Website
Linking And License Agreement
This Agreement is
entered into on this date, effective as of the date provided in Section
11 hereof, by and between The Magic For Less Travel, herein "TheMagicForLess.com"
located at: 210 Noll Avenue, Pittsburgh, PA, and applicant, hereafter
referred to as “The Affiliate”.
The addresses of the parties
to this Agreement as well as the dates of execution of this Agreement
by TheMagicForLess.com and Affiliate are set forth on the signature page.
Recitals
A. This Agreement is qualified in its entirety by the definitions
set forth in Section 1 of this Agreement. Terms or phrases not specifically
defined in Section 1 should be read in accordance with their general usage
and context within this Agreement. All defined terms or phrases are identified
with a bold face font and the first letter of each defined word or the
first letter of each word in a defined phrase is capitalized throughout
this Agreement.
B. TheMagicForLess.com
will provide its affiliate with an affiliate code to be used in order
to track reservation origination.
C. TheMagicForLess.com
and Affiliate agree to the following terms and conditions:
1. Defined
Terms. The terms set forth in this Section are defined as follows:
(a) "Affiliate Clients" mean clients originating from the Affiliate
Site who purchase travel from TheMagicForLess.com. An Affiliate Client
will also be deemed a client of TheMagicForLess.com.
(b) "Affiliate Site" means the World Wide Web site or sites
owned and operated by Affiliate that contains an TheMagicForLess.com Link
accepted as to substance, background image, color, look and feel by Affiliate
and which is identified by its URL designation set forth on the signature
page of this Agreement.
(c) "TheMagicForLess.com Link" means the URL link, provided
to Affiliate by TheMagicForLess.com for placement on the Affiliate Site,
which is identified by its URL designation set forth on the signature
page of this Agreement and which links the Affiliate Site to the Designated
Affiliate Page on TheMagicForLess.com site.
2. Obligations
of TheMagicForLess.com.
(a) Provide all information necessary to allow The Affiliate to make appropriate
Links from Affiliate Site to TheMagicForLess.com.
(b) Be solely responsible for all aspects of processing orders and fulfillment
of travel requests placed on TheMagicForLess.com by clients identifying
themselves as originating from the Affiliate Site, including, but not
limited to reservation, payment processing, cancellations, and related
Client services. TheMagicForLess.com reserves the right, in its sole discretion,
to reject clients.
(c) Be solely responsible for tracking the volume and amount of sales
placed on the TheMagicForLess.com that are generated by your web site,
and for providing information to you regarding sales statistics.
(d) A report of activities will be sent quarterly for months generating
bookings, or client travels made through the affiliate
links. No reports will be sent if the account generated no reportable
activities.
3. Obligations
of Affiliate Site.
(a) Place a link in the form of banner, button or text which links to
TheMagicForLess.com.
(b) Establish and maintain any Links placed on the Affiliate Site. Affiliate
Site will be solely responsible for ensuring that Links to TheMagicForLess.com
are properly formatted.
(c) TheMagicForLess.com at its sole discretion may monitor your web site
at any time to determine if you are in compliance with the terms and conditions
of this Agreement.
4. Limited License.
(a)Grant of License to Affiliate. TheMagicForLess.com grants to Affiliate
during the term of this Agreement, a non-exclusive worldwide limited license:
(i) to provide to users of the Affiliate Site access to the TheMagicForLess.com
and
(ii) at the Affiliate's sole cost and expense, the Affiliate may create
materials that incorporate elements of or information contained in the
TheMagicForLess.com Proprietary Site and copy, display, publish and distribute
the content of the TheMagicForLess.com for promotional purposes. Each
party hereby grants to the other during the term of this Agreement the
right to use such trademarks or trade names of the granting party as may
be agreed upon (in a separate writing) for inclusion in the Affiliate
Site, the TheMagicForLess.com Site, the TheMagicForLess.com Proprietary
Link and the Designated Affiliate Pages as long as the granting party
maintains quality control over the marks and any use of the marks inures
to the benefit of the granting party. Affiliate shall prominently display
on the Affiliate Site the phrase "TheMagicForLess.com" on all
TheMagicForLess.com search form pages.
(b) Grant of License to TheMagicForLess.com.
Upon obtaining the prior written consent of Affiliate, the Affiliate grants
to TheMagicForLess.com a non-exclusive royalty-free license during the
term of this Agreement to use, reproduce, electronically distribute and
publicly display the Designated Affiliate Pages for the promotion for
which the written consent is given.
5. Exclusivity.
Affiliate shall agree to only offer or market travel booking
products or services through TheMagicForLess.com during the term of this
Agreement, either directly on the Affiliate Site, or indirectly through
advertisements or links on the Affiliate Site. The exception shall be
any existing travel self booking engines on the Affiliate’s site.
6. Compensation
and Payment. TheMagicForLess.com agrees to pay to the Affiliate
a commission calculated as set forth on Exhibit A.
7.
Limited Warranty;
Indemnity.
(a) Limited Warranty. TheMagicForLess.com warrants that
(i) to the best of its knowledge, it has the right to provide the content
of the TheMagicForLess.com Site and
(ii) to the best of its knowledge, at the time of delivery of the content
of the TheMagicForLess.com Site and the Designated Affiliate Pages, such
content will not materially violate or infringe the rights of any third
party.
Similarly, Affiliate warrants that
(i) to the best of its knowledge, it has the right to provide the content
of the Affiliate Site and any information provided to TheMagicForLess.com
by Affiliate for inclusion in the TheMagicForLess.com Link or the Designated
Affiliate Pages and
(ii) to the best of its knowledge, at the time of delivery of the content
or information provided to TheMagicForLess.com by Affiliate for inclusion
in the TheMagicForLess.com Link or the Designated Affiliate Pages, such
content or information will not materially violate or infringe the rights
of any third party.
(b) Indemnity. In the event of any claim by any third party against TheMagicForLess.com
arising out of a breach of Affiliate's warranty contained in Section 8(a),
Affiliate shall defend such claim, suit or action in TheMagicForLess.com's
name but at Affiliate's expense. Affiliate shall indemnify and hold harmless
TheMagicForLess.com against any judgment, liability, loss, cost or damage
(including litigation costs and reasonable attorney's fees) arising from
or related to such claim, whether or not such claim is successful.
8. Confidential
Information.
(a) Financial Information as Confidential Information. The financial information
regarding the calculation of and the amounts paid hereunder by TheMagicForLess.com
as provided in Section 6 and Exhibit A to Affiliate shall be considered
Confidential Information.
(b) Management of Confidential Information. Each party agrees that:
(i) all Confidential Information shall remain the exclusive property of
the owner;
(ii) it shall maintain, and shall cause its employees and agents and subcontractors
to maintain, the confidentiality and secrecy of the other party's Confidential
Information;
(iii) it shall take all reasonable action necessary to ensure that its
employees and agents do not copy, publish, manipulate, disclose to others
or otherwise use the Confidential Information of the other party; and
(iv) it shall return or destroy all copies of the other parties Confidential
Information upon request of the other party, and indemnify and hold harmless
the owner from and against all damages and expenses (including attorney
fees and costs) arising from a breach of this provision.
(c) Exclusion to Confidential Information. Notwithstanding the foregoing,
Confidential Information shall not include any information to the extent
it
(i) is or becomes a part of the public domain through no act or omission
on the part the receiving party,
(ii) is disclosed to third parties by the owner without restriction on
such third parties,
(iii) is in the receiving party's possession, without actual or constructive
knowledge of an obligation of confidentiality with respect thereto, at
or prior to the time of disclosure under this Agreement,
(iv) is disclosed to the receiving party by a third party having no obligation
of confidentiality with respect thereto,
(v) is independently developed without access or reference to the disclosing
party's Confidential Information, or
(vi) is released from confidential treatment by written consent of the
disclosing party.
9. Limitation
on Damages.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR ANY SPECIAL, INDIRECT
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER
OF THIS AGREEMENT.
10. Effectiveness.
This Agreement shall be effective upon the date that TheMagicForLess.com
Link or the Designated Affiliate Pages becomes available to the Affiliate.
11. Agreement
Term; Termination.
(a) Term of Agreement. The term of this Agreement shall commence on the
date of execution by TheMagicForLess.com as set forth on the signature
page of this Agreement and, unless terminated earlier under Section 12(b),
shall terminate one (1) years from the date on which the term of this
Agreement commenced. Renewal of agreement for the same term shall be automatic
unless either party notifies the other with a thirty (30) day notice.
(b) Termination for Default. If either party shall materially breach any
provision contained in this Agreement and such breach shall not have been
cured within thirty (30) days after written notice thereof has been given
to the appropriate party, the party giving such notice may then give further
written notice to such other party terminating this Agreement, in which
event this Agreement and rights granted hereunder shall terminate on the
date specified in such further notice. The foregoing sentence will be
disregarded if either party in its sole judgment believes that the breach
by the other party of this agreement constitutes an immediate and material
threat to its integrity and this Agreement shall terminate immediately
without the requirement of any notice to the other party.
(c) Removal Upon Termination. Upon the termination of this Agreement for
any reason, the Affiliate shall be responsible for removal of links to
the Designated Affiliate Page(s) through the TheMagicForLess.com Link,
and the license under Section 3 hereof shall automatically terminate.
(d) Survival of Payment Obligations. Termination of this Agreement shall
not affect the obligation of either party to pay the amounts owing or
to become owning pursuant to this Agreement on or before the date of such
termination.
12. Miscellaneous.
(a) Force Majeure. If either party is prevented from performing any of
its duties and obligations hereunder in a timely manner by reason of any
act of God, strike, labor dispute, flood, public disaster, equipment,
software or technical malfunctions or failures, power failures or interruptions
or any other reason beyond its reasonable control, such condition shall
be deemed to be a valid excuse for delay of performance or for nonperformance
of any such duty or obligation for the period during which such condition
exists.
(b) Relationship of the Parties. Notwithstanding anything to the contrary,
this Agreement does not and shall not be deemed to constitute a partnership
or joint venture between the parties and neither party nor any of their
respective directors, officers, employees or agents shall, by virtue of
the performance of their obligations under this Agreement, be deemed to
be an agent or employee of the other.
(c) Press Releases/Announcements/Collateral. All press releases, announcements,
or collateral materials referring to this Agreement must be approved by
both parties before being released to the press or any third party.
(d) Applicable Law. In the event either party brings an action against
the other based on a controversy or claim arising out of or relating to
this contract, or breach thereof, or for the purpose of resolving any
dispute relating to the subject matter of this Agreement the parties agree
that
(1) if the action is initiated by TheMagicForLess.com, venue of the proceeding
will be in the county and state where the principal offices of the Affiliate
are located (as set forth below) and the state or federal court in which
the action is brought will have exclusive jurisdiction over the parties
and this Agreement will be governed by and construed in accordance with
the laws of the State of Florida applicable to contracts made and performed
in Florida without regard to conflict of law principles;
(2) if the action is initiated by Affiliate, venue of the proceeding will
be in Pittsburgh, Pennsylvania and the state or federal court in which
the action is brought will have exclusive jurisdiction over the parties
and this Agreement will be governed by and construed in accordance with
the laws of the State where the principal offices of the Affiliate are
located (as set forth below) applicable to contracts made and performed
in that state without regard to conflict of law principles.
(e)Assignment; Amendment; Entire Agreement.
Neither party shall assign this Agreement in whole or part without the
prior written consent of the other party except that either party may
assign this Agreement in its entirety to its parent, any subsidiary in
which it holds a majority voting interest, or any affiliate or in connection
with a merger, reorganization or sale of a substantial part of the business
to which this Agreement relates. This Agreement sets forth the entire
agreement and understanding of the parties hereto concerning the subject
matter hereof; supersedes and replaces all prior agreements, arrangements,
and understandings between the parties; and may be amended, modified,
superseded or canceled only by a written instrument executed by both parties.
(f) Transfer of Affiliate Site. Prior to the sale or transfer of the Affiliate
Site, Affiliate shall obtain to the agreement of the transfer to be bound
by the terms of this Agreement.
EXHIBIT
A
TheMagicForLess.com Commission Schedule
TheMagicForLess.com agrees to pay Affiliate a commission according to
the following schedule with respect to travel booked by Affiliate Clients
through the TheMagicForLess.com Site:
(i) The commission shall be considered “earned” when the client
travels. If a client cancels their reservation prior to traveling, no
commission shall be paid.
(ii) The commission shall be paid on a monthly basis, on approximately
the 15th of the month following the commission report if the minimum payout
amount of US$25.00 has been reached. If the commission falls below $25.00,
the amount shall be carried over to the next month.
(iii) The commission shall be (1) one percent dependent on the Base Price
of the vacation package. The Base Price is calculated as the price of the reservation
minus any applicable taxes, resort fees, port charges, promotions, etc., that do
not generate revenue for TheMagicForLess.com.
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