Affiliate Terms and Conditions
This agreement ("Agreement") contains the complete terms and conditions for your participation in the AMSTAR Affiliate Programoffered through amstardmc.com L.P. ("Affiliate Program"). As used 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 URL indicated in the website information section of the Sign-Up Page. You shall market the AAP Travel Products through 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 enrollment application and other website(s) established by or operated by you or your affiliates in the future (the "Affiliate Site(s)") to the Hosted Site (as defined in Section 1(b) below). You agree to integrate the AAP Links onto the URL indicated in the website information section of the Sign-Up Page within thirty days of your acceptance of this Agreement. You shall place on the Affiliate Sites, the AAP Links, each of which shall be above the fold and prominently displayed on the Affiliate Sites. As used in this Agreement, a "link" is a hypertext, text, banner, logo, graphic, or contextual element that permits a user to navigate from one party’s website to another party's website by clicking on that element. AAP hereby grants you a limited license to display the AAP Links and accompanying AAP trade and service marks for the purpose designated in this Agreement, and AAP reserves all its rights in such marks. The authority to display AAP Links is a limited non-exclusive license that terminates automatically upon the termination of this Agreement.
(b) Hosted Site (White Label). AAP shall establish and maintain a website (the "Hosted Site"), which shall feature the AAP Travel Products. The Hosted Site shall be customized to include branding and navigational elements reasonably requested by you, consistent with AAP’s standard page templates. AAP shall operate and maintain the Hosted Site at its expense. You hereby grant AAP 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. The Hosted Site will automatically track bookings occurring on the site facilitating automated commission reports.
2. APPLICATION PROGRAM INTERFACE OPTION (API)
(a) Application Program Interface Option. You may elect, in addition to or in lieu of AAP Links described in Section 1, to promote and sell the AAP Travel Products on your own web site using our Program Application Interface. 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 Interface Option, then such use will be subject to the terms of this Agreement, including the provisions of this Section 2.
(b) JSON Interface. If approved by AAP for the JSON Interface Option, you agree to use reasonable commercial efforts to create, at the earliest possible date, a JSON interface to the Affiliate Site(s) to enable exchange of data regarding the AAP Travel Products in accordance with the specifications provided by AAP (the "JSON Interface"). AAP will be responsible for the development, and the cost associated with the development, of the specifications for the JSON Interface (the "Specifications")as well as that portion of AAP’s back end system necessary to electronically send and receive information about the AAP Travel Products to you through the JSON Interface (the "JSON Feed"). You will be responsible for the development of the JSON Interface (and all associated costs) in accordance with the Specifications. You will, at the earliest possible date after AAP verifies the correct functioning and proper usage of your JSON Interface, integrate the AAP Travel Products received through the JSON Interface into your booking engine contained within the Affiliate Site(s). AAP reserves the right to remove JSON access on any accounts that do not comply with rules, regulations or policies for use of the JSON Interface as determined by AAP from time to time, any accounts that are identified with inactive JSON access or sites with no live content, accounts that are non-responsive to correspondence, corrections or requests regarding the JSON interface, or any other acts or omissions that, in AAP’s sole discretions, may pose threats to AAP’s security and/or intellectual property.
(c) License to Specifications. If you are approved by AAP for the JSON Interface Option, AAP hereby grants you a non-exclusive, nontransferable, royalty-free, worldwide license to: (i) use the Specifications solely for the purpose to develop the JSON Interface in accordance with the terms of this Agreement; and (ii) use, distribute, reproduce, perform and display the JSON Interface developed in accordance with the foregoing clause solely for use in connection with your performance under this Agreement.
(d) Display of AAP Information. In connection with all AAP Travel Products made available for booking or otherwise listed on the Affiliate Site, you shall display the appropriate trademark or copyright designation for AAP or other third party, the AAP terms and conditions, seller of travel designations, the cancellation policies, rules, disclosures, regulations, rates, prices, taxes, tax recovery charges, services fees and other charges and fees 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 or omissions 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 Interface and/or the Affiliate Number (the "AAP Booking Tools") during the term of this Agreement. API commissions would be subject on net rates which will be determined in a separate net rate agreement. AAP will pay you the marketing fees as set forth below (the "Marketing Fees"):
(b) Conditions to Your Right to Receive Payment of Marketing Fees. Before you shall be entitled to receive any Marketing Fees, you must satisfy the following conditions precedents:
(1) You must maintain and update your address and bank account information. Return of a mailed check or wire transfer as undeliverable shall constitute evidence of your failure to meet this condition.
If the above-listed conditions precedents are not met at the time the right to payment of Marketing Fees would otherwise accrue/be paid, your right to 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 all Marketing Fees owed, which exceed Fifty US Dollars ($50) in aggregate, due Affiliate for all AAP Travel Products "consumed" for which a commission was collected by AAP(or its Corporate Affiliates) during the previous month. Notwithstanding anything to the contrary in this Agreement, You will not be entitled to any Marketing Fees in relation to transactions that are not Consumed during the Term or subsequently cancelled, refunded, charged back, disputed by the traveler, result from fraudulent or other unlawful activity, or for which AAP (or its Corporate Affiliate) does not receive payment (collectively, "Void Transactions"). We will send you an account statement at the end of the month asking you to invoice us for the amount due. AAP may deduct and offset any Marketing Fees previously made or owed to You for such Void Transactions from subsequent Marketing Fees owed to You. In relation to any international bank transfer for the payment of Marketing Fee payments ("Bank Transfer"), AAP shall be responsible for the fees (if any) relating solely to the sending of such Bank Transfer, and Affiliate shall be responsible for any other fees or charges (if any) 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 order to take advantage of this your balance for each month will be carried forward.
(d) Taxes
You shall be responsible for any and all taxes, duties and impositions imposed on You resulting from this Agreement, including interest and penalties thereon and additions thereto.
4. TERM AND TERMINATION
(a) Term. Unless earlier terminated in accordance with the terms of this Agreement, the term of this Agreement is one (1) year from the date you click to accept this Agreement, 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. In the event that AAP has breached of any of the material terms of this Agreement, you may terminate this Agreement upon thirty (30) days prior written notice to AAP, provided that AAP does not cure such breach within such 30-day period. AAP may terminate this Agreement at any time, for any reason, with or without cause, upon written notice to you. This Agreement will terminate automatically in the event that, during a period of twelve (12) consecutive months, no AAP Travel Products are booked.
(c) Effect of Termination. Upon termination of this Agreement for 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) remove all its Marks other branding elements from the Hosted Site; and (c) cease to display on the Affiliate Site(s) and destroy or delete from all of the Affiliate’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 at any time upon termination of this Agreement disable Affiliate’s access to the JSON Interface.
(d) Survival. Sections 4(d), and 6-8 will survive any expiration or termination of this Agreement.
5. ADVERTISING AND RESTRICTIONS
(a) 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. All goodwill from each party's use of the other party's Marks shall inure to the benefit of the other party.
(b) Prohibited Activities. You covenant that you will not:(i) send unsolicited bulk e-mail or engage in other unethical or illegal marketing activities, (ii) place material on any site linked to the Hosted Site that is inappropriate for general and family viewing (e.g., sexually explicit materials, materials advocating violence or hatred, or any material the display of which may be unlawful in any state), or (iii) mislead or misrepresent to consumers as to the origin, affiliation or nature of your websites, products or services. You will not allow and will take reasonable steps to prevent any direct or indirect extraction, repurposing and/or aggregation of AAP Travel Product data made available to you under this Agreement (e.g., inclusion of AAP Travel Product data in consolidated third party search results) without the prior written consent of AAP.
(c) Predatory Advertising. You will not to use and will prohibit your websites from using any predatory advertising methods. Predatory advertising means 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 (e.g., keyword parsing browser plugins such as Top Text and +Surf, banner replacement technology such as Gator, browser spawning technology that is not website dependent).
6. WARRANTIES, LIMITATIONS OF LIABILITY AND INDEMNITY
(a) Warranties. Neither you nor AAP makes any warranties or representations, except as expressly provided in this Agreement. You represent and warrant that (i) you have the right and authority to enter into this Agreement and to comply with and perform your obligations hereunder; (ii) you have not entered into any other agreements inconsistent with its performance under this Agreement; (iii) the Affiliate Site(s) 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) you shall perform your obligations hereunder in a timely, competent, professional and workmanlike manner 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 Products booked through the AAP Booking Tools, as applicable, are sold to customers by the applicable travel suppliers and not by AAP. AAP will have no liability to you or any customers for (i) any failure of the systems of AAP or any third party that results in the failure or inability to process a transaction through the AAP Booking Tools, or (ii) the quality of the AAP Travel 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 Party Beneficiary. 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 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.
(f) Force Majeure. The failure of either party to perform any obligation otherwise due as a result of governmental action, laws, orders, regulations, directions or requests, or as a result of events, such as war, acts of public enemies, strikes or other labor disturbances, fires, floods, acts of God or any causes of like or different kind beyond the reasonable control of that party is excused for so long as said cause exists.
(g) Indemnification. You agree to indemnify, defend and hold AAP and its Corporate Affiliates, their 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 your representations or warranties contained in this Agreement, (ii) your 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 AAP’s use of any of your trademarks or trade names 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 Affiliate Site(s) or any data, software, method, service or material provided by You, (1)infringe any patent, copyright, trademark, trade secret or any other intellectual property or proprietary right of such third party, or (2) violate any 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'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. 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,"(including, but not limited to, the Specifications and other documentation relating to the JSON Interface) 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 (iv) 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 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 any such disclosure shall be limited in scope, nature and degree to that deemed necessary by competent counsel. For the avoidance of doubt, a Corporate Affiliate of AAP shall not be considered a third party for purposes of this Section.
(b) For purposes of this Section, "Data Protection Law” means all applicable laws and regulations relating to the protection of data in the relevant state or territory, including, where applicable, the local laws implementing 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 or re-enacted in relevant territory where customers’ "personal data" (as defined under the Directive). Each party shall (i) use commercially reasonable 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 Data Protection Law in its use and handling of customer’s personal data. You shall ensure that You have obtained the relevant consents and permissions from customers in order to allow AAP and/or its relevant Corporate Affiliates to process such customers’ personal data in accordance with this Section. You shall at all times act in accordance with applicable law in respect of such personal data. Each party shall implement appropriate technical and organizational security measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access. Such measures will be no less stringent than those a party generally applies to its own data of similar nature.
8. GENERAL
(a) Jurisdiction/Governing Law. This contract will be governed by the laws of Mexico with respect to Amstar Operaciones DMC MX S de RL de CV, Jamaica, United States of America and the Dominican Republic with regards to Amstar DMC, without reference to rules governing choice of laws. Any action relating to this contract shall be brought in the corresponding country, and you irrevocably consent to the jurisdiction and venue of such courts. The prevailing party in any suit or action in such court shall be entitled to be reimbursed their attorney's fees and costs actually incurred. In the event any provision of this contract shall be determined to be unenforceable by a court of competent jurisdiction, the remaining portions of this contract not so affected shall continue in full force and effect
(b) Amendments. AAP may amend this Agreement at any time by posting the amended terms at this site. Except as stated elsewhere, all amended terms shall automatically be effective 5 (five) days after they are initially posted.
(c) Assignment. You may not assign your rights or obligations under this Agreement, in whole or in part, without the prior written consent of AAP. AAP may assign this Agreement to any entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with AAP (a "Corporate Affiliate") or to any successor by way of a purchase of all or substantially all of AAP’s assets or by merger, consolidation or similar transaction. Any assignment in violation of this Section 8(c) will be null and void.
(d) No waiver. Subject to 8(b) above, no waiver of any term, condition or obligation of this Agreement will be valid unless made in writing and signed by the party to which such performance is due. No failure or delay by any party at any time to enforce one or more of the terms, conditions or obligations of this Agreement will (i) constitute waiver of such term, condition or obligation, (ii) preclude such party from requiring performance by the other party at any later time, or (iii) be deemed to be a waiver of any other subsequent term, condition or obligation, whether of like or different nature.
(e) Severability. This Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Agreement is held to be invalid or unenforceable, then such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision.
(f) Entire Agreement. This Agreement constitutes the entire and exclusive agreement between the parties regarding the subject matter hereof, and supersedes all prior or contemporaneous oral or written agreements and understandings.
(g) Notice. All notices by You to AAP under this Agreement must be in English, in writing, and sent overnight air courier to the address set out below Agreement. Notices are deemed delivered two business days after the date of delivery by overnight air courier.
If to AAP:
Amstar Operaciones DMC MX S de RL de CV
AOD171206SI6
Avenida Tulum, Manzana 1, Lotes 2, 9° piso, Supermanzana 9, Cancún, Quintana Roo, México, C.P. 77500
Any notice or communication to be provided to You by AAP under this Agreement shall be sent to the email address provided by You in the Affiliate Sign-up Form or to any subsequent email address that You provide to AAP through the account management section of the affiliate center.