This Affiliation Agreement (this “Agreement”) dated as of the Effective Date specified above, is made and entered into by and between IAN.com, LP, a Delaware limited partnership whose registered office is 16055 Space Center Blvd., Suite 235, Houston, Texas, 77062, USA, VacationSpot S.L., a Spanish limited company (together “IAN“), and the parties whose names and address appear above (“Affiliate“) and (“Affiliate’s Trading Company”) respectively. The Affiliate and Affiliate’s Trading Company together may be referred to as (“Party”) and IAN may be referred to individually as (“Party”) or collectively as (“Parties”). Affiliate’s Trading Company is wholly owned by the Affiliate.
Affiliate is the beneficial owner of the Marks and Materials defined in section 4.1 and has licensed the Affiliate’s Trading Company to exploit and in particular grant sublicenses of the Marks and Materials. IAN carries on business as a provider of travel products to consumers and wishes to donate part of the proceeds to Affiliate. IAN is therefore a commercial participator in relation to the Affiliate as defined in section 58 of the Charities Act 1992 (the “Act”) and has entered into this Agreement to comply with the Act and the Charitable Institutions (Fundraising) Regulations 1994 (as amended).
The Parties desire, subject to the terms of this Agreement, that Affiliate participates in IAN’s affiliate program under which Affiliate will provide links from certain of its websites to a hosted website created and maintained by IAN, where customers can book travel products and services.
Affiliate [Trading Company] will actively market the travel products offered by IAN from time to time (the “IAN Travel Products”) in accordance with the terms of this Agreement through the Affiliate Web Site(s) listed above, and any successor or replacement thereto (“Affiliate Site(s)”). Additional websites may be added as Affiliate Sites under this Agreement upon the written agreement of the Parties.
This Agreement hereby incorporates by reference the Terms and Conditions and all schedules attached hereto. The Parties hereby agree to all terms of this Agreement, effective as of the Effective Date.
SECTION 1 HOSTED SITE
1.1 The Hosted site In consultation with Affiliate, IAN will create, develop and maintain a website (the “Hosted Site”) in accordance with the provisions of this Agreement and consistent with IAN’s standard website template that allows consumers to access and book the IAN Travel Products through such Hosted Site. The Hosted Site will be co-branded with the trademarks, logos and other brand markings of both Affiliate and IAN. IAN will establish a unique URL for the Hosted Site that will enable IAN to track travel bookings through the Hosted Site.
1.2 Hosted Site Links. IAN will provide Affiliate with one or more graphic images to be used as hypertext or other navigational links from the Affiliate Sites to the Hosted Sites (the “Links”). Affiliate will place one or more Links in a prominent and conspicuous position on the Affiliate Site(s). All Links will navigate users directly to the Hosted Site. Use of any Links and the placement thereof is subject in each case to the prior approval of IAN. Affiliate will use such Links solely for the foregoing purpose and in accordance with any trademark guidelines that may be furnished by IAN from time to time.
1.3 Exchange of Information. IAN will provide Affiliate with web based access to information about the number and value of bookings through the Hosted Site and shall allow Affiliate, its employees, agents and professional advisers to inspect, audit and take copies of any financial information, books, documents and other records relating to the Affiliate and kept for the purposes of this Agreement. Affiliate will provide IAN with monthly reports about monthly unique visitors to Affiliate Site(s) and the monthly unique visitors to each web page where the Affiliate has placed Links to the Hosted Site.
SECTION 2 PAYMENT
2.1 Definitions For the purposes of this section and for the remainder of the agreement:
“Consumed” means in the context of a Net Rate Room Booking, an accommodation stay for which the check out day of such stay has occurred.
“IAN Booking Tools” means the Hosted Site.
“Net Rate Room Booking” means a booking of accommodation through the IAN Booking Tools for which the rental rate is contracted in advance by IAN on a net rate basis.
“Booking Price” means the total amount paid by the customer for a Net Rate Room Booking inclusive of all taxes, commission and other charges payable in connection with the booking.
2.2 Payments In respect of each Net Rate Room Booking made through the IAN Booking Tools during the Term of this Agreement, IAN will pay Affiliate’s Trading Company a sum equal to at least [ …]% of the Booking Price (each, a “Payment”). Payments will be made only on transactions through the IAN Booking Tools which originate from Affiliate Site(s) and only in relation to Net Rate Room Bookings. No Payment will be paid on any subsequent booking by the same customer unless such booking is also made through the IAN Booking Tools and originates from the Affiliate Site(s). IAN will retain the right to adjust the commission percentage from time to time in order to adjust for market conditions.
2.3 All Payments made to Affiliate’s Trading Company made under this Agreement are inclusive of sales, use, value added or other taxes (if any) related to the Payments. Notwithstanding any other provision to the contrary herein, Affiliate’s Trading Company shall be responsible for any and all taxes, duties and impositions imposed on either Affiliate or Affiliate’s Trading Company resulting from this Agreement, including interest and penalties thereon and additions thereto.
2.4 No payment will be made to Affiliate in relation to transactions involving travel products other than Net Rate Room Bookings.
2.5 IAN will pay to Affiliate’s Trading Company by the fifteenth (15th) of each month all Payments due for Net Rate Room Bookings Consumed during the previous month. Notwithstanding anything to the contrary in this Agreement, Affiliate’s Trading Company will not be entitled to any Payments resulting from transactions that are subsequently cancelled, refunded, charged back, disputed by the customer, result from fraudulent or other unlawful activity, or for which IAN does not receive payment (collectively, “Void Transactions”). IAN may deduct and offset any Payments previously made to Affiliate’s Trading Company in respect of such Void Transactions from subsequent Payments made.
2.6 Reconciliation At the end of each calendar year during the Term of the Agreement, IAN will carry out a reconciliation of Payments made to Affiliate during the preceding twelve (12) months. In the event that IAN has paid Affiliate below an average of […]% of the Booking Price per Net Rate Room Booking, a true-up will take place by the fifteenth (15th) of the following month. In the event that IAN has paid Affiliate above an average of […]% of the Booking Price per Net Rate Room Booking, IAN will set off this amount against Payments accrued during the first month of the following calendar year.
2.7 Solicitation statement IAN shall ensure that any representation that Payments shall be made to the Affiliate or the Affiliate’s Trading Company are accompanied by the following statement:
“At least [insert appropriate percentage] % of the total booking price paid by the customer in respect of any prepaid hotel room booking shall be paid to [insert name of Affiliate’s Trading Company] a trading subsidiary of and which pays its taxable profits to [insert name of Affiliate and its charity number if applicable] under the gift aid scheme.”
SECTION 3 TERM AND TERMINATION
3.1 The term of this Agreement (the “Term“) will commence upon the Effective Date and, subject to earlier termination as set forth below, will terminate on the third (3rd) anniversary of the Effective Date (the “Initial Term“); provided, that the Term will automatically renew for one or more successive one (1) year periods (each, a “Renewal Term“) if neither Party gives the other written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable.
3.2 Any Party shall be entitled to terminate this Agreement if a resolution is passed or order made for the liquidation of one of the Parties or a receiver is appointed over all or part of its business or assets.
3.3 If either Party is in breach or default under any provision of this Agreement, in addition to such other remedies as may be available, the non-defaulting Party may terminate the Term by providing written notice to the defaulting Party of the nature of the breach or default and intent to terminate. Such termination will be effective thirty (30) days after such notice unless the defaulting Party cures such default within such thirty-day period.
3.4 Sections 5-10 will survive the termination of the Agreement.
SECTION 4 LICENSES
4.1 License to Marks and Materials. Subject to the terms of this Agreement, each Party (the “Licensor“) hereby grants the other Party (the “Licensee“) a non-exclusive, nontransferable (except as provided in Section 10.3), royalty-free, worldwide license to use, distribute, reproduce, perform and display such of the Licensor’s and its affiliates’ trade names, trademarks, service marks, logos or other similar indicia of identity or source (collectively, “Marks”) and all images, text and other copyrighted materials (collectively, “Materials”) identified in Schedule 1 for use under this Agreement.
IAN shall state the Affiliate’s registered charity number on all pages of the Hosted Site and other documents when soliciting funds for the Affiliate.
4.2 Use of Marks and Materials. Each Party will (a) submit to the other Party all proposed uses (other than materials disseminated solely on an internal basis) of the other Party’s Marks or Materials, and (b) not publish or otherwise engage in any use such Marks or Materials without the other Party’s prior written consent. Each Party will comply with the other Party’s requirements regarding the format and placement of its Marks. Neither Party will take any action to register or otherwise interfere with the other Party’s interests in its Marks. Unless specifically provided for herein, neither Party will 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. All goodwill from each Party’s use of the other Party’s Marks will inure to the benefit of the other Party.
4.3 Reservation of Rights. Each Party reserves all rights not expressly granted herein. As between the Parties: (a) Affiliate is the owner of and reserves all right, title and interest in and to the Affiliate Site(s) (other than IAN Marks and Materials therein), Affiliate Marks and all Affiiliate Materials; and (b) IAN is the owner of and reserves all right, title and interest in and to the Hosted Site (other than Affiliate Marks and Materials therein), the Specifications, the IAN Marks and all IAN Materials.
SECTION 5 PROHIBITED ACTIVITIES
5.1 Prohibited Activities. IAN, Affiliate and Affiliate’s Trading Company each covenant that during the Term of this Agreement it will not: (a) send unsolicited bulk e-mail or engage in other unethical or illegal marketing activities, (b) place material on any site linked to any site of the other Party that is inappropriate for general and family viewing (e.g., sexually explicit materials, materials advocating violence or hatred, or any material the display of which may be unlawful), or (c) mislead or misrepresent to consumers as to the origin, affiliation or nature of its websites, products or services, or (d) bring the Marks and Materials into disrepute in anyway whatsoever and that none of its activities or those of any subsidiary or holding company are or will be detrimental to the activities of the other Parties. In addition, Affiliate will not allow and will take reasonable steps to prevent any direct or indirect extraction, repurposing and/or aggregation of IAN Travel Product data made available to Affiliate under this Agreement (e.g., inclusion of IAN Travel Product data in consolidated third party search results) without the prior written consent of IAN.
5.2 Predatory Advertising. Affiliate will not to use and will prohibit its websites from using any predatory advertising methods. Predatory advertising means 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 (e.g., keyword parsing browser plugins such as TopText and +Surf, banner replacement technology such as Gator, browser spawning technology that is not website dependent).
5.3 Keyword Advertising. Affiliate will not bid on the names that are present in URL’s owned by IAN or its Corporate Affiliates, including, but not limited to, “travelnow.com,” “hotels.com, “hotels.co.uk,” “condosavers.com,” “orlando.com,” “expedia.com” and “hotwire.com” for preferential placement in any cost per click search engine or other search engine in which search result page listing order is determined by payment to the search engine or other third party. Further, Affiliate will not use names that are present in URL’s owned by IAN or its Corporate Affiliates, including, but not limited to “travelnow.com,” “hotels.com,” “hotels.co.uk,” “condosavers.com,” “orlando.com,” “expedia.com” and “hotwire.com” in keyword meta tags on any pages of the Affiliate Site(s) or any other websites owned and/or operated by Affiliate.
SECTION 6 CONFIDENTIALITY
If the Parties have executed a valid and currently effective non-disclosure agreement that covers exchanges of confidential information arising out of or related to this Agreement (an “NDA”), then the terms of such NDA will govern and control all such exchanges of information. In the event of any conflict between the NDA and this Agreement, the NDA will take precedence. If no such NDA exists, then each Party agrees to treat any information relating to the other Party’s business affairs, proprietary information or finances as confidential where knowledge or details of the information was received during the period of this Agreement and will use such confidential information solely for the purposes for which it is provided and will not disclose such confidential information to any third party, and will protect such confidential information from unauthorized use and disclosure; provided, that the foregoing obligations will not apply to any (a) information that becomes generally publicly available through no fault of the recipient, (b) information that the recipient obtains from a third party (other than in connection with this Agreement); (c) information that is independently developed or acquired by the recipient; (d) disclosure with the prior written consent of the disclosing Party; or (e) disclosures which are required by applicable law. Notwithstanding the foregoing, the recipient may disclose such confidential information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing Party sufficient prior notice in order to contest such request, requirement or order. For the purposes of this Agreement, any entity that controls, is controlled by or is under common control with a Party will not be considered a third party.
SECTION 7 INDEMNIFICATION
7.1 General Indemnification. Each of IAN and Affiliate (as applicable, the “Indemnifying Party“) will defend, indemnify and hold harmless the other Party (the “Indemnified Party“) and its affiliates (and their respective employees, directors and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable legal fees) arising out of any claim by a third party against an Indemnified Party (a “Claim“) to the extent such Claim is based on: (a) any actual or alleged breach of the Indemnifying Party’s representations, warranties, or obligations set forth in this Agreement; (b) any gross negligence or willful misconduct of the Indemnifying Party; or (c) any claim that any use by an Indemnified Party of the Materials or Marks of the Indemnifying Party as permitted under this Agreement violates applicable law or infringes any intellectual property rights of any third party and/or any other actual or alleged misuse of a third party’s trademarks by the Indemnifying Party.
7.2 Indemnification Procedure. In connection with any Claim, the Indemnified Party will: (a) give the Indemnifying Party prompt written notice of the Claim (provided that any delay in notification will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the delay impairs its ability to defend; (b) cooperate reasonably with the Indemnifying Party (at the Indemnifying Party’s expense) in connection with the defense and settlement of the Claim; and (c) permit the Indemnifying Party to control the defense and settlement of the Claim, provided that (i) the Indemnifying Party may not settle the Claim without the Indemnified Party’s prior written consent if such settlement includes any admission of civil or criminal liability by the Indemnified Party or would otherwise result in any unindemnified damages on the part of the Indemnified Party, and (ii) the Indemnified Party (at its cost) may participate in the defense and settlement of the Claim with counsel of its own choosing.
SECTION 8 DISCLAIMER
THE HOSTED SITE, SPECIFICATIONS, AFFILIATE NUMBER, AND THE IAN TRAVEL PRODUCTS ARE PROVIDED BY IAN “AS IS” AND WHERE AVAILABLE, AND IAN MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SAME. IAN EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, OBLIGATIONS AND LIABILITIES ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE HOSTED SITE, SPECIFICATIONS, AFFILIATE NUMBER AND THE IAN TRAVEL PRODUCTS, INCLUDING WITHOUT LIMITATION ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; OR (C) IMPLIED WARRANTY OF NONINFRINGEMENT. Affiliate hereby acknowledges that the IAN Travel Products booked through the IAN Booking Tools, as applicable, are sold to customers by the applicable travel suppliers and not by IAN. IAN will have no liability to Affiliate or any customers for (i) any failure of the systems of IAN or any third party that results in the failure or inability to process a transaction through the IAN Booking Tools, or (ii) the quality of the IAN Travel Products provided by travel suppliers to customers.
SECTION 9 LIMITATION OF LIABILITY
9.1 No Consequential Damages. EXCEPT FOR CLAIMS ARISING OUT OF BREACH OF SECTION 6 (CONFIDENTIALITY), CLAIMS UNDER SECTION 7 (INDEMNIFICATION) OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES OR LOSS OF DATA, REVENUE, PROFIT, OR SAVINGS OF ANY PARTY, INCLUDING THIRD PARTIES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Limitation of Liability. EXCEPT FOR CLAIMS ARISING OUT OF BREACH OF SECTION 6 (CONFIDENTIALITY), CLAIMS UNDER SECTION 7 (INDEMNIFICATION) OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING IN CONTRACT, EQUITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) THE TOTAL PAYMENTS PAID OR PAYABLE BY IAN TO AFFILIATE UNDER THIS AGREEMENT IN THE MOST RECENT TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY, AND (B) ONE-HUNDRED THOUSAND DOLLARS ($100,000). NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT THE LIABILITY OF A PARTY WITH RESPECT TO DEATH OR PERSONAL INJURY ARISING OUT OF ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES.
THE AFFILIATE ACKNOWLEDGES AND AGREES THAT WHERE A PRODUCT OFFERED BY IAN HEREUNDER IS OBTAINED FROM A THIRD PARTY INTERMEDIARY WHO IS MAKING SUCH PRODUCT AVAILABLE FROM VARIOUS TRAVEL SERVICE SUPPLIERS ALL LIMITATIONS OF LIABILITY UNDER THE AGREEMENT SHALL APPLY TO SUCH THIRD PARTY INTERMEDIARY, AND THAT THE THIRD PARTY INTERMEDIARY SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO SUCH PRODUCTS. The third party intermediary is an express third party beneficiary of the provisions of this Agreement, and such that third party intermediary will be entitled to the rights and benefits under this Section 9.
9.3 Force Majeure. No Party shall be liable for any delay or non performance of its obligations under this Agreement to the extent that its performance is interrupted or prevented by any act or omission beyond its reasonable control. Such delay or non-performance shall not constitute a breach of this Agreement provided that if such delay or failure persists for ninety (90) days or more, the Party not affected may, at its option and if in its opinion it is reasonable for it to do so, terminate this Agreement by giving fourteen (14) days written notice of such termination to the other Party.
SECTION 10 MISCELLANEOUS
10.1 Governing Law and Dispute Resolution. This Agreement and all rights and obligations hereunder, including matters of construction, validity, performance and dispute resolution, shall be governed by and construed in accordance with the substantive laws of England and Wales, United Kingdom, without regard to any conflict of laws, rules or principles that may require the application of any other law or where this Agreement or any amendment to it is actually executed. Any dispute, controversy or claim arising out of or in relation to this Agreement or at law, or the breach, termination or invalidity thereof, that cannot be settled amicably by agreement between the Parties, shall be finally settled by binding arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce then in force, by one or more arbitrators appointed in accordance with such rules, provided that this clause shall not be construed to limit any rights which either Party may have to apply to any court of competent jurisdiction for injunctive or other provisional relief. This arbitration provision shall be deemed self-executing, and in the event that either Party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such Party notwithstanding said failure to appear. Such arbitration shall be administered by the International Chamber of Commerce, in London, England. The arbitration proceedings shall be conducted in English. All documents and agreements relative to any such dispute shall be read, interpreted, and construed from the English versions thereof. The award rendered shall be final and binding upon both Parties. Judgment upon the award may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and/or an order of enforcement as the case may be. The Parties agree that (i) the award of the arbitrator(s) shall be the sole and exclusive remedy between them regarding any claims, counterclaims, issues, or accountings presented or pled to the arbitrator(s) and shall be binding and enforceable against them; (ii) such award shall be made and shall be promptly payable in U.S. dollars free of any tax, deduction, or offset; and, (iii) any costs, fees, or taxes incident to enforcing the award shall, to the maximum extent permitted by law, be charged against the Party resisting such enforcement. The award shall include interest from the date of any damages incurred for breach or other violation of the Agreement, and from the date of the award until paid in full, at the highest rate permitted by applicable law, and reasonable legal fees and costs of investigation of the prevailing Party. All notices by one Party to the other in connection with the arbitration shall be in writing and shall be deemed to have been duly given or made if delivered or mailed in accordance with this Agreement. Except where clearly prevented by the area in dispute, the Parties agree to continue to perform their obligations under the Agreement while the dispute is being resolved unless and until the Agreement expires or is terminated in accordance with its terms. Each Party waives to the fullest extent permitted by law trial by jury of all claims arising out of or relating to this Agreement. The provisions of this paragraph will not prevent either Party from seeking (i) injunctive 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.
10.2 Notice. Notice hereunder will be deemed given if in writing and delivered in person or sent by registered or recorded first class mail to the Parties at their respective addresses specified on the cover page of this Agreement, or to such other addresses of which notice hereunder has been given. Notice will be effective upon delivery in person or three (3) days after deposit by certified or registered mail, return receipt requested to the address specified herein.
10.3 Assignment. This Agreement may not be assigned by any Party without the prior written consent of the other Parties to this Agreement; except, that IAN may assign this Agreement without consent to: (a) any entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with IAN; or (b) any purchaser of all or substantially all of IAN’s assets or to any successor by way of merger, consolidation or similar transaction. Any purported assignment in violation of this section will be null and void.
10.4 Relationship of Parties. The Parties hereto are independent contractors and nothing herein will be deemed to create a partnership, joint venture, franchise or any agency or employment relationship between them. This Agreement is solely for the benefit of, and will be solely enforceable by, the Parties hereto. This Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a Party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement and accordingly, the Contracts (Rights of Third Parties) Act 1999 shall not apply to the provisions of this Agreement.
10.5 Nonwaiver. No waiver of any term, condition or obligation of this Agreement will be valid unless made in writing and signed by the Party to which such performance is due. No failure or delay by any Party at any time to enforce one or more of the terms, conditions or obligations of this Agreement will (a) constitute waiver of such term, condition or obligation, (b) preclude such Party from requiring performance by the other Party at any later time, or (c) be deemed to be a waiver of any other subsequent term, condition or obligation, whether of like or different nature.
10.6 Severability. This Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Agreement is held to be invalid or unenforceable, then such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision.
10.7 Entire Agreement. This Agreement constitutes the entire and exclusive agreement between the Parties regarding the subject matter hereof, and supersedes all prior or contemporaneous oral or written agreements and understandings. This Agreement may not be modified in whole or in part except in a writing signed by a duly authorized representative of both Parties. This Agreement may be signed in two or more counterparts, each of which will be deemed an original, and all of which together will constitute one and the same agreement.
