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This agreement ("Agreement") contains the completeterms and conditions for your participation in the AMSTAR Affiliate Programoffered through amstardmc.com L.P. ("Affiliate Program"). Asused in this Agreement, "you" means the applicant seeking toparticipate as an affiliate in the Affiliate Program and "AAP" means amstardmc.com affiliate program
1A. Marketing of AAP Travel Products
(a) Marketing of AAP Travel Products (Banners & Links).You agree to market the travel products offered through AAP on the URLindicated in the website information section of the Sign-Up Page. You shall market the AAP Travel Productsthrough the use of the AAP Links (as defined in Section 1(c) below)from your website or websites entered below your name on the online enrollmentapplication and other website(s) established by or operated by you or youraffiliates in the future (the "Affiliate Site(s)") to theHosted Site (as defined in Section 1(b) below). You agree tointegrate the AAP Links onto the URL indicated in the website informationsection of the Sign-Up Page within thirty days of your acceptance of thisAgreement. You shall place on the Affiliate Sites, the AAP Links, each of whichshall be above the fold and prominently displayed on the Affiliate Sites. As usedin this Agreement, a "link" is a hypertext, text, banner,logo, graphic, or contextual element that permits a user to navigate from oneparty's website to another party's website by clicking on that element. AAPhereby grants you a limited license to display the AAP Links and accompanyingAAP trade and service marks for the purpose designated in this Agreement, andAAP reserves all its rights in such marks. The authority to display AAP Linksis a limited non-exclusive license that terminates automatically upon thetermination of this Agreement.
(b) Hosted Site (White Label). AAP shall establish andmaintain a website (the "Hosted Site"), which shall featurethe AAP Travel Products. The Hosted Site shall be customized to includebranding and navigational elements reasonably requested by you, consistent withAAP’s standard page templates. AAP shall operate and maintain the Hosted Siteat its expense. You hereby grant AAP a limited license to display yourtrademarks and trade names for the purposes designated in this Agreement. Theauthority to display such trademarks and trade names is a limited non-exclusivelicense that terminates automatically upon the termination of this Agreement.The Hosted Site will automatically track bookings occurring on the sitefacilitating automated commission reports.
1B. Customer Care and Offline Services
(a) General. You will provide commercially reasonablecooperation, at AAP’s request, to facilitate customer care and support. Without limiting the generality of the foregoing, you will immediately:(a) transmit to customers booking AAP Travel Products, without revision,deletion or change of any sort, all information transmitted to you forre-delivery to such customers (e.g., booking confirmation e-mails and othercustomer support communications); and (b) transmit to AAP all communications,without revision, deletion or change of any sort, received from such customersrelating to AAP Travel Products (e.g., booking requests and other customerservice inquiries).
(b) Affiliate Number. AAP may, in its sole and on-goingdiscretion and upon the request by you, establish one or more telephone numbers(the "Affiliate Number") for the exclusive purpose of enabling usersto book and / or receive support for, AAP Travel Products by telephone and shallnot be promoted or used for any other purpose. The Affiliate Numbershall be displayed on the Hosted Site and/or the Affiliate Site(s), as agreedbetween the Parties from time to time. AAP may, in its sole discretion,terminate or amend the Affiliate Number without notice or liability.
(c) Customer Service Tools. You will prominentlydisplay any or all links to itinerary look-up, self-service cancellation andother online customer services tools that AAP provides from time to time.
2. Application Program Interface Option (API)
(a) Application Program Interface Option. You may elect, inaddition to or in lieu of AAP Links described in Section 1, to promote andsell the AAP Travel Products on your own web site using our Program ApplicationInterface. Use of the JSON Interface Option must be approved in advance by AAP,in its sole discretion. If AAP grants you permission to use the JSON InterfaceOption, then such use will be subject to the terms of this Agreement, includingthe provisions of this Section 2.
(b) JSON Interface. If approved by AAP for the JSONInterface Option, you agree to use reasonable commercial efforts to create, atthe earliest possible date, an JSON interface to the Affiliate Site(s) toenable exchange of data regarding the AAP Travel Products in accordance withthe specifications provided by AAP (the "JSON Interface"). AAPwill be responsible for the development, and the cost associated with thedevelopment, of the specifications for the JSON Interface (the "Specifications")as well as that portion of AAP’s back end system necessary to electronicallysend and receive information about the AAP Travel Products to you through the JSONInterface (the "JSON Feed"). You will be responsible for thedevelopment of the JSON Interface (and all associated costs) in accordance withthe Specifications. You will, at the earliest possible date after AAP verifiesthe correct functioning and proper usage of your JSON Interface, integrate the AAPTravel Products received through the JSON Interface into your booking enginecontained within the Affiliate Site(s). AAP reserves the right to remove JSONaccess on any accounts that do not comply with rules, regulations or policiesfor use of the JSON Interface as determined by AAP from time to time, anyaccounts that are identified with inactive JSON access or sites with no livecontent, accounts that are non-responsive to correspondence, corrections orrequests regarding the JSON interface, or any other acts or omissions that, in AAP’ssole discretions, may pose threats to AAP’s security and/or intellectualproperty.
(c) License to Specifications. If you are approved by AAPfor the JSON Interface Option, AAP hereby grants you a non-exclusive,nontransferable, royalty-free, worldwide license to: (i) use theSpecifications solely for the purpose to develop the JSON Interface inaccordance with the terms of this Agreement; and (ii) use, distribute,reproduce, perform and display the JSON Interface developed in accordance withthe foregoing clause solely for use in connection with your performance underthis Agreement.
(d) Display of AAP Information. In connection with all AAPTravel Products made available for booking or otherwise listed on the AffiliateSite, you shall display the appropriate trademark or copyright designation for AAPor other third party, the AAP terms and conditions, seller of traveldesignations, the cancellation policies, rules, disclosures, regulations,rates, prices, taxes, tax recovery charges, services fees and other charges andfees for all offered AAP Travel Products, as provided by AAP, without revision,deletion or change of any sort whatsoever ("AAP Information").You shall be responsible for all direct costs associated with any errors oromissions in the display of the AAP Information provided to you.
3. Payment to You
(a) Payment Calculation. During the Term of the Agreement,for AAP Travel Products booked through the Hosted Site, via the JSON Interfaceand/or the Affiliate Number (the "AAP Booking Tools") during the termof this Agreement. API comissionswould be subject on net rates which will be determined in a separate net rate agreement. AAP will payyou the marketing fees as set forth below (the "Marketing Fees"):
(b) Conditions to Your Right to Receive Payment of MarketingFees. Before you shall be entitled to receive any Marketing Fees, you mustsatisfy the following conditions precedents:
(1) You must maintain and update your address and bank accountinformation. Return of a mailed check or wire transfer as undeliverable shallconstitute evidence of your failure to meet this condition.
If the above-listed conditions precedents are not met at the time theright to payment of Marketing Fees would otherwise accrue/be paid, your rightto such Marketing Fees will not vest and Marketing Fees will not be paid to you.
(c) Payment Timing.AAP will pay You five (5) days after having received an invoice, for allMarketing Fees owed, which exceed Fifty US Dollars ($50) in aggregate, dueAffiliate for all AAP Travel Products "consumed" for which a commission was collected by AAP(or its Corporate Affiliates) during the previous month. Notwithstandinganything to the contrary in this Agreement, You will not be entitled to anyMarketing Fees in relation to transactions that are not Consumed during theTerm or subsequently cancelled,refunded, charged back, disputed by the traveler, result from fraudulent orother unlawful activity, or for which AAP (or its Corporate Affiliate) does notreceive payment (collectively, "Void Transactions"). We will send you an accountstatement at the end of the month asking you to invoice us for the amount due. AAP may deduct and offset any Marketing Feespreviously made or owed to You for such Void Transactions from subsequentMarketing Fees owed to You. In relation to any international bank transfer forthe payment of Marketing Fee payments ("Bank Transfer"), AAP shall beresponsible for the fees (if any) relating solely to the sending of such BankTransfer, and Affiliate shall be responsible for any other fees or charges (ifany) imposed by any institution for the receipt of such Bank Transfer. You decide when to invoice us, if you want to defer your payments in orderto take advantage of this your balance for each month will be carried forward.
You shall be responsible for any and all taxes, duties and impositionsimposed on You resulting from this Agreement, including interest and penaltiesthereon and additions thereto.
4. Term and Termination
(a) Term. Unless earlier terminated in accordance with theterms of this Agreement, the term of this Agreement is one (1) year from thedate you click to accept this Agreement, and shall thereafter be renewed on ayear-to-year basis unless terminated by either party prior to the last month ofthe initial term and any renewal term.
(b) Termination Rights. In the event that AAP has breachedof any of the material terms of this Agreement, you may terminate thisAgreement upon thirty (30) days prior written notice to AAP, provided that AAPdoes not cure such breach within such 30-day period. AAP may terminate thisAgreement at any time, for any reason, with or without cause, upon writtennotice to you. This Agreement will terminate automatically in the eventthat, during a period of twelve (12) consecutive months, no AAP Travel Productsare booked.
(c) Effect of Termination. Upon termination of this Agreementfor any reason, You shall: (a) immediately upon the date of termination,remove all AAP Links from the Affiliate Site(s) to the Hosted Site; (b) removeall its Marks other branding elements from the Hosted Site; and (c) cease todisplay on the Affiliate Site(s) and destroy or delete from all of theAffiliate’s systems and/or devices any and all originals, copies,reproductions, adaptations, extracts and/or summaries of AAP Information and,at AAP’s option, certify destruction or deletion of the same. AAP may atany time upon termination of this Agreement disable Affiliate’s access to the JSONInterface.
(d) Survival. Sections 4(d), and 6-8 will surviveany expiration or termination of this Agreement.
5. Advertising and Restrictions
(a) Publicity and Marks. Each party shall (i) submit tothe other all advertising, written sales promotions, press releases and otherpublicity matters relating to this Agreement (other than such materialsdisseminated solely on an internal basis) in which any of the other party'strade name, trademark, service mark, logo or other similar indicia of identityor source (collectively, "Marks") are used and (ii) notpublish or use any such advertising, sales promotions, press releases or otherpublicity matters without the other party's prior written consent. Each partyshall comply with the other party's requirements regarding the format andplacement of its Marks. Neither party shall take any action to register orotherwise interfere with the other party's interests in its Marks. Unlessspecifically provided for herein, neither party shall adopt or otherwise useany trademark, trade name, service mark, logo, or symbol that is similar to, orlikely to be confused with, any of the other party's Marks. All goodwill fromeach party's use of the other party's Marks shall inure to the benefit of theother party.
(b) Prohibited Activities. You covenant that you will not:(i) send unsolicited bulk e-mail or engage in other unethical or illegalmarketing activities, (ii) place material on any site linked to the HostedSite that is inappropriate for general and family viewing (e.g., sexuallyexplicit materials, materials advocating violence or hatred, or any materialthe display of which may be unlawful in any state), or (iii) mislead ormisrepresent to consumers as to the origin, affiliation or nature of yourwebsites, products or services. You will not allow and will take reasonablesteps to prevent any direct or indirect extraction, repurposing and/oraggregation of AAP Travel Product data made available to you under thisAgreement (e.g., inclusion of AAP Travel Product data in consolidated thirdparty search results) without the prior written consent of AAP.
(c) Predatory Advertising. You will not to use and willprohibit your websites from using any predatory advertising methods. Predatoryadvertising means any method that creates or overlays links or banners onwebsites, spawns browser windows, or any method invented to generate trafficfrom a website without that website owner’s knowledge, permission, andparticipation (e.g., keyword parsing browser plugins such as TopText and +Surf,banner replacement technology such as Gator, browser spawning technology thatis not website dependent).
6. Warranties, Limitations of Liability and Indemnity
(a) Warranties. Neither you nor AAP makes anywarranties or representations, except as expressly provided in this Agreement.You represent and warrant that (i) you have the right and authority toenter into this Agreement and to comply with and perform your obligationshereunder; (ii) you have not entered into any other agreementsinconsistent with its performance under this Agreement; (iii) theAffiliate Site(s) will operate in accordance with this Agreement, and is ingood working order, free from material error, defects and malfunctions and inaccordance with industry standards; and (iv) you shall perform yourobligations hereunder in a timely, competent, professional and workmanlikemanner using properly trained and qualified individuals.
(b) Disclaimer. THE HOSTED SITE, AAP LINKS, THESPECIFICATIONS, THE JSON FEED, THE AFFILIATE NUMBER AND THE AAP TRAVEL PRODUCTSARE PROVIDED "AS IS" AND WHERE AVAILABLE, AND AAP MAKES NOREPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SAME. AAP EXPRESSLYDISCLAIMS ALL IMPLIED WARRANTIES, OBLIGATIONS AND LIABILITIES ARISING BY LAW OROTHERWISE, WITH RESPECT TO THE HOSTED SITE, AAP LINKS, SPECIFICATIONS, JSONFEED, THE AFFILIATE NUMBER AND THE AAP TRAVEL PRODUCTS, INCLUDING WITHOUTLIMITATION ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,COURSE OF DEALING OR USAGE OF TRADE; OR (C) IMPLIED WARRANTY OFNONINFRINGEMENT. You hereby acknowledge that the AAP Travel Productsbooked through the AAP Booking Tools, as applicable, are sold to customers bythe applicable travel suppliers and not by AAP. AAP will have noliability to you or any customers for (i) any failure of the systems of AAPor any third party that results in the failure or inability to process atransaction through the AAP Booking Tools, or (ii) the quality of the AAPTravel Products provided by travel suppliers to customers.
(c) No Consequential Damages. IN NO EVENT WILL AAPBE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, ORSPECIAL DAMAGES OR LOSS OF DATA, REVENUE, PROFIT, OR SAVINGS OF ANY PARTY,INCLUDING THIRD PARTIES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IFSUCH AAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) Limitation of Liability. THE TOTAL AGGREGATELIABILITY OF AAP FOR ALL CLAIMS ARISING IN CONTRACT, EQUITY OR OTHERWISE(INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE AND STRICTLIABILITY IN TORT) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEEDTHE GREATER OF (A) THE TOTAL PAYMENTS PAID OR PAYABLE BY AAP TO YOU UNDERTHIS AGREEMENT IN THE MOST RECENT TWELVE (12) MONTH PERIOD PRECEDING THE EVENTSGIVING RISE TO SUCH LIABILITY, AND (B) TEN THOUSAND DOLLARS ($10,000)
(e) Third PartyBeneficiary. YOU ACKNOWLEDGE THAT TRAVEL PRODUCTS AND SERVICES OFFEREDTO CUSTOMERS HEREUNDER MAY BE PROVIDED FROM A THIRD PARTY INTERMEDIARY WHO ISMAKING SUCH TRAVEL SERVICES AVAILABLE FROM VARIOUS TRAVEL SERVICE SUPPLIERS.YOU EXPRESSLY AGREE THAT ALL LIMITATIONS OF LIABILITY OF THE AGREEMENT SHALLAPPLY TO SUCH THIRD PARTY INTERMEDIARY, AND THAT THE THIRD PARTY INTERMEDIARYSHALL HAVE NO LIABILITY TO YOU WHATSOEVER WITH RESPECT TO THE TRAVEL PRODUCTSAND SERVICES. The third party intermediary is an express third partybeneficiary of the provisions of this Agreement, and such that third partyintermediary will be entitled to the rights and benefits under this Agreement.
(f) Force Majeure. The failure of either party toperform any obligation otherwise due as a result of governmental action, laws,orders, regulations, directions or requests, or as a result of events, such aswar, acts of public enemies, strikes or other labor disturbances, fires,floods, acts of God or any causes of like or different kind beyond thereasonable control of that party is excused for so long as said cause exists.
(g) Indemnification. You agree to indemnify, defendand hold AAP and its Corporate Affiliates, their directors, officers, employeesand agents harmless from and against any and all costs, liabilities, expenses,judgments, damages and other losses (including, without limitation, reasonableattorney's fees, costs, judgments, awards, settlement amounts and expenses withrespect thereto) arising from any third party claim or action that is causedby, or results from, (i) a breach of your representations or warrantiescontained in this Agreement, (ii) your willful misfeasance, bad faith orgross negligence in the performance of or failure to perform as provided inthis Agreement, (iii) any claim made by any third party that AAP’s use ofany of your trademarks or trade names as permitted by this Agreement infringesany trademark or any other intellectual property or proprietary right of suchthird party, (iv) any claim made by a third party that the AffiliateSite(s) or any data, software, method, service or material provided by You, (1)infringe any patent, copyright, trademark, trade secret or any otherintellectual property or proprietary right of such third party, or (2) violateany applicable law including, without limitation, any right of privacy.
7. Confidentiality; Data Protection
(a) AAP and you each agree to keep confidential the other party'sConfidential Information, and that the Confidential Information will not,without the other party's consent, be disclosed in any manner whatsoever, inwhole or in part, and shall not be used other than as contemplated by thisAgreement. Further, each party will share the Confidential Information withonly those persons within its company (and its advisors) who need to know theConfidential Information for the purpose of assisting in the performance of theAgreement and who are informed of, and agree to be bound by the terms hereof asif a party to, this Agreement. For the purposes of this Agreement,"Confidential Information" shall mean information that is marked"CONFIDENTIAL," "RESTRICTED" or "PROPRIETARY,"(including, but not limited to, the Specifications and other documentationrelating to the JSON Interface) or which by its nature or context should bereasonably understood to be confidential information of such party or itslicensors or subcontractors. Without limiting the foregoing, ConfidentialInformation shall include non-public, confidential, and proprietaryinformation, including information regarding pricing, commissions, rates,terms, vendors, programs, processes, and practices, relating to a party'sbusiness operations or pursuant to this Agreement. Confidential Informationdoes not include information that (i) is or becomes publicly availableother than as a result of acts by the other party in violation of thisAgreement, (ii) is already in the possession of the other party prior todisclosure of that information, (iii) is or becomes available to the otherparty from a source that, to that party's best knowledge, is not bound by aconfidentiality agreement prohibiting such disclosure, or (iv) isindependently developed by the receiving party. The receiving party maydisclose the disclosing party's Confidential Information as required underapplicable law or regulation; provided, however, that the receiving party mustgive the disclosing party prompt written notice prior to such disclosure andmake a reasonable effort to obtain a protective order against such disclosure,and any such disclosure shall be limited in scope, nature and degree to thatdeemed necessary by competent counsel. For the avoidance of doubt, aCorporate Affiliate of AAP shall not be considered a third party for purposesof this Section.
(b) For purposes of this Section, "Data Protection Law"means all applicable laws and regulations relating to the protection of data inthe relevant state or territory, including, where applicable, the local lawsimplementing the Directives of the European Parliament and of the Council95/46/EC, 97/66/EC and 2002/58/EC (together, the "Directive")as from time to time enacted, amended, extended, consolidated, replaced orre-enacted in relevant territory where customers’ "personal data" (asdefined under the Directive). Each party shall (i) use commerciallyreasonable efforts to safeguard the confidentiality and privacy of customers’personal data and to protect it from unauthorized use or release and (ii)comply with the all applicable laws including but not limited to the DataProtection Law in its use and handling of customer’s personal data. You shallensure that You have obtained the relevant consents and permissions fromcustomers in order to allow AAP and/or its relevant Corporate Affiliates toprocess such customers’ personal data in accordance with this Section. Youshall at all times act in accordance with applicable law in respect of suchpersonal data. Each party shall implement appropriate technical andorganizational security measures to protect personal data against accidental orunlawful destruction or accidental loss, alteration, unauthorized disclosure oraccess. Such measures will be no less stringent than those a party generallyapplies to its own data of similar nature.
(a) Jurisdiction/Governing Law. This contract will begoverned by the laws of Mexico withrespect to Amstar DGT Cancun, S.A de C.V, Jamaica, United States of America andthe Dominican Republic with regards to Amstar DMC, without reference to rulesgoverning choice of laws. Any action relating to this contract shall be broughtin the corresponding country, and you irrevocably consent to the jurisdictionand venue of such courts. The prevailing party in any suit or action in suchcourt shall be entitled to be reimbursed their attorney's fees and costsactually incurred. In the event any provision of this contract shall bedetermined to be unenforceable by a court of competent jurisdiction, theremaining portions of this contract not so affected shall continue in fullforce and effect
(b) Amendments. AAP may amend this Agreement at any time byposting the amended terms at this site. Except as stated elsewhere, all amendedterms shall automatically be effective 5 (five) days after they are initiallyposted.
(c) Assignment. You may not assign your rights orobligations under this Agreement, in whole or in part, without the priorwritten consent of AAP. AAP may assign this Agreement to any entity that,directly or indirectly, through one or more intermediaries, controls or iscontrolled by, or is under common control with AAP (a "CorporateAffiliate") or to any successor by way of a purchase of all or substantiallyall of AAP’s assets or by merger, consolidation or similar transaction. Anyassignment in violation of this Section 8(c) will be null and void.
(d) Nonwaiver. Subject to 8(b) above, no waiver of any term,condition or obligation of this Agreement will be valid unless made in writingand signed by the party to which such performance is due. No failure or delayby any party at any time to enforce one or more of the terms, conditions orobligations of this Agreement will (i) constitute waiver of such term,condition or obligation, (ii) preclude such party from requiringperformance by the other party at any later time, or (iii) be deemed to bea waiver of any other subsequent term, condition or obligation, whether of likeor different nature.
(e) Severability. This Agreement will be enforced to thefullest extent permitted by applicable law. If any provision of this Agreementis held to be invalid or unenforceable, then such provision will beinterpreted, construed or reformed to the extent reasonably required to renderthe same valid, enforceable and consistent with the original intent underlyingsuch provision.
(f) Entire Agreement. This Agreement constitutes the entireand exclusive agreement between the parties regarding the subject matter hereof,and supersedes all prior or contemporaneous oral or written agreements andunderstandings.
(g) Notice. All notices by You to AAP under thisAgreement must be in English, in writing, and sent overnight air courier to theaddress set out below Agreement. Notices are deemed delivered two business daysafter the date of delivery by overnight air courier.
If to AAP:
AMSTAR DGT CANCUN SA DE CV
MANZANA5 LOTES 1, 2, 3 Y 4 PISO 2
SMZA29 CANCUN AV PALENQUE CON PLAYA DEL CARMEN
BENITOJUAREZ, QUINTANA ROO, MEXICO
Any notice or communication to be provided to Youby AAP under this Agreement shall be sent to the email address provided by Youin the Affiliate Sign-up Form or to any subsequent email address that Youprovide to AAP through the account management section of the affiliate center.