By Registering and signing up to the WePlann Affiliate Program as Affiliate Partner, the Affiliate hereby acknowledges, accepts and agrees to the terms and conditions of this Affiliate Agreement (The “Agreement”).
THIS AGREEMENT effective the date of affiliate registration, by and between WePlann, Inc., a Delaware corporation (“WePlann”, "Company") with its registered address at 21 Waterway Avenue, Suite 300, The Woodlands, Texas 77380 USA, and the registering Affiliate ("You", "Your", "Affiliate"), whose details are set out in the Affiliate Partner Registration Form (the Affiliate Partner Registration Form).
(i) WePlann operates an online travel activities & tours reservation system through which participating Activity and Tour Operators (collectively the "Operators") can make their activities and tours available for reservation, and through which visitors can book activities and tours with such "Operators" (the "Service");
(ii) WePlann maintains and exploits its own web sites (www.WePlann.com www.WePlann.com.br), and also provides the Service and links to the Service on the websites of third parties;
(iii) the Affiliate owns, controls, hosts and/or operates one or more Internet domains and websites;
(iv) the Affiliate and WePlann wish that the Affiliate makes the Service (directly or indirectly) available to its customers and visitors of the Affiliate Website(s) and in such form and on such terms and conditions as set out in this Agreement.
HAVE AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
In addition to terms defined elsewhere in this Agreement, the following definitions apply throughout this Agreement, unless the contrary intention appears:
“Affiliate” means the Party of which the relevant (contact) details are set out in Affiliate Partner Registration Form.
“Affiliate Group” means the Affiliate and the ultimate holding company of the Affiliate .
“Affiliate Partner Registration Form” means the online sign up and registration form to be completed by the Affiliate.
“Affiliate Website(s)” means the website owned, controlled, hosted and operated by the Affiliate on which the Service shall be made available which URL’s are set out in the Affiliate Partner Registration Form.
“Black Hat” (also called spamdexing) means any attempt to redirect search results to particular target pages in a fashion or manner that is in violation of the Spamming Regulations.
“WePlann Competitor” means any direct or indirect competitor of WePlann.
“WePlann Brands” means any term or keyword which is the same as or confusingly similar to (including any variations, translations, misspellings and singular/plural forms of) any of following term(s): WePlann, WePlan, or We Plan (with or without any associated Internet domain names (with whatever (country code) top-level domain) (e.g. WePlann.com, WePlann.mx).
“WePlann Data” means the Intellectual Property Rights of WePlann and the Content as provided to the Affiliate under this Agreement and such other information from time to time owned or used by WePlann or embodied or included in WePlann Websites or made available by WePlann to the Affiliate (e.g. rates and availability).
“WePlann Websites” means the website(s) of WePlann.
“Cloaking” means a Black Hat search engine optimization (SEO) technique in which the content presented to the search engine spider is different to that presented to the user’s browser.
“Commission” means the amount in Dollars (excluding VAT) that WePlann will pay to the Affiliate for each Materialized Transaction.
“Connections” means all links, landing pages and/or XML feeds and/or deeplinks and/or hyperlinks, created, hosted and maintained by WePlann.
“Content” means all (descriptive) information of travel activities & tours available on the WePlann Website including but not limited to activities information and descriptions, passenger reviews, meta data, details of facilities and (cancellation/no show) policies and general terms of the activities (including any translations thereof) and photos, video, pictures, but excluding rates and availability (including any updates, modifications, replacements, additions or amendments).
“CPA” means costs per action.
“CPC” means cost per click.
“CPM” means cost per mille (impressions).
“CPV” means cost per visitor or cost per view in the case of pop ups and unders.
“Customer Data” means the Customer’s name, address (including email address), credit card details and such other confidential and private information of a Passenger.
“Double Serving” means multiple ads on the same results page of a search engine with the purpose to direct traffic to similar websites or pages with similar content.
“Effective Date” means the date on which the Service is made available to the Passengers on the Affiliate Website(s).
“Intellectual Property Right” means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (with whatever (country code) top-level domain, e.g. .com, .nl, .fr, .eu) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world.
“Link” means an embedded icon, object, graphic, or text within a web page or email that consists of a hypertext pointer to the URL address of WePlann on the Affiliate Website(s).
“Materialized Transaction(s)” means the reservation by a visitor of the Affiliate Website(s) who, through the Connection, has made a reservation with an Operator, and which reservation has resulted in the actual provision of activities, as confirmed to WePlann by the Operator.
“Micro Site” means all white label versions of the primary website of WePlann, which are owned, created, hosted and maintained by WePlann. The Micro Site may be marked with a ‘powered by WePlann’ logo.
“Paid Search” means any form of online advertising that ties the presentation of an ad to a specific keyword-based search request.
“Parties” means WePlann and the Affiliate (each individually a “Party”).
“Price Comparison” means the comparison of activity prices and/or availability made available from or by two or more online activty & tour platforms.
“SEM” means search engine marketing and includes any form of online marketing that seeks to promote websites by increasing their visibility in search engine result pages through the use of search engine optimization, paid placement, contextual advertising or paid inclusion.
“SEO” means search engine optimization and includes the process of (i) improving the volume or quality of traffic to a web site or a web page from search engines via “natural” or un-paid (“organic” or “algorithmic”) search results, or (ii) realizing or creating an improved or better ranking in search engine results for a specific keyword or keywords.
“Spamming Regulations” means any policies, regulations, restrictions or obligations as from time to time prescribed, declared applicable or announced by Third Party Platforms which (i) prohibit or prevent Double Serving, Cloaking or any similar technique or method, or (ii) contain such further restrictions or regulations in respect of spamming or preserving a unique user experience.
“Third Party Platforms” means any (third party) search engine (marketing provider), website, meta-search engine, search engines spiders, travel search sites, price comparison sites, social networking communities, browsers, content sharing and hosting services and multimedia blogging services or other (similar) channels or other forms of (traffic hosting) media, whether online or offline.
“Transaction Fee” means the fee received by WePlann from each Operator for each Materialized Transaction.
“Websites” means the website(s) of WePlann and its affiliated companies and affiliated partners (including the Affiliate Website(s)) on which the product and service of WePlann is available.
“XML” means an xml connection between the WePlann database and the Affiliate’s database which can be provided by WePlann.
2. SCOPE OF THIS AGREEMENT
Subject to the terms and conditions of this Agreement, the Affiliate shall operate as a non-exclusive distributor (affiliate) of WePlann.
2.2.1 For the term of this Agreement, Parties have agreed that the Service shall be made available by WePlann to the Affiliate as set out in Affiliate Partner Registration Form (i.e. Link, or Micro Site) and on the website(s) as set out in Affiliate Partner Registration Form (i.e. the Affiliate Website(s)).
2.2.2 When a booking is made by a visitor on or through the Affiliate Websites through the System, WePlann shall be solely responsible for the transmit of the relevant reservation details from the visitor who completed a booking to the Operator and (sending of) the subsequent (email) confirmation to the Passenger.
2.2.3 The Service shall include customer services to and for the benefit of the Passengers. The Affiliate shall promptly refer and/or forward all customer service related issues and questions in respect of the Service, (the consummation of) the booking (including any amendment or cancellation of the booking), the Operator and all other relevant (payment) issues, complaints and questions directly to (the customer service center of) WePlann and not provide any further services in this respect.
2.2.4 The offer of the Service through Micro Site do not include the following features: temporary tests on WePlann, passenger reviews and such other (new) features as WePlann at its sole discretion may determine.
2.3 Link or Micro Site
2.3.1 In the event that the Service is made available through the Link, the Affiliate shall at its own costs integrate and make the Link available at such prominent place(s), web-pages and in such place, size and form on the Affiliate Website(s) as mutually agreed upon by Parties.
2.3.2 In the event that the Service is made available through the Micro Site, the Affiliate shall at its own costs integrate and make the Connections and/or the Micro Site available at such prominent place(s), web-pages and in such place, size and form on the Affiliate Website(s) as mutually agreed upon by Parties.
3.1 Mutual license
3.1.1 Subject to Clause 4.4, WePlann hereby grants the Affiliate a non-exclusive, royalty free and worldwide right and license (or sublicense as applicable):
(a) to display such elements of the WePlann Data and such further information of the Operators on the Affiliate Website(s), all as provided or made available by WePlann to the Affiliate;
(b) to promote and market the Service subject to the terms set out in this Agreement.
3.1.2 The Affiliate hereby grants WePlann a royalty free and worldwide right and license:
(a) to incorporate, integrate, include and display the Link, the Micro Site and/or the Connection (as applicable) on the Affiliate Website(s), and
(b) to make the Service available on the Affiliate Website(s).
3.2 No sublicense right and non-disclosure
3.2.1 Unless agreed otherwise in writing by WePlann, the Affiliate shall not (i) be entitled to sublicense the rights granted to it under Clause 3.1.1, or (ii) sublicense the Link or Connection to any third party, or (iii) hyperlink to the WePlann Website via or in collaboration with (the websites of) companies within the Affiliate Group and/or third parties.
3.2.2 Unless agreed otherwise by WePlann in writing or save as set out otherwise in this Agreement, the Affiliate shall not directly or indirectly be entitled to sell, use, transfer, (sub)license, communicate, disclose, make available, allow access to, divulge or otherwise disseminate the WePlann Data or the Content (i) to any third party, (ii) for price/availability comparison purposes, sites, reviews or investigations, or (iii) for any other purpose other than (generating Operator reservations through) the Service.
4. COVENANTS AND UNDERTAKINGS
4.1 General covenants, undertakings and obligations
4.1.1 Subject to the terms of this Agreement, the Affiliate agrees to use commercially reasonable endeavours to (i) customize the Affiliate Website(s) and integrate the Link, Connections and/or the Micro Site in such a way as to generate as much traffic as possible to the WePlann Website or the Affiliate Website(s), and (ii) promote and market the Operators and the option to book Operators on the Affiliate Website(s) within its commercial network.
4.1.2 The Affiliate agrees not to take or omit to take any action which may affect WePlann’s relationship with the Operators available on the WePlann Websites. The Affiliate agrees not to cause or permit to be done anything which may cause WePlann to be excluded from the process of booking with any Operator, moreover, the Affiliate shall not in a negative or detrimental way speak (i.e. badmouth) of or comment on (the business of) WePlann.
4.1.3 The Affiliate agrees not to communicate with any Operator in respect of (consumed) bookings made through the System or for any customer service in respect of such bookings made through the System or consumed.
4.1.4 The Affiliate shall duly and diligently maintain and adjust the contents of the Affiliate Websites and shall keep the Affiliate Website(s) up-to-date and accurate. The Affiliate shall promptly correct any errors or omissions on the Affiliate Website(s) and in the information relating to the Operators after becoming aware of such errors or being notified by WePlann.
4.1.5 The Affiliate shall not programmatically evaluate and extract information (including passenger reviews) from any part of the WePlann Website (e.g. screen scrape).
4.1.6 The Affiliate shall not make any static copy of the Content or any part of the WePlann Website on the Affiliate’s own server (including passenger reviews).
4.1.7 The Affiliate shall not make any bookings or reservations with any Operator on the WePlann Website or the Affiliate Website with the purpose of reselling such booking or reservation to or for the benefit of a third party.
4.1.8 WePlann will provide the Affiliate with a unique link to a secured website of WePlann (the “Secured Website”), user ID and password which allows the Affiliate to monitor the booking of activities through the Affiliate Website(s) and all relevant management information made available by WePlann online. The Affiliate shall safeguard and keep the user ID and password confidential and safely stored and not disclose it to any person other than those who need to have access to the Secured Website. The Affiliate shall immediately notify WePlann of any (suspected) security breach or improper use.
4.1.9 The Affiliate agrees and acknowledges that the restrictive covenants, undertakings, commitments, obligations and restrictions set out in this Clause 4 are of material importance to WePlann, in particular for (i) its willingness to enter into this Agreement with the Affiliate and make the Service, the Content and the WePlann Intellectual Property Rights (directly or indirectly) available to the Affiliate, and (ii) the protection of goodwill, product, service and (market) reputation of WePlann. Furthermore, the Affiliate agrees and acknowledges that all covenants, undertakings, commitments, warranties, obligations and restrictions set out in this Clause 4 shall (a) be promptly, duly and diligently complied with by the Affiliate, and (b) also apply in respect of the companies within the Affiliate Group and the Affiliate shall procure, warrant and undertake that the companies within the Affiliate Group shall observe, adhere to, comply with and act in accordance with the terms and conditions set out in this Clause 4.
4.2 Goodwill and brand protection
4.2.1 In order to protect the product, service, brand and goodwill of WePlann, the Affiliate hereby covenants, undertakes and warrants that the Affiliate Website(s) (including all other websites (directly or indirectly) owned, controlled or hosted by the Affiliate or companies within the Affiliate Group) save for the Micro Site, is (and shall remain) sufficiently and substantially distinct and different from the WePlann Website (to be determined at WePlann sole discretion). The Affiliate hereby agrees and acknowledges that for the term of this Agreement and continuing thereafter:
- (a) the look and feel of the Affiliate Website(s) (including all other websites (directly or indirectly) owned, controlled or hosted by the Affiliate) shall be distinctly and significantly different to the WePlann Website including in respect of the color scheme, the composition, the typefaces, the design and the layout (including the brand), the (click) buttons, boxes and banners and the available features (save for those features reasonably required for the performance of the Affiliate’s obligations under
- (b) any logo(s) used on the Affiliate Website(s) (including all other websites owned, controlled or hosted by the Affiliate) shall be distinctly different to the WePlann logo (save for any logo that may be provided by WePlann for use by the Affiliate under or pursuant to this Agreement);
- (c) the Affiliate shall not in any way imitate or copy the WePlann Websites (in general or in respect of certain (new) features, pages, form, composition or aspects), and
- (d) the Affiliate shall promptly comply at its own costs with any reasonable requests from WePlann to make such (further) changes, alterations or amendments to any aspect of the Affiliate Website(s) which is or can be regarded to be confusingly or significantly similar to any element of the WePlann Website.
4.3 Intellectual Property Rights
4.3.1 The Affiliate acknowledges that WePlann and/or its licensors shall retain ownership of all rights, title and interest in and to all Intellectual Property Rights of WePlann or embodied in the WePlann Website, including (but not exclusively) the WePlann logo and the Content.
4.3.2 The Affiliate shall not (directly or indirectly) disclose, integrate, include, use, combine, exploit, incorporate or otherwise make the WePlann Data (or any part thereof) available (a) with its own content and/or the content of any WePlann Competitor (including the Operators), or (b) to or for the benefit of (i) itself (save for enabling the Service and the System in accordance with the terms of this Agreement), or (ii) any third party (including any WePlann Competitor and the Operators) (whether for the promotion of, marketing of, reference to, promotion of, advertising of or otherwise in the interest of or to such party), or (c) for any other purpose or in any other manner and/or on or through Third Party Platforms except as expressly provided for in this Agreement. The Affiliate shall not amend, alter, modify, distort, create derivative and/or new works based on and/or derived from the WePlann Data and the WePlann Data shall not include a (direct or indirect) link, reference, click-through or reference to (the website of) a WePlann Competitor (including the Operators). Upon termination or expiration of this Agreement, the Affiliate shall destroy, delete or upon first request of WePlann return all WePlann Data (including all hard and soft copies).
4.3.3 The Affiliate shall (and shall procure that the companies within the Affiliate Group shall) not (directly or indirectly) register, acquire, use, purchase or obtain Internet domain name which incorporates any word or words which are identical, or confusingly or substantially similar to “WePlann”, or any variations, translations or misspellings thereof, included as part of the address.
4.3.4 By entering into this Agreement, WePlann does not (explicitly or tacitly) waive or forfeit any of its rights to which it is entitled by any law, contract or otherwise (now or in the future) in respect of the WePlann Intellectual Property Rights vis-à-vis the Affiliate or other third parties.
4.4 Promotion and marketing
4.4.1 During the term of the Agreement, the Affiliate agrees and warrants that it shall not (and shall procure that companies within the Affiliate Group shall not) conduct, undertake, use, perform or exercise (or have or authorize third parties (to) conduct, undertake, use, perform or exercise) (a) Paid Search, SEM or SEO activities, (b) any activity to unfairly influence the results of Third Party Platforms, or (c) any other form of online targeted advertising (whether directly, indirectly, or via or through Third Party Platforms) in respect of:
- (i) the Service;
- (ii) the WePlann Website;
- (iii) the Content;
- (iv) the WePlann Data;
- (v) the WePlann Brands;
- (vi) the Operator Brands (unless the owner of such Operator Brand has given its prior written consent to the Affiliate for the use of that specific Operator Brand), or
- (vii) the Affiliate Website to the extent that the Paid Search, SEM, SEO or other online targeted advertising activities are related to (a) the offer, booking or reservation of Activities (whether through the Service or otherwise), or (b) information in respect of Activities.
Clause 4.4.1 in respect of paragraph (i) up to and including (v) shall survive termination of this Agreement.
4.4.2 The Affiliate shall not use, exploit or otherwise employ, directly or indirectly, any Third Party Platforms, to seek to avoid or circumvent its covenants, obligations or restrictions under this Agreement or those restrictions or covenants of which the Affiliate could reasonably expect that any such actions fall under the scope of this Agreement.
4.4.3 The Affiliate shall not exploit or use the Content for any purpose or in any manner and/or on or through Third Party Platforms except as expressly provided for in this Agreement.
4.4.4 During the term of this Agreement (and continuing thereafter in respect of the WePlann Brands and the WePlann Data) the Affiliate shall immediately comply with any request made by WePlann to adhere to and comply with this Clause 4.4.
4.5 No Double Serving or Cloaking
4.5.1 The Affiliate Websites shall not be (directly or indirectly) linked to the WePlann Websites due to Double Serving or any similar technique or method or such other restrictions as set out in any Spamming Regulations.
4.5.2 In the event that the Service is made available through the Link or the Micro Site, the Affiliate shall not make the Service (directly or indirectly) available through or use for this purpose travel search sites or price comparison sites, unless agreed otherwise in writing by WePlann.
4.5.3 The Affiliate shall not (directly or indirectly) make the Affiliate Website(s), the Content or the Service available or present the Content, to the Third Party Platforms with the intention or purpose of or by (trying to) mislead(ing), deceive (deceiving), trick(ing) or fool(ing) human editors, computer search engine spiders, web-crawlers or (meta) search engines (including any similar tools or engines) of Third Party Platforms in order to give the Affiliate Website(s) a higher ranking or display when it would not otherwise be displayed or higher ranked if it would not have been using Cloaking or any similar technique or method.
4.5.4 The Affiliate covenants, undertakes and warrants to promptly adhere to, observe and comply with the Spamming Regulations (and all reasonable requests made by WePlann in this respect) in order to avoid any breach by WePlann or the Affiliate Website(s) of such policies due to or in respect of the Affiliate Website(s).
4.6.1 The Affiliate agrees not to contact, solicit or accept any Operator (i) as its business partner for bookings or reservation (directly or indirectly) on or through the Affiliate Website(s), (ii) for sale of advertisement space or other (online) advertisement or marketing purposes (whether through banners, click-through, (text) links, pop-ups or otherwise) on the Affiliate Website(s), or (iii) for any other reason.
4.7 Similar domain names
4.7.1 In the event that the Affiliate has or uses a domain name (confusingly) similar to the WePlann Brands (the “Similar Domain Name”) for the Affiliate Website(s) (to be determined at WePlann discretion) or in the event that the Affiliate wishes to register, acquire, use, purchase or obtain a Similar Domain Name (subject to WePlann prior written approval), the following applies. The Affiliate shall (and shall procure that the companies which it Controls shall) not, directly or indirectly:
- (a) bid on or purchase internet placement rights for the Similar Domain Name or any part or similarities thereof in any manner in any of its advertising, including but not limited to, internet and web advertising.
- (b) include the Similar Domain Name or any part thereof, or similar variations, translations or misspellings, in the meta tags of any web site code. This includes the meta title, meta keywords or meta description.
- (c) purchase, obtain or use, directly or indirectly, any keywords from Third Party Platforms so as to redirect traffic to the Similar Domain Name, and
- (d) purchase the Similar Domain Name or any part thereof, or any variations, translations or misspellings thereof, for use in text links, banner ads, pop-up ads or any other type of ad that could be associated with a keyword campaign.
4.8 Burden of proof, compliance, injunctive relief and further remedies
4.8.1 Parties agree and acknowledge that in the event of an (alleged or threatening) infringement or breach by the Affiliate of its obligations under this Clause 4, the burden of proof is carried by the Affiliate. In other words, WePlann carries the benefit of assumption and the Affiliate needs to provide and deliver sufficient and satisfactorily evidence (i.e. conclusive and irrefutable) in order to defend or reject a claim.
4.8.2 In the event that a WePlann Website, campaign or advertisement is linked to the Affiliate Website(s) or the Affiliate’s campaign or advertisement (or vice-versa) or in the event of a (threatening) breach of the Spamming Regulations by the Affiliate, the Affiliate shall (i) promptly notify WePlann of such (threatening) breach after becoming aware of such breach, and (ii) upon first request of WePlann promptly implement, comply with and abide by all of the terms, restrictions and prohibitions set out in this Agreement or requested by WePlann. The Affiliate shall promptly contact each Third Party Platform or third party agency, and revise the Affiliate Website(s) and all ad copy, titles, descriptions, keywords, URL’s, text links, advertisements, including all meta tags (meta titles, meta keywords and meta descriptions) to comply with the terms of this Agreement or as requested by WePlann.
4.8.3 The Affiliate agrees and acknowledges that pending any compliance or implementation of the reasonable requests made by WePlann or in the event that the Affiliate does not promptly comply with or adhere to all such requests of WePlann under or pursuant to this Clause 4, WePlann shall be entitled to postpone its obligations under this Agreement (including the offer of the Service, System and the WePlann Data) or immediately terminate this Agreement.
4.8.4 In the event of a breach of the covenants, undertakings, restrictions, obligations and/or warranties set out under this Clause 4 by or attributable to the Affiliate, WePlann shall be entitled to exercise the following actions and rights, notwithstanding the remedies and actions for specific performance, damage compensation or injunctive or equitable relief available by law or contract:
- (a) suspension of its (payment) obligations under or termination of this Agreement with immediate effect;
- (b) WePlann shall be entitled to use a Percentage Commission Split of 0% for all bookings made and/or each Materialized Transaction during the term that the Affiliate breaches the relevant obligations set out in Clause 4 or has not remedied its breach of the relevant obligations as set out in Clause 4 in full, and
- (c) in the event of the use of a Similar Domain Name (or ownership or registration by the Affiliate of a website with a (confusingly) similar domain name as owned or used by WePlann) and a repeated and/or material breach of Clause 4, the Affiliate shall transfer, assign and register the Similar Domain Name (including the website(s) with a (confusingly) similar domain name) to and in the name of WePlann through a domain name registrar company of WePlann’s choice to be completed within 20 business days after the occurrence of a breach. In the event the Affiliate does not (cooperate with and effectuate the) set over, assignment and transfer (of) the relevant domain names, the Affiliate hereby irrevocably and unconditionally authorizes, empowers and gives a power of attorney to and in favor of WePlann to sign and/or execute all documents that are necessary or useful in relation to or required for the assignment, registration, set over and transfer of the domain names to and in the name of WePlann.
5.1 Commission split
5.1.1 WePlann will pay the Affiliate for each Materialized Transaction the Commission, based on an established commission to be included in the Secured Website.
5.2 Self-invoicing and invoice
5.2.1 WePlann operates, and the Affiliate accepts, a “self-invoicing” system for any Commission owed to the Affiliate.
5.2.2 On or before the 15th day of each month (the actual date being the “Release Date”), WePlann shall provide the Affiliate with a credit invoice stating the Commission payable that month (the “Invoice”).
5.3 Payment and transfer Commission
5.3.1 WePlann shall pay Commission to the Affiliate on a monthly basis, 15 days after the end of the month in which the passenger exercises their activity, unless the amount of Commission due to the Affiliate at that time is less than $100, in which event WePlann will be entitled to postpone payment until the month when such amount is due or until the amount is claimed by the Affiliate after the termination of this Agreement.
5.3.2 All Commission payments shall be made by bank transfer, into the bank account specified by the Affiliate in the Affiliate Partner Registration Form, or into any other bank account that the Affiliate may notify to WePlann from time to time.
6. REPRESENTATIONS AND WARRANTIES
6.1 Affiliate warranties
The Affiliate hereby represents and warrants to WePlann that for the term of this Agreement:
- (i) the Affiliate has all necessary rights, title to, power and authority to own, operate and use the Affiliate Website(s) (including the relevant domain name(s)) and to include the Link, the Micro Site or the Connection (as applicable) on the Affiliate Website(s);
- (ii) the Affiliate Website(s) shall not (a) violate Spamming Regulations, public policy and morals, or (b) contain any inappropriate, improper or unlawful content, reference, material, information, links or banners (e.g. in respect of porn or racism), defamatory statements, elements which violate the privacy of third parties or are abusive, offensive or obscene;
- (iii) the Affiliate holds and has complied with all permits, licenses and other governmental authorisations necessary for conducting, carrying out and continuing its operations and business, and
- (iv) the Affiliate is an independent contractor for all purposes, and will be responsible and liable for its own taxes, social contributions and all other tax related matters.
6.2 Parties warranties and undertakings
6.2.1 Each Party represents and warrants to the other Party that for the term of this Agreement:
- (i) it has the full corporate power and authority to enter into and perform its obligations under this Agreement;
- (ii) it has taken all corporate action required by it to authorise the execution and performance of this Agreement;
- (iii) this Agreement constitutes legal valid and binding obligations of that Party in accordance with its terms.
6.2.2 Each Party shall use its commercially reasonable efforts to protect and safeguard its Website(s).
6.3.1 Except as otherwise expressly provided in this Agreement, neither Party makes any representation or warranty, express or implied, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability or fitness for a particular purpose regarding such subject matter. WePlann provides the Service on an “as is” and “as available” basis.
6.3.2 Each Party acknowledges the difficulties inherent to the use of the Internet, in particular, varying speeds and congestion in the network can cause interruptions and difficulties in accessing a Website. Each Party excludes any and all liability in respect of the other Party which is related to any (temporary (scheduled or unscheduled) and/or partial or wholly) breakdown or downtime (for maintenance, updates or otherwise) of the Websites, the Secured Website, the System and/or the Service.
7. INDEMNIFICATION AND LIABILITY
Each Party (the “Indemnifying Party”) shall be liable towards, and compensate, indemnify and hold the other Party (the “Indemnified Party”) harmless for and against any direct damages, losses (excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any special, indirect or consequential losses and/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties, legal proceedings and expenses (including, without limitation, reasonable attorneys’ fees and expenses) actually paid, suffered or incurred by the Indemnified Party pursuant to:
- (i) a breach of this Agreement by the Indemnifying Party, or
- (ii) any claim from any third party based on any (alleged) infringement of the third party’s Intellectual Property Right by the Indemnifying Party.
7.2 Maximum liability
7.2.1 Save as otherwise provided for in this Agreement, the maximum liability of a Party for all claims made against such party by the other Party under or in connection with this Agreement in a year shall not exceed the aggregate commission received or paid by such Party in the preceding year or US$ 100,000 (whichever is higher), unless in the event of fraud or wilful misconduct of Indemnifying Party, in which event the limitation of liability is not applicable for such liable party.
7.3 Third Party Claim
In the event of a third party claim, the indemnified Party shall promptly notify the other Party and Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defence and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defence and settlement (in consultation and agreement with the indemnified Party and with due observance of both Parties’ interests), and neither Party shall make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
7.4 Waiver of consequential damages etc.
In no event shall any Party be liable to the other Party for any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any indirect, special, punitive, incidental or consequential damages or losses whether such damages are alleged as a result of a breach of contract, tort or otherwise. All such damages and losses are hereby expressly waived and disclaimed.
8. TERM, TERMINATION AND SUSPENSION
8.1 Term, termination and suspension
8.1.1 Unless agreed otherwise, this Agreement shall commence on the date hereof for indefinite period of time.
8.1.2 Each Party may terminate this Agreement with immediate effect at any time and for any reason, by written notice to the other Party.
8.1.3 Each Party may terminate this Agreement or suspend this Agreement in respect of the other Party, with immediate effect and without a notice of default being required in case of:
- (a) a material breach by the other Party of any term of this Agreement;
- (b) (filing of a request for) bankruptcy or suspension of payment (or similar action) in respect of the other Party, or
- (c) a (direct or indirect) change of Control in respect of the other Party.
8.1.4 This Agreement will terminate automatically in the case that no Materialized Transactions are effected in a period of 12 consecutive months.
8.1.5 Upon termination of this Agreement WePlann shall continue to pay to the Affiliate any outstanding Commission in accordance with Article 5 for a period of 12 months after the termination date, on the condition that WePlann has the correct contact and banking details for the Affiliate during that period. Should the Affiliate fail to claim any unpaid Commission within that 12 month period, such failure shall constitute an effective waiver of the Affiliate’s right to claim such Commission.
8.1.6 Upon termination and save as set out otherwise, this Agreement shall absolutely and entirely terminate and cease to have effect without prejudice to Party’s rights and remedies in respect of an indemnification or a breach by the other party of this Agreement. Clause 4.1.2, 4.1.5, 4.1.6, 4.1.7, 4.2, 4.3, 4.4.1, 4.8.4(c), 9, 10, 11 and 12 shall survive termination of this Agreement.
9.1 Confidential Information
Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the “Confidential Information”). Confidential Information includes Customer Data, transaction volume, marketing and business plans, business, financial, technical and operational information, usage statistics, ranking data, information in respect of rate, product and availability parity, pricing policies, conversion data and volume of click-throughs, and other related statistics, personal data of Passengers, any software or information regarding software provided or used by WePlann in connection with this Agreement, the terms of this Agreement and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
9.2 Protect and safeguard Confidential Information
Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement, (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the “Permitted Persons”) to maintain, the confidentiality and secrecy of the Confidential Information, (c) it shall disclose Confidential Information only to those Permitted Persons and who need to know such information in furtherance of this Agreement, (d) it shall not, and shall use prudent methods to ensure that Permitted Persons do not (i) copy, publish, transmit, reproduce, divulge, disclose or make the Confidential Information available to any third party, or (ii) use or store it in an unprotected retrieval system or database (other than pursuant to the terms hereof), and (e) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
9.3 Permitted disclosure
Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was possessed by the receiving party prior to the date of this Agreement, (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority.
9.4 Customer Data
Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Customer Data and to protect it from unauthorized use or release.
10.1.1 All notices and communications must be in English, in writing, and sent by facsimile or nationally recognized overnight air courier to the applicable facsimile number or address set out in this Agreement. Notices are deemed delivered and received upon successful facsimile transmission or one business day after the date of delivery by a recognized overnight air courier.
If to WePlann: WePlann, Inc.
21 Waterway Avenue
The Woodlands, TX 77380
21 Waterway Avenue
The Woodlands, TX 77380
If to the Affiliate:
See Affiliate Partner Registration Form.
Any notice or communication to be provided to the Affiliate under this Agreement shall be sent to the email address as provided by the affiliate in the Affiliate Partner Registration Form.
See Affiliate Partner Registration Form.
Any notice or communication to be provided to the Affiliate under this Agreement shall be sent to the email address as provided by the affiliate in the Affiliate Partner Registration Form.
11.1.2 The Affiliate shall clearly include in all correspondence (e.g. in the reference or subject line) its assigned Affiliate ID number.
10.2 Covenant and undertaking
10.2.1 Each Party shall, at its own costs and expenses, use all reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done all things necessary, proper or advisable under applicable law or upon reasonable request of WePlann, and execute and deliver such instruments of assignment, transfer, deeds, documents and other papers, as may be reasonably required to carry out the provisions of this Agreement or perform under or in accordance with the Agreement.
10.3 Whole Agreement
10.3.1 This Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, ((non) binding) offers, undertakings or statements regarding such subject matter.
10.4 Assignment and third party beneficiary
10.4.1 Neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this Agreemet without the prior written consent of the other party, provided that WePlann may assign, transfer, encumber any of its rights and/or the obligations under this Agreement (in whole or in part or from time to time) to an affiliated company without the prior written consent of the Affiliate.
10.4.2 This Agreement is concluded for the benefit of the Parties and their respective successors and permitted assigns, and nothing herein is intended to or shall implicitly confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement, except to the extent explicitly stated otherwise in this Agreement.
10.5 Partial invalidity
10.5.1 If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions hereof. In that event, the Parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
10.6.1 The original English version of this Agreement may have been translated into other languages. The translated version of this Agreement is a courtesy and office translation only and the Affiliate cannot derive any rights from the translated version.
10.7 Execution, performance and effect
10.7.1 The Agreement only enters into force and effect upon confirmation of acceptance and approval of the Affiliate by WePlann. By registering and signing up to the weplann.com partner programme as affiliate partner, the Affiliate agrees, acknowledges and accepts the terms and conditions of this Agreement.
11. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws rules.
Any legal action arising out of this Agreement shall be litigated and enforced under the laws of the State of California.
In addition, you agree to submit to the jurisdiction of the courts of the State of California, and that any legal action pursued by you shall be within the exclusive jurisdiction of the courts of the United States District Court for the Northern District of California.