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BACKGROUND
Hotwire, Inc. ("Hotwire") and you, the affiliate ("Affiliate") are each enrolled in The LinkShare NetworkTM and are parties to this Hotwire Affiliate Program Terms of Agreement ("Agreement").
Affiliate and Hotwire each desire to establish the general terms and conditions which shall govern advertising and commission arrangements between Affiliate and Hotwire which result from their participation in this Agreement and The LinkShare NetworkTM.
TERMS AND CONDITIONS
In consideration of the promises set forth below, Hotwire and Affiliate agree as follows:
1. Offers and Engagements
1.1. From time to time, Hotwire may post on The LinkShare NetworkTM offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below). If such offers receive an identification number from The LinkShare NetworkTM, they shall be deemed to be an "Offer" for purposes of this Agreement. The term "Offer" shall also include any counter-offers resulting from an Offer.
1.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via The LinkShare NetworkTM, an "Engagement" will have been formed. Each Engagement shall have the same identification number as the original Offer that lead to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.
1.3. At any time prior to Affiliate providing a Qualifying Link, Hotwire may with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad submitted by Hotwire for an Offer or an Engagement. Affiliate agrees to promptly implement any request from Hotwire to remove, alter or modify any graphic or banner ad submitted by Hotwire that is being used by Affiliate as part of an Engagement.
2. Affiliate's Responsibilities
2.1. Affiliate will link its site to areas within Hotwire's site using special URLs specified in the Engagement (the "Required URLs"). Affiliate may post as many links to the Required URLs and the rest of Hotwire's site as it likes on Affiliate's site. The position, prominence and nature of links on the Affiliate's site shall comply with any requirements specified in the Engagement, but otherwise will be in the discretion of Affiliate.
2.2. Affiliate agrees not to make any representations, warranties or other statements concerning Hotwire, Hotwire's site, any of Hotwire's products or services, or Hotwire's site policies, except as expressly authorized by the Engagement.
2.3. Affiliate is responsible for notifying Hotwire and The LinkShare NetworkTM of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the Engagement. Hotwire will respond promptly to all concerns upon notification by Affiliate.
3. Commissions
3.1. Hotwire agrees to pay Affiliate the commission specified in the Engagement if Hotwire successfully completes a transaction with a visitor to Hotwire's site (a "Customer") resulting in a booking of a product or service that is the subject of the Engagement and if that Customer has accessed Hotwire's site and booked the product or service via a Qualifying Link.
3.2. A "Qualifying Link" is a link from Affiliate's site to Hotwire's using one of the Required URLs or any other URL provided by Hotwire for use in The LinkShare NetworkTM if it is the last link to the Hotwire's site that the Customer uses during a Session where a booking of a product or a service to Customer occurs. A "Session" is the period of time beginning from a Customer's initial contact with Hotwire's site via a link from the Affiliate's site and terminating when the Customer either returns to the Hotwire's site via a link from a site other than Affiliate's site or the Engagement expires or is terminated.
3.3. Hotwire shall have the sole right and responsibility for processing all orders made by Customers. Affiliate acknowledges that all agreements relating to sales to Customers shall be between Hotwire and the Customer.
3.4. All determinations of Qualifying Links and whether a commission is payable will be made by Hotwire and will be final and binding. Prices for the products will be set solely by Hotwire in its discretion.
4. Ownership and Licenses
4.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
4.2. Hotwire grants Affiliate a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress, proprietary technology and other Hotwire creative, as applicable (collectively, the "Hotwire Marks"), as designated in the Engagement or during the registration process in The LinkShare NetworkTM, on Affiliate's site solely for the purpose of creating links from Affiliate's site to Hotwire's site during Engagements. Hotwire must approve all uses of Hotwire Marks. Except as expressly set forth in this Agreement, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same without the prior written permission of Hotwire. Affiliate may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void. All rights not expressly granted are reserved by Hotwire.
4.3. Affiliate grants Hotwire a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Affiliate solely for co-branding purposes or as a return link from Hotwire's site to Affiliate's site. Hotwire will remove such graphic or banner ad upon Affiliate's request.
4.4 Notwithstanding anything to the contrary in this Agreement, Affiliate shall not display or present any information about any Hotwire travel product or service ("Hotwire Information"), including but not limited to information about the sale, price or availability of any travel product or service, in any manner or in any service that consolidates or aggregates Hotwire Information with any information about any travel product or service offered by any provider other than Hotwire ("Other Travel Information"), without the express, written permission of Hotwire. Travel products and/or services shall include, but are not limited to, air travel fares, bookings or reservations, hotel rates, bookings or reservations, and car rental rates, bookings or reservations. The prohibition of this paragraph encompasses, but is not limited to, (i) any display or presentation of Hotwire Information on the same page or screen as any Other Travel Information, and (ii) the use of any format, technology or user interface that permits the display or presentation of Hotwire Information on the same page or screen as any Other Travel Information.
5. Termination
5.1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The LinkShare NetworkTM. Termination of an Engagement shall not terminate this Agreement or any other Engagement.
5.2. Affiliate may terminate this Agreement at any time, for any reason, provided that they provide at least five day's prior written notice of such termination to the other party and The LinkShare NetworkTM. Hotwire may terminate this Agreement at any time by providing prior written notice to the Affiliate. Termination of this Agreement shall also terminate any outstanding Engagements. Any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement. Hotwire may indefinitely withhold any and all payment from any Affiliate who breaches the terms of this Agreement or any Engagement.
6. Representations
6.1. Each party represents to the other that (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby, and (b) any material which is provided to the other party and displayed on the other party's site will not, to its knowledge and best of its ability (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) it will not place material on its site or be linked to any site 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 in any state); (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots, Adware or other similar harmful or deleterious programming routines.
6.2. Logo and Trademark Usage. Affiliate represents and warrants to Hotwire that Affiliate shall not display or use in any context or manner (directly or indirectly), the Hotwire Marks or any other third party trademarks, logo, or branding (including, without limitation, any misspelling or substantially similar or confusingly similar version thereof) of Hotwire or any other third party, in any manner whatsoever (including without limitation, in any search engine marketing or optimization, in any domain name, any other online/offline marketing or advertising, press releases, etc.) without first obtaining prior written approval from Hotwire or the applicable third party. Affiliate shall not as is prohibited from using Hotwire Marks for bidding on search engine marketing or optimization.
6.3. Framing, Scraping. Affiliate represents and warrants that it shall not, without Hotwire's prior written approval: i) modify or alter the Hotwire site in any way; ii) "scrape" or "spider" the Hotwire site; or iii) make any representations, express or implied, or create an appearance that a visitor to its site is visiting the Hotwire site.
6.4. Email and Other Marketing. Affiliate represents and warrants 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) mislead or misrepresent to consumers as to the origin, affiliation or nature of its websites, products or services Affiliate will not allow and will take reasonable steps to prevent any direct or indirect extraction, repurposing and/or aggregation of Hotwire data made available to Affiliate under this Agreement (e.g., inclusion of Hotwire data in consolidated third party search results) without the prior written consent of Hotwire; or (c) violate any local, state, federal, foreign or international law, statues, regulation, or ordinances.
6.5 Predatory Advertising. Affiliate will not to use and will prohibit its websites from using any predatory advertising methods. Predatory advertising includes but is not limited to, 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, or Adware).
6.6. EXCEPT FOR THE REPRESENTATIONS SET FORTH IN THIS AGREEMENT NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Indemnification
7.1. Affiliate hereby agrees to indemnify, defend and hold harmless Hotwire and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of (a) any actual or alleged breach of Affiliate's representations, warranties, or obligations set forth in this Agreement; (b) any gross negligence or willful misconduct of Affiliate; or (c) any claim that Affiliate's act or omissions 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 Affiliate.
8. LinkShare Required Provisions
8.1. Hotwire and Affiliate jointly and severally hereby agree to indemnify, defend, and hold harmless The LinkShare NetworkTM and LinkShare Corporation and its affiliates, officers, directors, employees and agents (collectively, "LinkShare") from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to any Offer, Engagement, any other matter related to this Agreement or the subject matter hereof any dispute relating thereto.
8.2. The parties agree that LinkShare may rely on any data, notice, instruction or request furnished to LinkShare by either party which is reasonably believed by LinkShare to be genuine and to have been sent or presented by a person reasonably believed by LinkShare to be authorized to act on behalf of one of the parties. In the event of any dispute between the parties, the parties agree that to the extent the parties contact and involve LinkShare, LinkShare may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of LinkShare's counsel shall be within the costs and disbursements covered by the indemnity specified in Section 8.1 above.
8.3. The parties acknowledge and agree that the parties shall not, for the duration of this Agreement, enter into any advertising, collaborations or other commercial arrangements with each other in connection with their sites on the World Wide Web except via The LinkShare NetworkTM. For purposes of this Agreement, Hotwire's strategic co-marketing relationships with companies that may or may not be members of The LinkShare NetworkTM ("Strategic Affiliates"), which relationships may include paying such Strategic Affiliates compensation based on levels of Internet user activities attributable to such links between the Hotwire Site and the Strategic Affiliate site, shall not constitute a violation of this Section 8.3.
9. Limitation of Liability
9.1. In no event shall either party be liable to the other party or any third party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
9.2. The parties agree that The LinkShare NetworkTM and LinkShare Corporation and its affiliates, officers, directors, employees and agents shall not be liable to either party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
10. General
10.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
10.2. The parties agree that The LinkShare NetworkTM and LinkShare Corporation are intended third party beneficiaries under this Agreement.
10.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of California. Any action to enforce this Agreement shall be brought in the federal or state courts located in the state of California. If you need to send official correspondence, send it via registered mail to Hotwire's headquarters to the attention of Hotwire's legal department.
10.4. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties.
10.5. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
10.6. Affiliate may not assign this Agreement, by operation of law or otherwise, without Hotwire's prior written consent, which may be withheld at our sole discretion. This Agreement shall be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
10.7. Any and all headings used herein are for convenience only and shall have no bearing on the interpretation of this agreement.
10.8. Hotwire may at any time modify this Agreement and Affiliate's continued participation in Hotwire's Affiliate Program will be conditioned upon the terms of agreement in force at the time of Affiliate's participation. Hotwire's failure to enforce Affiliate's strict performance of any provision of this Agreement shall not constitute a waiver of Hotwire's right to subsequently enforce such provision or any other provision of this Agreement.
