EXHIBIT 10.7
EXPEDIA, INC.
ASSOCIATE PROGRAM AGREEMENT
This agreement ("Agreement") contains the complete terms and conditions for
your participation in the Expedia, Inc. Associate Program ("Program"), and the
establishment of links from your Web site(s) to our domestic Web site, as
defined below. As used in this Agreement, "you" means (and "your" refers to)
the applicant seeking to participate as an Associate in the Program, "we" means
(and "us", "our" and "ours" refer to) Expedia, Inc.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND EXPEDIA, INC. BY CLICKING ON THE
"ACCEPT" BUTTON AT THE END OF THIS AGREEMENT, YOU AGREE THAT YOU ARE
AFFIRMATIVELY STATING THAT YOU HAVE CAREFULLY READ AND UNDERSTAND THE TERMS SET
FORTH IN THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS
AGREEMENT.
1. DEFINITIONS
1.1 "ACCOMMODATION TRANSACTION" means the Commencement Date of a stay
in one or more rooms or suites in a single hotel for an uninterrupted stay of
any duration or any accommodations available for reservation or purchase on
Expedia for an uninterrupted stay of any duration, and where such reservation or
purchase is completed by a User who has Linked directly to Expedia from your
Associate Site via one of the EI Icons or Links with the purpose of shopping or
buying travel during a single browser session.
1.2 "AFFILIATE" means any person, partnership, joint venture, corporation
or other form of enterprise, domestic or foreign, including but not limited to
subsidiaries, that directly or indirectly, control, are controlled by, or are
under common control with a party.
1.3 "AIR TRANSACTION" means the Commencement Date of a trip (round-trip, or
one-way if no round-trip is purchased) by one person or more, and where such
purchase of one air ticket or more is completed by a User who has Linked
directly to Expedia from your Associate Site via one of the EI Icons or Links
with the purpose of shopping or buying travel during a single browser session.
1.4 "ASSOCIATE SITE" means one or more of your web sites, and any successor
web site to those sites, once you have been accepted into the Program.
1.5 "BANNER ADVERTISEMENTS" means those certain rotating or permanent
banner advertisements created and provided by us to you containing a Linking URL
that are located on your Associate Site, and are no larger than 468 pixels by 60
pixels (or such other dimensions as the parties may from time to time agree
upon), which permits Users to navigate directly to a page on Expedia as selected
by us. You agree not to revise, change or modify any Banner Advertisement
provided by us to you for placement on your Associate Site.
1.6 "CAR TRANSACTION" means the Commencement Date of a car rental by
one person, and where such transaction is completed by a User who has Linked
directly to Expedia from your Associate Site via one of the EI Icons or Links
with the purpose of shopping or buying travel during a single browser session.
1.7 "CLICK-THROUGH" means each instance in which a User navigates to and
fully loads a page on Expedia. As used herein, a page "fully loads" when the
entire page is displayed on the electronic device that has accessed the page.
1.8 "COMMENCEMENT DATE" means the date upon which the air travel, car
rental, accommodation stay, cruise trip or any travel package combination
thereof commences.
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1.9 "CRUISE TRANSACTION" means the Commencement Date of one cruise by one
person or more, for a stay of any duration, and where such transaction is
completed by a User who has Linked directly to Expedia from your Associate Site
via one of the EI Icons or Links with the purpose of shopping or buying travel
during a single browser session.
1.10 "EI ICONS" means any graphical or text link, including, without
limitation, Banner Advertisements and persistent hyperlinks in the form of an
Expedia logo or Expedia storefront booking form, that is located on your
Associate Site through which Users may directly Link to a location on Expedia.
1.11 "EXPEDIA" means the software code, informational databases, products,
and other components that make up our service which is marketed for use by
individual end users in the United States, Canada, Germany, the United Kingdom
and/or such other locales as we may elect to market our service, at our sole
discretion, to enable such end users to shop for, reserve, book (including, at a
minimum, air travel, accommodations, travel packages, and car rentals) and pay
for certain travel services via a personal computer (or other interactive
device) connected to the Internet or any other network. We currently offer these
services on the Web under the name "Expedia," but we may change the name from
time to time, and the term "Expedia" as we use it in this Agreement is deemed to
refer to all future versions of our online services described in this Agreement,
regardless of the name under which it is offered from time to time, and includes
without limitation any and all additional, follow-on, successor or replacement
versions of these services.
1.12 "LINK" means either, (i) one or more hyperlinks located on the
applicable areas of your Associate Site or Expedia, (ii) any "keywords", such as
"Travel", "Air", "Hotel", "Car", etc. that invokes your software program on your
Associate Site and returns an EI Icon, or (iii) any other alternative method
that enables a User to access Expedia or return to your Associate Site. Links
also include any connection to Expedia through the Internet, email, broadband,
Internet II, wireless and handheld devices, cell phones, digital appliances, or
other digital interactive means, networks, devices, or transmissions (whether
existing now or in the future).
1.13 "LOOK AND FEEL" means the distinctive and particular elements of
graphics, design, organization, presentation, layout, user interface,
navigation, trade dress, colors and stylistic convention (including the digital
implementations thereof) within a World Wide Web site, and the total appearance
and impression substantially formed by the combination, coordination and
interaction of such elements, and any derivative works.
1.14 "MERCHANT ACCOMMODATION TRANSACTION" means the reservation of a
single room or suite in a single hotel for an uninterrupted stay of any
duration, or any accommodations available for reservation or purchase on Expedia
for an uninterrupted stay of any duration, where an Expedia Affiliate is the
Merchant of Record for the transaction, and where such transaction is completed
by a User who has Linked directly to Expedia from your Associate Site via one of
the EI Icons or Links with the purpose of shopping or buying travel during a
single browser session.
1.15 "MERCHANT NET REVENUE" means the net revenue that the Merchant of
Record receives as a direct result of Users effectuating Merchant Accommodation
Transactions and/or Travel Package Transactions on Expedia, after taking
deductions for: (i) amounts collected by the Merchant of Record for sales taxes,
duties, handling, and similar charges, (ii) 3% of the total amount of each
transaction for credit card fees, and (iii) .05% of the total amount of each
transaction for amounts due to suppliers due to credit card fraud and bad debt.
1.16 "MERCHANT OF RECORD" means an Affiliate of ours, whose name
appears on the credit card charge and to whom the applicable credit card company
shall reimburse for the amount of the credit card charge.
1.17 "NET REVENUE" means the net revenue we receive as a direct result of
Users effectuating Accommodation Transactions and/or Car Transactions on
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Expedia, excluding: (i) amounts we collect for sales taxes, duties, handling,
and similar charges, (ii) .05% of the total amount of each transaction for
amounts due to suppliers due to credit card fraud and bad debt, and (iii) .25%
of the total amount of each transaction for credits due to suppliers for
cancellations or returns.
1.18 "TRAVEL PACKAGE TRANSACTION" means: (i) a combination of two or more of
the following transactions that have been effectuated by one User during a
single browser session: an Air Transaction, an Accommodation Transaction, a Car
Transaction, a Cruise Transaction, or a Merchant Accommodation Transaction; or
(ii) a combination of two or more transactions identified in this Section 1.18
which have either a common Commencement Date or proximately related Commencement
Dates, and which may be effectuated by the same User in more than one browser
session, and where such transaction is completed by a User who has Linked
directly to Expedia from your Associate Site via one of the EI Icons or Links
with the purpose of shopping or buying travel during a single browser session.
1.19 "USER" means individuals or entities that access Expedia directly from
your Associate Site. For purposes of clarification, the meaning of "User" shall
not include any software program or routine that generates a Click-Through with
no individual person actually present, such as shoppingbots or other computer
programming routines that are intended to scrape, mine, surreptitiously
intercept or expropriate any information for the purpose of comparison shopping.
2. INELIGIBLE PARTY; LIQUIDATED DAMAGES
If you are an employee or agent of a Competitor of ours, a travel agent or a
travel supplier (collectively, "Ineligible Party"), you are not eligible to
enroll in the Expedia Associate Program. For the purposes of this Agreement, a
"Competitor" includes, but isn't limited to, Travelocity, Orbitz, Hotel
Reservation Network, Mark Travel, Cheap Tickets, Priceline, Biz Travel, Hotwire,
Last Minute, American Express, Rosenbluth, Carlson Wagonlit, Site59, any
airline, any car rental, any cruise operator and any hotel company. If you fall
into any of these categories and you still wish to enroll in the Associate
Program, you must obtain prior written approval from us for your participation
as an Associate. IF YOU HAVE ANY QUESTIONS WHETHER YOU ARE OR ARE NOT AN
INELIGIBLE PARTY, PLEASE CONTACT US BEFORE YOU EXECUTE THIS AGREEMENT. In
addition, you agree to: (i) terminate this Agreement immediately if you become
an Ineligible Party following your enrollment in the Associate Program; and (ii)
keep confidential any Confidential Information, as defined in this Agreement,
which we have provided to you during your enrollment in the Associate Program.
You specifically agree that the obligation for confidentiality in this Agreement
survives any termination of this Agreement. YOU ACKNOWLEDGE AND AGREE TO THESE
RESTRICTIONS AND SPECIFICALLY AGREE THAT ANY BREACH OF THIS SECTION 2 SHALL BE
DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
IF YOU ARE AN INELIGIBLE PARTY AND ENROLL IN THE ASSOCIATE PROGRAM, YOU AND WE
AGREE THAT WE WILL BE MATERIALLY DAMAGED BY YOUR ACCESS TO OUR CONFIDENTIAL
INFORMATION IN AN AMOUNT THAT IS DIFFICULT TO ASCERTAIN. ACCORDINGLY, YOU AND
WE AGREE THAT IF YOU ARE AN INELIGIBLE PARTY AND ENROLL IN THE ASSOCIATE
PROGRAM, THAT YOU WILL PAY FIVE HUNDRED THOUSAND DOLLARS (US$500,000.00) TO US
AS LIQUIDATED DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS PROVISION
SHALL PREVENT US FROM PURSUING EQUITABLE REMEDIES RESULTING FROM A BREACH OF
THIS AGREEMENT.
IF FOLLOWING YOUR ENROLLMENT IN THE ASSOCIATE PROGRAM YOU BECOME AN INELIGIBLE
PARTY AND DO NOT IMMEDIATELY TERMINATE THIS AGREEMENT, YOU AND WE AGREE THAT
YOUR CONTINUED ACCESS TO OUR CONFIDENTIAL INFORMATION WILL PUT US AT RISK.
FURTHER, YOU AND WE AGREE THAT ANY USE BY YOU OF THE CONFIDENTIAL INFORMATION
OBTAINED PRIOR TO TERMINATION OF THE AGREEMENT WILL PUT US AT RISK.
ACCORDINGLY, YOU AND WE AGREE THAT IF: (I) YOU DO NOT KEEP CONFIDENTIAL THE
CONFIDENTIAL INFORMATION YOU OBTAINED PRIOR TO BECOMING AN INELIGIBLE PARTY; OR
(II) YOU DO NOT TERMINATE THE AGREEMENT AS REQUIRED AND THEREFORE CONTINUE TO
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ACCESS OUR CONFIDENTIAL INFORMATION, THAT WE WILL BE MATERIALLY DAMAGED BY YOU
IN AN AMOUNT THAT IS DIFFICULT TO ASCERTAIN AND YOU WILL PAY FIVE HUNDRED
THOUSAND DOLLARS (US$500,000.00) TO US AS LIQUIDATED DAMAGES. NOTWITHSTANDING
THE FOREGOING, NOTHING IN THIS PROVISION SHALL PREVENT US FROM PURSUING
EQUITABLE REMEDIES RESULTING FROM A BREACH OF THIS AGREEMENT.
3. YOUR OBLIGATIONS
3.1 To begin the enrollment process, you will submit a completed program
application ("Program Application") via Expedia. We will evaluate your Program
Application and will notify you of your acceptance or rejection in a timely
manner. We may reject your Program Application if we determine, in our sole
discretion, that you are an Ineligible Party, or your site is unsuitable for the
Program for any reason, including, but not limited to, if your site incorporates
images or content that is in any way unlawful, harmful, threatening, defamatory,
obscene, harassing or racially, ethically or otherwise objectionable such as
sites that depict sexually explicit images; promotes violence, illegal
activities, or unlawfully discrimination of any kind; promotes or incorporates
any materials which infringe or assist others to infringe the intellectual
property rights of others (collectively "Content Restrictions"). If we reject
your Program Application, you are welcome to reapply to the Associate Program at
any time.
If you are accepted into the Program:
3.2 You shall prominently display and maintain the EI Icons provided to
you by us, or any addition to or substitute thereof that we may provide to you
from time-to-time during the term of this Agreement, on your Associate Site
which shall Link directly to Expedia. You agree not to place the EI Icons on
the same page on your Associate Site with the logos or trademarks from
Travelocity.com Inc., Hotel Reservations Network, Inc., Hotwire and Mark Travel.
In the event we provide you with new or modified EI Icons, you agree to
implement the new EI Icons within thirty (30) days following receipt of the
update from us. You agree to comply with the EI Icon Guidelines for Linking
that we provide to you or any other replacement guidelines that we may provide
to you in writing from time-to-time during the term of this Agreement. The EI
Icon Guidelines are available at
http://www.expedia.com/daily/associates/EI_Icon_Guidelines.htm. Additionally,
we encourage (but do not require) you to include a Link to the home page of
Expedia.
3.3 In no event shall you or your agents make or extend any
representation or warranty on our behalf with respect to Expedia or the services
available therein.
3.4 You warrant and represent to us that your Associate Site: (i) is in
compliance with all applicable laws and regulations; (ii) does not contain any
material that is fraudulent, defamatory or obscene; and (iii) is suitable in all
respects to be Linked to from Expedia. You agree that your Associate Site will
not, in any way, copy or resemble the Look and Feel of Expedia nor will you
create an impression that your Associate Site is Expedia or part of Expedia, nor
will you frame any page on Expedia being viewed by a User of your Associate Site
who links to Expedia through a Link. You agree that during the term of this
Agreement, your Associate Site shall not contain any of the Content Restrictions
described in Section 3.1 above, nor shall it disparage Expedia or us in any way.
We may test your Associate Site's URL, and if such URL is not in compliance with
the terms and conditions of Section 3.2 and this Section 3.4, we, in our sole
discretion may (i) remove such non-conforming URL; and/or (ii) terminate this
Agreement.
4. EXPEDIA'S OBLIGATIONS
4.1 We shall provide you with one or more EI Icons, or any substitute
thereof that we, in our sole discretion, may provide to you from time to time
during the term of this Agreement for use on your Associate Site. Additionally,
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we shall provide you with EI Icon Linking guidelines, or such other replacement
guidelines as we may provide to you in writing from time-to-time during the term
of this Agreement.
4.2 We shall provide customer support and fulfillment services to Users
in accordance with our then-current standard terms and conditions and standard
customer service policies and procedures applying generally to users of Expedia.
You acknowledge that we reserve the right to refuse to provide
customer/fulfillment services to a User for a variety of reasons, including but
not limited to: (a) purchase rejection by applicable credit card company; (b)
inability to authenticate credit card; (c) inability to authenticate card
holder; and (d) User's purchase history with us and/or our Affiliates.
4.3 We shall make available to you monthly reports that set forth, at a
minimum, the number of Users to Expedia from your Associate Site, and the number
of Accommodation Transactions, Air Transactions, Car Transactions, Cruise
Transactions, Merchant Accommodation Transactions and Travel Package
Transactions completed by Users Linking directly to Expedia from your Associate
Site during the applicable month.
4.4 The parties acknowledge that a third party reporting agent, such as
"Be Free, Inc." ("Reporting Agent") will assist us in fulfilling our tracking
and reporting requirements hereunder. To ensure that reporting begins as soon
as possible, you agree to register with the Reporting Agent as soon as
practicable and to provide us with the SiteID or other necessary information
assigned by the Reporting Agent.
5. USE OF TRADEMARKS
You agree that we may include your logos, trademarks, trade names and similar
identifying material ("Your Marks") on Expedia in a listing of companies who are
participating in the Program; provided however, that in no event shall we be
required to include Your Marks in any such listing. You represent and warrant
that you are the sole and exclusive owner of Your Marks and have the right and
power to grant to us the license to use them in the manner described herein, and
such grant does not or will not breach, conflict with, or constitute a default
under any agreement or other instrument applicable to you or binding upon you;
or infringe upon any trademark, trade name, service mark, copyright, or other
proprietary right of any other person or entity. We will remove Your Marks from
any such lists upon the effective date of the expiration or termination of this
Agreement.
6. OWNERSHIP OF EXPEDIA
6.1 We shall own all intellectual property rights (including without
limitation all copyrights, patents, trademarks and trade secrets) in connection
with and in all versions of Expedia.
6.2 We will own all data generated by Users of Expedia, and all of the
terms and conditions, rules, policies and operating procedures of Expedia
(including but not limited to policies relating to the use of customer personal
identification information, customer orders, customer service and ticket
fulfillment) will apply to such Users of Expedia; and we reserve the right to
change such terms and conditions, rules, policies and operating procedures at
any time.
7. FEE STRUCTURE
You are eligible to earn Transaction Fees on all sales during the term of this
Agreement, where the User follows a Link from your Associate Site directly to
Expedia and that User, using Expedia's online travel and booking system,
successfully effectuates an Accommodation Transaction, Air Transaction, Car
Transaction, Cruise Transaction, Merchant Accommodation Transaction or Travel
Package Transaction, which is completed during the term of this Agreement on
either a "Flat Rate", "Net Revenue" or "Merchant Net Revenue" basis (the
"Transaction Fees"), as applicable. The Transaction Fee for an Air Transaction
will not be awarded in the event of credit card fraud, bad debt, and credits due
for cancellations or returns. We will pay you a Transaction Fee only if the
User is tracked on our internal online ordering system from the time the Link is
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initiated on your Associate Site to the time of the sale. You agree that no
Transaction Fees will be paid if the User cannot be tracked by our internal
ordering system. Transaction Fees shall be paid as follows:
7.1 Air Transaction Fees. We will pay you Two Dollars (US$2.00) for
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each Air Transaction ("Air Transaction Fees").
7.2 Accommodation Transaction Fees. We will pay you three percent
--------------------------------
(3%) on Net Revenue, per Accommodation Transaction ("Accommodation Transaction
Fees").
7.3 Car Transaction Fees. We will pay you two percent (2%) on Net Revenue,
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per Car Transaction ("Car Transaction Fees").
7.4 Cruise Transaction Fees. We will pay you Twenty Dollars (US$20.00) for
------------------------
each Cruise Transaction ("Cruise Transaction Fees").
7.5 Merchant Accommodation Transaction Fees. We will pay you five percent
-----------------------------------------
(5%) on Merchant Net Revenue, per Merchant Hotel Transaction ("Merchant Hotel
Transaction Fees").
7.6 Travel Package Transaction Fees. We will pay you two percent (2%) on
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Merchant Net Revenue, per Travel Package Transaction ("Travel Package
Transaction Fees."),
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8. PAYMENTS
Within forty-five (45) days after the end of each month during the term of the
Agreement with respect to which we owe you any Transaction Fees, we will furnish
you a statement together with payment for any amount due to you. The statement
will contain information sufficient to discern how the payment was computed. In
the event that the total monthly Transaction Fees payable to you is less than
Fifty Dollars (US$50.00) for the applicable month ("Monthly Minimum Threshold"),
we will hold the payment until the aggregate total Transaction Fees meet or
exceed the Monthly Minimum Threshold. We will remit all payments owed to you to
your address provided in the Program Application submitted in accordance with
Section 3.
9. MODIFICATION
We may modify any of the terms and conditions contained in this Agreement, at
any time in our sole discretion. Notification to you of any change by e-mail or
posting of a change notice on Expedia and/or the Internet site of any designated
Reporting Agent, as described in Section 4.4 above, at our sole option, shall be
considered sufficient notice to you of a modification to the terms and
conditions of this Agreement. Modifications may include, but are not limited
to, changes in the scope of available commission fees, commission schedules,
payment procedures, and Program rules. If any modification is unacceptable to
you, your recourse is to terminate this Agreement. Your continued participation
in the Program following our posting of a change notice or a new agreement on
Expedia will constitute binding acceptance of the change.
10. EFFECT OF ECONOMIC CONDITIONS
In the event we deem, in our sole discretion, that military action or
extraordinary political, economic, or other conditions or occurrences beyond our
control significantly impacts the travel business, our businesses, access or
navigation to Expedia from you or your business(es) and alters our exposure
under this Agreement, we may, at any time, suspend performance (in part or
whole) of any or all terms and conditions of this Agreement, suspend payment due
hereunder (in part or whole) or terminate the Agreement (in part or whole), in
our sole discretion. We will provide you with written notice five (5) days
prior to the effective date of such change(s).
11. TERM AND TERMINATION
This Agreement shall commence upon our acceptance of your Program Application
and shall continue until terminated by either party. Either party may terminate
this Agreement at any time, with or without cause, by giving the other party
written notice of termination. Written notice can be in the form of mail, email
or fax. You are only eligible to earn Transaction Fees occurring during the
term of the Agreement, and commissions earned through the date of termination
will remain payable in accordance with Section 7. If this Agreement is
terminated because (i) you have violated the terms of this Agreement, or (ii)
your Associate Site becomes subject to the Content Restrictions set forth in
Section 3, you are not eligible to receive any commission payments, even for
commissions earned prior to termination. We reserve the right to withhold your
final payment for a reasonable time to ensure that the correct amount is paid.
Upon termination or expiration of this Agreement for any reason, you shall
immediately remove any EI Icon or Link from your Associate Site.
12. REPRESENTATIONS AND WARRANTIES
You represent and warrant to us that you are not an Ineligible Party, as defined
in Section 2, and that this Agreement has been duly and validly executed by you
by virtue of your clicking on the "Accept" button at the end of this Agreement
and constitutes your legal, valid and binding obligation, enforceable against
you in accordance with its terms; and that the execution, delivery, and
performance by you of this Agreement are within your legal capacity and power,
have been duly authorized by all requisite action on your part, require the
approval or consent of no other persons; and neither violate nor constitute a
default under the provision of any law, rule, regulation, order, judgment or
decree to which you are subject or which is binding upon you, or the terms of
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any other agreement, document or instrument applicable to you or binding upon
you. The representations and warranties in this Section 12 are continuous in
nature and shall be deemed to have been given by you upon your acceptance via
the "Accept" button at the end of this Agreement and at each stage of
performance hereunder. These representations and warranties and covenants shall
survive termination or expiration of this Agreement.
13. INDEMNIFICATION
You hereby agree to indemnify, defend, and hold harmless us and our Affiliates,
and their directors, officers, employees, agents, shareholders, partners,
members, and other owners, against any and all claims, actions, demands,
liabilities, losses, damages, judgments, settlements, costs, and expenses
(including reasonable attorneys' or other professionals' fees) (any or all of
the foregoing hereinafter referred to as "Losses") insofar as such Losses (or
actions in respect thereof) arise out of or are based on (i) any claim that our
use of Your Marks infringe on any trademark, trade name, service mark,
copyright, license, intellectual property, or another proprietary right of any
third party, (ii) any misrepresentation of a representation or warranty or
breach of a covenant and agreement made by you herein, or (iii) any claim
related to your Associate Site including, without limitation, content therein
not attributable to us.
14. DISCLAIMERS AND LIMITATION OF LIABILITY
We make no express or implied warranties or representations with respect to the
Program or any service, product or other items sold through the Program,
including implied warranties of merchantability, fitness for a particular
purpose or freedom from patent, trademark or copyright infringements, whether
arising by law, custom or conduct, or as to the accuracy or completeness of the
information provided by us. In addition, we make no representation that the
operation of Expedia will be uninterrupted or error-free, and we will not be
liable for the consequences of any interruptions or errors.
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY
LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR
THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, OUR AGGREGRATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE
PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS
AGREEMENT. THE FOREGOING LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OF
ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
15. CONFIDENTIALITY; MEDIA COMMUNICATIONS
15.1 If you have entered into a Non-Disclosure Agreement with us, you
agree that the terms of that agreement shall be deemed to be incorporated
herein. If you have not entered into a Non-Disclosure Agreement with us, then
you understand and agree that the following terms and conditions will apply to
certain information that we may disclose to you as a result of your
participation in the Program information that we consider to be confidential
(the "Confidential Information"). For purposes of this Agreement, the term
"Confidential Information", shall include, but not be limited to, the terms of
this Agreement, any modifications to the terms and provisions of the Agreement
made specifically for your Associate Site and not generally available to other
members of the Program, business and financial information, customer and vendor
lists, and pricing and sales information, concerning us or you, respectively, or
any members of the Program, other than you. Confidential Information shall also
include any information that we designate as confidential during the term of
this Agreement.
15.2 You agree not to disclose any Confidential Information and that
such Confidential Information shall remain strictly confidential and shall not
be utilized, directly or indirectly, by you for your own business purposes or
for any other purpose except and solely to the extent that any such information
is generally known or available to the public or if same is required by law or
legal process.
16. INDEPENDENT INVESTIGATION
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YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND
CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY)
ENGAGE IN SIMILAR ARRANGEMENTS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN
THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR
ASSOCIATE SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF
PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION,
GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
17. GOVERNING LAW
This Agreement will be governed by the laws of the United States and the State
of Washington, without reference to rules governing choice of laws. Any action
relating to this Agreement must be brought in the federal or state courts
located in Washington State and you irrevocably consent to the jurisdiction of
such courts. If either party employs attorneys to enforce any rights arising
out of or relating to this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs, including expert witness fees.
18. ASSIGNABILITY
You may not assign this Agreement, by operation of law or otherwise, without our
prior written consent. Subject to that restriction, this Agreement will be
binding on and enforceable against the parties and their respective successors
and assigns. This Agreement is the complete Agreement between the parties and
supersedes any prior oral or written agreement concerning the subject matter
19. NO WAIVER
Our failure to enforce your strict performance of any provision of this
Agreement will not constitute a waiver of our right to subsequently enforce such
a provision or any other provision of this Agreement.
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