EAN Affiliate Program Agreement
(Last Revised: July 17, 2013)
This agreement ("Agreement") contains the complete terms and conditions for your participation in the Expedia Affiliate Network affiliate program offered through EAN.com L.P. ("Affiliate Program"). As used in this Agreement, "you" means the applicant seeking to participate as an affiliate in the Affiliate Program and "EAN" means EAN.com L.P.
1A. Marketing of EAN Travel Products
(a) Marketing of EAN Travel Products. You agree to market the travel products offered through EAN on the URL indicated in the website information section of the Sign-Up Page. You agree to market all EAN travel products, which may change from time to time (the "EAN Travel Products"). You shall market the EAN Travel Products through the use of the EAN 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 EAN Links onto the URL indicated in the website information section of the Sign-Up Page within ninety days of your acceptance of this Agreement.
(b) Hosted Site. EAN shall establish and maintain a website (the "Hosted Site"), which shall feature the EAN Travel Products. The Hosted Site shall be customized to include branding and navigational elements reasonably requested by you, consistent with EAN’s standard page templates. EAN shall operate and maintain the Hosted Site at its expense. You hereby grant EAN 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.
(c) EAN Links. EAN will establish a unique URL for the Hosted Site, which will enable EAN to track bookings occurring through the Hosted Site. EAN will provide you one or more graphic images to be used as links from the Affiliate Sites to the Hosted Site (collectively referred to as the "EAN Links"). EAN and you may from time to time agree to use other graphical links, including links customized for or by you. All graphical links to the Hosted Site must be approved by EAN in advance of use. 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. EAN hereby grants you a limited license to display the EAN Links and accompanying EAN trade and service marks for the purpose designated in this Agreement, and EAN reserves all its rights in such marks. The authority to display EAN Links is a limited non-exclusive license that terminates automatically upon the termination of this Agreement.
(d) Location of EAN Links. You shall place on the Affiliate Sites, the EAN Links, each of which shall be above the fold and prominently displayed on the Affiliate Sites.
1B. Customer Care and Offline Services
(a) General. You will provide commercially reasonable cooperation, at EAN’s request, to facilitate customer care and support. Without limiting the generality of the foregoing, you will immediately: (a) transmit to customers booking EAN Travel Products, without revision, deletion or change of any sort, all information transmitted to you for re-delivery to such customers (e.g., booking confirmation e-mails and other customer support communications); and (b) transmit to EAN all communications, without revision, deletion or change of any sort, received from such customers relating to EAN Travel Products (e.g., booking requests and other customer service inquiries). You shall be responsible for all liability resulting from a breach of this provision including, but not limited to, the costs associated with any debit memo, replacement room nights, charge backs, and cancellation fees where applicable.
(b) Affiliate Number. EAN may, in its sole and on-going discretion and upon the request by you, establish one or more telephone numbers (the "Affiliate Number") for the exclusive purpose of enabling users to book and / or receive support for, EAN Travel Products by telephone and shall not be promoted or used for any other purpose. The Affiliate Number shall be displayed on the Hosted Site and/or the Affiliate Site(s), as agreed between the Parties from time to time. EAN may, in its sole discretion, terminate or amend the Affiliate Number by providing ten (10) days notice to you of such change.
(c) Customer Service Tools. You will prominently display any or all links to itinerary look-up, self-service cancellation and other online customer services tools that EAN provides from time to time.
2. XML Interface Option
(a) XML Interface Option. You may elect, in addition to or in lieu of EAN Links to the Hosted described in Section 1, to promote the EAN Travel Products on the Affiliate Site(s) using an XML Interface, as described in this Section 2 (the "XML Interface Option"). Use of the XML Interface Option must be approved in advance by EAN, in its sole discretion. If EAN grants you permission to use the XML Interface Option, then such use will be subject to the terms of this Agreement, including the provisions of this Section 2.
(b) XML Interface. If approved by EAN for the XML Interface Option, you agree to use reasonable commercial efforts to create, at the earliest possible date, an XML interface to the Affiliate Site(s) to enable exchange of data regarding the EAN Travel Products in accordance with the specifications provided by EAN (the "XML Interface"). EAN will be responsible for the development, and the cost associated with the development, of the specifications for the XML Interface (the "Specifications") as well as that portion of EAN’s back end system necessary to electronically send and receive information about the EAN Travel Products to you through the XML Interface (the "XML Feed"). You will be responsible for the development of the XML Interface (and all associated costs) in accordance with the Specifications. You will, at the earliest possible date after EAN verifies the correct functioning and proper usage of your XML Interface, integrate the EAN Travel Products received through the XML Interface into your booking engine contained within the Affiliate Site(s). EAN reserves the right to remove XML access on any accounts that do not comply with rules, regulations or policies for use of the XML Interface as determined by EAN from time to time, any accounts that are identified with inactive XML access or sites with no live content, accounts that are non-responsive to correspondence, corrections or requests regarding the XML interface, or any other acts or omissions that, in EAN’s sole discretions, may pose threats to EAN’s security and/or intellectual property.
(c) License to Specifications. If you are approved by EAN for the XML Interface Option, EAN hereby grants you a non-exclusive, nontransferable, royalty-free, worldwide license to: (i) use the Specifications solely for the purpose to develop the XML Interface in accordance with the terms of this Agreement; and (ii) use, distribute, reproduce, perform and display the XML Interface developed in accordance with the foregoing clause solely for use in connection with your performance under this Agreement.
(d) Display of EAN Information. In connection with all EAN Travel Products made available for booking or otherwise listed on the Affiliate Site, you shall display the appropriate trademark or copyright designation for EAN or other third party, the EAN 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 EAN Travel Products, as provided by EAN, without revision, deletion or change of any sort whatsoever ("EAN Information"). You shall be responsible for all direct costs associated with any errors or omissions in the display of the EAN Information provided to you. You shall not display or present any information about any EAN Travel Product or service, including but not limited to information about the sale, price or availability of any travel product or service, in any manner or in any service that consolidates or aggregates such EAN information with any information about any travel product or service offered by any provider other than EAN. Without limiting the generality of the foregoing, you may not include such EAN information as part of any travel "meta-search" or similar comparative display.
3. Payment to You
(a) Payment Calculation. During the Term of the Agreement, for EAN Travel Products booked through the Hosted Site, via the XML Interface and/or the Affiliate Number (the "EAN Booking Tools") during the term of this Agreement, EAN will pay you the marketing fees as set forth below (the "Marketing Fees"):
(i) E- Collect Rooms. You will be entitled to five percent (5%) of the gross amount, exclusive of taxes, tax recovery charges, service fees and customer adjustments, charged to customers for any Consumed EAN lodging booking made through the EAN Booking Tools and for which the payment from the customer is collected at the time of booking by EAN (or its Corporate Affiliate) (each, an "E-Collect Room"). An E-Collect Room is "Consumed", and the Marketing Fees earned, upon the check out date of booking reserved through EAN.
(ii) Hotel Collect and other non-E-Collect Rooms. For any EAN lodging booking made through the EAN Booking Tools and for which the hotel collects payment from the customer at the time of check-in or other hotel or lodging booking other than E-Collect Rooms, you will be entitled to fifty percent (50%) of the lesser of either a) the Industry Standard Commission Rate for such Consumed booking, or b) the amount actually collected by EAN for such booking. For purposes of this Section 3(a)(v)and Section 3(a)(vi) below, "Industry Standard Commission Rate" means the generally accepted travel agency commission rate in effect in the United States with respect to the particular type of travel product or service. For example, as of the Effective Date, the Industry Standard Commission Rate is eight percent (8%) of the room rate with respect to hotels and car rental. The Parties acknowledge that the Industry Standard Commission Rate is subject to change and that changes in the Industry Standard Commission Rate will not be grounds for termination of any part of this Agreement.(vi)
(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 information. Return of a mailed check as undeliverable shall constitute evidence of your failure to meet this condition.
(2) You must deliver to EAN, prior to payment of any Marketing Fees, a duly completed and signed copy of IRS From W-9, IRS Form W-8BEN or IRS Form W-8ECI as appropriate, or other documentary evidence satisfactory to EAN to establish that you are not subject to United States federal backup withholding or is entitled to an exemption from, or reduction of, United States federal withholding tax, as applicable.
(3) 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.
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. EAN will pay You by the fifteenth (15th) of each month all Marketing Fees owed, which exceed Fifty US Dollars ($50) in aggregate, due Affiliate for: (i) E-Collect Rooms "consumed" during the previous month; and (ii) all other EAN Travel Products for which a commission was collected by EAN (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 (i) not Consumed during the Term or (ii) subsequently cancelled, refunded, charged back, disputed by the traveler, result from fraudulent or other unlawful activity, or for which EAN (or its Corporate Affiliate) does not receive payment (collectively, "Void Transactions"). EAN 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"), EAN 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.
(i) You will (a) promptly notify EAN of any change in circumstances which would cause You to be subject to United States federal backup withholding or modify or render invalid any claimed exemption or reduction of United States federal withholding tax, and (b) take any action that may be necessary to avoid any requirement that EAN make any deduction or withholding for taxes from amounts payable to You. If You fail to perform Your obligations under this Section, then EAN shall be entitled to deduct and withhold from any payment made to You such amounts as it is required to withhold under applicable United States law. All amounts withheld from Marketing Fees to You pursuant to this Section shall be treated as paid to You pursuant to the "Payment Timing" paragraph above.
(ii) Notwithstanding any other provision to the contrary herein, 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 EAN has breached of any of the material terms of this Agreement, you may terminate this Agreement upon thirty (30) days prior written notice to EAN, provided that EAN does not cure such breach within such 30-day period. EAN 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 EAN 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 EAN 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 EAN Information and, at EAN’s option, certify destruction or deletion of the same. EAN may at any time upon termination of this Agreement disable Affiliate’s access to the XML 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 EAN Travel Product data made available to you under this Agreement (e.g., inclusion of EAN Travel Product data in consolidated third party search results) without the prior written consent of EAN.
(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 TopText and +Surf, banner replacement technology such as Gator, browser spawning technology that is not website dependent).
(d) Keyword Advertising. You represent and warrant to EAN that except for the limited, personal right to use the EAN's Marks as set forth herein, you shall not display or use in any context or manner (directly or indirectly), the EAN Marks 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 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, You will not bid on the names that are present in URL’s owned by EAN or its Corporate Affiliates, including, but not limited to, "travelnow.com," "hotels.com, "hotels.co.uk," "condosavers.com," "orlando.com," "expedia.com" 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, You will not use names that are present in URL’s owned by EAN or its Corporate Affiliates, including, but not limited to "travelnow.com," "hotels.com," "hotels.co.uk," "condosavers.com," "orlando.com," "expedia.com" and "hotwire.com", in keyword meta tags on any pages of the Affiliate Site(s) or any other websites owned and/or operated by You.
6. Warranties, Limitations of Liability and Indemnity
(a) Warranties. Neither you nor EAN 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, EAN LINKS, THE SPECIFICATIONS, THE XML FEED, THE AFFILIATE NUMBER AND THE EAN TRAVEL PRODUCTS ARE PROVIDED "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, EAN LINKS, SPECIFICATIONS, XML FEED, THE AFFILIATE NUMBER AND THE EAN TRAVEL PRODUCTS, INCLUDING WITHOUT LIMITATION ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; OR (C) IMPLIED WARRANTY OF NONINFRINGEMENT. You hereby acknowledge that the EAN Travel Products booked through the EAN Booking Tools, as applicable, are sold to customers by the applicable travel suppliers and not by EAN. EAN will have no liability to you or any customers for (i) any failure of the systems of EAN or any third party that results in the failure or inability to process a transaction through the EAN Booking Tools, or (ii) the quality of the EAN Travel Products provided by travel suppliers to customers.
(c) No Consequential Damages. IN NO EVENT WILL EAN BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES OR LOSS OF DATA, REVENUE, PROFIT, OR SAVINGS OF ANY PARTY, INCLUDING THIRD PARTIES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH EAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) Limitation of Liability. THE TOTAL AGGREGATE LIABILITY OF EAN 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 THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) THE TOTAL PAYMENTS PAID OR PAYABLE BY EAN TO YOU UNDER THIS AGREEMENT IN THE MOST RECENT TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY, AND (B) ONE-HUNDRED THOUSAND DOLLARS ($100,000).
(e) Third Party Beneficiary. YOU ACKNOWLEDGE THAT TRAVEL PRODUCTS AND SERVICES OFFERED TO CUSTOMERS HEREUNDER MAY BE PROVIDED FROM A THIRD PARTY INTERMEDIARY WHO IS MAKING SUCH TRAVEL SERVICES AVAILABLE FROM VARIOUS TRAVEL SERVICE SUPPLIERS. YOU EXPRESSLY AGREE THAT ALL LIMITATIONS OF LIABILITY OF THE AGREEMENT SHALL APPLY TO SUCH THIRD PARTY INTERMEDIARY, AND THAT THE THIRD PARTY INTERMEDIARY SHALL HAVE NO LIABILITY TO YOU WHATSOEVER WITH RESPECT TO THE TRAVEL PRODUCTS AND 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 EAN 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 EAN’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) EAN 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 XML 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 EAN 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 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 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 EAN 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.
(a) Dispute Resolution/Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflict of laws rules of any jurisdiction. The parties shall first attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation. If the parties are unable to resolve the dispute by negotiation, either party shall have the right to submit the dispute to binding arbitration ("Arbitration"). Such Arbitration shall be conducted under the rules of the American Arbitration Association's Commercial Arbitration Rules. The arbitrator will be selected by agreement of the parties. If the parties cannot agree on an arbitrator, an arbitrator will be designated by the American Arbitration Association. Any arbitrator so designated must be acceptable to all parties. The arbitrator shall have the authority to award compensatory damages only. The award rendered by the arbitrator shall be final, binding and non-appealable, and judgment upon such award may be entered by any court of competent jurisdiction. Other than those matters involving injunctive relief as a remedy, including during a pending Arbitration, or any action necessary to enforce the award of the arbitrators, the provisions of this paragraph shall be a complete defense to any suit, action or other proceeding instituted in any court with respect to any dispute, controversy or claim arising out of or related to this Agreement, or the creation, validity, interpretation, breach or termination of this Agreement. Each party shall be responsible for its own expenses, including legal fees, incurred in the course of the Arbitration. The fees of the arbitrator shall be divided evenly between the parties. The Arbitration shall be conducted in Dallas Texas, USA. The provisions of this paragraph will not prevent either party from seeking (i) equitable relief regarding the other party's breach of its confidentiality provisions of the Agreement or (ii) specific performance of the other party's material breach of its obligations under this Agreement. Both parties agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their responsibilities under this Agreement that are not affected by the dispute.
(b) Amendments. EAN 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 EAN. EAN 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 EAN (a "Corporate Affiliate") or to any successor by way of a purchase of all or substantially all of EAN’s assets or by merger, consolidation or similar transaction. Any assignment in violation of this Section 8(c) will be null and void.
(d) Nonwaiver. Subject to 8(b) above, no waiver of any term, condition or obligation of this Agreement will be valid unless made in 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 EAN 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 EAN:
Director of Online Affiliates
10440 N. Central Expressway, Suite 400
Dallas, TX 75231
With a copy to:
EAN – Legal Department
c/o Expedia.com Ltd.
The Angel Building
403-411 St John Street
London EC1V 4EX
If to You:
Any notice or communication to be provided to You by EAN 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 EAN through the account management section of the affiliate center.
(h) Translation. The original English version of this Agreement may have been translated into other languages. The translated version is provided as a courtesy and for informational purposes only. In the event of an inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail and be conclusive.