'S THIRD PARTY SUPPLIERS, REFUSAL OR INABILITY OF A COMMON CARRIER TO PROVIDE COMMUNICATIONS CAPABILITIES, EARTHQUAKES, HURRICANES, SHORTAGES OF LABOR, ACTS OR THREATENED ACTS OF TERRORISM OR ENERGY OR MATERIAL, FREIGHT EMBARGOES AND UNUSUALLY SEVERE WEATHER. In addition, you acknowledge and agree that in providing the goods and services hereunder, We may rely on the services or products of third parties. We shall not be liable to you or any other party relating to any claim, injury or loss arising out of any delays, actions or inactions, misrepresentations, defects, inaccuracy in data or descriptions, interruptions or failures caused by or related to such third parties. 8. Independent Contractor Status The parties agree that We shall be an independent contractor and not an agent, employee or representative of you. You shall have no right to direct or control the details of Our work. We shall be responsible for Our own business overhead and costs of doing business relating to the provision of services contemplated hereunder, except as expressly provided in this Agreement. Nothing herein shall be deemed to create a partnership, joint venture or any other similar joint business or ownership interest between the parties. 9. Entire Agreement This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes and replaces all prior discussions, agreements, proposals, understandings, whether orally or in writing, between the parties related to the subject matter of this Agreement. This Agreement may be changed, modified or amended only in a written agreement that is duly executed by authorized representatives of the parties. If any provision hereof is deemed to be illegal or unenforceable by a court of competent jurisdiction, the enforceability or effectiveness of the remainder of the Agreement shall not be effected and this Agreement shall be enforceable without reference to the unenforceable provision. No party's waiver of any breach or accommodation to the other party shall be deemed to be a waiver of any subsequent breach. Agreed to by the undersigned parties as of the date you are accepted by Us as provided above. Hotels Direct Network, Inc. Applicant: As disclosed on the online application information submission Form submitted on clicking the "Submit" button below, if processed online. Or, if manually signed and submitted If you are manually submitting this Agreement, please Facsimile the signed form to: 1-866-413-5400 Attention: Processing Department show printer friendly version
