MASTER AGREEMENT
PLEASE READ THIS DOCUMENT IN ITS ENTIRETY AND, UPON MERCHANT'S ACCEPTANCE OF YOUR AGREEING TO BE LEGALLY BOUND TO ALL APPLICABLE TERMS HEREIN, THE PARTIES WILL HAVE DEEMED TO HAVE ENTERED INTO THIS MASTER AGREEMENT ("AGREEMENT"). IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO LINK TO THIS SITE.
These are the terms and conditions of participation in the Wyndham Vacation Resorts Affiliate Program (the "Program") between you, a Merchant-approved online affiliate (“Affiliate”, "You" or possessively "Your"), and Wyndham Vacation Resorts, Inc. ("Merchant").
BACKGROUND
Affiliate and Merchant are each enrolled in The LinkShare Network™. Affiliate and Merchant each desire to establish the general terms and conditions which shall govern advertising and commission arrangements between Affiliate and Merchant which result from their participation in The LinkShare Network™.
TERMS AND CONDITIONS
In consideration of the promises set forth below, the parties agree as follows:
1. The FairfieldGetaway.com Site.
1.1. On the "www.FairfieldGetaway.com" site, and any successors and updates thereto (collectively, "This Site" or “Merchant’s Site”), Merchant is in the business of promoting and selling travel-related products or services ("Services") offered by Merchant and/or its third-party advertisers and suppliers ("Third Parties"). Merchant shall provide to You through the Linkshare Network ("Network") one or more unique Qualifying Links (defined below), including graphics and/or promotional text (collectively, the "Links") that may be used by a visitor(s) ("Visitor") of Your Merchant-approved Site ("Your Site" or “Affiliate’s Site”) to link to This Site. Merchant assumes no responsibility or liability whatsoever for access via This Site to any sites of Third Parties.
2. Offers and Engagements.
2.1. From time to time, Merchant may post on The LinkShare Network™ offers to pay to other participants at specified commission in return for certain advertising services leading to a Qualifying Link. If such offers receive an identification number from The LinkShare Network™ they shall be deemed to be an "Offer" for purposes of this Agreement. The term "Offer" shall also include any counter-offers resulting from an Offer.
2.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via The LinkShare Network™, an "Engagement" will have been formed. Each Engagement shall have the same identification number as the original Offer that led to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.
2.3. At any time prior to Affiliate providing a Qualifying Link, Merchant may with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad submitted by Merchant for an Offer or an Engagement. Affiliate agrees to promptly implement any request from Merchant to remove, alter or modify any graphic or banner ad submitted by Merchant that is being used by Affiliate as part of an Engagement.
3. Affiliate's Responsibilities.
3.1. In order to enroll in the Program, Affiliate will accurately and truthfully complete the Application. Merchant will notify Affiliate of your acceptance in the Program. Acceptance of Affiliate’s application is at Merchant's discretion and Merchant may reject any Application for any reason.
3.2. Affiliate will place link in Affiliate’s Site to areas within Merchant's Site using special URLs specified in the Engagement (the "Required URLs"). Affiliate may post as many links to the Required URLs and the rest of Merchant's Site as it likes on Affiliate's Site. The position, prominence and nature of links on the Affiliate's Site shall comply with any requirements specified in the Engagement, but otherwise will be at the discretion of Affiliate.
3.3. Affiliate agrees not to make any representations, warranties or other statements concerning Merchant, Merchant's Site, any of Merchant's products or services, or Merchant's Site policies, except as expressly authorized by the Engagement.
3.4. Affiliate is responsible for notifying Merchant and The LinkShare Network™ of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the Engagement. Merchant will respond promptly to all concerns upon notification by Affiliate.
3.5. Affiliate is solely responsible and liable for the development, operation and maintenance of, and all costs associated with Your Site, any Content (defined below) thereon, and any software and equipment related thereto. In addition to any and all other express prohibitions set forth herein, Your Site shall not, in any way, (i) copy or resemble the design, look and feel of, or create the impression that it is, part of Merchant’s Site or any of Merchant's affiliates' or subsidiaries' Websites; or (ii) display sexually explicit or obscene materials, or materials that are otherwise deemed offensive; (iii) advocate discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (iv) promote or engage in illegal activities; (v) violate intellectual property rights of third parties; (vi) contain or promote deceptive information.
3.6. Except as expressly provided in this Agreement, You shall not disclose to any third party, without Merchant's prior written consent, any information relating to the course of dealings between the parties, including, but not limited to, sales performance, numbers of visitors, payment and reporting details, etc.
3.7. Except as expressly provided herein, You shall not release or distribute any press releases or promotional materials referring to Merchant or the relationship between the parties, or use Merchant's intellectual property, without first obtaining Merchant's written approval.
3.8. Affiliate shall not (a) by any means, including, but not limited to, mechanical, electronic, photocopying, recording or otherwise, copy, reproduce, modify, alter, adapt, decompile, disassemble, reverse engineer, or otherwise attempt to determine the source code of (or underlying ideas, algorithms, structure or organization of) the Links or any content or services contained on This Site; (b) create derivative works of or from the Links or any of the content or services contained on This Site; (c) forward, transfer, sublicense, assign, sell, rent, distribute, display or disclose the Links or This Site (for use or otherwise) to any other person or entity by any means whatsoever; (d) upload any virus, trojan horse, worm, time bomb, cancelbot or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) remove, alter or conceal any intellectual property ownership or identification notices, marks, warnings or restrictions from the Links or This Site; (f) make any representations to Visitors, to the general public or to any other party related in any way to Merchant, the Services, the Links or This Site. Any attempt by You to do any of the foregoing is prohibited, shall void this Agreement, and shall be your sole risk and liability. In addition, the Affiliate will indemnify, defend, and hold harmless Merchant, together with all officers, directors, employees, and agents from any third-party claims arising out of or in connection with such conduct by Affiliate.
3.9. E-mail guidelines – Use of Commercial Bulk Email by Affiliate is prohibited. Any Affiliate violating this policy will be terminated immediately and all commissions will be forfeited. In addition, the Affiliate will indemnify, defend, and hold harmless Merchant, together with all officers, directors, employees, and agents from any third-party claims arising out of or in connection with the services provided by Affiliate and/or Affiliate's email distribution partner(s), including, but not limited to, any claims alleging infringement or misappropriation of a third-party's intellectual property rights, claims of unsolicited commercial email (UCE), known as SPAM, or for any breach of any of the representations, warranties, or covenants of Affiliate and/or its email distribution partner(s).
3.10. Search Guidelines - Affiliate is prohibited from purchasing trademarked terms from pay-per-click or paid inclusion search engines. Such restrictions include, but are not limited to, the purchase of Wyndham Vacation Resorts, FairfieldGetaway.com or the use of any other trademarked terms. This restriction on trademarked terms includes all marketing activities such as the purchasing of keywords, copy displayed on Affiliate's website, or in Affiliate's HTML tags, including but not limited to, title tags or meta tags. Any Affiliate violating this policy will be terminated immediately and all commissions will be forfeited. In addition, the Affiliate will indemnify, defend, and hold harmless Merchant, together with all officers, directors, employees, and agents from any third-party claims arising out of or in connection with the misuse of trademarked terms by Affiliate.
3.11. Incentive/Loyalty Site Policy - Merchant does not allow incentive and/ or loyalty programs, which encourage traffic and/ or service request submissions to Merchant. Any Affiliate violating this policy will be subject to immediate termination and all commissions will be forfeit.
3.12. Parasite-ware Policy – Affiliate is strictly prohibited from using what is commonly referred to as Spy-ware, Scum-ware, Contextual Marketing and Parasite-ware to promote the Merchant's offer.
4. Visitors.
4.1. Use of This Site by Visitors shall be governed by Merchant's Terms and Conditions of Use and its Privacy Policy.
4.2. Merchant shall be solely responsible for making its Services available to Visitors hereunder, and, excepting any reporting required hereunder, which shall be subject to the terms of Section 5, Merchant is not obligated to provide to You any data or information related to Visitors, whether personally-identifiable or otherwise. All terms relating to the provision of its Services shall be between Merchant and each Visitor; Merchant reserves the right to refuse to serve a Visitor.
4.3. You shall not use the Program, the Network, any software code or otherwise in any way, obtain or attempt to obtain personally identifiable information or learn the identity of users of this Site.
5. Commissions.
5.1. Merchant agrees to pay Affiliate the commission specified in the Engagement if Merchant sells to a visitor to Merchant's Site (a "Customer") a product or service that is the subject of the Engagement and if that Customer has accessed Merchant's Site and purchased the product or service via a Qualifying Link.
5.2. A "Qualifying Link" is a link from Affiliate's site to Merchant's using one of the Required URLs or any other URL provided by Merchant for use in The LinkShare Network™ if it is the last link to the Merchant's Site that the Customer uses during a Session where a sale of a product or a service to Customer occurs. A "Session" is the period of time beginning from a Customer's initial contact with Merchant's site via a link from the Affiliate's site and terminating when the Customer either returns to the Merchant's site via a link from a site other than Affiliate's site or the Engagement expires or is terminated.
5.3. Merchant shall pay any undisputed Referral Fees owed to You not less frequently than once each calendar month for each Qualifying Sale completed during the prior calendar month; provided, however, (i) if the Referral Fees total $20 or less for a given month, payment shall be retained until such time as the total amount during a monthly billing cycle exceeds $20, at which time all undisputed outstanding Referral Fees will be paid to You; (ii) if Merchant has unintentionally failed to pay to You a Referral Fee during the month it became due, Merchant shall be entitled to accrue such amount and submit it with the next monthly payment due; and (iii) if necessary, final payment to You may be retained for a reasonable period of time to ensure full and complete settlement with the Visitor.
5.4. You shall be solely responsible for any and all taxes and/or other obligations associated with Your Visitors and/or receipt of Referral Fees hereunder.
5.5. Each payment submitted to Affiliate hereunder shall be based upon a report completed during the prior month. If Affiliate disputes the content of any report provided hereunder, Affiliate shall notify Merchant, in writing, within five (5) days following the end of such disputed month, after which time such report, and any payment related thereto, shall be deemed final and correct and uncontestable. Any dispute between Merchant and Affiliate regarding such report shall be investigated and resolved by and between Merchant and Affiliate.
5.6. In the event that Merchant has submitted to Affiliate any payment to which Affiliate are not entitled, Affiliate agrees to provide a full and prompt refund to Merchant
6. Ownership and Licenses.
6.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
6.2. Merchant grants Affiliate a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology, as designated in the Engagement or during the registration process in The LinkShare Network™, on Affiliate's site solely for the purpose of creating links from Affiliate's site to Merchant's site during Engagements.
7. Termination.
7.1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The LinkShare Network™. Termination of an Engagement shall not terminate this Agreement or any other Engagement.
7.2. Affiliate is required to terminate this Agreement immediately in the event Affiliate becomes a Disqualified Entity (defined below).
7.3. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five day's prior written notice of such termination to the other party and The LinkShare Network™. Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement.
7.4. Upon any expiration or termination of this Agreement (i) all licenses granted hereunder shall immediately terminate; and (ii) Affiliate shall immediately remove each Link to This Site from Your Site. Any and all of Your obligations that have accrued prior to termination of this Agreement or that are of a continuing nature shall survive a termination of this Agreement.
8. Representations.
8.1. Each party represents to the other that (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby, and (b) any material which is provided to the other party and displayed on the other party's site will not (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
8.2. At all times during the Term of this Agreement, Affiliate represents and warrants that Affiliate is not an employee, agent or other party affiliated with any entity providing online travel products and/or services in competition with Merchant (a "Disqualified Entity"), including, but not limited to, Sabre Inc. (including Easy Sabre and Travelocity), Hotel Reservation Network, Expedia, Inc. (including Travelscape), Orbitz, LLC, and any successor entity to the foregoing, or any airline, car rental, cruise operator or hotelier. If You are not sure whether or not You are a Disqualified Entity, You must contact Merchant before making any attempt to accept the terms of this Agreement.
8.3. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. Indemnification; Remedies.
9.1. Affiliate agrees to indemnify and hold harmless Merchant and all Third Parties and each of their respective officers, directors, employees, and agents, from and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable legal and accounting fees and costs) that directly or indirectly arise out of or are based on (i) misrepresentation or breach of any warranty, covenant or agreement made by Affiliate in this Agreement; (ii) violation by Affiliate of any law, regulation or rule; (iii) any claim related to Your Site, Your acts or omissions, Your use of and participation in the Network, any Content, goods, products and/or services offered, sold or otherwise made available by Affiliate to any person, or Your acts or omissions in using, displaying or distributing the Link obtained or formed through the Network; (iv) any claim arising out of the collection, processing, or storage of the personally identifiable information of any individual Visitor due to Affiliate’s participation in the Program (v) any claim that Merchant is obligated to pay tax obligations in connection with compensation paid to Affiliate hereunder; (vi) any violation or alleged violation by Affiliate of any rights of another, including Your use of any Marks, Content or other intellectual property used in connection with Your Site; or (vii) any claim of any violation by Merchant of any law, rule or regulation that is a direct or indirect result of Your use of the Links. Merchant reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Affiliate, but doing so shall not excuse Your indemnity obligations. Merchant shall have the right to participate in the defense of all claims as to which it does not assume defense and control, and Affiliate shall not settle any such claim without Merchant's prior written consent. Affiliate also agrees to indemnify Merchant for any reasonable legal fees or other costs incurred by Merchant, acting reasonably, in investigating or enforcing its rights under this Agreement.
9.2. Unless otherwise expressly stated in this Agreement, all remedies available under or with respect to this Agreement (including any right to terminate this Agreement granted in this Agreement) are cumulative and in addition to all other remedies, if any, available at law or in equity. The exercise of any right to terminate this Agreement or suspend access or service granted a party in this Agreement shall not result in a breach of this Agreement by such party, and neither the exercise of such right nor any consequence thereof shall give rise to or be the basis for any claim by or liability to the other party, whether in contract, tort or otherwise, even if the terminating party was informed or aware of, or otherwise could have anticipated the possibility of, such consequence.
10. Force Majeure.
10.1. Merchant will not be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond Merchant's reasonable control and which Merchant is unable to overcome by the exercise of reasonable diligence.
11. Relationship of Parties.
11.1. The parties are independent contractors and nothing in this Agreement will be construed to create a joint venture, partnership, franchise, employment or agency relationship between the parties hereto, or to impose upon either party any obligations for any losses, debts or other obligations incurred by the other party except as expressly set forth herein.
12. Governing Law and Consent to Jurisdiction; Severability.
12.1. This Agreement shall be governed by the laws of the State of Florida. Each party consents to the jurisdiction of the Federal and Florida State courts sitting in the Middle District of Florida and Orlando, Florida respectively (and the appellate courts to which judgments of such Federal and State courts may be appealed) and agrees to commence any litigation hereunder in one of those courts. In the event that any provision of this Agreement shall, for any reason, be deemed by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
13. Entire Agreement; Amendments; Waivers; Assignability.
13.1. This Agreement and Your Application constitute and contain the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces any prior oral or written agreements. Merchant may at any time enroll any other affiliate on terms different from those contained herein. You agree not to assert that this Agreement is invalid or unenforceable solely because it was created and executed in electronic form rather than in a written form or another form or method.
13.2. This Agreement may be modified, in any respect, by Merchant at any time, in Merchant's sole discretion, and notice of such modification(s) may be posted on this Site, posted on the Linkshare site or provided via email, the U.S. mail, overnight mail or newsletter, effective as of the date indicated. You are encouraged to review this Site periodically. Your continued use of this Site following the effective date of any such modification(s) shall constitute Your binding acceptance of such modification(s).
13.3. No waiver by either party of any default or breach by the other party of any provision of this Agreement shall be effective unless made in writing executed by both parties hereto, and no waiver shall operate as or be deemed a waiver of any subsequent default or breach.
13.4. This Agreement may not be assigned or transferred by You, in whole or in part, and any attempted assignment or transfer shall be void and without effect.
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