1. AFFILIATE OBLIGATIONS

1. Affiliate Marketing. During the Term, Affiliate shall actively market and promote the EAN Travel Products to its customers (“Customers”).
2. Access to the EAN Travel Products. Affiliate shall access and book the EAN Travel Products in a manner consistent with the guidelines provided by EAN from time to time, a current version of which are contained in Annex 1 – Guidelines. Affiliate shall access EAN Travel Products and input Customer data in the Platform solely for the purposes of booking travel services on behalf of Customers. Affiliate shall ensure that the Customer data and any other information submitted to the Platform is complete and accurate.   
3. Customer Contracts. Prior to the completion of a transaction for an EAN Travel Product (a “Transaction”), Affiliate shall:
   1. make clear to Customers that the relevant EAN Company or the applicable travel service provider provides the travel service directly to the Customer and shall not display or make any statement which expressly or by implication contradicts this proposition;
   2. communicate to Customer and obtain evidence that the Customer has read and accepts the terms and conditions, the Privacy Policy, and any other terms and conditions applicable to such Transaction provided by EAN (“Terms and Conditions”) – Affiliate may do this by incorporating the exact wording of the relevant Terms and Conditions into its own materials which it provides to the Customer; and
   3. communicate fully and accurately to the Customer any limitations or restrictions relating to the relevant travel services including, without limitation, whether cancellations or changes are permitted and the consequences of same.

Affiliate undertakes not to make any verbal or written assurances to a Customer which are additional to or contradict these Terms of Use or EAN Travel Products terms and conditions, including without limitation by promising that any special requests will be met. Affiliate shall be solely responsible and liable in respect of any representations or special request made or confirmed to the Customer without EAN's prior written authorisation and approval.

 

4. Customer Communications and Complaints.
   1. Affiliate shall within 24 hours of receipt: (i) provide to Customer, without modification or deletion, all information received from EAN relating to a Transaction; and (ii) provide to EAN without modification or deletion all communications relating to a Transaction (e.g. further booking requests and other customer service inquiries) or complaints (including any complaint to Trading Standards or any other regulatory trade body) received from Customer. Affiliate will be solely liable for any variation between the cancellation policies provided to Affiliate by EAN and those that are communicated by Affiliate to Customer. 
   2. Affiliate shall notify EAN within three (3) days of Affiliate's receipt of any Customer formal complaint, claim or action regarding a Transaction. Affiliate acknowledges and agrees that EAN shall have the right to attempt to settle any such formal complaint, claim or action directly with the Customer. If EAN attempts such a settlement Affiliate shall provide EAN with reasonable information and assistance, at EAN's expense, to help EAN to reach settlement and Affiliate shall refrain from taking any other action in respect of the relevant formal complaint, claim or action unless required to do so by law.
5. Customer Care. Affiliate will be responsible for the first line support to Customers for customer care and support issues related to EAN Travel Products and will be solely responsible for any liability towards Customer as a result of such customer care and support. EAN will be responsible for second line consultative support to Customers for customer care and support issues related to the EAN Travel Products. Affiliate shall provide commercially reasonable cooperation, at EAN’s request, to facilitate such consultative support by EAN.
6. Compliance with Laws. Affiliate shall comply with all applicable laws in force from time to time relevant to the performance of its obligations under these Terms of Use including, without limitation, any legislation relating to the licensing of travel agents.
7. Package Booking. If approved by EAN, certain EAN Travel Products as specified by EAN from time to time (“Package Booking”) may be made available to Affiliate for booking by Customers solely (i) as part of package travel products (“Packaged Products”) made available; and (ii) on the Platform. EAN may cease to offer Package Booking at any time by providing Affiliate with seven (7) days’ written notice.
   1. Booking of Package Bookings. Affiliate shall: (a) not book, nor make available or offer Package Booking except as part of Packaged Products; (b) ensure that the final booking price for a Package Booking is equal to the rate provided to Affiliate by EAN for such Package Booking (noting that the Affiliate remains responsible for the final price of the Packaged Product); and (c) only separate the pricing of Package Booking s if such pricing is not visible at any time to Customers during the booking or confirmation processes. Without prejudice to any other rights or remedies available to EAN or its Corporate Affiliates (a “Corporate Affiliate” being an entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with EAN), if Affiliate is in breach of this Section A71.3.2, EAN may restrict access to Package Booking with immediate effect and may terminate these Terms of Use. In addition, EAN may from time to time require Affiliate at its own cost to demonstrate its ongoing compliance with this Section A71.3.2.  Affiliate shall upon written request from EAN, send copies of booking confirmations, booking details and give access to such other information, systems and/or documentation as is reasonably necessary to demonstrate Affiliate’s compliance. Failure by Affiliate to permit such audit shall be deemed a breach of this Section A71.3.2.
   2. Compliance with Law. Affiliate undertakes and warrants that it, and not EAN or its Corporate Affiliates shall be solely responsible for obtaining and maintaining all licences, consents and other permissions (each, if any and whether regulatory or otherwise) and all financial security arrangements necessary for the performance of obligations under these Terms of Use in respect of bookings of Packaged Products provided and/or arranged by Affiliate. Affiliate will comply with all applicable laws (including European Council Directive 90/314/EEC and all relevant local implementations of it) in making available the Packaged Products pursuant to these Terms of Use. Affiliate shall be solely responsible for its own costs of complying with this Section A71.3.31.3.3.  Each Party agrees to provide to the other all necessary assistance and support in the event of an enquiry, request for information or investigation into the making available of Packaged Products by any national authority, consumer body or other interested party.
8. Affiliate Booking Fee.  If the Affiliate includes a booking fee (“Affiliate Booking Fee”) to the total amount charged to the customer, it shall ensure a) the Affiliate Booking Fee is not aggregated into the room rates, taxes, or service fees provided by EAN, b) the Affiliate includes the following text in its booking terms and conditions in respect to EAN Travel Products: “The total price may include an additional booking fee from Affiliate”, and c) the Affiliate does not include the Booking Fee in any supplier selection algorithm nor sort order logic.

2. COMPENSATION 

1. Payments. Affiliate hereby acknowledges that no monies, expenses or money’s worth shall be due from EAN or its Corporate Affiliates (and their respective employees, directors and representatives) to Affiliate whatsoever. Affiliate’s sole recourse for any payment or compensation as a result of any Transactions shall be against the provider of the Platform. EAN shall have no liability for any amounts due to Affiliate from the provider of the Platform.  
2. Consideration. Affiliate hereby acknowledges the provision of the EAN Travel Products by EAN under these Terms of Use as sufficient consideration for Affiliate agreeing to the obligations imposed by these Terms of Use.

3. PROHIBITED ACTIVITIES

1. Prohibited Activities. EAN and Affiliate each undertake that during the Term of these Terms of Use, it will not: (a) send unsolicited bulk e-mail or engage in other unethical or illegal marketing activities; (b) associate the EAN Travel Products with material or opinions that: (i) are illegal or discriminatory; (ii) promote or incite violence, hatred or an illegal activity; or (iii) are capable of interpretation as discriminatory of or promoting such views; or (c) mislead or misrepresent to consumers as to the origin, affiliation or nature of its websites, products or services. Affiliate will not allow and will take reasonable steps to prevent any direct or indirect extraction, repurposing and/or aggregation of EAN Travel Product data made available to Affiliate under these Terms of Use (e.g. inclusion of EAN Travel Product data in consolidated third party search results) without the prior written consent of EAN. Affiliate will not, without written consent from EAN or its Corporate Affiliates, use, publish or display any data, materials, trade names, trademarks, service marks, logos or other similar indicia of identity or source or other content from any website owned or operated by EAN or its Corporate Affiliates.
2. Predatory Advertising. Affiliate will not use any predatory advertising methods. Predatory advertising means any method that creates or overlays links or banners on websites, mobile devices, social media or any other channel which allows access to the EAN Travel Product (each a “Channel”), spawns browser windows, or any method invented to generate traffic from a Channel without that Channel owner’s knowledge, permission, and participation (e.g. keyword parsing browser plugins such as TopText and +Surf, banner replacement technology such as Gator, browser spawning technology that is not website dependent).
3. Keyword Advertising. Affiliate shall not display or use in any context or manner (directly or indirectly), EAN or its Corporate Affiliate’s trademarks, trade names or logos or any other third party trademarks, logo, or branding (including, without limitation, any misspelling or substantially similar or confusingly similar version thereof) of EAN or any other third party, in any manner whatsoever (including without limitation, in any meta tags, search engine marketing or optimization, in any domain name, any other online/offline marketing or advertising, press releases, etc.) without first obtaining prior written approval from EAN or the applicable third party. Without limiting the foregoing, Affiliate agrees that it will not bid on the names that are present in URLs owned by EAN or its Corporate Affiliates, including, but not limited to, “travelnow.com,” “hotels.com,” “hotel.com,” “vacationspot.com,”, “hotels.co.uk,” “condosavers.com,” “orlando.com,” “expedia.com”, “expedia.co.uk” and “hotwire.com”, for preferential placement in any cost per click search engine or other search engine in which search result page listing order is determined by payment to the search engine or other third party. Further, Affiliate will not use names that are present in URLs owned by EAN or its Corporate Affiliates, including but not limited to “travelnow.com,” “hotels.com, “hotel.com,” “vacationspot.com,” “hotels.co.uk,” “condosavers.com,” “orlando.com,” “expedia.com”, “expedia.co.uk” and “hotwire.com”, in keyword meta tags on any pages of the Affiliate Site(s) or any other websites or Channels owned and/or operated by Affiliate. If EAN or its Corporate Affiliates receive a request from its or their suppliers requesting that Affiliate cease bidding on or otherwise using a name or names present in a URL owned by such supplier, then Affiliate will, at the request of EAN promptly cease the use or bidding upon such name or names.

4. TERM AND TERMINATION

1. These Terms of Use shall commence on the earlier of: (i) Affiliate’s acceptance of these Terms of Use; and (ii) Affiliate’s first Transaction; and subject to earlier termination in accordance with Section D2, shall continue until expiry or termination of the EAN or Affiliate’s relationship with the Platform or the Platform provider.
2. EAN in its sole discretion and without cause may terminate these Terms of Use immediately upon written notice for any reason. Affiliate may terminate these Terms of Use on thirty (30) days’ written notice to EAN. The rights and remedies provided in this Section D2 are not exclusive and are in addition to any other rights and remedies provided by law or these Terms of Use.
3. Upon termination or expiration of these Terms of Use for any reason: (i) Affiliate shall immediately cease undertaking bookings of EAN Travel Products in the Platform; and (ii) Affiliate’s account shall be shut down immediately by EAN. Sections D3, E, F, G, and H shall survive any expiration or termination of these Terms of Use.

5. CONFIDENTIALITY; MEDIA COMMUNICATIONS, DATA PROTECTION

1. Confidentiality. In performing their obligations under these Terms of Use, EAN and Affiliate will each disclose to the other confidential and proprietary information. The Parties agree that the recipient of any such confidential or proprietary information of the other Party will use such confidential information solely for the purposes for which it is provided by the other Party, will not disclose such confidential information to any third party, and will protect such confidential information from unauthorized use and disclosure; provided that the foregoing obligations will not apply to any: (i) information that becomes generally publicly available through no fault of the recipient; (ii) information that the recipient obtains from a third party (other than in connection with these Terms of Use); (iii) information that is independently developed or acquired by the recipient; (iv) disclosure with the prior written consent of the disclosing Party; or (v) disclosures which are required by applicable law.  Notwithstanding the foregoing, the recipient may disclose such confidential information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing party sufficient prior notice in order to contest such request, requirement or order. For the purposes of these Terms of Use, any entity that controls, is controlled by or is under common control with a Party will not be considered a third party.
2. Media Communications. Affiliate shall not release to the public any press release or other communication to the press and/or public regarding these Terms of Use without EAN’s prior written consent.
3. Data Protection. 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 Council 95/46/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 the relevant territory where Customers’ “personal data” (as defined in the Directive) is received, processed, or transferred. Each Party shall: (a) use commercially reasonable efforts to safeguard the confidentiality and privacy of Customers’ personal data and to protect it from unauthorized use or release; and (b) comply with all applicable laws including but not limited to the Data Protection Law in its use and handling of Customers’ personal data. Affiliate shall ensure that it has obtained the relevant consents and permissions from Customers in order to allow EAN and/or its relevant Corporate Affiliates to process such Customers’ personal data in accordance with this Section E3. 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.

6. DISCLAIMER.

THE EAN TRAVEL PRODUCTS ARE PROVIDED BY EAN "AS IS" AND WHERE AVAILABLE, AND EAN MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SAME. EAN EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, OBLIGATIONS AND LIABILITIES ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE HOSTED SITE, SPECIFICATIONS, AFFILIATE NUMBER, AND THE API AND THE EAN TRAVEL PRODUCTS, INCLUDING WITHOUT LIMITATION ANY: (i) IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; OR (iii) IMPLIED WARRANTY OF NON-INFRINGEMENT. 

EAN will have no liability to Affiliate or any Customers relating to: (a) any failure of the systems of EAN or any third party that results in the failure or inability to process a Transaction; (b) the quality of the EAN Travel Products provided by travel suppliers to Customers.

7. LIMITATION OF LIABILITY.

1. No Consequential Damages. EXCEPT FOR CLAIMS ARISING OUT OF BREACH OF SECTION E1 (CONFIDENTIALITY) OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES OR FOR LOSS OF DATA, REVENUE, PROFIT, OR SAVINGS OF ANY PARTY, INCLUDING THIRD PARTIES, ARISING OUT OF OR RELATED TO THESE TERMS OF USE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Limitation of Liability. EXCEPT FOR CLAIMS ARISING OUT OF BREACH OF SECTION E1 (CONFIDENTIALITY), CLAIMS BY EAN TO RECOVER AMOUNTS PAID BY CUSTOMERS AND COLLECTED BY AFFILIATE ON BEHALF OF EAN OR ITS CORPORATE AFFILIATES PURSUANT TO THESE TERMS OF USE, OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING IN CONTRACT, EQUITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) ARISING OUT OF OR RELATED TO THESE TERMS OF USE WILL NOT EXCEED ONE-HUNDRED THOUSAND DOLLARS ($100,000). NOTHING IN THESE TERMS OF USE SHALL EXCLUDE OR LIMIT THE LIABILITY OF A PARTY WITH RESPECT TO DEATH OR PERSONAL INJURY ARISING OUT OF ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR FOR ANY REPRESENTATIONS MADE FRAUDULENTLY BY A PARTY.

8. GENERAL

1. Governing Law and Dispute Resolution. These Terms of Use and all rights and obligations hereunder, including matters of construction, validity, performance and dispute resolution, shall be governed by and construed in accordance with the substantive laws of England and Wales without regard to any conflict of laws, rules or principles that may require the application of any other law or where these Terms of Use or any amendment to it is actually executed. Any dispute, controversy or claim arising out of or in relation to these Terms of Use or at law, or the breach, termination or invalidity thereof, that cannot be settled amicably by agreement between the Parties, shall be finally settled by the Courts of England and Wales, and the Parties submit to the exclusive jurisdiction of those courts.
2. Modification. Notwithstanding any stipulations contained in these Terms of Use, EAN may vary or replace these Terms of Use at any time. EAN will provide to Affiliate such varied or replacement terms by e-mail or other means. In such cases where the Affiliate accepts the varied or replacement terms, such terms shall become effective upon receipt of the acceptance by EAN. If Affiliate does not within four (4) weeks from successful dispatch of such e-mail or receipt of other notification object to such vareid or replacement terms, such terms shall be deemed binding and agreed between the Parties and accordingly these Terms of Use shall be deemed varied or replaced (as applicable). In the event Affiliate objects, EAN may terminate these Terms of Use by notice in writing.
3. Force Majeure. If the performance of these Terms of Use or any obligation hereunder is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected Party, the Party so affected, upon giving prompt notice to the other Party, shall be excused from such performance, except for the making of payments hereunder, to the extent of such prevention, restriction or interference.
4. Non-waiver. No waiver of any term, condition or obligation of these Terms of Use 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 these Terms of Use will: (a) constitute waiver of such term, condition or obligation; (b) preclude such Party from requiring performance by the other Party at any later time; or (c) be deemed to be a waiver of any other subsequent term, condition or obligation, whether of like or different nature.
5. Assignment. These Terms of Use may not be assigned by either Party without the prior written consent of the other Party not to be unreasonably withheld; except, that EAN may assign these Terms of Use without consent to any of its Corporate Affiliates.
6. Severability. These Terms of Use will be enforced to the fullest extent permitted by applicable law. If any provision of these Terms of Use 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.
7. Entire Agreement. These Terms of Use 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; provided nothing in this Section H7 shall limit a Party’s liability for any representations made fraudulently.