means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with a party.
means the Commencement Date of a trip (round-trip, or one-way if no round-trip is purchased) by one person or more, and where such purchase of one ride reservation or more is completed by a User who has Linked directly to Golden Touch Transportation from your Affiliate Site via one of the Golden Touch Logos or Links with the purpose of shopping or buying travel during a single browser session.
means one or more of your web sites, and any successor web site to those sites, once you have been accepted into the Program.
means those certain rotating or permanent banner advertisements created and provided by us to you containing a Linking URL that are located on your Affiliate Site, and are no larger than 468 pixels by 60 pixels (or such other dimensions as the parties may from time to time agree upon), which permits Users to navigate directly to a page on Golden Touch Transportation as selected by us. You agree not to revise, change or modify any Banner Advertisement provided by us to you for placement on your Affiliate Site.
means each instance in which a User navigates to and fully loads a page on Golden Touch Transportation. As used herein, a page "fully loads" when the entire page is displayed on the electronic device that has accessed the page.
means the date upon which the travel commences.
"Golden Touch Logos"
means any graphical or text link, including, without limitation, Banner Advertisements and persistent hyperlinks in the form of an Golden Touch Transportation logo or Golden Touch Transportation storefront booking form, that is located on your Affiliate Site through which Users may directly Link to a location on Golden Touch Transportation.
"Golden Touch Transportation"
means the software code, informational databases, products, and other components that make up our service which is marketed for use by individual end users from all over the world, to enable such end users to shop for, reserve, book and pay for certain travel services via a personal computer (or other interactive device) connected to the Internet or any other network. We currently offer these services on the Web under the name "Golden Touch Transportation," but we may change the name from time to time, and the term "Golden Touch Transportation" as we use it in this Agreement is deemed to refer to all future versions of our online services described in this Agreement, regardless of the name under which it is offered from time to time, and includes without limitation any and all additional, follow-on, successor or replacement versions of these services.
means either, (i) one or more hyperlinks located on the applicable areas of your Affiliate Site or Golden Touch Transportation, (ii) any "keywords", such as "Travel", "Airport Shared ride", "Airport Trasfers", "Airport Limo", etc. that invokes your software program on your Affiliate Site and returns an Golden Touch Logo, or (iii) any other alternative method that enables a User to access Golden Touch Transportation or return to your Affiliate Site. Links also include any connection to Golden Touch Transportation through the Internet, email, broadband, Internet II, wireless and handheld devices, cell phones, digital appliances, or other digital interactive means, networks, devices, or transmissions (whether existing now or in the future).
"Look and Feel"
means the distinctive and particular elements of graphics, design, organization, presentation, layout, user interface, navigation, trade dress, colors and stylistic convention (including the digital implementations thereof) within a World Wide Web site, and the total appearance and impression substantially formed by the combination, coordination and interaction of such elements, and any derivative works.
"Merchant Net Revenue"
means the net revenue that the Merchant of Record receives as a direct result of Users effectuating Merchant Transactions on Golden Touch Transportation, after taking deductions for: (i) amounts collected by the Merchant of Record for sales taxes, duties, handling, and similar charges, (ii) 2.29% +.30 Cents per transaction of the total amount of each transaction for credit card fees, and (iii) .05% of the total amount of each transaction for amounts due to suppliers due to credit card fraud and bad debt.
"Merchant of Record"
means an Affiliate of ours, whose name appears on the credit card charge and to whom the applicable credit card company shall reimburse for the amount of the credit card charge.
means the net revenue we receive as a direct result of Users effectuating Travel Transactions on Golden Touch Transportation, excluding: (i) amounts we collect for sales taxes, duties, handling, and similar charges, (ii) .05% of the total amount of each transaction for amounts due to suppliers due to credit card fraud and bad debt, and (iii) .25% of the total amount of each transaction for credits due to suppliers for cancellations or returns.
means individuals or entities that access Golden Touch Transportation directly from your Affiliate Site. For purposes of clarification, the meaning of "User" shall not include any software program or routine that generates a Click-Through with no individual person actually present, such as shoppingbots or other computer programming routines that are intended to scrape, mine, surreptitiously intercept or expropriate any information for the purpose of comparison shopping.
INELIGIBLE PARTY; LIQUIDATED DAMAGES
If you are an employee or agent of a Competitor of ours, you are not eligible to enroll in the Golden Touch Transportation Affiliate Program. If you fall into this category and you still wish to enroll in the Affiliate Program, you must obtain prior written approval from us for your participation as an Affiliate.
If you have any questions whether you are or are not an Ineligible Party, please contact us BEFORE you execute this Agreement.
In addition, you agree to: (i) terminate this Agreement immediately if you become an Ineligible Party following your enrollment in the Affiliate Program; and (ii) keep confidential any Confidential Information, as defined in this Agreement, which we have provided to you during your enrollment in the Affiliate Program. You specifically agree that the obligation for confidentiality in this Agreement survives any termination of this Agreement.
YOU ACKNOWLEDGE AND AGREE TO THESE RESTRICTIONS AND SPECIFICALLY AGREE THAT ANY BREACH OF THIS SECTION 2 SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
IF YOU ARE AN INELIGIBLE PARTY AND ENROLL IN THE AFFILIATE PROGRAM, YOU AND WE AGREE THAT WE WILL BE MATERIALLY DAMAGED BY YOUR ACCESS TO OUR CONFIDENTIAL INFORMATION IN AN AMOUNT THAT IS DIFFICULT TO ASCERTAIN. ACCORDINGLY, YOU AND WE AGREE THAT IF YOU ARE AN INELIGIBLE PARTY AND ENROLL IN THE AFFILIATE PROGRAM, THAT YOU WILL PAY FIVE HUNDRED THOUSAND DOLLARS (US$500,000.00) TO US AS LIQUIDATED DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS PROVISION SHALL PREVENT US FROM PURSUING EQUITABLE REMEDIES RESULTING FROM A BREACH OF THIS AGREEMENT.
IF FOLLOWING YOUR ENROLLMENT IN THE AFFILIATE PROGRAM YOU BECOME AN INELIGIBLE PARTY AND DO NOT IMMEDIATELY TERMINATE THIS AGREEMENT, YOU AND WE AGREE THAT YOUR CONTINUED ACCESS TO OUR CONFIDENTIAL INFORMATION WILL PUT US AT RISK. FURTHER, YOU AND WE AGREE THAT ANY USE BY YOU OF THE CONFIDENTIAL INFORMATION OBTAINED PRIOR TO TERMINATION OF THE AGREEMENT WILL PUT US AT RISK. ACCORDINGLY, YOU AND WE AGREE THAT IF: (I) YOU DO NOT KEEP CONFIDENTIAL THE CONFIDENTIAL INFORMATION YOU OBTAINED PRIOR TO BECOMING AN INELIGIBLE PARTY; OR (II) YOU DO NOT TERMINATE THE AGREEMENT AS REQUIRED AND THEREFORE CONTINUE TO ACCESS OUR CONFIDENTIAL INFORMATION, THAT WE WILL BE MATERIALLY DAMAGED BY YOU IN AN AMOUNT THAT IS DIFFICULT TO ASCERTAIN AND YOU WILL PAY FIVE HUNDRED THOUSAND DOLLARS (US$500,000.00) TO US AS LIQUIDATED DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS PROVISION SHALL PREVENT US FROM PURSUING EQUITABLE REMEDIES RESULTING FROM A BREACH OF THIS AGREEMENT.
To begin the enrollment process, you will submit a completed program application ("Program Application") via Golden Touch Transportation. We will evaluate your Program Application and will notify you of your acceptance or rejection in a timely manner. We may reject your Program Application if we determine, in our sole discretion, that you are an Ineligible Party, or your site is unsuitable for the Program for any reason, including, but not limited to, if your site incorporates images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable such as sites that depict sexually explicit images; promotes violence, illegal activities, or unlawfully discrimination of any kind; promotes or incorporates any materials which infringe or assist others to infringe the intellectual property rights of others (collectively "Content Restrictions"). If we reject your Program Application, you are welcome to reapply to the Affiliate Program at any time.
If you are accepted into the Program:
You shall prominently display and maintain the Golden Touch Logos provided to you by us, or any addition to or substitute thereof that we may provide to you from time-to-time during the term of this Agreement, on your Affiliate Site which shall Link directly to Golden Touch Transportation. You agree not to place the Golden Touch Logos on the same page on your Affiliate Site with the logos or trademarks from ourcompetitors. In the event we provide you with new or modified Golden Touch Logos, you agree to implement the new Golden Touch Logos within thirty (30) days following receipt of the update from us. You agree to comply with the Golden Touch Logo Guidelines for Linking that we provide to you or any other replacement guidelines that we may provide to you in writing from time-to-time during the term of this Agreement. The Golden Touch Logo procedures are available at Members Procedures.Additionally, we encourage (but do not require) you to include a Link to the home page of Golden Touch Transportation.
In no event shall you or your agents make or extend any representation or warranty on our behalf with respect to Golden Touch Transportation or the services available therein.
You warrant and represent to us that your Affiliate Site: (i) is in compliance with all applicable laws and regulations; (ii) does not contain any material that is fraudulent, defamatory or obscene; and (iii) is suitable in all respects to be Linked to from Golden Touch Transportation. You agree that your Affiliate Site will not, in any way, copy or resemble the Look and Feel of Golden Touch Transportation nor will you create an impression that your Affiliate Site is Golden Touch Transportation or part of Springfield technologies LLC, nor will you frame any page on Golden Touch Transportation being viewed by a User of your Affiliate Site who links to Golden Touch Transportation through a Link. You agree that during the term of this Agreement, your Affiliate Site shall not contain any of the Content Restrictions described in Section 3.1 above, nor shall it disparage Golden Touch Transportation or us in any way. We may test your Affiliate Site's URL, and if such URL is not in compliance with the terms and conditions of Section 3.2 and this Section 3.4, we, in our sole discretion may (i) remove such non-conforming URL; and/or (ii) terminate this Agreement.
Golden Touch Transportation'S OBLIGATIONS
We shall provide you with one or more Golden Touch Logos, or any substitute thereof that we, in our sole discretion, may provide to you from time to time during the term of this Agreement for use on your Affiliate Site. Additionally, we shall provide you with Golden Touch Logo Linking guidelines, or such other replacement guidelines as we may provide to you in writing from time-to-time during the term of this Agreement.
We shall provide customer support and fulfillment services to Users in accordance with our then-current standard terms and conditions and standard customer service policies and procedures applying generally to users of Golden Touch Transportation. You acknowledge that we reserve the right to refuse to provide customer/fulfillment services to a User for a variety of reasons, including but not limited to: (a) purchase rejection by applicable credit card company; (b) inability to authenticate credit card; (c) inability to authenticate card holder; and (d) User's purchase history with us and/or our Affiliates.
We shall make available to you monthly reports that set forth, at a minimum, the number of Users to Golden Touch Transportation from your Affiliate Site, and the number of Travel Transactions completed by Users Linking directly to Golden Touch Transportation from your Affiliate Site during the applicable month.
The parties acknowledge that a third party reporting agent, such as "Be Free, Inc." ("Reporting Agent") will assist us in fulfilling our tracking and reporting requirements hereunder. To ensure that reporting begins as soon as possible, you agree to register with the Reporting Agent as soon as practicable and to provide us with the SiteID or other necessary information assigned by the Reporting Agent.
USE OF TRADEMARKS
You agree that we may include your logos, trademarks, trade names and similar identifying material ("Your Marks") on Golden Touch Transportation in a listing of companies who are participating in the Program; provided however, that in no event shall we be required to include Your Marks in any such listing. You represent and warrant that you are the sole and exclusive owner of Your Marks and have the right and power to grant to us the license to use them in the manner described 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. We will remove Your Marks from any such lists upon the effective date of the expiration or termination of this Agreement.
OWNERSHIP OF GOLDEN TOUCH TRANSPORTATION
We shall own all intellectual property rights (including without limitation all copyrights, patents, trademarks and trade secrets) in connection with and in all versions of Golden Touch Transportation.
We will own all data generated by Users of Golden Touch Transportation, and all of the terms and conditions, rules, policies and operating procedures of Golden Touch Transportation (including but not limited to policies relating to the use of customer personal identification information, customer orders, customer service and ticket fulfillment) will apply to such Users of Golden Touch Transportation; and we reserve the right to change such terms and conditions, rules, policies and operating procedures at any time.
You are eligible to earn Transaction Fees on all sales during the term of this Agreement, where the User follows a Link from your Affiliate Site directly to Golden Touch Transportation and that User, using Golden Touch Transportation's online travel and booking system, successfully effectuates a Travel Transaction, which is completed during the term of this Agreement on either a "Flat Rate", "Net Revenue" or "Merchant Net Revenue" basis (the "Transaction Fees"), as applicable. The Transaction Fee for a Travel Transaction will not be awarded in the event of credit card fraud, bad debt, and credits due for cancellations or returns. We will pay you a Transaction Fee only if the User is tracked on our internal online ordering system from the time the Link is initiated on your Affiliate Site to the time of the sale. You agree that no Transaction Fees will be paid if the User cannot be tracked by our internal ordering system. Transaction Fees shall be paid as follows:
Travel Transaction Fees. We will pay you seven percent (7%) on Net Revenue, per Travel Transaction ("Travel Transaction Fees").
Within forty-five (45) days after the end of each month during the term of the Agreement with respect to which we owe you any Transaction Fees, we will furnish you a statement together with payment for any amount due to you. The statement will contain information sufficient to discern how the payment was computed. In the event that the total monthly Transaction Fees payable to you is less than Fifty Dollars (US$50.00) for the applicable month ("Monthly Minimum Threshold"), we will hold the payment until the aggregate total Transaction Fees meet or exceed the Monthly Minimum Threshold. We will remit all payments owed to you to your address provided in the Program Application submitted in accordance with Section 3.
We may modify any of the terms and conditions contained in this Agreement, at any time in our sole discretion. Notification to you of any change by e-mail or posting of a change notice on Golden Touch Transportation and/or the Internet site of any designated Reporting Agent, as described in Section 4.4 above, at our sole option, shall be considered sufficient notice to you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Program rules. If any modification is unacceptable to you, your recourse is to terminate this Agreement. Your continued participation in the Program following our posting of a change notice or a new agreement on Golden Touch Transportation will constitute binding acceptance of the change.
TERM AND TERMINATION
This Agreement shall commence upon our acceptance of your Program Application and shall continue until terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Written notice can be in the form of mail, email or fax. You are only eligible to earn Transaction Fees occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable in accordance with Section 7. If this Agreement is terminated because (i) you have violated the terms of this Agreement, or (ii) your Affiliate Site becomes subject to the Content Restrictions set forth in Section 3, you are not eligible to receive any commission payments, even for commissions earned prior to termination. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid. Upon termination or expiration of this Agreement for any reason, you shall immediately remove any Golden Touch Logo or Link from your Affiliate Site.
REPRESENTATIONS AND WARRANTIES
You represent and warrant to us that you are not an Ineligible Party, as defined in Section 2, and that this Agreement has been duly and validly executed by you by virtue of your clicking on the "Accept" button at the end of this Agreement and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; and that the execution, delivery, and performance by you of this Agreement are within your legal capacity and power, have been duly authorized by all requisite action on your part, require the approval or consent of no other persons; and neither violate nor constitute a default under the provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or the terms of any other agreement, document or instrument applicable to you or binding upon you. The representations and warranties in this Section 11 are continuous in nature and shall be deemed to have been given by you upon your acceptance via the "Accept" button at the end of this Agreement and at each stage of performance hereunder. These representations and warranties and covenants shall survive termination or expiration of this Agreement.
You hereby agree to indemnify, defend, and hold harmless us and our 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' or other professionals' 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 Your Marks infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or another 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, or (iii) any claim related to your Affiliate Site including, without limitation, content therein not attributable to us.
DISCLAIMERS AND LIMITATION OF LIABILITY
We make no express or implied warranties or representations with respect to the Program or any service, product or other items sold through the Program, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information provided by us. In addition, we make no representation that the operation of Golden Touch Transportation will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
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 PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGRATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. THE FOREGOING LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
CONFIDENTIALITY; MEDIA COMMUNICATIONS
If you have entered into a Non-Disclosure Agreement with us, you agree that the terms of that agreement shall be deemed to be incorporated herein. If you have not entered into a Non-Disclosure Agreement with us, then you understand and agree that the following terms and conditions will apply to certain information that we may disclose to you as a result of your participation in the Program information that we consider to be confidential (the "Confidential Information"). For purposes of this Agreement, the term "Confidential Information", shall include, but not be limited to, the terms of this Agreement, any modifications to the terms and provisions of the Agreement made specifically for your Affiliate Site and not generally available to other members of the Program, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any members of the Program, other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement.
You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and shall not be utilized, directly or indirectly, by you for your 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 if same is required by law or legal process.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) ENGAGE IN SIMILAR ARRANGEMENTS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR AFFILIATE SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
This Agreement will be governed by the laws of the United States and the State of Pennsylvania, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Bucks County, Pennsylvania State and you irrevocably consent to the jurisdiction of such courts. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs, including expert witness fees.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on and enforceable against the parties and their respective successors and assigns. This Agreement is the complete Agreement between the parties and supersedes any prior oral or written agreement concerning the subject matter.
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.
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