Affiliate Agreement

BY REGISTERING AND SIGNING UP TO THE OUR COMPANY PARTNER PROGRAM AS AFFILIATE PARTNER, THE AFFILIATE HEREBY HAS REVIEWED AND UNDERSTANDS, ACKNOWLEDGES AND ACCEPTS THE TERMS AND CONDITIONS OF THIS AFFILIATE AGREEMENT (THE "AGREEMENT").

BETWEEN:  

1. OUR COMPANY. LTD., a company incorporated under the laws of Vietnam and having its registered office at OUR ADDRESS, and

2. THE AFFILIATE, whose details are set out in the Affiliate Partner Registration Form (the Affiliate Partner Registration Form) (the "Affiliate").

(OUR COMPANY and the Affiliate are a “Party” to this Agreement and are collectively referred to as the “Parties”)

WHEREAS:

(i) OUR COMPANY operates an online accommodation reservation system (the "System") through which participating Accommodations (collectively the "Hotels", each a "Hotel") can make their rooms available for reservation, and through which visitors can make reservations at such Hotels (the "Service");

(ii) OUR COMPANY maintains and exploits its own websites (the "OUR COMPANY Websites"), 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 YOUR COMPANY 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.

NOW, THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In addition to terms defined elsewhere in this Agreement, the following definitions apply throughout this Agreement, unless the contrary intention appears:

"Accommodation" means any form of accommodation, including but not limited to hotels, motels, guest houses, bed & breakfasts, hostels, villa's, apartments (serviced or otherwise), lodges, inn, guest accommodation, resort, condominium, camping accommodation and any other (type of) accommodation or lodging provider (whether or not available on the OUR COMPANY Websites).

"Affiliate" means the Party of which the relevant (contact) details are set out in Affiliate Partner Registration Form.

“Affiliate Departures” has the meaning as set out in clause 5.1.4.

"Affiliate Group" means the Affiliate and the ultimate holding company of the Affiliate (including the group of companies or entities which are under the (direct or indirect) Control of (the ultimate holding company or shareholder(s) 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(s) 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.

“Agency Transaction” means a Materialized Transaction in which OUR COMPANY is not the merchant of record for the booking, but whereby OUR COMPANY facilitates the reservation between Guest and Hotel and earns a commission from the hotel upon successful completion of the booking.

"OUR COMPANY Competitor" means any direct or indirect competitor of OUR COMPANY (excluding, for the avoidance of doubt, companies in the OUR COMPANY group of companies).

"OUR COMPANY 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): OUR COMPANY, Planetholiday, Booking, Bookings, or Active Hotels(with or without any associated Internet domain names (with whatever (country code) top-level domain) (e.g. OUR DOMAIN.com, OUR DOMAIN.co.kr, etc.).

"OUR COMPANY Data" means the Intellectual Property Rights of EazyTour.com and the Content as provided to the Affiliate under this Agreement and such other information from time to time owned or used by OUR COMPANY or embodied or included in EazyTour.com Websites or made available by OUR COMPANY to the Affiliate (e.g. rates and availability).

"OUR COMPANY Websites" means the website(s) of OUR COMPANY, including but not limited to OUR DOMAIN.com and all local or alternate versions thereof (with whatever top-level domain).

"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. Black Hat SEO tactics include: keyword stuffing, hidden text and links, doorway and cloaked pages, link farming and blog comment spam.

“Clause” means a clause of this Agreement.

"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, with the purpose to deceive search engines so they display the page when it would not otherwise be displayed. Cloaking includes the doorway page technique and the Open Directory Project web directory.

"Commission" means the amount in USD (excluding taxes) that OUR COMPANY will pay to the Affiliate for each Materialized Transaction in accordance with this Agreement.

"Connections" means all links, landing pages and/or XML feeds and/or deeplinks and/or hyperlinks, created, hosted and maintained by OUR COMPANY.

"Content" means all (descriptive) information of Hotels available on the OUR COMPANY Website including but not limited to hotel information and descriptions, guest reviews, meta data, details of facilities and (cancellation/no show) policies and general terms of the Hotels (including any translations thereof) and photos, video, pictures, but excluding rates and availability (including any updates, modifications, replacements, additions or amendments).

"Control" means the possession of the power or the ability to (directly or indirectly, alone or in concert with others, whether through the ownership of voting securities or other ownership interests, a partnership or otherwise) (i) exercise or cause to exercise more than one-half of the voting rights in the shareholders' meeting of a company, (ii) appoint more than one-half of the ((non-)executive) directors or supervisory directors of a company, or (iii) direct or cause the direction of management relating to a company.

"CPA" means costs per acquisition.

"CPC" means cost per click.

"CPM" means cost per thousand (impressions).

"CPV" means cost per visitor or cost per view in the case of pop ups and unders.

"Customer Data" means the Guest's personally identifiable information (“PII”), including but not limited to the Guest’s name, address (including email address), credit card details and such other confidential and private information of a Guest.

"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 Guests on the Affiliate Website(s).

"Guest" means a visitor of the Websites that completed a hotel reservation via the Service.

"Hotel" means any Accommodation available on or through the OUR COMPANY Websites.

"Hotel 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 trademarks or trade name (whether registered or unregistered) belonging to or owned by any Hotel.

"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,.net., co.th, .de, .fr, .eu, co.uk., etc.) 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 OUR COMPANY on the Affiliate Website(s).

“Merchant Transaction” means a Materialized Transaction in which OUR COMPANY is the merchant of record, whereby OUR COMPANY collects funds directly from the Guest for the reservation.

“Materialized Transaction(s)" means the reservation by a visitor of the Affiliate Website(s) who, through the Connection, has made a reservation with a Hotel, and which reservation has resulted in the actual provision of accommodation, as confirmed to OUR COMPANY by the Hotel. Materialized Transactions will always be adjusted for amendments (e.g. shortened stays), chargebacks, credit card fraud, bad debt or otherwise. For the avoidance of doubt, cancellations, no-shows etc. can never be considered Materialized Transactions.

"Micro Site" means all white label versions of the primary website of EazyTour.com, which are owned, created, hosted and maintained by OUR COMPANY. The Micro Site may be marked with a 'powered by OUR COMPANY' logo or equivalent.

"Paid Search" means any form of online advertising that ties the presentation of an ad to a specific keyword-based search request.

“Partner Center” has the meaning as set out in Clause 4.1.8.

"Price Comparison" means the comparison of hotel prices and/or availability made available from or by two or more online hotel booking 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.

“Similar Domain Name” has the meaning as set out in Clause 4.7.1.

"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), 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.

"Websites" means the website(s) of OUR COMPANY and its affiliated companies and affiliated partners (including the Affiliate Website(s)) on which the product and service of OUR COMPANY is available.

"XML" means an xml connection between the OUR COMPANY database and the Affiliate’s database which can be provided by OUR COMPANY on terms to be agreed.

1.2 No Partnership

1.2.1 This Agreement is not intended, nor should anything herein or in any of the arrangements contemplated herein, be construed, to create a joint venture or the relationship of partners, partnership or principal and agent between or among the Parties. Unless the Parties agree otherwise in writing, none of them shall (i) enter into any contract or commitment with third parties as agent for or on behalf of the other Party, (ii) describe or present itself as such an agent or in any way hold itself out as being such an agent, or (iii) act on behalf of or represent the other Party in any manner, or for any purpose.

1.2.2 Unless agreed otherwise in writing by OUR COMPANY or save as set out otherwise in this Agreement, the Affiliate shall not publish anywhere on the Affiliate Website(s) any statement, either express or implied, that the website is part of, endorsed by, or an official website of OUR COMPANY.

 

2. SCOPE OF THIS AGREEMENT


2.1 Non-exclusivity Subject to the terms and conditions of this Agreement, the Affiliate shall operate as a non-exclusive distributor (affiliate) of OUR COMPANY.

2.2 Service

2.2.1 For the term of this Agreement, Parties have agreed that the Service shall be made available by OUR COMPANY 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, OUR COMPANY shall be responsible for the transmit of the relevant reservation details from the visitor who completed a booking to the Hotel (e.g. the date of arrival, number of nights, room type, guest name) and (sending of) the subsequent (email) confirmation and/or confirmation voucher to the Guest.

2.2.3 The Service shall include customer services to and for the benefit of the Guests. 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 Hotel and all other relevant (payment) issues, complaints and questions directly to (the customer service center of) OUR COMPANY and not provide any further services in this respect.

2.2.4 The offer of the Service through Micro Site does not include the following features: temporary tests on OUR COMPANY (other than the "test hotel" made available for the Affiliate Website(s)), guest reviews and such other (new) features as OUR COMPANY 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 instructed by OUR COMPANY or 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 instructed by OUR COMPANY or as mutually agreed upon by Parties.

 

3. LICENSE


3.1 Mutual license

3.1.1 Subject to Clause 4.4, OUR COMPANY hereby grants the Affiliate a non-exclusive, revocable, restricted, royalty free and worldwide right and license (or sublicense as applicable):

(a) to display such elements of the OUR COMPANY Data and such further information of the Hotels on the Affiliate Website(s), all as provided or made available by OUR COMPANY 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 OUR COMPANY 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 OUR COMPANY, 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 OUR COMPANY 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 OUR COMPANY 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 OUR COMPANY Data or the Content (i) to any third party, (ii) for price/availability comparison purposes, sites, reviews or investigations, (iii) for any other purpose other than (generating Hotel reservations through) the Service, or (iv) otherwise.

 

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 endeavors 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 OUR COMPANY iWebsite or the Affiliate Website(s), and (ii) promote and market the Hotels and the option to book Hotels on the Affiliate Website(s) within its commercial and internal network and for this purpose shall make its distribution network and channels (e.g. its internet and intranet) available.

4.1.2 The Affiliate agrees not to take or omit to take any action which may affect OUR COMPANY 's relationship with the Hotels available on the OUR COMPANY i Websites. The Affiliate agrees not to cause or permit to be done anything which may cause OUR COMPANY ito be excluded from the process of booking with any Hotel, moreover, the Affiliate shall not in a negative or detrimental way speak (i.e. badmouth) of or comment on (the business of) OUR COMPANY i(or its staff) and shall not persuade, induce or attempt to induce any Hotel to terminate its contract with or reduce its dealings and business with OUR COMPANY i.

4.1.3 The Affiliate agrees not to communicate with any Hotel 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 Hotels after becoming aware of such errors or being notified by OUR COMPANY .

4.1.5 The Affiliate shall not programmatically evaluate and extract information (including guest reviews) from any part of the OUR COMPANY iWebsite (e.g. screen scrape) or attempt to do so and shall not, by any means, including, but not limited to, mechanical, electronic, photocopying, recording or otherwise, copy, reproduce, modify, alter, adapt, disassemble, reverse engineer, scrape, or otherwise determine the source code of (or underlying ideas, algorithms, structure or organization of) the links or any content contained on or services provided by the OUR COMPANY iWebsite or attempt to do so; (b) upload (i) any virus, Trojan horse, worm, time bomb, robot commands or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (c) make any representations to visitors, to the general public or to any other party related in any way to the Company, the services, the links or the Site. Any violation of the aforesaid provisions will lead to the Partner being terminated from the program and to forfeiture of any outstanding payments due; or (d) otherwise (attempt to) cause detriment to OUR COMPANY iand the OUR COMPANY iWebsite.

4.1.6 The Affiliate shall not make any static copy of the Content or any part of the OUR COMPANY Website (including guest reviews).

4.1.7 The Affiliate shall not make any bookings or reservations with any Hotel on the OUR COMPANY 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 OUR COMPANY iwill provide the Affiliate with a unique link to a secured affiliate partner website of OUR COMPANY i(the "Partner Center"), user ID and password which allows the Affiliate to monitor the booking of accommodation through the Affiliate Website(s) and all relevant management information made available by OUR COMPANY ionline. 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 Partner Center. The Affiliate shall immediately notify EazyTour.com 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 reasonable and of material importance to OUR COMPANY , in particular for (i) its willingness to enter into this Agreement with the Affiliate and make the Service, the Content and the OUR COMPANY iIntellectual Property Rights (directly or indirectly) available to the Affiliate, and (ii) the protection of goodwill, product, service and (market) reputation of OUR COMPANY i. 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 OUR COMPANY, 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 OUR COMPANY iWebsite (to be determined at OUR COMPANY 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 OUR COMPANY 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 this Agreement);

(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 OUR COMPANY logo (save for any logo that may be provided by OUR COMPANY for use by the Affiliate under or pursuant to this Agreement);

(c) the Affiliate shall not in any way imitate or copy the OUR COMPANY 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 OUR COMPANY 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 OUR COMPANY i Website.

4.3 Intellectual Property Rights

4.3.1 The Affiliate acknowledges that OUR COMPANY and/or its licensors shall retain ownership of all rights, title and interest in and to all Intellectual Property Rights of OUR COMPANY ior embodied in the OUR COMPANY Website, including (but not limited to) the OUR COMPANY logo, the Content and the OUR COMPANY Data. Nothing contained in this Agreement shall be deemed to transfer any such right, title or interest to the Affiliate in any way.

4.3.2 The Affiliate shall not disclose, integrate, include, use, combine, exploit, incorporate or otherwise make the Content and OUR COMPANY Data (or any part thereof) available (a) with its own content and/or the content of any OUR COMPANY Competitor (including the Hotels), 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 OUR COMPANY Competitor (including the Hotels) (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 Content and the Content shall not include a (direct or indirect) link, reference, click-through or reference to (the website of) a OUR COMPANY Competitor (including the Hotels).

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 "OUR COMPANY " or any variations, translations or misspellings thereof, included as part of the address.

4.3.4 By entering into this Agreement, OUR COMPANY 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 OUR COMPANY 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 OUR COMPANY Website;

(iii) the Content;

(iv) the OUR COMPANY Data;

(v) the OUR COMPANY Brands;

(vi) the Hotel Brands (unless the owner of such Hotel Brand has given its prior written consent to the Affiliate for the use of that specific Hotel 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 Accommodation (whether through the Service or otherwise), or (b) information in respect of Accommodation.

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 OUR COMPANY Brands and the OUR COMPANY Data) the Affiliate shall immediately comply with any request made by OUR COMPANY ito adhere to and comply with this Clause 4.4, failing which OUR COMPANY can terminate with immediate effect and without prejudice to its legal and contractual remedies.

4.5 No Double Serving or Cloaking

4.5.1 The Affiliate Websites shall not be (directly or indirectly) linked to the OUR COMPANY 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 OUR COMPANY .

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 OUR COMPANY iin this respect) in order to avoid any breach by OUR COMPANY or the Affiliate Website(s) of such policies due to or in respect of the Affiliate Website(s). For the avoidance of doubt, the Affiliate cannot enforce any rights in this respect towards or vis-à-vis OUR COMPANY and hereby waives any (right of) defense or claims against OUR COMPANY iin this respect.

4.6 Non-solicitation

4.6.1 The Affiliate agrees not to contact, solicit or accept any Hotel (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 OUR COMPANY Brands (the "Similar Domain Name") for the Affiliate Website(s) (to be determined at OUR COMPANY discretion) or in the event that the Affiliate wishes to register, acquire, use, purchase or obtain a Similar Domain Name (subject to OUR COMPANY 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.

4.7.2 In respect of Similar Domain Names other than the Affiliate Website, Parties have agreed that (i) all such Similar Domain Names shall be directly linked to the Affiliate Website through or via a direct re-direct and not actively be available or online for whatever purpose, and (ii) the Affiliate (nor any of the Affiliated Group) shall not in any way (online or offline) market, promote, dispose, sell, offer, advertise, (sub)license, make available, allow access to, refer to, publish or distribute the Similar Domain Names.

4.8 Price Comparison

4.8.1 In the event that the Affiliate offers Price Comparison on a relevant Affiliate Website(s) as set out in the Affiliate Partner Registration Form, the Affiliate shall for that relevant Affiliate Website(s) solely be granted access to the rate(s) and availability data of relevant Hotels as made available on the OUR COMPANY Website (collectively, the "Rates and Availability Data") pursuant to a direct connection to the OUR COMPANY web-servers (i.e. via a XML connection). The Rates and Availability Data will be made available in accordance with such further terms and conditions as made available by OUR COMPANY i.

4.8.2 The Rates and Availability Data does not include and the Affiliate shall not be entitled to use, copy, refer to or include on its websites where the Price Comparison is available, the OUR COMPANY Data and Content from OUR COMPANY Website or web servers or a third party (website) with whom OUR COMPANY has a contractual relationship to provide the Content.

4.8.3 In the event that the Affiliate offers Price Comparison, the room rates made available by all OUR COMPANY Competitors (including all Accommodation providers or booking or reservation center, intermediate or agent (collectively the "Third Party Providers")) on the Affiliate Website are accurate, correct and not misleading or deceiving compared to the actual rate(s) as made available on the website(s) of the Third Party Providers.

4.8.4 OUR COMPANY shall be treated at least as favorable on the Price Comparison website of the Affiliate (in respect of ranking, display and conversion opportunities) as the best converting (x) OUR COMPANY competitors, (y) Hotels or (z) any booking or reservation center, agent or intermediate of or managed, owned or controlled by a OUR COMPANY Competitor or Hotels, available on the Price Comparison website of the Affiliate.

4.9 Burden of proof, compliance, injunctive relief and further remedies

4.9.1 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, OUR COMPANY 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.

4.9.2 In the event that a OUR COMPANY 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 OUR COMPANY of such (threatening) breach after becoming aware of such breach, and (ii) upon first request of OUR COMPANY promptly implement, comply with and abide by all of the terms, restrictions and prohibitions set out in this Agreement or requested by OUR COMPANY. 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 OUR COMPANY .

4.9.3 The Affiliate agrees and acknowledges that pending any compliance or implementation of the reasonable requests made by OUR COMPANY or in the event that the Affiliate does not promptly comply with or adhere to all such requests of OUR COMPANY under or pursuant to this Clause 4, OUR COMPANY be entitled to postpone or suspend its obligations under this Agreement (including the offer of the Service, System and the OUR COMPANY Data) or immediately terminate this Agreement, without prejudice to OUR COMPANY’s rights under this Agreement or otherwise.

4.9.4 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, OUR COMPANY 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) OUR COMPANY shall be entitled to reduce the Commission to 0% for all bookings made and/or each Materialised 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 OUR COMPANY) 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 OUR COMPANY through a domain name registrar company of OUR COMPANY'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 OUR COMPANY 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 OUR COMPANY.

 

5. COMMISSION


5.1 OUR COMPANY will pay the Affiliate a Commission, being a percentage of the revenue generated by Materialized Transactions (either Merchant Transactions or Agency Transactions).

5.1.1 The Commission for Merchant Transactions will be paid in accordance with the following formula:

Commission Paid = (CI - HI - (CI*PP)) * ACP

 

CI = Client Invoice (what the Guest paid to OUR COMPANY)
HI = Hotel Invoice (what OUR COMPANY paid to the hotel)
PP = Processing Percentage = 2.6%
ACP = Affiliate Commission Percentage

5.1.2 The Commission for Agency Transactions will be paid in accordance with the following formula:

ACP * the commission rate paid to the Company for an Agency Transaction but only to the extent that such commission is actually collected by the Company from the hotelier after customer checkout.

5.1.3 The Affiliate Commission Percentage or ACP will be determined by agreement in writing between the parties (hereafter, the "Custom ACP Agreement"), but in the absence of a Custom ACP Agreement, will be based on the scale listed in this agreement below and on the Partner Center or communicated otherwise (hereafter the "Default ACP Agreement").

5.1.4 Both the Default ACP Agreement and any Custom ACP Agreement shall be based on the number of Materialized Transactions (Agency Transactions or Merchant Transactions) that can be directly attributed to the Affiliate’s marketing efforts ("Affiliate Departures"), in a manner determined at the sole discretion of OUR COMPANY. The method EazyTour.com has currently chosen to calculate Affiliate Departures is as follows:

A "cookie" (a small text file) will be placed on any visitor’s browser who links to the OUR COMPANY Websites from a domain or location on the Affiliate Website, which has been pre-approved and activated by OUR COMPANY. OUR COMPANY will specify which Affiliate Website domains may link to OUR COMPANY , which OUR COMPANY Websites domains shall be linked to by Affiliate which links and the method of such links. This cookie will contain the Affiliate’s ID Number.

OUR COMPANY’s software tracks the visitor using the Affiliate ID number and cookies for 365 days. If the visitor subsequently returns directly to the OUR COMPANY Websites to make a reservation, the Affiliate will be credited with the sale. If, however, the visitor visits another marketing affiliate partner website, the cookie will be reassigned.

OUR COMPANY will make commercially reasonable efforts to ensure that all Affiliate Departures are tracked, reported and paid. However, OUR COMPANY’s records will be final and the Affiliate shall have no recourse for any lost revenue or damages in the event that OUR COMPANY fails to accurately track or report Affiliate Departures, except in the case of gross misconduct or fraudulent behavior by OUR COMPANY. Except in these latter cases, the Affiliate’s sole recourse shall be to terminate this Agreement and end its participation in the program.

5.2 Default ACP Agreement

5.2.1 The following scale shall be used to calculate the ACP in the absence of a Custom ACP Agreement.

 
Number of Departures Affiliate Commission Percentage
1 - 49 35%
50 - 99 37.5%
100 - 199 45%
200 - 999 55%
1000+ 60%

OUR COMPANY reserves the right to change or alter the Default ACP Agreement on the first day of any month. In such a case, a notice shall be posted on OUR COMPANY’s website, and an e-mail shall be sent to the Affiliate, based on the e-mail address provided by the Affiliate through the Affiliate Partner Registration Form. Notification shall occur at least 15 days prior to any change. OUR COMPANY shall have no responsibility to ensure that communications about changes in the program are received by the Affiliate. In case of disagreement, the Affiliate’s sole recourse shall be to end its participation in the program.

OUR COMPANY reserves the right to change or terminate any Custom ACP Agreement on the first day of any month, with 15 days prior notice to Partners. If OUR COMPANY terminates the Custom ACP Agreement, in the absence of a new Custom ACP Agreement acceptable to both parties and executed in writing, the Default ACP Agreement will be used for any future calculations.

5.3 Calculation and Payment of the Commission

5.3.1 The Commission will be calculated for each calendar month, in US Dollars (USD), based on the month's departures. The Affiliate and OUR COMPANY agree that any adjustments to reservations that OUR COMPANY is notified about after the end of the month or after payments have been made to the Affiliate shall be adjusted accordingly in the next month's payment. Such adjustments whether positive (extended stays) or negative (including but not limited to early check-outs, cancellations, chargebacks, amendments or otherwise) should accurately reflect the value of the reservations.

5.3.2 With respect to Merchant Transactions, the Affiliate shall be paid by the 15th of the month following the departure date. If the Affiliate requires payment by International Money Transfer (TT) a US$10 bank charge will be deducted from the payment to cover the cost of the International Money Transfer. OUR COMPANY can currently make local payments in certain selected jurisdictions, please contact us for more details. The Affiliate may request extended holding periods for commission payments to avoid excessive bank charges. These requests will be handled on a case by case basis and at the sole discretion of OUR COMPANY. The minimum payment amount is set at US$200 with any outstanding balances being accrued.

5.3.3 With respect to Agency Transactions, Partners shall be paid 60 days after the end of the month in which the Guest has departed, unless the amount of Commission due to the Affiliate at that time is less than US$200, in which event OUR COMPANY will be entitled to postpone payment until the month when such amount is due.

5.4 OUR COMPANY will on request send a notification of any outstanding balance due to the Affiliate. OUR COMPANY will send these notices to the contact details that are held on file or communicated. It is the responsibility of the Affiliate to ensure these details are correct and up to date.

5.5 The Affiliate is responsible for ensuring the accuracy of the bank information maintained in OUR COMPANY's profile. If the bank account number is provided incorrectly, an additional processing fee will be levied by the banks. OUR COMPANY will deduct this processing fee from the next Commission payment.

5.6 The Commission specified shall be the sole compensation that the Affiliate is entitled to receive under this agreement. All orders are subject to acceptance by OUR COMPANY in accordance with its policies at the time of the booking request. OUR COMPANY’s policies are subject to change without notice.

5.7 OUR COMPANY will make commercially reasonable efforts to keep an audit of all transactions subject to this Agreement. OUR COMPANY will provide the Affiliate with an account summary, which will track the number of clicks to OUR COMPANY’s sites, booking requests, and confirmed, and departed bookings submitted by users whose intent is to utilize the service and who are referred by the Affiliate. The Affiliate will also have access to payment reports, which will display projected earnings and payment history. Should OUR COMPANY fail to keep accurate records or audit, the Affiliate's sole recourse shall be to end its participation in the program.

 

 

6. REPRESENTATIONS AND WARRANTIES

6.1 Affiliate warranties

The Affiliate hereby represents and warrants to OUR COMPANY 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 or display any inappropriate, improper or unlawful content, reference, material, information, links or banners (e.g. in respect of pornography, racism and the like), defamatory statements, elements which violate the privacy of third parties or are abusive, offensive or obscene, (c) copy or resemble the design, domain names (including sub-domains), look and feel of, or create the impression that it is part of the OUR COMPANY Website or any of OUR COMPANY’s affiliates’ or subsidiaries’ websites; (d) advocate discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (e) promote or engage in illegal activities; (f) violate intellectual property rights of third parties; (g) contain or promote deceptive information or promote gambling; or (h) otherwise be of an inappropriate nature. Any violation of the aforesaid provisions may lead to the Affiliate being terminated forthwith from the program and to forfeiture of any outstanding payments due.

(iii) the Affiliate holds and has complied with all permits, licenses and other governmental authorizations 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 authorize 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 Disclaimer

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. OUR COMPANY provides the Service on an "as is" and "as available" basis and does not guarantee uptime.

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 Partner Center, the System and/or the Service.

 

 

7. INDEMNIFICATION AND LIABILITY

7.1 Indemnification

The Affiliate shall be liable towards, and compensate, indemnify and hold OUR COMPANY 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 OUR COMPANY pursuant to:

(i) a breach of this Agreement by the Affiliate, or

(ii) any claim from any third party based on any (alleged) infringement of the third party's Intellectual Property Right by the Affiliate.

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 6 months or USD 50,000 (whichever is higher), unless in the event of fraud or willful 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 defense and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defense 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.

7.5 Liquidated Damages

Without prejudice to what is set out elsewhere in this agreement, both the Affiliate and OUR COMPANY agree that it may be impracticable and difficult to ascertain the amount of actual damages caused by material breach of the confidentiality provisions set forth in clause 10 of this agreement. Therefore, the parties agree that, in the event it is established that the Affiliate has violated such provisions, the Affiliate shall pay to OUR COMPANY, as liquidated damages, [twenty-five thousand United States dollars (25,000 USD)] for each breach. The Affiliate and OUR COMPANY further agree that this liquidated damages provision represents reasonable compensation for the initial loss which would be incurred by OUR COMPANY due to any such breach. The Affiliate also agrees that nothing in this provision is intended to limit  OUR COMPAN's right to obtain injunctive and other relief as may be appropriate. This provision is also without prejudice to OUR COMPANY’s right to claim additional and/or cumulative damages for a breach of this (in case the damage demonstrably exceeds the liquidated damages amount) or any other provision of this Agreement.

 

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 OUR COMPANY reserves the right to terminate this Agreement without notice in the case that no Materialized Transactions have occurred in a period of 6 consecutive months.

8.1.5 Upon termination of this Agreement OUR COMPANY shall continue to pay to the Affiliate any outstanding Commission in accordance with Article 5 for a period of 3 months after the termination date, on the condition that OUR COMPANY has the correct contact and banking details for the Affiliate during that period. Should the Affiliate fail to claim any unpaid Commission within that 3 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, 4.9.4(c), 9, 10, 11 and 12 shall survive termination of this Agreement.

 

9. BOOKS, RECORDS AND AUDIT RIGHT


9.1 Books and records

9.1.1 The systems, books and records of OUR COMPANY (including Extranet, faxes and/or emails) shall be considered conclusive evidence in respect of the amount of the Commission due to the Affiliate under this Agreement.

9.2 Audit right

9.2.1 If OUR COMPANY in good faith has reason to believe that the Affiliate has breached its obligations in respect of Clause 4, OUR COMPANY may audit such records and books (of account) of the Affiliate for the purpose of verification, review, and investigation (as applicable) of the obligations of the Affiliate under Clause 4, in accordance with the following:

(a) Parties shall promptly appoint an independent certified auditor (the "Auditor"), reasonably acceptable to both Parties, who will be permitted to conduct an audit in respect of (the method and calculation) of the commission (to be) paid to the Sub-Affiliate(s).

(b) Parties shall provide the Auditor with all such information, data, co-operation, assistance and access to books and records of account, documents, files and papers and information stored electronically as the Auditor may reasonably request for the purpose of completing the scope of his/her assignment in a timely manner.

(c) The Auditor will provide both Parties with a copy of his/her report (the "Report") which Report shall provide for the results and finding of the audit.

(d) Audits will be conducted on business days during regular business hours.

(e) OUR COMPANY shall bear the costs and expenses of the Auditor unless the Auditor determines otherwise on the basis of reasonableness and fairness.

 

 

10. CONFIDENTIALITY


10.1 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 and sensitive 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-troughs, and other related statistics, personal data of Guests, any software or information regarding software provided or used by OUR COMPANY 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.

10.2 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 data base (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.

10.3 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.

10.4 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. Parties agree to comply with applicable laws on the processing of personal data and the protection of privacy. The Parties will at all times use reasonable and appropriate security measures to prevent corruption of and unauthorized access to Customer Data. Such measures will include, among other things, data encryption and channel encryption. Where relevant, the Affiliate must notify OUR COMPANY of any security breach as promptly as possible (not later than 1 day after discovering the breach).

10.5 Announcements

Neither Party shall create, publish, distribute, or permit any written materials, which makes reference to the other Party without first submitting to the other party such material and receiving prior written consent from the non-submitting party. This consent shall not to be unreasonably withheld or delayed.

 

11. MISCELLANEOUS


11.1 Notices

11.1.1 All notices and communications to OUR COMPANY must be in English, in writing, and sent by [facsimile or ]internationally 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. Copies may be sent by e-mail to OUR COMPANY for reference.

 

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