LANGUAGE TRAVEL SERVICES AFFILIATE AGREEMENT
THIS AGREEMENT is made the 30 day of July, 2010
(the "Agreement")
BETWEEN
Ido Language Travel Services Limited having its registered office at The Enterprise Centre, George's Place, Dun Laoghaire, Co Dublin. (hereinafter called "The Company")
AND
The Affiliate named above (hereinafter called "the Affiliate"), of the other part.
WHEREAS:
Introduction
1. LANGUAGE TRAVEL SERVICES has developed certain software technology suitable for application as an on-line confirmed reservations and communication system for use over the Internet and associated technologies
2. LANGUAGE TRAVEL SERVICES’s technology enables it to grant access to and facilitate the booking of language schools and courses and other related services via its booking engine
3. LANGUAGE TRAVEL SERVICES has entered into agreements with language tuition and other related service providers ("Service Providers") whereby the service providers’ product may be booked on-line using LANGUAGE TRAVEL SERVICES’s technology. Under the terms of these agreements LANGUAGE TRAVEL SERVICES has agreed to promote the service providers’ product through LANGUAGE TRAVEL SERVICES’s site and Affiliate websites
Definitions
In this Agreement the following words and expressions shall have the following meanings, unless the context otherwise requires.
1. Affiliate Content means any and all content (including the Affiliate Trade Marks) provided by the Affiliate appearing on the Affiliate Site which relates to the Affiliate Products
2. Affiliate Product means any language tuition product and/or service (and/or other relevant ancillary products) offered for sale to Visitors via the Affiliate Site and booked through the LANGUAGE TRAVEL SERVICES booking engine;
3. Affiliate Share means amounts due to Affiliate in respect of Reservations processed.
4. Affiliate Site is Affiliate’s website located at AFFILIATE WEBSITE ADDRESS and all affiliate websites powered by Affiliate (collectively “Affiliate Site").
5. Affiliate Trade Marks means the trade marks, names and logos belonging to the Affiliate
6. Available means that LANGUAGE TRAVEL SERVICES’s booking engine can be accessed and utilised by Visitors for an average of 99% of the time, measured over the course of each four-week period on a 24 hours a day, seven days a week basis and “Availability” shall have the corresponding meaning;
7. Booking Fee means a charge in addition to the cost of language course, levied on the Visitor at the time of booking.
8. Language Tuition Provider means any language school or institution and that provides language tuition for a fee and that is classified by LANGUAGE TRAVEL SERVICES as a Language Tuition Provider.
9. Intellectual Property Rights means patents, rights in design, trade marks, trading, business or domain names and e-mail addresses, copyrights (including any such rights in typographical arrangements, Web Sites or software) whether registered or not and any applications to register or rights to apply for registration of any of the foregoing, rights in inventions, know-how, trade secrets and other confidential information, rights in databases and all other intellectual property rights of a similar or corresponding character which subsist now or in the future in any part of the world;
10. Link(s) means a link (or links) embedded within a page using HTML which permits Visitors to access LANGUAGE TRAVEL SERVICES’s booking engine via the Affiliate’s Site;
11. Other Services means all other non-language tuition services that may be offered by LANGUAGE TRAVEL SERVICES or by a contracted third party through the LANGUAGE TRAVEL SERVICES technology. These services may include but are not limited to tours, activities and insurances.
12. Prepaid Commission Reservation means a Reservation for which LANGUAGE TRAVEL SERVICES collects only the commission from the Visitor at the time of booking, with the balance being paid directly to the Service Provider.
13. Reservation means a transaction made on LANGUAGE TRAVEL SERVICES’s booking engine in respect of an Affiliate Product
14. Service Provider includes Language Schools and Other Service Providers, as defined.
15. Transaction Commission is defined as commission amounts (excluding Booking Fees) collected by LANGUAGE TRAVEL SERVICES from Visitors, less all amounts paid or payable by LANGUAGE TRAVEL SERVICES to provide the services under this Agreement directly relating to Reservations. These amounts may include but are not limited to credit card processing fees and chargebacks.
16. Visitor means any person accessing the Affiliate Site who conducts a transaction on the LANGUAGE TRAVEL SERVICES booking engine
17. Web Site means pages or a related group of pages which are linked together using the hypertext transfer protocol ("http").
General Affiliate Rights & Responsibilities
1. LicenseAffiliate agrees to establish a link to LANGUAGE TRAVEL SERVICES’s booking engine and to market and promote such connection. For this purpose, LANGUAGE TRAVEL SERVICES grants Affiliate a worldwide, non-exclusive, royalty-free right and license to access LANGUAGE TRAVEL SERVICES’s booking engine via the established link.
2. LANGUAGE TRAVEL SERVICES Booking Engine Link Affiliate shall be responsible for all design, coding, and testing necessary to integrate the LANGUAGE TRAVEL SERVICES Booking Engine Link into the Affiliate Site. Affiliate shall be responsible for establishing and maintaining an Internet connection to LANGUAGE TRAVEL SERVICES.
3. Usage of Trademark Other than as anticipated by this Agreement, Affiliate shall not use LANGUAGE TRAVEL SERVICES’S Trademarks in any way whatsoever without LANGUAGE TRAVEL SERVICES’s prior Language Travel Services written consent and Affiliate shall not in any manner whatsoever promote, advertise and/or publicise LANGUAGE TRAVEL SERVICES’s Site and/or the existence, subject matter and/or provisions of this Agreement save to the extent and in the manner herein prescribed. Email shall be deemed an acceptable form of Language Travel Services written consent.
4. Content Update Affiliate agrees to use such reasonable efforts as are commercially applicable to provide accurate and up to date information on the Affiliate Site throughout the term of this Agreement;
5. Liability for Content Affiliate shall be solely responsible in respect of Affiliate Content
6. Availability Affiliate will use its best efforts to ensure that the Affiliate Site is available and that the server that hosts the Affiliate Site is of sufficient capacity to ensure such availability. If at any time the Affiliate Site is not available, Affiliate shall use all best endeavours to resolve such unavailability of the Affiliate Site within the fastest possible timeframe.
7. Visitors exposure Affiliate will ensure that any and all Visitors shall not be subject to illegal acts either by Affiliate or any third party within the Affiliate’s control as a result of such access and/or use including (without limitation) threats, harassment, stalking, abuse, unsolicited commercial communications (or “spam") or violations of that Visitor’s legal rights, including rights of privacy.
8. Revenue Collection Affiliate acknowledges that under the terms of the agreements which LANGUAGE TRAVEL SERVICES has with Service Providers, LANGUAGE TRAVEL SERVICES shall be entitled to collect and retain the Transaction Commission in respect of each reservation.
9. Exclusivity Affiliate agrees not to link, promote, feature or advertise on the Affiliate Site any other on-line language travel agency for the term of this agreement mission in respect of each Reservation.
General LANGUAGE TRAVEL SERVICES Rights & Responsibilities
1. Data Access LANGUAGE TRAVEL SERVICES shall have the right to access all customer data furnished by Visitors pursuant to this Agreement. LANGUAGE TRAVEL SERVICES shall not market to Visitors or compile any list of any marketing information or database in relation to a Visitor, and the parties agree that Visitors’ identities and personal details shall remain strictly confidential.
2. Transaction Participation LANGUAGE TRAVEL SERVICES shall never be party to a Reservation.
3. Reporting LANGUAGE TRAVEL SERVICES will supply Affiliate with monthly reports, as agreed between the two parties. These reports will contain information on the number of Visitors (where possible and applicable), Reservations, the gross purchase price and the Transaction Commission deducted or collected by LANGUAGE TRAVEL SERVICES. Alternatively Affiliate shall be entitled to access through a Link an administration file which records the total number of Visitors and Affiliate Share payable.
General Parties Rights & Responsibilities
1. Intellectual Property All Intellectual Property Rights in LANGUAGE TRAVEL SERVICES’s Site and booking technology shall remain the exclusive property of LANGUAGE TRAVEL SERVICES. All Intellectual Property Rights in Affiliate Content and Affiliate Site shall remain the exclusive property of Affiliate.
2. Execution CostSave where otherwise expressly provided herein Affiliate shall, at its own cost and expense, comply with any and all of its obligations under this Agreement and LANGUAGE TRAVEL SERVICES shall, at its own cost and expense, comply with any and all of its obligations under this Agreement.
3. Responsibility Affiliate and LANGUAGE TRAVEL SERVICES acknowledge that for all Reservations, an agreement comes into existence between the Visitor and the Service Provider and that neither Affiliate nor LANGUAGE TRAVEL SERVICES shall be held responsible for any services provided under that agreement. Affiliate and LANGUAGE TRAVEL SERVICES can only be liable for their services provided in connection with supporting the processing of such transactions.
LANGUAGE TRAVEL SERVICES Technology Product
1. Product & Service Definition (Private Label). LANGUAGE TRAVEL SERVICES shall allow Affiliate to provide Visitors on its website the option to search, shop & book language tuition and Other Services, generating transaction income for Affiliate without significant technology development or management costs by simply establishing a Link to the LANGUAGE TRAVEL SERVICES booking engine.
2. Server Capacity Limits. Affiliate shall design the integration of the LANGUAGE TRAVEL SERVICES booking technology in a manner that does not impose an undue capacity burden on LANGUAGE TRAVEL SERVICES servers. In the event of undue capacity burden on LANGUAGE TRAVEL SERVICES servers, LANGUAGE TRAVEL SERVICES may block or limit service requests from Affiliate and give Language Travel Services written notice to Affiliate of a server load issue. If thirty (30) days after Language Travel Services written notice, Affiliate continues to impose an undue capacity burden on LANGUAGE TRAVEL SERVICES servers, LANGUAGE TRAVEL SERVICES may either charge Affiliate for the reasonable cost of increasing capacity to meet the higher service request levels of Affiliate or terminate this Agreement giving Affiliate 15 days notice.
3. Notice of Change. Affiliate shall give LANGUAGE TRAVEL SERVICES at least thirty (30) days prior Language Travel Services written notice of any change to the Affiliate Site or integration with the services provided by LANGUAGE TRAVEL SERVICES under this Agreement that Affiliate intends to make that may materially affect service request or reservation volumes.
4. Third-Party Content and Changes to Content. LANGUAGE TRAVEL SERVICES provides Affiliate detailed property text and photo content for display on Affiliate site in the process of selling Properties supplied by LANGUAGE TRAVEL SERVICES. Affiliate may not make changes to content supplied by LANGUAGE TRAVEL SERVICES, nor may Affiliate request LANGUAGE TRAVEL SERVICES to make changes to content as supplied by Service Providers. Affiliate may supplement Language School content with other content supplied by a third-party. If Affiliate elects to supplement LANGUAGE TRAVEL SERVICES Service Provider content, Affiliate shall indemnify LANGUAGE TRAVEL SERVICES against claims by Visitors, Service Provider or any third-party arising out of a reservation made on Affiliate Site as a result of inaccurate information provided by third-party.
5. Service Provider Set LANGUAGE TRAVEL SERVICES shall manage the database of Service Providers available to Affiliate. LANGUAGE TRAVEL SERVICES shall periodically add or remove Service Providers to/from the Service Provider Set. Inclusion or exclusion of specific Service Providers is at the sole discretion of LANGUAGE TRAVEL SERVICES.
Customer Service
1. First level Customer Service means customer service provided by email to Visitors with questions and issues regarding Reservations or the use of the Affiliate Site. LANGUAGE TRAVEL SERVICES shall provide all First-level Customer Service.
2. Technical Support LANGUAGE TRAVEL SERVICES shall provide Affiliate support for technical issues arising from Reservations.
3. Both Parties shall use their best efforts and endeavors to resolve any issues arising with respect to any Reservation as quickly and efficiently as possible.
Affiliate Share and Payments
1. Collection Responsibilities Where applicable, LANGUAGE TRAVEL SERVICES shall track, bill and collect payment from Service Providers and/or Visitors for Reservations made on the Affiliate Site.
2. Affiliate Share Calculation The Affiliate Share will be calculated at a rate of 20 per cent of the Transaction Commission.
3. Payment LANGUAGE TRAVEL SERVICES shall remit to Affiliate the Affiliate Share on a monthly basis or as and when such amounts accumulate to EUR€500.00. The Affiliate Share payment will be based on Prepaid Commission Reservations processed in the previous month.
4. Currency All sums payable under this Agreement shall be paid in Euro.
Standard Terms and Conditions
1. Term and Termination.
1. Effective Date The Agreement is effective on clicking “I Agree” at the end of this contract.
2. Term This Agreement shall have a term beginning on the Effective Date and lasting 24 months. It shall be automatically renewed for successive one-year periods unless otherwise terminated by either Party giving notice to the other Party not less than ninety (90) days prior to the end of a term.
3. Termination This Agreement may be terminated by either Party immediately upon notice, if the other Party: (i) becomes insolvent, files a petition in bankruptcy or makes an assignment for the benefit of creditors, or (ii) breaches any of its material obligations under this Agreement in any material respect, which breach is not remedied within thirty (30) days following Language Travel Services written notice to such breaching Party.
4. Effect of Termination. Upon expiration or earlier termination of this Agreement, (i) the rights and licenses granted to each Party pursuant to this Agreement shall automatically terminate, (ii) each Party shall deliver to the other, within thirty (30) days, all tangible items in its possession which are proprietary to the other that were used in connection with this Agreement, (iii) both Parties shall remove and cease to use all intellectual property of the other Party on their respective websites, (iv) both Parties shall eliminate any reference to this Agreement from their own websites and marketing materials, (v) if Affiliate has elected to receive the Service Provider Content Feed, Affiliate shall immediately remove any and all Content from the Affiliate Site and provide LANGUAGE TRAVEL SERVICES with Language Travel Servicestten confirmation that such Content has been so removed and destroyed, and (vi) all amounts accrued under this Agreement shall immediately become due and payable.
2. Warranties.
1. Each Party represents and warrants to the other that it has the right and authority to enter into and perform all obligations under this Agreement.
2. The Parties each warrant that for the benefit of the other.
1. Their entry into this Agreement does not breach any other agreement to which either is a party
2. their respective Websites shall be free from any and all third party claims
3. each shall obtain and duly comply with all approval, consents, licenses, permits, certificates, registrations or other authorisations necessary for it to enter into this Agreement and perform its obligations under this Agreement
3. Affiliate further warrants that it will not make contact, either directly or indirectly, with any Service Provider, without the prior written consent of LANGUAGE TRAVEL SERVICES.
4. Affiliate acknowledges that the Service Providers are responsible for the delivery, entry, maintenance, timeliness and accuracy of all data provided to LANGUAGE TRAVEL SERVICES, and for any updating of Language School or other data during the term of this Agreement. LANGUAGE TRAVEL SERVICES WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR SUCH DATA OR INFORMATION INCLUDED IN THE SYSTEM, INCLUDING WITHOUT LIMITATION ANY INACCURACIES, NOR WILL LANGUAGE TRAVEL SERVICES HAVE ANY LIABILITY UNDER ANY CIRCUMSTANCES FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES.
5. WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER ANY LEGAL OR EQUITABLE THEORY (A) FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, OR (B) FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, UNDER OR RELATING TO THE FAILURE OF THE INTERNET TRANSMISSION OR LINKS. DAMAGES UNDER THIS SUBSECTION INCLUDE BUT ARE NOT LIMITED TO LOST PROFITS, REVENUES AND BUSINESS.
3. Indemnification
1. Affiliate shall indemnify and hold LANGUAGE TRAVEL SERVICES and its officers and employees harmless from and against all liabilities, losses, damages, costs and expenses in relation to any claims or actions brought against LANGUAGE TRAVEL SERVICES (including, without limitation, any claim in contract, tort or for defamation, obscenity or breach of privacy) based on or resulting from information (including but not limited to the Affiliate Content) and/or Affiliate Products originating from, any negligence or gross misconduct of Affiliate and/or any assessment of value added, sales or similar tax raised by any relevant taxation authority in respect of Affiliate Share and/or any breach by Affiliate of the terms of this Agreement.
4. Confidential and Proprietary Information.
1. During the term of this Agreement, the parties acknowledge that each may receive confidential and proprietary information of the other party, including without limitation, information concerning proprietary technology and products, technical data, system programming, software, processes, ideas, concepts, formulas, designs, engineering, trade secrets, know-how, research, marketing plans, strategies and client information identified at the time of disclosure as confidential or proprietary information (“Confidential Information”).
2. All such Confidential Information will be treated as confidential and proprietary by the receiving party, and shall not be disclosed by the receiving party to third parties unless required by law. The receiving party will only disclose the Confidential Information of the disclosing party to those of its employees: (i) with a need to know in order to perform this Agreement; (ii) who are informed of the nondisclosure obligations imposed by this Agreement; and (iii) who are parties to appropriate confidentiality agreements sufficient to comply with the obligations imposed by this Agreement. The receiving party shall use at least the same degree of care it takes to protect the confidentiality of the disclosing party’s Confidential Information that the receiving party normally exercises with respect to its own Confidential Information, but in no event shall the receiving party use less than its reasonable efforts to protect the confidentiality of the disclosing party’s Confidential Information.
3. Confidential Information shall not include any information which: (i) is now or hereafter becomes available to the public through no wrongful actions of the receiving party; (ii) is known to, or in the possession of, the receiving party before its disclosure hereunder, as demonstrated by documented evidence; (iii) is disclosed to the receiving party by a third party not under any obligation of secrecy or confidentiality to the disclosing party; (iv) can be shown by Language Travel Servicestten evidence was independently developed by the receiving party; or (v) the receiving party is required by law to disclose; provided, however, in that instance, that the receiving party provides the disclosing party with sufficient prior notice for the disclosing party to take any legal or other steps it deems necessary to protect its Confidential Information. The provisions of this Section will remain binding and in full force and effect, notwithstanding the expiration or termination of this Agreement at any time.
4. Either party may publicise the existence of the Agreement between them, but the terms of the Agreement shall remain confidential.
5. Miscellaneous.
1. Amendments and Waivers. Any term of this Agreement may be amended or waived only with the Language Travel Services written consent of the Parties or their respective successors and assigns. The waiver of any particular breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
2. Assignment. This Agreement may not be assigned without the express Language Travel Services written consent of the other Party, except that either Party may assign or transfer this Agreement, in whole or in part, to its parent or any of its affiliates in which it has greater than fifty percent (50%) ownership or to any successors to substantially all of that part of its business to which this Agreement relates. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the Parties. Nothing in this Agreement, express or implied, is intended to confer upon any Party other than the Parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
3. Independent Contractor. Neither Party shall, for any purpose, be deemed to be an agent of the other Party and the relationship between the Parties shall only be that of independent contractors. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
4. Notices. Any notice required or permitted by this Agreement shall be in Language Travel Services writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the Party to be notified at such Party’s address or facsimile number as set forth below, or as subsequently modified by Language Travel Services written notice.
5. Counterparts.This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
6. Governing Law.This Agreement shall be governed by and construed under the laws of Ireland.
7. Invalidity.If any provision of this Agreement is or becomes (whether or not pursuant to any judgement or otherwise) invalid, illegal or unenforceable in any respect under the law of any jurisdiction:
1. the validity, legality and enforceability under the law of that jurisdiction of any other provision; and
2. the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision, shall not be affected or impaired in any way.
3. In any of the circumstances described in this clause 9.5.8 above, the parties shall meet to discuss the void and unenforceable provisions and shall substitute it with a lawful and enforceable provision which so far as possible results in the same economic effects.
8. Force Majeure. Neither party shall be liable to the other in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely circumstances beyond the control of either party which shall include (but not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, embargo, riots, labour strikes, civil commotion or civil authority including acts of local government and parliamentary authority, provided that, if any force majeure event shall continue for more than six months, either party may terminate this Agreement immediately
9. Surviving Obligations. All obligations under this Agreement which by their nature would continue beyond the termination and /or expiration of this Agreement shall survive such termination and/or cancellation.
10. Entire Agreement. This Agreement is the product of both of the Parties hereto, and constitutes the entire agreement between such parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the Parties with regard to the transactions contemplated herein. Any and all other Language Travel Services written or oral agreements existing between the Parties hereto regarding such transactions are expressly canceled. However, the following attachments form part of this Agreement:
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