IAN. COM, L.P. - AFFILIATE PROGRAM AGREEMENT

IAN. COM, L.P.
AFFILIATE PROGRAM AGREEMENT

This agreement ("Agreement") contains the complete terms and conditions for your participation in the IAN.com, L.P. Affiliate Program and the establishment of links from your website(s) to the Co-Branded Site, as defined below. As used in this Agreement, "you" means the applicant seeking to participate as an affiliate in the Affiliate Program.

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND IAN.COM, L.P. ("IAN") 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 FORTH IN THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT

1. Marketing of IAN Lodging Products

(a) Marketing of IAN Lodging Products. You agree to market the travel products offered by IAN on the URL indicated in the website information section of the Sign-Up Page. You agree to market all IAN travel products, including without limitation lodging, car rental, air ticket, Vacation Package (defined below), and cruise products, which may change from time to time (the "IAN Travel Products"). You shall market the IAN Travel Products through the use of the IAN Links (as defined in Paragraph 1(c) below) from your website entered below your name on the online enrollment application and other website(s) established by or operated by you or your affiliates in the future (the "Affiliate Sites") to the Co-Branded Site (as defined in Paragraph 1(b) below). You agree to integrate the IAN Links onto the URL indicated in the website information section of the Sign-Up Page within ninety days of your acceptance of this Agreement.

(b) Co-Branded Site. IAN shall establish and maintain a website (the "Co-Branded Site"), which shall contain the IAN Travel Products. The Co-Branded Site shall be customized to include branding and navigational elements reasonably requested by you. IAN shall operate and maintain the Co-Branded Site at its expense. You grant IAN a limited license to display your trademarks and trade names for the purposes designated in this Agreement. The authority to display such trademarks and trade names is a limited non-exclusive license that terminates automatically upon the termination of this Agreement.

(c) IAN Links. IAN will establish a unique URL for the Co-Branded Site, which will enable IAN to track sales occurring through the Co-Branded Site. IAN will provide you one or more graphic images to be used as links from the Affiliate Sites to the Co-Branded Site (collectively referred to as the "IAN Links"). IAN and you may from time to time agree to use other graphical links, including links customized for or by you. All graphical links to the Co-Branded Site must be approved by IAN in advance of use. As used in this Agreement, a "link" is a hypertext, text, banner, logo, graphic, or contextual element that permits a user to go from one party's website to another party's website by clicking on that element. IAN grants you a limited license to display the IAN Links and accompanying IAN trade and service marks for the purpose designated in this Agreement, and IAN reserves all its rights in such marks. The authority to display IAN Links is a limited non-exclusive license that terminates automatically upon the termination of this Agreement.

(d) Location of IAN Links. You shall place on the Affiliate Sites, the IAN Links, each of which shall be above the fold and prominently displayed on the Affiliate Sites.

(e) Exclusivity. During the term of this Agreement, you shall not, either directly on the Affiliate Sites, or indirectly through any link or advertisement, offer any offer any travel product similar to any IAN Travel Product then offered through the IAN Links.

2. Commissions Payable to You by IAN

(a) Commission Calculation. For services booked with IAN through the Co-Branded Site during the term of this Agreement, IAN will pay you a commission calculated as set forth below.

(i) Except for Vacation Package (defined below), You will be entitled a 5% of the gross amount, exclusive of taxes, tax recovery charges, service fees and customer adjustments charged to customers for any consumed IAN lodging booking for which the rental rate is contracted in advance by IAN on a net rate basis (each, a "Net Rate Room"). A room is considered consumed, and the commission earned, upon the check out date of booking reserved through IAN.

(ii) Except for Vacation Package, If made through the "hotelsTA.com" website, You will be entitled to a commission of $5.00 per air ticket booking.

(iii) Except for Vacation Package, You will be entitled to 1.5% of the gross amount, exclusive of tax charges, insurance, service fees, and customer adjustments, charged to customers based upon consumed cruise product bookings and on which IAN receive commission. A cruise shall be considered consumed upon the fulfillment of the cruise services booked by the customer.

(iv) You will be entitled to 50% of the lesser of (i) the industry standard commission rate owed to IAN, or (ii) the amount actually collected by IAN for such booking; for any for any booking of an IAN Travel Product other than a Net Rate Room, air ticket, Vacation Package or cruise.

(v) Vacation Package ("Vacation Package") means a combination of two or more transactions that have been effectuated and completed by one customer who has linked directly to the wizard associated with the IAN Vacation Package Site from the Hosted Site. You will be entitled to two percent (2%) of the gross amount, exclusive of taxes, tax recovery charges, service fees and customer adjustments charged to customer for a Vacation Package completed during the term of this Agreement.

(b) Transaction Covered by Commissions. Commissions are paid only on transactions that originate through the Co-Branded Site. No commissions shall be paid on subsequent bookings by the same customer unless that subsequent booking is made through the Co-Branded Site. IAN shall not offer to your customers any inducements to circumvent the Co-Branded Site.

(c) Commission Payments. IAN will pay You by the fifteenth (15^th) of each month all commission owed, which exceed Fifty US Dollars ($50) in aggregate, due Affiliate for: (a) Net Rate Rooms consumed during the previous month; (b) Vacation Packages completed during the previous month; (c) cruise products consumed during the previous month; (d) air tickets consumed during the previous month; and (e) all other IAN Travel Products for which a commission was collected by IAN during the previous month. Notwithstanding anything to the contrary in this Agreement, You will not be entitled to any commissions resulting from transactions that are subsequently cancelled, refunded, charged back, disputed by the traveler, result from fraudulent or other unlawful activity, or for which IAN does not receive payment (collectively, "Void Transactions"). IAN may deduct and offset any commissions previously made to You for such Void Transactions from subsequent commissions owed to You.

3. Amendments, Term, Warranties, Liability, and other Provisions

(a) Term. Unless earlier terminated in accordance with the terms of this Agreement, the term of this Agreement is three years from the date indicated on the signature page below, and shall thereafter be renewed on a year-to-year basis unless terminated by either party prior to the last month of the initial term and any renewal term.

(b) Termination Rights. This Agreement may be terminated by either party in the event of a breach of any of the terms of this Agreement, provided that if the breach is capable of being cured, the breaching party shall be given 30 calendar days to cure such breach prior to any right of termination arising. IAN reserves the exclusive right to terminate this Agreement at any time, for any reason, with or without cause.

(c) Absence of other Warranties. Neither you nor IAN makes express or implied warranties or representations, except as expressly provided in this Agreement. Each party represents and warrants that (i) it has the right and authority to enter into this Agreement and to comply with and perform its obligations hereunder; (ii) it has not entered into any other agreements inconsistent with its performance under this Agreement; (iii) each party's applicable website will operate in accordance with this Agreement, and is in good working order, free from material error, defects and malfunctions and in accordance with industry standards; and (iv) each party shall perform its services hereunder in a timely, competent, professional and workmanlike manner using properly trained and qualified individuals.

(d) Amendments. You agree that IAN may modify the terms of this Agreement, at IAN's sole discretion with or without notice and your continued participation in the Affiliate Program shall constitute acceptance of the modified terms of the Agreement.

(e) Assignment. Neither party shall assign its rights or obligations under this Agreement, in whole or in part, to an unrelated third party without the prior written consent of the other party, other than an assignment to any of its subsidiaries, related affiliates (brother/sister corporations) or parent corporations. You covenant that it shall not transfer ownership of any of the Affiliate Sites without the transferee first having assumed the obligations in this Agreement.

(f) Prohibited Activities. IAN and you each covenant and agree that during the term of this Agreement it shall not (i) engage in spamming activities that relate or refer, directly or through links, to the other party, (ii) place material on any site linked to any site of the other party that is materially not appropriate for general and family viewing, such prohibited materials include adult materials, sexual materials, materials advocating violence or hatred, or any material the display of which may be a crime in any state.

(g) Publicity and Marks. Each party shall (i) submit to the other all advertising, written sales promotions, press releases and other publicity matters relating to this Agreement (other than such materials disseminated solely on an internal basis) in which any of the other party's trade name, trademark, service mark, logo or other similar indicia of identity or source (collectively, "Marks") are used and (ii) not publish or use any such advertising, sales promotions, press releases or other publicity matters without the other party's prior written consent. Each party shall comply with the other party's requirements regarding the format and placement of its Marks. Neither party shall take any action to register or otherwise interfere with the other party's interests in its Marks. Unless specifically provided for herein, neither party shall adopt or otherwise use any trademark, trade name, service mark, logo, or symbol that is similar to, or likely to be confused with, any of the other party's Marks. Each party's use of the other party's Marks shall inure to the benefit of the other party.

(h) Disclaimer. THE CO-BRANDED SITE, IAN LINKS, AND THE IAN TRAVEL PRODUCTS ARE PROVIDED BY IAN "AS IS" AND WHERE AVAILABLE, AND IAN MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SAME. IAN EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, OBLIGATIONS AND LIABILITIES ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE CO-BRANDED SITE, IAN LINKS, AND THE IAN TRAVEL PRODUCTS, INCLUDING WITHOUT LIMITATION ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; OR (C) IMPLIED WARRANTY OF NONINFRINGEMENT. You hereby acknowledge that the IAN Travel Products booked through the Co-Branded Site, as applicable, are sold to customers by the applicable travel suppliers and not by IAN. IAN will have no liability to you or any customers for (i) any failure of the systems of IAN or any third party that results in the failure or inability to process a transaction through the Co-Branded Site, or (ii) the quality of the IAN Travel Products provided by travel suppliers to customers.

(i) Liability Limitations. In the event either party shall be liable to the other for any matter arising out of or related to this Agreement, the amount of damages recoverable against the other shall not include, nor will the other party be liable for, any indirect, incidental, consequential or punitive damages of any party, including third parties. In no event shall either party's liability exceed the greater of (i) U.S. $100,000, or (ii) the amount of commissions actually paid pursuant to this Agreement. YOU ACKNOWLEDGE THAT THE VACATION PACKAGE OFFERED BY IAN HEREUNDER IS OBTAINED FROM A THIRD PARTY INTERMEDIARY WHO IS MAKING SUCH TRAVEL SERVICES AVAILABLE FROM VARIOUS TRAVEL SERVICE SUPPLIERS. YOU EXPRESSLY AGREE THAT ALL LIMITATIONS OF LIABILITY OF THE AGREEMENT SHALL APPLY TO SUCH THIRD PARTY INTERMEDIARY, AND THAT THE THIRD PARTY INTERMEDIARY SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO THE VACATION PACKAGE PRODUCTS. The third party intermediary is an express third party beneficiary of the provisions of this Agreement, and such that third party intermediary will be entitled to the rights and benefits under this Agreement. The provisions of this section will survive the expiration or earlier termination of this Agreement for any reason. This Section shall not apply to (i) either party's obligations in Section 3(k) below, (ii) breaches by a party of its obligations in Section 4 below, or (iii) the willful or reckless acts or omissions of a party, its agents or employees.

(j) Dispute Resolution/Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflict of laws rules of any jurisdiction. The parties shall first attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation. If the parties are unable to resolve the dispute by negotiation, either party shall have the right to submit the dispute to binding arbitration ("Arbitration"). Such Arbitration shall be conducted under the rules of the American Arbitration Association's Commercial Arbitration Rules. The arbitrator will be selected by agreement of the parties. If the parties cannot agree on an arbitrator, an arbitrator will be designated by the American Arbitration Association. Any arbitrator so designated must be acceptable to all parties. The arbitrator shall have the authority to award compensatory damages only. The award rendered by the arbitrator shall be final, binding and non-appealable, and judgment upon such award may be entered by any court of competent jurisdiction. Other than those matters involving injunctive relief as a remedy, including during a pending Arbitration, or any action necessary to enforce the award of the arbitrators, the provisions of this paragraph shall be a complete defense to any suit, action or other proceeding instituted in any court with respect to any dispute, controversy or claim arising out of or related to this Agreement, or the creation, validity, interpretation, breach or termination of this Agreement. Each party shall be responsible for its own expenses, including legal fees, incurred in the course of the Arbitration. The fees of the arbitrator shall be divided evenly between the parties. The Arbitration shall be conducted in Dallas, Texas, USA. The provisions of this paragraph will not prevent either party from seeking (i) equitable relief regarding the other party's breach of its confidentiality provisions of the Agreement or (ii) specific performance of the other party's material breach of its obligations under this Agreement. Both parties agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their responsibilities under this Agreement that are not affected by the dispute.

(k) Indemnification. Each party agrees to indemnify, defend and hold the other party, its directors, officers, employees and agents harmless from and against any and all costs, liabilities, expenses, judgments, damages and other losses (including, without limitation, reasonable attorney's fees, costs, judgments, awards, settlement amounts and expenses with respect thereto) arising from any third party claim or action that is caused by, or results from, (i) a breach of any of the other party's representations or warranties contained in this Agreement, (ii) the other party's willful misfeasance, bad faith or gross negligence in the performance of or failure to perform as provided in this Agreement, (iii) any claim made by any third party that the use by a party of any of trademarks or trade names of the other party as permitted by this Agreement infringes any trademark or any other intellectual property or proprietary right of such third party, (iv) any claim made by a third party that the indemnifying party's website, or any data, software, method, service or material provided by the indemnifying party, (1) infringes any patent, copyright, trademark, trade secret or any other intellectual property or proprietary right of such third party, or (2) violates any applicable law including, without limitation, any right of privacy. In the event an indemnification obligation arises under this Agreement, (i) the party seeking indemnification (without limitation on the indemnifying party's indemnity obligations) shall use reasonable efforts to notify the indemnifying party promptly of the claim (provided, however, that the failure of the indemnified party to provide timely notice will only relieve the indemnifying party from its obligations hereunder to the extent that such late notice prejudiced its defense or resulted in increased losses); (ii) the indemnifying party shall assume defense of the claim with counsel reasonably acceptable to the party seeking indemnification; (iii) neither party shall enter into a settlement or other resolution of the claim that imposes liability on the other party without the other party's consent; and (iv) the party seeking indemnification shall, at the indemnifying party's expense, provide reasonable cooperation to the indemnifying party in defending or settling the claim. The obligations in this Section 3(k) shall survive the expiration or earlier termination of this Agreement indefinitely.

4. Confidentiality

IAN and you each agree to keep confidential the other party's Confidential Information, and that the Confidential Information will not, without the other Party's consent, be disclosed in any manner whatsoever, in whole or in part, and shall not be used other than as contemplated by this Agreement. The information contained in the Confidential Schedules to this Agreement constitutes Confidential Information of the parties. Further, each party will share the Confidential Information with only those persons within its company (and its advisors) who need to know the Confidential Information for the purpose of assisting in the performance of the Agreement and who are informed of, and agree to be bound by the terms hereof as if a party to, this Agreement. For the purposes of this Agreement, "Confidential Information" shall mean information that is marked "CONFIDENTIAL," "RESTRICTED" or "PROPRIETARY," or which by its nature or context should be reasonably understood to be confidential information of such party or its licensors or subcontractors. Without limiting the foregoing, Confidential Information shall include non-public, confidential, and proprietary information, including information regarding pricing, commissions, rates, terms, vendors, programs, processes, and practices, relating to a party's business operations or pursuant to this Agreement. Confidential Information does not include information that (i) is or becomes publicly available other than as a result of acts by the other party in violation of this Agreement, (ii) is already in the possession of the other party prior to disclosure of that information, (iii) is or becomes available to the other party from a source that, to that party's best knowledge, is not bound by a confidentiality agreement prohibiting such disclosure, or (iii) is independently developed by the receiving party. The receiving party may disclose the disclosing party's Confidential Information as required under applicable law or regulation; provided, however, that (i) the receiving party must give the disclosing party prompt written notice prior to such disclosure and make a reasonable effort to obtain a protective order against such disclosure, and (ii) any such disclosure shall be limited in scope, nature and degree to that deemed necessary by competent counsel.

5. Advertising

(a) Predatory Advertising. You agree not to use any predatory advertising methods designed to generate traffic from any website owned or operated by IAN, Hotels.com or any of their related companies. In addition, you agree to prohibit its websites from such predatory advertising methods. Predatory advertising is defined as any method that creates or overlays links or banners on websites, spawns browser windows, or any method invented to generate traffic from a website without that website owner's, knowledge, permission, and participation. Examples include, but are not limited to, keyword parsing browser plugins such as TopText and +Surf, banner replacement technology such as Gator, browser spawning technology that is not website dependent.

(b) Keyword Advertising. You represents and warrants to IAN that except for the limited, personal right to use the IAN's Marks as set forth herein, You shall not display or use in any context or manner (directly or indirectly), the IAN Marks or any other third party trademarks, logo, or branding (including, without limitation, any misspelling or substantially similar or confusingly similar version thereof) of IAN or any other third party, in any manner whatsoever (including without limitation, in any search engine marketing or optimization, in any domain name, any other online/offline marketing or advertising, press releases, etc.) without first obtaining prior written approval from IAN or the applicable third party.