EXPEDIA CANADA CORP.
ASSOCIATE PROGRAM AGREEMENT
This
agreement (“Agreement”) contains the complete terms and conditions for your
participation in the Expedia Canada Corp. Associate Program (“Program”), and
the establishment of links from your Web site(s) to our domestic Web site, as
defined below. As used in this
Agreement, “you” means (and “your” refers to) the applicant seeking to
participate as an Associate in the Program, “we” means (and “us”, “our” and
“ours” refer to) Expedia Canada Corp.
THIS IS A LEGAL
AGREEMENT BETWEEN YOU AND EXPEDIA CANADA CORP. BY CLICKING ON THE “ACCEPT”
BUTTON AT THE END OF THIS AGREEMENT, YOU AGREE THAT YOU ARE AFFIRMATIVELY
STATING THAT YOU HAVE CAREFULLY READ AND UNDERSTAND THE TERMS SET
1. Definitions
1.1 “Accommodation Transaction” means the Commencement Date of a stay in one or more rooms or suites in a single hotel for an uninterrupted stay of any duration or any accommodations available for reservation or purchase on Expedia.ca for an uninterrupted stay of any duration, and where such reservation or purchase is completed by a User who has Linked directly to Expedia.ca from your Associate Site via one of the Expedia Icons or Links with the purpose of shopping or buying travel during a single browser session.
1.2 “Affiliate” means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with a party.
1.3 “Air Transaction” means the Commencement Date of a trip (round-trip, or one-way if no round-trip is purchased) by one person or more, and where such purchase of one air ticket or more is completed by a User who has Linked directly to Expedia.ca from your Associate Site via one of the Expedia Icons or Links with the purpose of shopping or buying travel during a single browser session.
1.4 “Associate
Site” means one or more of your web sites, and any successor web site to
those sites, once you have been accepted into the Program.
1.5 “Banner Advertisements” means those certain rotating or permanent banner advertisements created and provided by us to you containing a Linking URL that are located on your Associate Site, and are no larger than 468 pixels by 60 pixels (or such other dimensions as the parties may from time to time agree upon), which permits Users to navigate directly to a page on Expedia.ca as selected by us. You agree not to revise, change or modify any Banner Advertisement provided by us to you for placement on your Associate Site.
1.6 “Car Transaction” means the Commencement Date of a car rental by one person, and where such transaction is completed by a User who has Linked directly to Expedia.ca from your Associate Site via one of the Expedia Icons or Links with the purpose of shopping or buying travel during a single browser session.
1.7 “Click-Through”
means each instance in which a User navigates to and fully loads a page on
Expedia.ca. As used herein, a page
“fully loads” when the entire page is displayed on the electronic device that
has accessed the page.
1.8 “Commencement
Date” means the date upon which the air travel, car rental, accommodation
stay, or any travel package combination thereof commences.
1.9 “Expedia Icons” means any graphical or text link, including, without limitation, Banner Advertisements and persistent hyperlinks in the form of an Expedia logo or Expedia storefront booking form, that is located on your Associate Site through which Users may directly Link to a location on Expedia.ca.
1.10 “Expedia.ca” means the software code, informational databases, products, and other components that make up our service which is marketed for use by individual end users in Canada and/or such other locales as we may elect to market our service, at our sole discretion, to enable such end users to shop for, reserve, book (including, at a minimum, air travel, accommodations, travel packages, and car rentals) and pay for certain travel services via a personal computer (or other interactive device) connected to the Internet or any other network. We currently offer these services on the Web under the name “Expedia.ca,” but we may change the name from time to time, and the term “Expedia.ca” as we use it in this Agreement is deemed to refer to all future versions of our online services described in this Agreement, regardless of the name under which it is offered from time to time, and includes without limitation any and all additional, follow-on, successor or replacement versions of these services.
1.11 “Expedia Special Rate Hotel Transaction” means the Commencement Date of a stay in one or more rooms or suites in a single hotel for an uninterrupted stay of any duration or any accommodations available for reservation or purchase on Expedia.ca for an uninterrupted stay of any duration, and for which Expedia.ca, at its sole option, may offer special pricing to Users, and where such reservation or purchase is completed by a User who has Linked directly to Expedia.ca from your Associate Site via one of the Expedia Icons or Links with the purpose of shopping or buying travel during a single browser session.
1.12 “Expedia Specialty Lodging Transaction” means the Commencement Date of a stay in one or more rooms or suites in a single vacation rental or other accommodation, which shall include, but not be limited to, condominiums, timeshares, houses, villas or other non-hotel properties, for an uninterrupted stay of any duration, and where such reservation or purchase is completed by a User who has Linked directly to Expedia.ca from your Associate Site via one of the Expedia Icons or Links with the purpose of shopping or buying travel during a single browser session.
1.13 “Link” means either, (i) one or more hyperlinks located on the applicable areas of your Associate Site or Expedia.ca, (ii) any “keywords”, such as “Travel”, “Air”, “Hotel”, “Car”, etc. that invokes your software program on your Associate Site and returns an Expedia Icon, or (iii) any other alternative method that enables a User to access Expedia.ca or return to your Associate Site. Links also include any connection to Expedia.ca 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).
1.14 “Look
and Feel” means the distinctive and particular elements of graphics,
design, organization, presentation, layout, user interface, navigation, trade
dress, colors and stylistic convention (including the digital implementations
thereof) within a World Wide Web site, and the total appearance and impression
substantially formed by the combination, coordination and interaction of such
elements, and any derivative works.
1.15 “Merchant Accommodation Transaction” means the reservation of a single room or suite in a single hotel for an uninterrupted stay of any duration, or any accommodations available for reservation or purchase on Expedia.ca for an uninterrupted stay of any duration, where an Expedia Affiliate is the Merchant of Record for the transaction, and where such transaction is completed by a User who has Linked directly to Expedia.ca from your Associate Site via one of the Expedia Icons or Links with the purpose of shopping or buying travel during a single browser session.
1.16 “Merchant Net Revenue” means the net revenue that the Merchant of Record receives as a direct result of Users effectuating Merchant Accommodation Transactions on Expedia.ca, after taking deductions for: (i) amounts collected by the Merchant of Record for sales taxes, duties, handling, and similar charges, (ii) 3% of the total amount of each transaction for credit card fees, and (iii) .05% of the total amount of each transaction for amounts due to suppliers due to credit card fraud and bad debt.
1.17 “Merchant of Record” means an Affiliate of ours, whose name appears on the credit card charge and to whom the applicable credit card company shall reimburse for the amount of the credit card charge.
1.18 “Net Revenue” means the net revenue we receive as a direct result of Users effectuating Accommodation Transactions, Car Transactions and/or Expedia Specialty Lodging Transaction on Expedia.ca, excluding: (i) amounts we collect for sales taxes, duties, handling, and similar charges, (ii) .05% of the total amount of each transaction for amounts due to suppliers due to credit card fraud and bad debt, and (iii) .25% of the total amount of each transaction for credits due to suppliers for cancellations or returns.
1.19 “Travel Package Transaction” means: (i)
a combination of two or more of the following transactions that have been
effectuated by one User during a single browser session: an Air Transaction, an
Accommodation Transaction, a Car Transaction, an Expedia Special Rate Hotel
Transaction, an Expedia Specialty Lodging Transaction or a Merchant
Accommodation Transaction; or (ii) a combination of two or more transactions
identified in this Section 1.19 which have either a common Commencement
Date or proximately related Commencement Dates, and which may be effectuated by
the same User in more than one browser session, and where such transaction is
completed by a User who has Linked directly to Expedia.ca from your Associate
Site via one of the Expedia Icons or Links with the purpose of shopping or
buying travel during a single browser session.
1.20 “User” means individuals or entities that access Expedia.ca directly from your Associate Site. For purposes of clarification, the meaning of “User” shall not include any software program or routine that generates a Click-Through 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.
2. Ineligible Party; Liquidated Damages
If you are an employee or agent of a Competitor of ours, a travel agent or a travel supplier (collectively, “Ineligible Party”), you are not eligible to enroll in the Expedia.ca Associate Program. For the purposes of this Agreement, a “Competitor” includes, but isn't limited to, Exit.ca, Tripeze,com, Travelocity, Orbitz, Hotel Reservation Network, Mark Travel, Cheap Tickets, Priceline, Biz Travel, Hotwire, Last Minute, American Express, Rosenbluth, Carlson Wagonlit, Site59, any airline, any car rental, and any hotel company. If you fall into any of these categories and you still wish to enroll in the Associate Program, you must obtain prior written approval from us for your participation as an Associate. If you have any questions whether you are or are not an Ineligible Party, please contact us BEFORE you execute this Agreement. In addition, you agree to: (i) terminate this Agreement immediately if you become an Ineligible Party following your enrollment in the Associate Program; and (ii) keep confidential any Confidential Information, as defined in this Agreement, which we have provided to you during your enrollment in the Associate Program. You specifically agree that the obligation for confidentiality in this Agreement survives any termination of this Agreement. YOU ACKNOWLEDGE AND AGREE TO THESE RESTRICTIONS AND SPECIFICALLY AGREE THAT ANY BREACH OF THIS SECTION 2 SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
IF YOU ARE AN
INELIGIBLE PARTY AND ENROLL IN THE ASSOCIATE 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 ASSOCIATE 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 SHALL PREVENT US FROM PURSUING EQUITABLE REMEDIES RESULTING FROM
A BREACH OF THIS AGREEMENT.
IF FOLLOWING YOUR
ENROLLMENT IN THE ASSOCIATE PROGRAM YOU BECOME AN INELIGIBLE PARTY AND DO NOT
IMMEDIATELY TERMINATE THIS AGREEMENT, YOU AND WE AGREE THAT YOUR CONTINUED
ACCESS TO OUR CONFIDENTIAL INFORMATION WILL PUT US AT RISK. FURTHER, YOU AND WE AGREE THAT ANY USE BY YOU
OF THE CONFIDENTIAL INFORMATION OBTAINED PRIOR TO TERMINATION OF THE AGREEMENT
WILL PUT US AT RISK. ACCORDINGLY, YOU
AND WE AGREE THAT IF: (I) YOU DO NOT KEEP CONFIDENTIAL THE CONFIDENTIAL
INFORMATION YOU OBTAINED PRIOR TO BECOMING AN INELIGIBLE PARTY; 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 SHALL PREVENT US FROM PURSUING EQUITABLE REMEDIES RESULTING FROM
A BREACH OF THIS AGREEMENT.
3. Your Obligations
3.1 To begin the enrollment process, you will submit a completed program application (“Program Application”) via Expedia.ca. We will evaluate your Program Application and will notify you of your acceptance or rejection in a timely manner. We may reject your Program Application if we determine, in our sole discretion, that you are an Ineligible Party, or your site is unsuitable for the Program for any reason, including, but not limited to, if your site incorporates images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable such as sites that depict sexually explicit images; promotes violence, illegal activities, or unlawfully discrimination of any kind; promotes or incorporates any materials which infringe or assist others to infringe the intellectual property rights of others (collectively “Content Restrictions”). If we reject your Program Application, you are welcome to reapply to the Associate Program at any time.
If you are accepted into the Program:
3.2 You shall prominently display and
maintain the Expedia Icons provided to you by us, or any addition to or
substitute thereof that we may provide to you from time-to-time during the term
of this Agreement, on your Associate Site which shall Link directly to
Expedia.ca. You agree not to place the
Expedia Icons on the same page on your Associate Site with the logos or
trademarks from Exit.ca, Tripeze,com, Orbitz, Destina.ca, Travelocity.com Inc.,
Hotel Reservations Network, Inc., Hotwire and Mark Travel. In the event we provide you with new or
modified Expedia Icons, you agree to implement the new Expedia Icons within
thirty (30) days following receipt of the update from us. You agree to comply with the Expedia Icon
Guidelines for Linking that we provide to you or any other replacement
guidelines that we may provide to you in writing from time-to-time during the
term of this Agreement. The Expedia Icon
Guidelines are available at http://www.expedia.com/daily/associates/Expedia_Icon_Guidelines.htm. Additionally, we encourage (but do not
require) you to include a Link to the home page of Expedia.ca.
3.3 In no event shall you or your agents make or extend any representation or warranty on our behalf with respect to Expedia.ca or the services available therein.
3.4 You warrant and represent to us that your Associate Site: (i) is in compliance with all applicable laws and regulations; (ii) does not contain any material that is fraudulent, defamatory or obscene; and (iii) is suitable in all respects to be Linked to from Expedia.ca. You agree that your Associate Site will not, in any way, copy or resemble the Look and Feel of Expedia.ca nor will you create an impression that your Associate Site is Expedia.ca or part of Expedia.ca, nor will you frame any page on Expedia.ca being viewed by a User of your Associate Site who links to Expedia.ca through a Link. You agree that during the term of this Agreement, your Associate Site shall not contain any of the Content Restrictions described in Section 3.1 above, nor shall it disparage Expedia.ca or us in any way. We may test your Associate Site’s URL, and if such URL is not in compliance with the terms and conditions of Section 3.2 and this Section 3.4, we, in our sole discretion may (i) remove such non-conforming URL; and/or (ii) terminate this Agreement.
4. Expedia’s Obligations
4.1 We
shall provide you with one or more Expedia 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 for use on your Associate Site. Additionally, we shall provide you with
Expedia Icon Linking guidelines, or such other replacement guidelines as we may
provide to you in writing from time-to-time during the term of this
Agreement.
4.2 We shall 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.ca. You acknowledge that 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 Affiliates.
4.3 We
shall make available to you monthly reports that set forth, at a minimum, the
number of Users to Expedia.ca from your Associate Site, and the number of
Accommodation Transactions, Air Transactions, Car Transactions, Merchant
Accommodation Transactions and Travel Package Transactions completed by Users
Linking directly to Expedia.ca from your Associate Site during the applicable
month.
4.4 The
parties acknowledge that a third party reporting agent, such as “Be Free, Inc.”
(“Reporting Agent”) will assist us in fulfilling our tracking and reporting
requirements hereunder. To ensure that
reporting begins as soon as possible, you agree to register with the Reporting
Agent as soon as practicable and to provide us with the SiteID or other
necessary information assigned by the Reporting Agent.
5. Use of Trademarks
You agree that we may include
your logos, trademarks, trade names and similar identifying material (“Your
Marks”) on Expedia.ca in a listing of companies who are participating in the
Program; provided however, that in no event shall we be required to include
Your Marks in any such listing. 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 binding upon 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.
6. Ownership
of Expedia.ca
6.1 We shall own all intellectual property rights (including without limitation all copyrights, patents, trademarks and trade secrets) in connection with and in all versions of Expedia.ca.
6.2 We will own all data generated by Users of Expedia.ca, and all of the terms and conditions, rules, policies and operating procedures of Expedia.ca (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.ca; and we reserve the right to change such terms and conditions, rules, policies and operating procedures at any time.
7. Fee
Structure
You are eligible to earn
Transaction Fees on all sales during the term of this Agreement, where the User
follows a Link from your Associate Site directly to Expedia.ca and that User,
using Expedia.ca’s online travel and booking system, successfully effectuates
an Accommodation Transaction, Air
Transaction, Car Transaction, Expedia Special Rate Hotel Transaction, Merchant
Accommodation Transaction or Travel Package Transaction, which is completed
during the term of this Agreement on either a “Flat Rate”, “Net Revenue” or
“Merchant Net Revenue” basis (the “Transaction Fees”), as applicable. The Transaction Fee for an Air Transaction
will not be awarded in the event of credit card fraud, bad debt, and credits
due for cancellations or returns. We
will pay you a Transaction Fee only if the User is tracked on our internal
online ordering system from the time the Link is initiated on your Associate
Site to the time of the sale. You agree
that no Transaction Fees will be paid if the User cannot be tracked by our
internal ordering system. Transaction
Fees shall be paid as follows:
7.1 Accommodation
Transaction Fees. We will pay you
two percent (2%) on Net Revenue, per Accommodation Transaction (“Accommodation
Transaction Fees”).
7.2
Air Transaction Fees.
We will pay you Two Dollars (US$2.00) for each Air Transaction (“Air
Transaction Fees”).
7.3 Car Transaction Fees. We will pay you two percent (2%) on Net Revenue, per Car Transaction (“Car Transaction Fees”).
7.4 Expedia Special Rate Hotel Transaction Fees. We will pay you five percent (5%) on Net Revenue, per Expedia Special Rate Hotel Transaction (“Expedia Special Rate Hotel Transaction Fees”).
7.5 Expedia Specialty Lodging Transaction Fees. We will pay you two percent (2%) on Net Revenue, per Expedia Specialty Lodging Transaction (“Expedia Specialty Lodging Transaction Fees”).
7.6 Merchant
Accommodation Transaction Fees. We
will pay you five percent (5%) on Merchant Net Revenue, per Merchant Hotel
Transaction (“Merchant Accommodation Transaction Fees”).
7.7 Travel Package Transaction Fees. We will pay you two percent (2%) on Net Revenue, per Travel Package Transaction (“Travel Package Transaction Fees”).
8. Payments
Within forty-five (45) days after the end of each month during the term of the Agreement with respect to which we owe you any Transaction Fees, we will furnish you a statement together with payment for any amount due to you. The statement will contain information sufficient to discern how the payment was computed. In the event that the total monthly Transaction Fees payable to you is less than Fifty Dollars (US$50.00) for the applicable month (“Monthly Minimum Threshold”), we will hold the payment until the aggregate total Transaction Fees meet or exceed the Monthly Minimum Threshold. We will remit all payments owed to you to your address provided in the Program Application submitted in accordance with Section 3.
9. Modification
We may modify any of the terms
and conditions contained in this Agreement, at any time in our sole discretion.
Notification to you of any change by e-mail or posting of a change notice on
Expedia.ca and/or the Internet site of any designated Reporting Agent, as
described in Section 4.4 above, at our sole option, shall be considered
sufficient notice to you of a modification to the terms and conditions of this
Agreement. Modifications may include,
but are not limited to, changes in the scope of available commission fees,
commission schedules, payment procedures, and Program rules. You agree that you shall have no right to
amend the terms of this Agreement. If
any modification is unacceptable to you, your recourse is to terminate this
Agreement. Your continued participation
in the Program following our posting of a change notice or a new agreement on
Expedia.ca will constitute binding acceptance of the change.
10. Term
and Termination
This Agreement shall commence upon our acceptance of your Program Application and shall continue until terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Written notice can be in the form of mail, email or fax. You are only eligible to earn Transaction Fees occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable in accordance with Section 7. If this Agreement is terminated because: (i) you have violated the terms of this Agreement, or (ii) your Associate Site becomes subject to the Content Restrictions set forth in Section 3, 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 shall immediately remove any Expedia Icon or Link from your Associate Site.
11. Representations
and Warranties
You represent and warrant to us that you are not an Ineligible Party, as defined in Section 2, and that this Agreement has been duly and validly executed by you by virtue of your clicking on the “Accept” button at the end of this Agreement and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; and that 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 11 are continuous in nature and shall be deemed to have been given by you upon your acceptance via the “Accept” button at the end of this Agreement and at each stage of performance hereunder. These representations and warranties and covenants shall survive termination or expiration of this Agreement.
12. Indemnification
You hereby agree to indemnify, defend, and hold harmless us and our 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) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of Your Marks infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or another proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your Associate Site including, without limitation, content therein not attributable to us.
13. Disclaimers
and Limitation of Liability
We make no express or implied warranties or representations with respect to the Program or any service, product or other items sold through the Program, including implied warranties of merchantable quality, 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 that the operation of Expedia.ca will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
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 AGGREGRATE 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 SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
14. Confidentiality;
Media Communications
14.1 If you have entered into a Non-Disclosure Agreement with us, you agree that the terms of that agreement shall be deemed to be incorporated herein. If you have not entered into a Non-Disclosure Agreement with us, then you understand and agree that the following terms and conditions will apply to certain information that we may disclose to you as a result of your participation in the Program information that we consider to be confidential (the “Confidential Information”). For purposes of this Agreement, the term “Confidential Information”, shall 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 Associate 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 shall also include any information that we designate as confidential during the term of this Agreement.
14.2 You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and shall 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.
15. Independent
Investigation
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 ASSOCIATE 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
16. Governing Law
This Agreement will be governed
by the laws of the
17. Assignability
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. This Agreement is the complete Agreement between the parties and supersedes any prior oral or written agreement concerning the subject matter
18. No
Waiver
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.
19. Choice
of Language
It is the express wish of the parties that this
Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la
présente convention ainsi que les documents qui s’y rattachent soient rédigés
en anglais.
20. Severability
If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will amend the agreement to give effect to the stricken clause to the maximum extent possible.
21. Entire
Agreement
This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and merges all prior and contemporaneous communications.
I
AGREE