IAN. COM, L.P. - AFFILIATE PROGRAM AGREEMENT

IAN. COM, L.P.
AFFILIATE PROGRAM AGREEMENT
(Last Revised: November 5, 2008)

This agreement ("Agreement") contains the complete terms and conditions for your participation in the IAN.com, L.P. Affiliate Program. As used in this Agreement, "you" means the applicant seeking to participate as an affiliate in the Affiliate Program.

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND IAN.COM, L.P. ("IAN") 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. Marketing of IAN Travel Products

(a) Marketing of IAN Travel Products. You agree to market the travel products offered by IAN on the URL indicated in the website information section of the Sign-Up Page. You agree to market all IAN travel products, including without limitation lodging, car rental, air ticket, vacation package, and cruise products, which may change from time to time (the "IAN Travel Products"). You shall market the IAN Travel Products through the use of the IAN Links (as defined in Paragraph 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 Co-Branded Site (as defined in Paragraph 1(b) below). You agree to integrate the IAN 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) Co-Branded Site. IAN shall establish and maintain a website (the "Co-Branded Site"), which shall feature the IAN Travel Products. The Co-Branded Site shall be customized to include branding and navigational elements reasonably requested by you, consistent with IAN’s standard page templates. IAN shall operate and maintain the Co-Branded Site at its expense. You hereby grant IAN 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) IAN Links. IAN will establish a unique URL for the Co-Branded Site, which will enable IAN to track sales occurring through the Co-Branded Site. IAN will provide you one or more graphic images to be used as links from the Affiliate Sites to the Co-Branded Site (collectively referred to as the "IAN Links"). IAN 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 Co-Branded Site must be approved by IAN 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. IAN hereby grants you a limited license to display the IAN Links and accompanying IAN trade and service marks for the purpose designated in this Agreement, and IAN reserves all its rights in such marks. The authority to display IAN Links is a limited non-exclusive license that terminates automatically upon the termination of this Agreement.

(d) Location of IAN Links. You shall place on the Affiliate Sites, the IAN Links, each of which shall be above the fold and prominently displayed on the Affiliate Sites.

2. XML Interface Option

(a) XML Interface Option. You may elect, in addition to or in lieu of IAN Links to the Co-Branded described in Section 1, to promote the IAN 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 IAN, in its sole discretion. If IAN grants you permission to use the XML 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 IAN 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 IAN Travel Products in accordance with the specifications provided by IAN (the "XML Interface"). IAN 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 IAN’s back end system necessary to electronically send and receive information about the IAN Travel Products to you through the XML Interface. You will be responsible for the development of the XML Interface in accordance with the Specifications and all associated costs. You shall, at the earliest possible date after IAN verifies the correct functioning and proper usage of your XML Interface, integrate the IAN Travel Products received through the XML Interface into your booking engine contained within the Affiliate Site(s). IAN 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 IAN 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 pose threats to IAN’s security and/or intellectual property.

(c) License to Specifications. If you are approved by IAN for the XML Interface Option, IAN 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 IAN Information. In connection with all IAN Travel Products made available for booking or otherwise listed on the Affiliate Site, you shall display the appropriate trademark or copyright designation for IAN or other third party, the IAN 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 IAN Travel Products, as provided by IAN, without revision, deletion or change of any sort whatsoever ("IAN Information"). You shall be responsible for all direct costs associated with any errors or omissions in the display of the IAN Information provided to you. You shall not display or present any information about any IAN 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 IAN information with any information about any travel product or service offered by any provider other than IAN. Without limiting the generality of the foregoing, you may not include such IAN information as part of any travel "meta-search" or similar comparative display.

(e) Communications with Customers. IAN will be responsible for customer care and support issues related to the IAN Travel Products booked through the XML Interface. You shall provide commercially reasonable cooperation, at IAN’s request, to facilitate such customer care and support. Without limiting the generality of the foregoing, you shall immediately: (i) transmit to your customers, without revision, deletion or change of any sort, all information transmitted by IAN to you for re-delivery to customers (e.g., booking confirmation e-mails and other customer support communications); and (ii) transmit to IAN all communications, without revision, deletion or change of any sort, received from customers relating to the IAN Travel Products (e.g., booking requests and other customer service inquiries). In the event that you do not forward customer email addresses to IAN, or do not forward confirmation emails to the customer from IAN, you shall be responsible for all resulting liability including, but not limited to, the costs associated with any debit memo, replacement room nights, charge backs, and cancellation fees where applicable.

3. Commissions Payable to You by IAN

(a) Commission Calculation. For IAN Travel Products booked through the Co-Branded Site or via the XML Interface during the term of this Agreement, IAN will pay you a commission calculated as set forth below:

(i) Net Rate Rooms. You will be entitled five percent (5%) of the gross amount, exclusive of taxes, tax recovery charges, service fees and customer adjustments charged to customers for any consumed IAN lodging booking for which the rental rate is contracted in advance by IAN on a net rate basis (each, a "Net Rate Room"). A room is considered consumed, and the commission earned, upon the check out date of booking reserved through IAN.

(ii) Air Tickets. You will be entitled to a commission of $5.00 per confirmed standalone air transaction or air itinerary (not per passenger or per ticket) made through IAN.

(iii) Cruises. You will be entitled to one and a half percent (1.5%) of the gross amount, exclusive of tax charges, insurance, service fees, and customer adjustments, charged to customers based upon consumed cruise product bookings and on which IAN receive commission. A cruise shall be considered consumed upon the fulfillment of the cruise services booked by the customer.

(iv) Vacation Packages. A "Vacation Package" means a combination of two or more transactions that have been completed by a customer who has linked directly to the wizard associated with the IAN Vacation Package Site from the Co-Branded Site. You will be entitled to two percent (2%) of the gross amount, exclusive of taxes, tax recovery charges, service fees and customer adjustments charged to customer for a Vacation Package completed during the term of this Agreement.

(v) Agency Hotel Rooms. You will be entitled to fifty percent (50%) of the amount actually collected by IAN for any Agency (non-Net Rate) lodging booking.

(vi) Rental Cars. You will be entitled to fifty percent (50%) of the amount actually collected by IAN for any Rental Car booking.

(b) Transaction Covered by Commissions. Commissions are paid only on transactions that originate through the Co-Branded Site or the XML Interface. No commissions shall be paid on subsequent bookings by the same customer unless that subsequent booking is made through the Co-Branded Site or the XML Interface. IAN shall not offer to your customers any inducements to circumvent the Co-Branded Site or the XML Interface.

(c) Commission Payments. IAN will pay You by the fifteenth (15^th) of each month all commission owed, which exceed Fifty US Dollars ($50) in aggregate, due Affiliate for: (i) Net Rate Rooms consumed during the previous month; (ii) Vacation Packages consumed during the previous month; and (iii) all other IAN Travel Products for which a commission was collected by IAN during the previous month. Notwithstanding anything to the contrary in this Agreement, You will not be entitled to any commissions resulting from transactions that are subsequently cancelled, refunded, charged back, disputed by the traveler, result from fraudulent or other unlawful activity, or for which IAN does not receive payment (collectively, "Void Transactions"). IAN may deduct and offset any commissions previously made to You for such Void Transactions from subsequent commissions owed to You.

4. Term and Termination

(a) Term. Unless earlier terminated in accordance with the terms of this Agreement, the term of this Agreement is three (3) years from the date you "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 IAN has breached of any of the material terms of this Agreement, you may terminate this Agreement upon thirty (30) days prior written notice to IAN, provided that IAN does not cure such breach within such 30-day period. IAN may terminate this Agreement at any time, for any reason, with or without cause, upon written notice to you.

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. 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 Co-Branded 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 IAN Travel Product data made available to you under this Agreement (e.g., inclusion of IAN Travel Product data in consolidated third party search results) without the prior written consent of IAN).

(c) Predatory Advertising. You agree not to use any predatory advertising methods designed to generate traffic from any website owned or operated by IAN, Hotels.com or any of their related companies. In addition, you agree to prohibit its websites from such predatory advertising methods. Predatory advertising is defined as 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. Examples include, but are not limited to, 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 IAN that except for the limited, personal right to use the IAN's Marks as set forth herein, you shall not display or use in any context or manner (directly or indirectly), the IAN Marks or any other third party trademarks, logo, or branding (including, without limitation, any misspelling or substantially similar or confusingly similar version thereof) of IAN 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 IAN or the applicable third party.

(e) Exclusivity. During the term of this Agreement, you shall not, either directly on the Affiliate Sites, or indirectly through any link or advertisement, offer any travel product similar to any IAN Travel Product then offered through the IAN Links and/or the XML Interface Option (if applicable).

6. Warranties, Limitations of Liability and Indemnity

(a) Warranties. Neither you nor IAN makes express or implied 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 services hereunder in a timely, competent, professional and workmanlike manner using properly trained and qualified individuals.

(b) Disclaimer. THE CO-BRANDED SITE, IAN LINKS, THE SPECIFICATIONS AND THE IAN TRAVEL PRODUCTS ARE PROVIDED BY IAN "AS IS" AND WHERE AVAILABLE, AND IAN MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SAME. IAN EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, OBLIGATIONS AND LIABILITIES ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE CO-BRANDED SITE, IAN LINKS, SPECIFICATIONS AND THE IAN 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 IAN Travel Products booked through the Co-Branded Site and the XML Interface, as applicable, are sold to customers by the applicable travel suppliers and not by IAN. IAN will have no liability to you or any customers for (i) any failure of the systems of IAN or any third party that results in the failure or inability to process a transaction through the Co-Branded Site or the XML Interface, or (ii) the quality of the IAN Travel Products provided by travel suppliers to customers.

(c) NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL IAN 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 IAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(d) LIMITATION OF LIABILITY. THE TOTAL AGGREGATE LIABILITY OF IAN 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 IAN 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. AFFILIATE ACKNOWLEDGES THAT THE TRAVEL PRODUCTS AND SERVICES OFFERED BY IAN HEREUNDER MAY BE OBTAINED FROM A THIRD PARTY INTERMEDIARY WHO IS MAKING SUCH TRAVEL SERVICES AVAILABLE FROM VARIOUS TRAVEL SERVICE SUPPLIERS. AFFILIATE EXPRESSLY AGREES 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 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 IAN, its 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 IAN’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

IAN 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 XML Interface Documentation) 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.

8. General

(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. You agree that IAN may modify the terms of this Agreement, at IAN's sole discretion with or without notice and your continued participation in the Affiliate Program shall constitute acceptance of the modified terms of the Agreement.

(c) Assignment. You may not assign your rights or obligations under this Agreement, in whole or in part, without the prior written consent of IAN. Any assignment in violation of this Section 8(c) will be null and void.

(d) Nonwaiver. 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. This Agreement may not be modified in whole or in part except in a writing signed by a duly authorized representative of both parties. This Agreement may be signed in two or more counterparts, each of which will be deemed an original, and all of which together will constitute one and the same agreement.