EXPEDIA
AFFILIATE PROGRAM AGREEMENT
Thank you for your interest
in participating in the Expedia Affiliate Program (the “Program”).
In order to enroll as an "Affiliate" in the Program, you will
first need to read and accept the terms of the Affiliate Program Agreement that
is provided below. If you accept the
terms of the Affiliate Program Agreement, you may begin the enrollment process
by submitting a completed program application (“Program Application”) to us through
our Web site. We will evaluate your Program
Application and notify you of your acceptance or rejection. We may reject your Program Application for
any or no reason. For example, we may
determine, in our sole discretion, that you are ineligible to participate or that
your site is unsuitable for the Program for any reason, including if your site
incorporates any Restricted Content (defined below). If we reject your Program Application, you
are welcome to reapply for participation in the Program at any time.
AFFILIATE
PROGRAM AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU (THE “AFFILIATE”)
AND EXPEDIA, INC., INDIVIDUALLY AND ON BEHALF OF TRAVELSCAPE, LLC (“EI”). PLEASE READ IT CAREFULLY. BY CLICKING ON THE “I AGREE” BUTTON AT THE
END OF THIS AGREEMENT, YOU AGREE THAT YOU HAVE CAREFULLY READ, UNDERSTAND AND
AGREE TO BE SUBJECT TO THIS AGREEMENT.
A Few preliminary matters
what this agreement does
This Expedia Affiliate Program Agreement (this “Agreement”)
contains the complete terms and conditions for your participation in the Program
and the establishment of links from your Web site(s) to Expedia (defined below). In this Agreement, “you,” “your” and “yours” means
the Affiliate, and “we,” “us,” “our” and “ours” means EI.
who is Automatically
ineligible
If you are an
Ineligible Party (defined below), you may not enroll in the Program. If you are an Ineligible Party and you still
wish to enroll in the Program, please email us at eap@expedia.com about this opportunity
because you must obtain prior written approval from us before you are eligible
to enroll in the Program. An “Ineligible
Party” is any travel agency (e.g., Travelocity, Orbitz, Priceline, or
Carlson Wagonlit), travel supplier (e.g., airline, hotel company, car rental
supplier or cruiseline), or other travel provider (e.g., GDS, meta travel
search engine (e.g, Kayak or Sidestep)), or any successor, employee, agent or corporate
affiliate (i.e., any person or entity that, directly or indirectly, controls,
is controlled by or is under common control with any Ineligible Party) of any
of the foregoing. If you have any
questions about whether you are or are not an Ineligible Party, please contact
us BEFORE you accept this Agreement. In addition, you specifically agree to do the
following: (a) terminate this
Agreement immediately if you become an Ineligible Party following your
enrollment in the Program; and (b) keep confidential any Confidential
Information (defined below) provided to you during your enrollment in the Program.
ANY BREACH OF THIS SECTION WILL BE
DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
what you agree to do and not do
Link to our Site
As an Affiliate, you will prominently display and maintain the graphical or
text links (including banner advertisements) and persistent hyperlinks in the
form of an EI logo or EI storefront booking form (“EI Icons”) provided to you
by us, or any addition to or substitute thereof that we may provide to you from
time-to-time, on one or more of your web sites, and any successor web site to
those sites, that have been accepted for participation in the Program (the “Affiliate
Site”). These EI Icons will Link (defined
below) directly to Expedia.
If we provide you with new or modified EI Icons, you will
need to implement the new EI Icons within thirty (30) days following receipt of
the update from us. You agree to comply
with the EI Icon Guidelines as available at http://www.expedia.com/daily/associates/EI_Icon_Guidelines.htm
and any replacement or additional guidelines that we may provide or make
available to you from time to time during the term of this Agreement (“EI Icon
Guidelines”). Additionally, we encourage
(but do not require) you to include a Link to the home page of Expedia.
You are required to actively market the travel
products (e.g., lodging, car rental, air ticket and cruise products) offered by
EI through Expedia. In no event,
however, will you or your agents make or extend any representation or warranty
on our behalf or with respect to Expedia or any products or services available through
Expedia. Unless otherwise indicated by
us, any new products offered through the Program will be covered by the terms
and conditions of this Agreement and subject to EI’s then current terms for
such products.
As used above and elsewhere
in this Agreement, the following definitions will apply: “Link” means either, as applicable
(a) one or more hyperlinks located on the applicable areas of your Affiliate
Site or Expedia, or (b) any other alternative method, connection or
program that enables a User (defined below) to directly access Expedia or
return to your Affiliate Site. Links
also include any connection to Expedia through the Internet, email, broadband, Internet
II, wireless and handheld devices, cell phones, digital appliances, or other
digital interactive means, networks, devices, or transmissions (whether
existing now or in the future). “Expedia”
means the Expedia.com and/or Expedia.ca Web sites,
and any successor or replacement Web site to either of the foregoing, as
operated and maintained by or for EI or a Corporate Affiliate (defined below)
of EI, and the software code, informational databases, products, and other
components that make up our service which is marketed for use by
individual end users, at our sole discretion, to enable such end users to shop
for, reserve, book and pay for travel products and/or services via a computer,
telephone (or other interactive device) connected to the Internet or any other
network including, without limitation, any and all
additional, follow-on, successor or replacement versions of such service
whether offered under the “Expedia” name, the name of any Corporate Affiliate
of EI, or otherwise. “User”
means any individuals or entities that directly access Expedia through Links
from your Affiliate Site, but does not include any software program or routine
that generates a click‑through (i.e., each instance in which a User
navigates to and fully loads a page on Expedia, where “fully loads” means the
entire page is displayed on the electronic device that has accessed the page)
with no individual person actually present, such as shoppingbots or other
computer programming routines that are intended to scrape, mine, surreptitiously
intercept or expropriate any information for the purpose of comparison
shopping.
Maintain Your Site
At all times during your participation in the Program,
you will make sure that your Affiliate Site (a) is in compliance with all applicable
laws and regulations; (b) does not contain any material that is
fraudulent, defamatory or obscene; and (c) is suitable in all respects to
be Linked to Expedia. Your Affiliate
Site may not disparage us or contain any images or content that is in any way
unlawful, harmful, threatening, defamatory, obscene, harassing or racially,
ethically or otherwise objectionable.
Without limiting the foregoing, your Affiliate Site may not display or
link to other sites that display images or content that (i) depict
sexually explicit materials, (ii) promote violence, illegal activities, or
unlawful discrimination of any kind, or (iii) promote or incorporate any
materials which infringe or assist others to infringe the intellectual property
rights of others (collectively “Restricted Content”).
You also must make sure that your Affiliate Site does
not, in any way, copy or resemble the look and feel of Expedia (i.e., the distinctive and
particular elements of color, graphics, design, organization, presentation,
layout, user interface, navigation, trade dress and stylistic convention within
Expedia, and the total appearance and impression substantially formed by the
combination, coordination and interaction of such elements). You may not create an impression that your Affiliate Site is Expedia or part of
Expedia or any Corporate Affiliate of EI, nor will you frame any page on
Expedia being viewed by a User of your Affiliate Site who links to Expedia
through a Link.
We may test your Affiliate Site’s URL, and if such URL
is not in compliance with the terms and conditions of this Agreement, we may,
in our sole discretion and without limiting any other right or remedy to which
we may be entitled, (a) remove such non-conforming URL from the Program;
and/or (b) terminate this Agreement.
IDENTIFYING YOURSELF AS A PROGRAM
AFFILIATE
Upon your acceptance as an Affiliate in the Program,
we grant you a limited, nonexclusive, revocable, non‑transferable, non‑assignable,
right and license to use the “applicable EI Icon(s)” (as defined below), identified in the EI Icon Guidelines (as may be modified by us from
time to time without prior notice) during the term of this Agreement. For purposes of this Agreement, the phrase
“applicable EI Icons” will have the following meaning: if your Affiliate Site Links to or features
promotions from the Expedia.ca portion of Expedia, approved Affiliates are
entitled to use the Canadian Icons as identified on the EI Icon Guidelines; if
your Affiliate Site Links to or features promotions from the Expedia.com
portion of Expedia, approved Affiliates are entitled to use the U.S. Icons as
identified on the EI Icon Guidelines.
You may use the applicable EI Icons solely for the purpose of
identifying yourself as an Affiliate and to link to Expedia during the term of
this Agreement. You expressly agree to
conform all usage of the EI Icons to the terms of this Agreement and the
express terms of the EI Icon Guidelines, as may be modified by EI from time to
time.
You understand and agree that the EI Icons are the
sole property of EI and/or a Corporate Affiliate (as defined below) and that
your use of the EI Icons under this Agreement inures to the benefit of EI
and/or its Corporate Affiliate(s). You
agree never to challenge, interfere with or oppose the validity, enforceability
or ownership by EI (or any applicable EI Corporate Affiliate) of any trademark,
trade name, logo, trade dress, color combination or any combination of the
foregoing owned by EI, or any of its Corporate Affiliates, including the EI
Icons. Without limiting any other
provision of this Agreement, you understand and agree that your violation of
this license grant or any provision relating to your use of the EI Icons may
expose you to an action for preliminary injunction and/or damages, as well as
reasonable attorneys’ fees and costs associated with enforcement against you.
Avoid Unauthorized or
Prohibited Acts
Except for your limited right to use the EI Icons as
set forth in this Agreement, you will not use or display (directly or
indirectly) the EI Icons or any trademark, logo, or branding (including,
without limitation, any misspelling or substantially similar version thereof)
of EI or of any entity that, directly or indirectly, controls, is controlled by
or is under common control with EI (each, a “Corporate Affiliate”), in any
manner whatsoever (including, without limitation, in any domain name
registration effected by you or any person or entity under your control, or in any
search engine marketing or optimization, keyword purchasing, or in any other
online/offline marketing or advertising, press releases, etc.) without first
obtaining prior written approval from EI or its applicable Corporate Affiliate(s),
which may be denied in the sole discretion of EI or its Corporate Affiliate(s).
You shall not adopt, use, nor attempt to register with
any administrative or other body, any trademark, domain name, trade name, logo
or other branding or designation that includes any portion of any EI Icon, nor
any portion of any trademark, domain name or trade name of EI or any Corporate
Affiliate of EI, nor any trademark, domain name or trade name that is similar
to any EI Icon or any trademark, domain name, trademark or logo of any
Corporate Affiliate of EI. In no event
shall you or your agents make or extend any representation or warranty on our
behalf with respect to Expedia or its services.
Additionally, you shall not use the EI Icons in connection with any
feature on your web site(s) which feature either compares, or provides
comparisons of, travel search results of, or rates available from, Expedia and
at least one (1) other Ineligible Party.
You may not (a) access, monitor or
copy any content or information of Expedia or any Corporate Affiliate for any
purpose without the express prior written permission of EI or applicable
Corporate Affiliate; (b) violate the restrictions in any robot exclusion
headers on Expedia or any Corporate Affiliate or bypass or circumvent other
measures employed to prevent or limit access to Expedia or any Corporate Affiliate;
or (c) violate any provisions of the terms of use made available on
Expedia or any Corporate Affiliate.
You may not use any advertising method that creates or
overlays links, banners, or other advertising creative on web sites, browser
windows, or utilizes any other method, to generate Internet traffic from any
web site of EI or its Corporate Affiliates without the prior written consent of
EI or its Corporate Affiliates, which may be denied in the sole discretion of
EI or its Corporate Affiliates.
All rights not expressly granted are reserved by EI
and/or its Corporate Affiliates.
Allow Us to Use Your Marks
You authorize us to include at our election your
logos, trademarks, trade names and similar identifying material (“Your Marks”)
on Expedia in a listing of companies who are participating in the Program. You represent and warrant that you are the
sole and exclusive owner of Your Marks and have the right and power to grant to
us the license to use them in the manner described herein, and such grant does
not or will not breach, conflict with, or constitute a default under any
agreement or other instrument applicable to you; or infringe upon any
trademark, trade name, service mark, copyright, or other proprietary right of
any other person or entity. We will
remove Your Marks from any such lists upon the effective date of the expiration
or termination of this Agreement.
what help you will receive
Access to Links
We will provide you with one or more EI Icons, or any
substitute thereof that we, in our sole discretion, may provide to you from
time to time during the term of this Agreement. You may use the EI Icons only on your Affiliate
Site and only for purposes of Linking directly to Expedia pursuant to the terms
and conditions of this Agreement. Additionally, we will provide you with access
to the EI Icon Guidelines, or such replacement or additional guidelines as we
may deem necessary or appropriate and make available to you from time-to-time
during the term of this Agreement.
Customer Support
We will provide customer support and fulfillment
services to Users in accordance with our then-current standard terms and
conditions and standard customer service policies and procedures applying
generally to users of Expedia. We
reserve the right to refuse to provide customer/fulfillment services to a User
for a variety of reasons, including but not limited to: (a) purchase rejection by applicable
credit card company; (b) inability to authenticate credit card; (c) inability
to authenticate card holder; and (d) User’s purchase history with us
and/or our Corporate Affiliates.
Monthly Reports
We will make available to you monthly reports that set
forth, at a minimum, the number of Users to Expedia from your Affiliate Site,
and the number of Transactions (as defined below) completed by Users Linking
directly to Expedia from your Affiliate Site during the applicable month. A third party reporting agent, such as
Commission Junction, Inc. (the “Reporting Agent”), will assist us in fulfilling
our tracking and reporting requirements.
what else you WILL RECEIVE
You Earn Transaction Fees
You are eligible to earn Transaction Fees (defined
below) during the term of this Agreement on either a “Flat Rate” or
“Transaction Net Revenue” basis (in either case, the “Transaction Fees”), as follows:
As used herein, the
following definitions apply: “Merchant
of Record” means the entity whose
name appears on the credit card charge and to whom the applicable credit card
company will reimburse for the amount of the credit card charge. “Transactions” means, collectively, Agency
Hotel Transactions, Merchant Hotel Transactions, Air Transactions, Car
Transactions, Cruise Transactions, Destination Services/Activities
Transactions, and Travel Package Transactions, each as defined below. “Transaction Net Revenue” means, for
each Transaction for which travel has been completed, the total price actually
paid to and received by us and/or the applicable travel supplier by and from Users
who have directly effectuated the Transaction on Expedia, after deducting (a) amounts
for taxes and surcharges, tax recovery fees, duties, handling, and other
similar charges; plus (b) .05% of the total Transaction price for amounts
due to the travel supplier for credit card fraud and bad debt. In addition, for each Transaction where EI is
the Merchant of Record, 3% of the total Transaction price will be deducted for
credit card fees.
The Transaction Fee for each
Transaction set forth below shall be determined by Expedia from time to time
and can be found in the Program Terms at www.commissionjunction.com,subject to
the special rules below and other terms of this Agreement. Please click on the foregoing URL to see the
most current list of Transaction Fee amounts for each of the following types of
Transactions:
(a) “Air
Transaction” is a commenced trip
(round-trip, or one-way if no round-trip is booked) by one person or more, on a
single airline ticket for each person, where such transaction is completed by a
User who has directly accessed Expedia from your Affiliate Site via one of the
EI Icons or Links has booked travel on Expedia during a single browser session..
(b) “Agency
Hotel Transaction” is an
uninterrupted, commenced stay of any duration in one or more rooms or suites in
a single hotel or other accommodation property where (i) such reservation
or booking is completed by a User who has directly accessed Expedia from your Affiliate
Site via one of the EI Icons or Links and has booked travel on Expedia during a
single browser session, and (ii) EI is not the Merchant of Record for the
transaction.
(c) “Car
Transaction” is a commenced car
rental by one person, where such transaction is completed by a User who has
directly accessed Expedia from your Affiliate Site via one of the EI Icons or
Links and has booked travel on Expedia during a single browser session.
(d) “Cruise
Transaction” is one booking (which
may include one or more travelers) for a commenced cruise, for a stay of any
duration, where such transaction is completed by a User who has directly
accessed Expedia from your Affiliate Site via one of the EI Icons or Links and
has booked travel on Expedia during a single browser session.
(e) “Merchant
Hotel Transaction” is the reservation
of an uninterrupted, commenced stay of any duration in one or more rooms or
suites in a single hotel or other accommodation property where (i) such
reservation or booking is completed by a User who has directly accessed Expedia
from your Affiliate Site via one of the EI Icons or Links and has booked travel
on Expedia during a single browser session, and (ii) EI is the Merchant of
Record for the transaction.
(f) “Destination
Services/Activities Transaction” is a
commenced destination activity, tour or event by a User where (i) such
transaction is completed by a User who has directly accessed Expedia from your Affiliate
Site via one of the EI Icons or Links and has booked a destination activity,
tour or event on Expedia during a single browser session; and (ii) EI is
the Merchant of Record for the transaction.
(g) “Travel
Package Transaction” is a combination
of two or more applicable Transactions that have been effectuated by one User
through the Expedia vacation package wizard.
Special Rules
We will pay a Transaction Fee for a given Transaction
only if the User is tracked on our internal online ordering system from the
time the Link is initiated on your Affiliate Site to the time of the
booking. You agree that no Transaction
Fees will be paid if the User cannot be tracked by our internal ordering
system.
The Transaction Fee will not be paid in the event of
credit card fraud, bad debt, and credits due for cancellations or returns.
We will not be required to pay a Transaction Fee with
respect to any Transaction completed during any period in which you are in
violation of the terms of this Agreement.
We reserve the right to not pay a Transaction Fee on Transactions
for which we are not compensated by the travel supplier at our then-current
established standard levels, including, without limitation, on Transactions
involving promotional fares, rates, etc., offered at reduced or discounted
pricing.
Cruise Transactions are not available and may not be
completed on the Expedia.ca portion of Expedia.
Further, you are not eligible to earn Transaction Fees on any
pre-packaged vacation or stand-alone travel insurance transactions completed on
the Expedia.ca portion of Expedia.
The Transaction Fee for a Travel Package Transaction
will be paid based on the Transaction Net Revenue per applicable travel
component that is included in a Travel Package Transaction. For the avoidance of doubt, the Travel
Package Transaction Fees are paid instead of (and not in addition to) any
transaction fees that would be payable separately hereunder for each such
applicable travel component.
When and how you get paid
The Reporting Agent will pay you the Transaction Fees
earned for each month in accordance with and subject to the payment terms
agreed upon by you and the Reporting Agent.
what you need TO KNOW AND UNDERSTAND
We must comply with Supplier
agreements
The parties’ rights and obligations under this
Agreement may be subject to the terms of any agreement between EI and/or any of
its Corporate Affiliates and any supplier (e.g., air carrier, hotelier, car
rental agency, etc.).
We can Modify this Agreement
We may modify any of the terms and conditions in this
Agreement, at any time in our sole discretion, and such change will be
effective seven (7) days (or, if less, the number of days specified in the
terms agreed upon between you and the Reporting Agent) after we give you notice
(as provided herein) of the change. Notification
to you of any change by e-mail or posting of a change notice on Expedia and/or
the Internet site of the Reporting Agent, at our sole option, will be
considered sufficient notice to you of the change. Modifications may include, but are not limited
to, changes in the scope of available commission fees, commission schedules,
payment procedures, and Program rules. If any change is unacceptable to you, your
recourse is to terminate this Agreement. Your continued participation in the Program
following the effective date of the change will indicate your acceptance of the
change.
We may Suspend Performance
If we determine, in our sole discretion, that military
action or extraordinary political, economic, or other conditions or occurrences
beyond our control significantly impacts the travel business, our businesses,
access or navigation to Expedia from you or your business(es) and alters our
exposure under this Agreement, we may, at any time, suspend performance (in part
or whole) of any or all terms and conditions of this Agreement, suspend payment
due hereunder (in part or whole) or terminate the Agreement (in part or whole),
in our sole discretion. We will provide
you with written notice seven (7) days prior to the effective date of such
change(s).
When this Agreement Begins and
Ends
This Agreement will begin upon the date of the notice
accepting your Program Application and will end when terminated by either
party. Either party may terminate this
Agreement at any time: (a) with cause, by giving the other party written notice
of termination; and (b) without cause, by giving the other party seven (7) days
prior written notice of termination.
Written notice can be in the form of mail, email or fax.
What Happens When the
Agreement Ends
You are only eligible to earn Transaction Fees for
Transactions occurring during the term of the Agreement, and commissions earned
through the date of termination will remain payable as provided for in this
Agreement. If this Agreement is
terminated because (a) you have violated the terms of this Agreement
(including, without limitation, the EI Icon Guidelines), or (b) your Affiliate
Site contains any Restricted Content, you are not eligible to receive any
commission payments, even for commissions earned prior to termination. We reserve the right to withhold your final
payment for a reasonable time to ensure that the correct amount is paid. Upon termination or expiration of this
Agreement for any reason, you will immediately remove any EI Icon or Link from
your Affiliate Site. In addition, each
of the provisions under the section entitled "What Else You Need to Know
and Understand" below will survive any termination or expiration of this
Agreement.
What if you are Ineligible but
Participate Anyway
IF YOU ARE AN INELIGIBLE PARTY AND ENROLL IN THE AFFILIATE
PROGRAM, YOU AND WE AGREE THAT WE WILL BE MATERIALLY DAMAGED BY YOUR ACCESS TO
OUR CONFIDENTIAL INFORMATION IN AN AMOUNT THAT IS DIFFICULT TO ASCERTAIN. ACCORDINGLY, YOU AND WE AGREE THAT IF YOU ARE
AN INELIGIBLE PARTY AND ENROLL IN THE AFFILIATE PROGRAM, THAT YOU WILL PAY FIVE
HUNDRED THOUSAND DOLLARS (US$500,000.00) TO US AS LIQUIDATED DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN
THIS PROVISION WILL PREVENT US FROM PURSUING ANY OTHER REMEDIES AVAILABLE UNDER
APPLICABLE LAW.
IF, AFTER YOUR ENROLLMENT IN THE AFFILIATE PROGRAM,
YOU BECOME AN INELIGIBLE PARTY AND DO NOT IMMEDIATELY TERMINATE THIS AGREEMENT,
YOU AND WE AGREE THAT YOUR ACCESS TO, OR USE OF, OUR CONFIDENTIAL INFORMATION MAY
PUT US AT RISK. ACCORDINGLY, YOU AND WE
AGREE THAT IF: (I) YOU DO NOT KEEP CONFIDENTIAL THE CONFIDENTIAL INFORMATION
YOU OBTAINED; OR (II) YOU DO NOT TERMINATE THE AGREEMENT AS REQUIRED AND
THEREFORE CONTINUE TO ACCESS OUR CONFIDENTIAL INFORMATION, THAT WE WILL BE
MATERIALLY DAMAGED BY YOU IN AN AMOUNT THAT IS DIFFICULT TO ASCERTAIN AND YOU
WILL PAY FIVE HUNDRED THOUSAND DOLLARS (US$500,000.00) TO US AS LIQUIDATED
DAMAGES. NOTWITHSTANDING THE FOREGOING,
NOTHING IN THIS PROVISION WILL PREVENT US FROM PURSUING ANY OTHER REMEDIES AVAILABLE
UNDER APPLICABLE LAW.
what else you need TO KNOW AND UNDERSTAND
Who owns What
We or our Corporate Affiliates will own all
intellectual property rights (including without limitation all copyrights,
patents, trademarks and trade secrets) in connection with and in all versions
of Expedia. We will own all data
generated by Users of Expedia, and all of the terms and conditions, rules,
policies and operating procedures of Expedia (including but not limited to
policies relating to the use of customer personal identification information,
customer orders, customer service and ticket fulfillment) will apply to such
Users of Expedia; and we reserve the right to change such terms and conditions,
rules, policies and operating procedures at any time.
Representations and Warranties
You represent and warrant to us that (a) you are
currently, and that throughout the term of this Agreement you will continue to
be, in compliance with all applicable laws and regulations; (b) you are
not an Ineligible Party; (c) this Agreement has been duly and validly
executed by you by virtue of your clicking on the “I Agree” button at the end
of this Agreement and constitutes your legal, valid and binding obligation,
enforceable against you in accordance with its terms; and (d) the
execution, delivery, and performance by you of this Agreement are within your
legal capacity and power, have been duly authorized by all requisite action on
your part, require the approval or consent of no other persons; and neither
violate nor constitute a default under the provision of any law, rule,
regulation, order, judgment or decree to which you are subject or which is
binding upon you, or the terms of any other agreement, document or instrument
applicable to you or binding upon you. The representations and warranties in this Section
are continuous in nature and will be deemed to have been given by you upon your
acceptance via the “I Agree” button at the end of this Agreement and at each
stage of performance hereunder.
Indemnification
You agree to indemnify, defend, and hold harmless us
and our Corporate Affiliates, and their directors, officers, employees, agents,
shareholders, partners, members, and other owners, against any and all claims,
actions, demands, liabilities, losses, damages, judgments, settlements, costs,
and expenses (including reasonable attorneys' or other professionals’ fees) that
arise out of or are based on (a) any claim that our use of Your Marks or
any other materials you provide to us infringe on any trademark, trade name,
service mark, copyright, license, intellectual property, or another proprietary
right of any third party, (b) any misrepresentation of a representation or
warranty or breach of a covenant and agreement made by you herein, or (c) any
claim related to your Affiliate Site including, without limitation, content
therein not attributable to us.
Disclaimers
We make no express or implied
warranties or representations of any kind with respect to expedia or any other
components of the Program or any service, product or other items sold
through expedia or any other components of the Program, including, without
limitation, any implied warranties of merchantability, fitness for a particular
purpose or freedom from patent, trademark or copyright infringements, whether
arising by law, custom or conduct, or as to the accuracy or completeness of the
information provided by us. In addition,
we make no representation or warranty of any kind that the operation of Expedia
will be uninterrupted or error-free, and we will not be liable for the
consequences of any interruptions or errors.
Limitations of liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN
CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH
RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS
PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. THE FOREGOING LIMITATION WILL APPLY REGARDLESS
OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
Confidentiality
If you have entered into a Non-Disclosure Agreement (“NDA”)
with us, you agree that the terms of the NDA will be deemed to be incorporated
herein. If you have not entered into an
NDA with us, then you understand and agree that the following terms and
conditions will apply to all Confidential Information that we may disclose to
you as a result of your participation in the Program. For purposes of this Agreement, the term “Confidential Information” will
include, but not be limited to, the terms of this Agreement, any modifications
to the terms and provisions of the Agreement made specifically for your Affiliate
Site and not generally available to other members of the Program, business and
financial information, customer and vendor lists, and pricing and sales
information, concerning us or you, respectively, or any members of the Program,
other than you. Confidential Information
will also include any information that we designate as confidential during the
term of this Agreement.
You agree not to disclose any Confidential Information
and that such Confidential Information will remain strictly confidential and will
not be utilized, directly or indirectly, by you for your own business purposes
or for any other purpose except and solely to the extent that any such
information is generally known or available to the public or if same is
required by law or legal process.
General Provisions
You may not assign this Agreement, by operation of law
or otherwise, without our prior written consent. Subject to that restriction, this Agreement
will be binding on and enforceable against the parties and their respective
successors and assigns.
Our failure to enforce your strict performance of any
provision of this Agreement will not constitute a waiver of our right to
subsequently enforce such a provision or any other provision of this Agreement.
Each party will at all times be deemed to be an
independent contractor of the other, and nothing in this Agreement will be
deemed or construed to create any partnership, joint venture, employment,
agency or similar relationship.
We will not be liable for any failure to perform or
any delay in performing any obligation under this Agreement if such failure or
delay is the result of any event or other cause beyond our reasonable control.
This Agreement will be governed by the laws of the
This Agreement is the complete Agreement between the
parties and supersedes any prior oral or written agreement concerning the
subject matter.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS
AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME
(DIRECTLY OR INDIRECTLY) ENGAGE IN SIMILAR ARRANGEMENTS ON TERMS THAT MAY
DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE
SIMILAR TO OR COMPETE WITH YOUR AFFILIATE SITE.
YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN
THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT
OTHER THAN AS SET
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