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AFFILIATE AGREEMENT
This Agreement contains the complete terms and conditions that apply to an
individual or entity’s participation in the Adventure Engine Inc.'s Affiliate
Program (the "program") and the establishment of links from your affiliate
web site to our web site, adventureengine.com. As used in this Agreement,
"we" (& "our", "tours") means Adventure Engine Inc. and "you"
("your") means the applicant.
DEFINITIONS
Person – Any individual, group of individuals, partnership, business
corporations or other entity.
Reseller – A person who has purchased a reseller subscription, hosts
a customizable portal on their website and receives commission for trips purchased
through that portal and fees for subscriptions purchased through that portal
Affiliate – A ‘person’ who downloads a link (for no cost) to adventureengine.com
and receives a commission for trips or subscriptions purchased through that
link
Manual Affiliate – A ‘person’ who registers as an affiliate online
at adventureengine.com and receives a commission when a trip or subscription
is purchased through adventureengine.com and that affiliate number is referenced.
Supplier – Adventure tours and attractions business operators who
have purchased a subscription to our database and loads trip inventory for
sale online.
Reseller Commission Rates – Rates are determined by subscribing supplier
(operator). Portals can be programmed to show search results from suppliers
offering a certain minimum commission rate
Affiliate Commission Rates – Rates are determined by Adventure Engine
Reseller Subscription – An annual fee paid to Adventure Engine for
the right to host an AE portal on your website so the end user can purchase
suppliers’ adventure travel (trips) product.
Links – code to redirect users to a specific page. This refers to
the address of the portal or inset portal page.
 Links may take the form of a plain
text link sample: http://www.adventrueengine.com/resellers/uniquesubdomain
or as a graphic with a hotspot capable of re-directing upon clicking. I.e.
Portals –
Inset portal: AE code inserted into a host site template. This code
opens a display frame in which dynamic results and content are called from
a unique sub-domain of that host that resides within the Adventure Engine
database. Database results are specific to the constraints and directions
programmed by the host site. Sample address: www.hostsite.com/uniqueportalname
Sub-domain portal (basic or dynamic header): This portal is accessed
by a link placed on the host site. The link opens the portal and display
frame in which dynamic results and content are called from a unique sub-domain
of that host that resides within the Adventure Engine database. Database
results are specific to the constraints and directions programmed by the host
site. Sample address: www.adventureengine.com/resellers/uniquesubdomain
1. Enrollment in the Program
To begin the enrollment process, you will register and submit banking information
(for commission deposit purposes). We will evaluate your registration in good
faith and will notify you of your acceptance or rejection in a timely manner.
We may reject your enrollment if we determine (in our sole discretion) that
your site is unsuitable for the Affiliate Program for any reason, including,
but not limited to, inclusion of content that is in any way unlawful, harmful,
threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise
objectionable. If we reject your enrollment, you are welcome to reapply to
the Affiliate Program at any time. If we accept your enrollment and your site
is thereafter determined (in our sole discretion) to be unsuitable for our
Affiliate Program, we may terminate this Agreement in accordance with paragraph
9.
2. Utilizing Our Links
We will make available to you a variety of graphic and textual links (each
of these links sometimes being referred to herein as "Link(s)" or,
“Search bar(s), which, subject to the terms of use herein, you may display
as often and in as many areas on your site as you desire. The Links will serve
to identify your site as a member of our Affiliate Program and will establish
a link from your site to ours. In utilizing the Links, you agree that you
will cooperate fully with us in order to establish and maintain such Links.
You also agree that you will display on your site only those graphic or textual
images indicating a Link that is provided by us, and you will substitute such
images with any new images provided by us from time to time throughout the
term of this Agreement. Any Link connecting users of your site to the pertinent
area of our site will in no way alter the look, feel, or functionality of
your site. In addition, we encourage, but do not require, you to include a
Link to the home page of our site. You agree not to revise, change or modify
any link provided by us to you for placement on your site. We have the right
in our sole discretion to monitor your site and all of your marketing and
promotional activities at any time and from time to time to determine if you
are in compliance with the terms of this Agreement. To permit accurate tracking,
reporting, and referral fee accrual, we will provide you with "tagged"
link formats to be used in all links between your site and our site. You must
ensure that each of the links between your site and our site properly utilizes
such special link formats.
3. Order Processing
We will be responsible for providing all information necessary to allow you
to make appropriate Links from your site to our site. We will be solely responsible
for processing every order placed by a customer following a special Link from
your site, for tracking the volume and amount of sales generated by your site,
and for providing information & or access to reports to you regarding
sales statistics. The form, content and frequency of such information may
vary from time to time at our discretion. We will be responsible for order
entry, payment processing, and related customer service. We shall provide
customer support and fulfillment services to Users in accordance to our then
current standard terms and conditions. You acknowledge that we reserve the
right to refuse product or services to a User for reasons including but not
limited to purchases rejection by credit card Company, inability to authenticate
credit card, and User’s purchase history with us.
4. Fee Structure And Payments
4.1 Affiliate Commissions
We agree to pay you a commission of 1% of total sale
(excluding applicable taxes):
1. When a commissionable product (see
4.4 below) is purchased from us through your link or
2. When a supplier or reseller subscription
is purchased from us through your link or directly through our website and
your affiliate number is quoted.
We will not pay ‘quoted’ affiliate numbers in a sale made through another
affiliate’s or reseller’s website.
4.3 Payout Policies
When the total commission payment(s) due to you (based
on Section 4 above) exceed $50.00 at the end of any calendar quarter, you
will be paid by a bank transfer or cheque for the applicable commission (less
any taxes required to be withheld under applicable law) and a statement of
activity will be provided to you. Such commission transfers and statements
of activity will be sent no later than 30 days after the end of each calendar
quarter and will be paid in Canadian Dollars only. However, if the commissions
due to you for any calendar quarter are less than $50, we will hold such commissions
until the total amount due at the end of a calendar quarter is at least $50
or earlier if this Agreement is terminated
4.4 Commission Payment Determination
Commissionable products ("Products") are supplier trips and services
that are (a) sold by us, (b) purchased by users linking to our site from your
site through a Link, and (c) for which we have approved and received payment
will qualify for a commission payment. If a Product that generated a commission
is returned or cancelled by a customer, or is not paid for due to customer
credit card fraud or bad debt, we will deduct the corresponding commission
from your next quarterly payment. If there is no subsequent payment, we will
send you a bill for the overpayment. Affiliate Program commissions are subject
to change at any time without advance notice. We will not pay commission or
fees on purchases made by customers returning directly to our site
(i.e. not through a Link) even if the customer previously came to our site
through a Link. We will not pay commissions or fees on any Products that are
purchased through any device (an "Internet Access Appliance") that
provides Internet access but does not present our site, or permit users to
access and interact with our site, in the same manner as a desktop computer
(e.g., mobile devices such as cellular telephones or PDAs that may access
only limited or modified versions of our site).
5. Policies and Pricing
Customers who buy Adventure Engine products through the Affiliate Program
will be deemed to be customers of Adventure Engine and all of our rules, policies
and operating procures will apply to them. We may change our policies and
operating procedures at any time. Prices and availability of our products
may vary from time to time and you may not include price or product information
independent of your link. We will use commercially reasonable efforts to present
accurate information, but we cannot guarantee the availability or price of
any particular product.
6. Obligations Regarding Your Site
You will be solely responsible for the development, operation, and maintenance
of your site and for all materials that appear on your site including but
not limited to the accuracy and propriety of any materials or information
relating to us. You hereby represent and warrant to us that materials posted
on your site do not violate or infringe upon the rights of any third party,
and that materials posted on you site are not libelous or otherwise illegal.
We disclaim all liability for such matters. Furthermore, you will indemnify
and hold us harmless from all claims, damages, and expenses relating to the
development, operation, maintenance, and contents of your site. You are responsible
for constraining your own search results (i.e. choosing products, regions,
operators/suppliers and activities to be displayed by your site using our
portal).
You also hereby agree that your site will not contain any content from our
site or any materials which are proprietary to us, except (i) with our prior
permission, or (ii) materials which are obtained by you via the Adventure
Engine site in accordance with the provisions hereof or the policies or instructions
thereon. You further hereby agree that (i) your domain name does not and will
not contain the word "Adventure Engine," or any variation thereof
(collectively, the "Adventure Engine marks"), and (ii) that you
will not purchase or otherwise contract with a third party to exploit any
of the Adventure Engine marks for the purpose of causing the Affiliate site
to appear as a search result in a search for “Adventure Engine” or a close
variation thereof, or for any other reason.
7. Representations and Warranties
You agree to never make any representation or warranty on our behalf with
respect to our products and services. You warrant and represent that your
website is in compliance with all applicable laws and regulations, does not
contain any fraudulent, obscene or defamatory material and is suitable in
all respects to be linked to us and our program. You are prohibited from
displaying misleading or false information about our products, our offers
or us.
8.Licenses and Use of the Adventure Engine Logos and Trademarks
8.1 Non-Exclusive Limited License and Use of Adventure
Engine Logos - We grant you a non-exclusive, non-transferable, revocable right
to access our site through links solely in accordance with the terms of this
Agreement, and solely in connection with such links, to use our logos, and
similar identifying material (collectively "Licensed Material")
solely “for the purpose of directing traffic to our site”. You may not alter,
modify or change the Licensed Material in any way. You are only entitled to
use the Licensed Material to the extent you are a member, in good standing,
of the Affiliate Program. You agree not to use the Licensed Material in any
manner that is disparaging or that otherwise portrays Adventure Engine in
a negative light. We reserve all of our rights in the Licensed Material, and
all other intellectual property rights. We may revoke the rights granted to
you pursuant to this section immediately at any time by giving you written
notice. You shall obtain no rights in and to the Licensed Material. The rights
granted to you pursuant to this section shall terminate upon the effective
date of the expiration or termination of this Agreement.
8.2 Non-Exclusive Limited License and Use of Affiliates
Logos and Trademarks - You grant to us a non-exclusive license to utilize
your names, titles, logos, and trademarks (collectively the "Affiliate
Marks"), and to advertise, market, promote, and publicize in any manner
our rights hereunder; provided, that we shall not be required to so advertise,
market, promote, or publicize. You hereby represent and warrant that you are
the sole and exclusive owner of the Affiliate Trademarks and have the right
and power to grant to us the license to use same in the manner contemplated
herein, and such grant does not or will not breach, conflict with, or constitute
a default under any agreement or other instrument applicable to you or binding
upon you; or infringe upon any trademark, trade name, service mark, copyright,
or other proprietary right of any other person or entity. This license shall
terminate upon the effective date of the expiration or termination of this
Agreement.
9. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Affiliate
Program application and will end when terminated by either party. Either of
us may terminate this Agreement at any time, with or without cause, by giving
the other party notice of termination. It is your obligation to keep us informed
of your current address. Upon termination of this Agreement for any reason,
you will immediately cease use of, and remove from your site, all links to
our site, and all Adventure Engine trademarks, logos, and all other materials
provided by or on behalf of us to you pursuant hereto or in connection with
the / Affiliate Program. You are only eligible to earn commission on sales
occurring during the agreement term and we may withhold your final payment
for a reasonable time to ensure that the correct amount is paid.
10. Modification
We may modify any of the terms of use contained in this Agreement at any
time, in our sole discretion, by posting a change notice or new agreement
on our site. Modifications may include, but are not limited to, changes in
the scope of available commissions, commission schedules, payment procedures,
and / Affiliate Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU,
YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION
IN THE / AFFILIATE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW
AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
11. Relationship of Parties
You and we are independent contractors, and nothing in this Agreement will
create any partnership, joint venture, agency, franchise, sales representative,
or employment relationship between the parties. You will have no authority
to make or accept any offers or representations on our behalf. You will not
make any statement, whether on your site or otherwise, that reasonably would
contradict anything in this Section.
12. Disclaimers
We make no express or implied warranties or representations with respect
to the Affiliate Program or any Adventure Engine products sold through the
Affiliate Program (including, without limitation, warranties of fitness, merchantability,
non-infringement, or any implied warranties arising out of course of performance,
dealing, or trade usage). In addition, we make no representation that the
operation of our site will be uninterrupted or error free, and we will not
be liable for the consequences of any interruptions or errors.
13. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR
ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT
OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO
THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS
PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
14. Indemnification
You hereby agree to indemnify and hold harmless Adventure Engine Inc and
its subsidiaries and affiliates, and their directors, officers, employees,
agents, shareholders, partners, members, and other owners, against any and
all claims, actions, demands, liabilities, losses, damages, judgments, settlements,
costs, and expenses (including reasonable attorneys' fees) (any or all of
the foregoing hereinafter referred to as "Losses") insofar as such
Losses (or actions in respect thereof) arise out of or are based on (i) any
claim that our use of the Affiliate Trademarks infringes on any trademark,
trade name, service mark, copyright, license, intellectual property, or other
proprietary right of any third party, (ii) any misrepresentation of a representation
or warranty or breach of a covenant and agreement made by you herein, (iii)
any claim related to your site or your promotional activities, including,
without limitation, content therein not attributable to us, or (iv) any action
or claim that you sent one or more emails that were unsolicited or were otherwise
not in compliance with all applicable laws and regulations
15. Confidentiality
Except as otherwise provided in this Agreement or with the consent of the
other party hereto, each of the parties hereto agrees that all information
including, without limitation, the terms of this Agreement, business and financial
information, customer and vendor lists, and pricing and sales information,
concerning us or you, respectively, or any of our Affiliates provided by or
on behalf of any of them shall remain strictly confidential and secret and
shall not be utilized, directly or indirectly, by such party for its own business
purposes or for any other purpose except and solely to the extent that any
such information is generally known or available to the public or becomes
known or generally available to the public through a source or sources other
than such party hereto or its affiliates. Notwithstanding the foregoing, each
party is hereby authorized to deliver a copy of any such information (a) to
any person pursuant to a subpoena issued by any court or administrative agency,
(b) to its accountants, attorneys, or other agents on a confidential basis,
and (c) otherwise as required by applicable law, rule, regulation, or legal
process.
16. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS
OF USE. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT
CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT
OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU
HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE
PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT
OTHER THAN AS SET FORTH IN THIS AGREEMENT.
16. Miscellaneous
The laws of British Columbia, Canada, will govern this Agreement without
reference to rules governing choice of laws. Unless you and we mutually agree
otherwise in writing, any action relating to this Agreement must be brought
in the courts located in British Columbia, Canada, and you irrevocably consent
to the jurisdiction of such courts. You may not assign this Agreement, by
operation of law or otherwise, without our prior written consent and any attempted
assignment shall be null and void. Subject to that restriction, this Agreement
will be binding on, inure to the benefit of, and enforceable against the parties
and their respective successors and assigns. Our failure to enforce your strict
performance of any provision of this Agreement will not constitute a waiver
of our right to subsequently enforce such a provision or any other provision
of this Agreement. If a court having competent jurisdiction declares any provision
of this Agreement invalid or unenforceable, the remainder of the Agreement
shall continue in full force and effect.
Signed this _____ day of _________, 20____ __________________________
Authorized Signature
___________________________________
__________________________
Name of Business
Name (print clearly)
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