TABLET INC. LINKSHARE MARKETING AFFILIATE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU (THE "AFFILIATE" OR "YOU") AND TABLET INC. (THE "TABLET", "WE", OR, "US"). BY CLICKING ON THE "I ACCEPT" BUTTON AT THE END OF THIS AGREEMENT YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "I DO NOT ACCEPT" BUTTON AT THE END OF THIS AGREEMENT.
This Marketing Affiliate Agreement (this "Agreement") between you and us (together the "Parties") entered into as of today (the "Effective Date") will govern your participation in an engagement with Tablet through LinkShare. Neither LinkShare nor any of its corporate affiliates are parties to this Agreement. The Parties hereby agree as follows:
1. PURPOSE.
Subject to the terms and conditions of this Agreement, you have agreed to participate in the LinkShare Network with us to establish Qualifying Links to Our Websites where users visiting Your Websites may be introduced to and use Our Websites in exchange for a share of sums we receive from those users as provided herein.
2. DEFINITIONS.
2.1. "Agency Booking" means a Customer Booking purchased directly from a hotel for which Tablet collects a commission from such hotel.
2.2. "Booking" means a hotel reservation made through Our Website.
2.3. "Customer" means a user of Our Website.
2.4. "LinkShare" means the LinkShare Corporation, LinkShare Network and any one or more of the online advertising networks operated by LinkShare.
2.5. "Our Websites" means our web pages, database, computer files, emails, scripts, software or other application, or other destination, together with supporting files and programming, that are on, provided, or accessible through the web or works on or in relation to the web.
2.6. "Private Sale Booking" means a Customer Booking purchased directly from Tablet for which Tablet receives payment directly from such Customer.
2.7. "Qualifying Customer" means a Customer that has accessed and completed a Booking on Our Websites through a Qualifying Link to Our Websites provided that such Booking occurs during the Session.
2.8. "Qualifying Link" means any type or format of link to Our Website that is provided in Our Content (as defined section 3.1 below) and authorized by LinkShare, including but not limited to the Tablet Widget.
2.9. "Session" means the period of time beginning from a Customer's initial contact with Our Websites through a Qualifying Link from Your Websites to Our Websites, and terminating at the earlier of: (i) such Customer returning to or using Our Websites via a link or widget from a website other than Your Website; or (ii) 365 days from the commencement of the Session.
2.10. "Tablet Widget" means the web widget that we provide to you for installation on Your Website that allows Your Users to access Our Website.
2.11. "Your Websites" means your web pages, database, computer files, emails, scripts, software or other application, or other destination, together with supporting files and programming, that are on, provided, or accessible through the web or works on or in relation to the web.
3. OUR CONTENT AND LINKS.
3.1. Links. We shall provide you with certain HTML code and graphics including, but not limited to, a Qualifying Link (collectively "Our Content"), to be placed on Your Websites. For your commissions to be properly tracked, recorded and earned, you must ensure that each of the Qualifying Links between Your Websites and Our Websites are links provided to you as part of Our Content. We will not be liable to you for any lost commissions resulting from your failure to use appropriate links.
3.2. Change in Our Content. We reserve the right to change, remove, alter, or modify any part of Our Content that we have provided to you from time to time. You agree to promptly implement any request from us to remove, alter or modify any such portion of Our Content.
3.3. Right to Monitor. You agree that we have the right to monitor Your Websites at any time and from time to time to determine if you are following the terms and conditions of this Agreement.
4. YOUR RESPONSIBLITIES.
4.1. Content Placement. You shall publish Our Content in such a manner to assure that they it is fully and clearly visible to visitors to Your Websites.
4.2. Representations. You agree not to make any representations, warranties or other statements concerning us, Our Website, Our Content, or our policies, except as expressly authorized by this Agreement.
4.3. Notifications. You are responsible for notifying us and LinkShare of any malfunctioning of the Qualifying Links or Our Content. We will respond promptly to all concerns upon receipt of your notification.
5. TRACKING COMMISSIONS.
5.1. Activity with respect to Qualifying Links shall be tracked by LinkShare.
5.2. All determination of Qualifying Links, Qualifying Customers and whether a commission is payable will be made by LinkShare and will be final and binding on both you and us.
5.3. We agree to pay you the commissions specified below for each Booking by a Qualifying Customer for which we receive payment in full. We shall have the sole right and responsibility for processing all Bookings made by Customers.
BOOKING TYPE Applicable Percentage of Tablet receipts
Agency Booking 50% of Tablet's commission upon receipt by Tablet
Private Sale Booking 3% of gross receipts upon receipt by Tablet
5.4. Commissions will not be paid for Bookings involving fraudulent activity or Bookings from any website that was not specifically approved by us and we have the right to deny payment if we discover such activity. You shall not be entitled to payment in the event that: (i) a purchase is offset, canceled, refunded, rebated, reduced or there is a similar deduction or allowance made to the purchase or we have not received payment in full therefore from a customer or payment of our commission from a hotel (credit card authorization is pending, denied, disputed or otherwise); (ii) a customer cannot be tracked through the links provided in Our Content, an error or omission exists due to underlying data or to any intentional or inadvertent deletion or disablement by you of any tracking code, technology or otherwise, or the customer does not complete the Booking; or (iii) any payment to you is returned as undeliverable.
6. RIGHT TO REJECT.
We reserve the right to terminate any Customer and reject any potential Booking at any time at our absolute discretion.
7. PROPRIETARY RIGHTS.
7.1. Generally. Each Party (or identified third party) owns its respective website and all material and content contained in it. Nothing herein grants the other Party any right, title or license in a Party's intellectual property rights, except only that we grant you the limited, non-exclusive license to set up and display our banner or other ads (including any trademarks and service marks contained therein) on Your Websites during the Term. Upon termination, you shall deactivate our banner or other ad (including any hyperlink to Our Websites included therein or associated therewith).
7.2. License to Our Content. We grant to You a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology contained in Our Content on Your Websites solely for the purpose set forth in this Agreement. Except as expressly set forth in this Agreement or permitted by applicable law, you may not copy, distribute, modify, reverse engineer, or create derivative works from the same. You may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.
7.3. Co-Branding License. You grant to us a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by you solely for co-branding purposes or as a return link from Our Websites to Your Websites. We shall remove such graphic or banner ad upon your reasonable request.
7.4. Injunctive Relief. The Parties acknowledge that violation by one Party of the provisions of this Section 7 would cause irreparable harm to the other Party not adequately compensable by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
8. TERM AND TERMINATION.
Either Party may terminate this Agreement at any time, for any reason, provided that they provide at least five day's prior written notice of such termination to the other Party and LinkShare. Notwithstanding the forgoing, rights to payment, causes of action and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement.
9. LIMITATION OF LIABILITIES.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, PUNITIVE, DIRECT, INDIRECT, CONSEQUENTIAL DAMAGES, EXEMPLARY DAMAGES, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF PRIVACY, DENIALS OF SERVICE (INCLUDING COMPUTER CRASHES), BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. INDEMNITY.
10.1. By Tablet. Tablet acknowledges and agrees that it is solely responsible for any legal liability arising out of or relating to (i) Our Content and Our Websites (excluding Your Content); and (ii) any consumer and/or governmental complaint arising out of any campaign conducted by us, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. We shall indemnify, defend, and hold harmless you and your officers, directors, employees, agents, shareholders, partners, affiliates, representatives and advertisers (collectively "Your Parties") harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, court costs and witness fees) (collectively "Losses") incurred by, or imposed or asserted against Your Parties for (A) libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Our Content and Our Websites (excluding Your Content); (B) any breach by us of any duty, representation or warranty under this Agreement; (C) a contaminated file, virus, worm, or Trojan horse originating from Our Content and Our Websites (excluding Your Content); and (D) gross negligence or willful misconduct by us.
10.2. By You. You acknowledge and agrees that you are solely responsible for any legal liability arising out of or relating to (i) Your Websites (excluding Our Content) and Your Content; and (iii) any consumer and/or governmental complaint arising out of any campaign conducted by you, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. You shall indemnify, defend, and hold harmless Tablet and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives (collectively the "Tablet Parties") harmless from and against any and all Losses incurred by, or imposed or asserted against, the Tablet Parties for (A) libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Your Websites (excluding Our Content) and Your Content; (B) any breach by you of any duty, representation or warranty under this Agreement; (C) a contaminated file, virus, worm, or Trojan horse originating from you; or (D) gross negligence or willful misconduct by you.
11. MARKETING.
Except as otherwise provided herein, neither Party shall release any information regarding campaigns, ads, or our relationship with the other Party, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of the other Party. No press releases or general public announcements shall be made without the mutual consent of Tablet and you.
12. NOTICE.
All notices, requests, demands and other communications hereunder shall be deemed to have been duly given if delivered or mailed, certified, or registered, postage prepaid, or delivered by express courier or by receipted hand delivery, to the other Party's address and addressed as stated below on the date such notice, request, demand or other communication is actually received:
If to Tablet:
Tablet Inc.
6 W. 18th Street, 3rd Floor
New York, NY 10011
13. LINKSHARE REQUIRED PROVISIONS.
13.1. Each Party jointly and severally agrees to indemnify, defend, and hold harmless LinkShare Corporation and its publishers, officers, directors, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to any offer, engagement, any other matter related to this Agreement or the subject matter hereof any dispute relating thereto.
13.2. The Parties agree that LinkShare may rely on any data, notice, instruction or request furnished to LinkShare by either Party which is reasonably believed by LinkShare to be genuine and to have been sent or presented by a person reasonably believed by LinkShare to be authorized to act on behalf of one of the Parties. In the event of any dispute between the Parties, the Parties agree that to the extent the Parties contact and involve LinkShare, LinkShare may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of LinkShare's counsel shall be within the costs and disbursements covered by the indemnity specified in Section 13.1 above.
13.3. The Parties acknowledge and agree that this Agreement is only made possible due to LinkShare and that the Parties shall not, for the duration of this Agreement and for twenty-four (24) months thereafter, enter into any advertising, collaborations or other commercial arrangements with each other in connection with their sites on the World Wide Web except via the LinkShare Network.
13.4. The Parties acknowledge and agree that the nature of the LinkShare product (the "Product") is such that in its normal operation it may access and download elements of software data from resources which are external to the computer or device running the Product, such as Product enabled servers. The Parties acknowledge that LinkShare has not undertaken to provide such external resources or servers and specifically disclaims any representation or warranty as the availability, quality or performance of such resources or whether they may contain any defects which may affect the performance of the Product or either Party's computer. LinkShare shall not be responsible for provision of any communications facilities or the costs associated with such communications.
13.5. The Parties agree that LinkShare is an intended third-party beneficiary of this Agreement.
14. MISCELLANEOUS.
14.1. Independent Contractors. The Parties are independent contractors and shall have no authority to obligate or bind the other in any respect, and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither Party shall make any warranties or representations on behalf of the other Party.
14.2. Compliance with Laws. Each Party shall comply in all respects with all applicable legal requirements governing the duties, obligations, and business practices of that Party and shall obtain any permits or licenses necessary for its operations. Neither Party shall take any action in violation of any applicable legal requirement that could result in liability being imposed on the other Party.
14.3. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York and the federal U.S. laws applicable therein, excluding its choice of law provisions, the Parties agree to submit to the personal and exclusive jurisdiction of the courts located in New York, New York.
14.4. Entire Agreement and Modification. This Agreement, and any Schedule or Exhibit hereto, sets forth the entire understanding of the Parties as to the subject matter and may not be modified, amended or waived except in a writing executed by both Parties.
14.5. Assignability. Neither Party to this Agreement shall sell, transfer, or assign this Agreement or the rights or obligations hereunder, other than to a parent or wholly-owned subsidiary, without the prior written consent of the other Party. Notwithstanding the foregoing, we shall have the right to assign or transfer this Agreement and its obligations hereunder to any successor-in-interest of such Party by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of substantially all of the business and assets of Tablet. Subject to the foregoing, this Agreement will be fully binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
14.6. Force Majeure. With the exception of payment obligations, neither Party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such Party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fire, flood, earthquakes, explosions, and other acts of God.
14.7. Survival and Severability. Any obligations that expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening. In the event any one or more of the provisions of this Agreement is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
14.8. Remedies and Waiver. Except as otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies that the Party may possess at law or in equity. Failure of either Party to require strict performance by the other Party of any provision shall not affect the first Party's right to require strict performance thereafter. Waiver by either Party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
14.9. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All executed counterparts together shall constitute one and the same document, and counterpart signature pages may be detached and attached to form a single original document. Facsimile signatures shall constitute original signatures for the purposes of this Agreement.
