By registering and signing up to the TAXI2.EU affiliate program as affiliate partner, the affiliate hereby agrees, acknowledges, accepts and agrees to the terms and conditions of this affiliate agreement (the "agreement"). between: 1. Financieel Planburo., a company incorporated under the laws of the Netherlands and having its registered seat at Mosselsepad 14, 6731SM Otterlo, the Netherlands ("TAXI2.EU"), and
2. THE AFFILIATE, whose details are set out in the Affiliate Partner Registration Form (the Affiliate Partner Registration Form) (the "Affiliate").
WHEREAS:
(i) TAXI2.EU operates an online reservation system (the "System") through which clients can book a transfer from or to airports, ports, hotels and stations worldwide (the "Service");
TAXI2.EU maintains and exploits its own website, and also provides the Service and links to the Service on the websites of third parties;
(iii) the Affiliate owns, controls, hosts and/or operates one or more Internet domains and websites;
(iv) the Affiliate and TAXI2.EU wish that the Affiliate makes the Service (directly or indirectly) available to its customers and visitors of the Affiliate Website(s) and in such form and on such terms and conditions as set out in this Agreement.
HAVE AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In addition to terms defined elsewhere in this Agreement, the following definitions apply throughout this Agreement, unless the contrary intention appears:
"Transfer" means any form of transportation, from or to airports, ports, stations or hotels (whether or not available on the website).
"Affiliate" means the Party of which the relevant (contact) details are set out in Affiliate Partner Registration Form.
"Affiliate Group" means the Affiliate and the ultimate holding company of the Affiliate (including the group of companies or entities which are under the (direct or indirect) Control of (the ultimate holding company or shareholder(s) of) the Affiliate).
"Affiliate Partner Registration Form" means the online sign up and registration form to be completed by the Affiliate.
"Affiliate Website(s)" means the website owned, controlled, hosted and operated by the Affiliate on which the Service shall be made available which URL’s are set out in the Affiliate Partner Registration Form.
"Black Hat" (also called spamdexing) means any attempt to redirect search results to particular target pages in a fashion or manner that is in violation of the Spamming Regulations. Black Hat SEO tactics include: keyword stuffing, hidden text and links, doorway and cloaked pages, link farming and blog comment spam.
"TAXI2.EU Competitor" means any direct or indirect competitor of TAXI2.EU.
"TAXI2.EU Brands" means any term or keyword which is the same as or confusingly similar to (including any variations, translations, misspellings and singular/plural forms of) any of following term(s): taxito, taxi2, taxitwo, etc (with or without any associated Internet domain names (with whatever (country code) top-level domain) (e.g. taxi2.com, taxi2.de, taxi2.co.uk).
"TAXI2.EU Data" means the Intellectual Property Rights of TAXI2.EU and the Content as provided to the Affiliate under this Agreement and such other information from time to time owned or used by TAXI2.EU or embodied or included in the website or made available by TAXI2.EU to the Affiliate (e.g. rates and availability).
"Cloaking" means a Black Hat search engine optimization (SEO) technique in which the content presented to the search engine spider is different to that presented to the user's browser, with the purpose to deceive search engines so they display the page when it would not otherwise be displayed. Cloaking includes the doorway page technique and the Open Directory Project web directory.
"Commission" means the amount in Euro (excluding VAT, or other currency used in the country of affiliate) that TAXI2.EU will pay to the Affiliate for each Materialised Transaction, which amount shall be paid to the Affiliate prior to and independent of any payment made by the relevant partner to TAXI2.EU.
"Connections" means all links, landing pages and/or XML feeds and/or deeplinks and/or hyperlinks, created, hosted and maintained by TAXI2.EU.
"Content" means all (descriptive) information of transfers available on the website including but not limited to transfer information and descriptions, guest reviews, meta data, (including any translations thereof) and photos, video, pictures, but excluding rates and availability (including any updates, modifications, replacements, additions or amendments).
"Control" means the possession of the power or the ability to (directly or indirectly, alone or in concert with others, whether through the ownership of voting securities or other ownership interests, a partnership or otherwise) (i) exercise or cause to exercise more than one-half of the voting rights in the shareholders' meeting of a company, (ii) appoint more than one-half of the ((non-)executive) directors or supervisory directors of a company, or (iii) direct or cause the direction of management relating to a company.
"CPA" means costs per action.
"CPC" means cost per click.
"CPM" means cost per mille (impressions).
"CPV" means cost per visitor or cost per view in the case of pop ups and unders.
"Customer Data" means the Guest's name, address (including email address), credit card details and such other confidential and private information of a Guest.
"Double Serving" means multiple ads on the same results page of a search engine with the purpose to direct traffic to similar websites or pages with similar content.
"Effective Date" means the date on which the Service is made available to the Clients on the Affiliate Website(s).
"Client" means a visitor of the website that completed a transportation booking via the Service.
"Intellectual Property Right" means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (with whatever (country code) top-level domain, e.g. .com, .nl, .fr, .eu) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world.
"Link" means an embedded icon, object, graphic, or text within a web page or email that consists of a hypertext pointer to the URL address of TAXI2.EU on the Affiliate Website(s).
"Materialised Transaction(s)" means the reservation by a visitor of the Affiliate Website(s) who, through the Connection, has made a booking with us, and which booking has resulted in the actual provision of the transfer, as confirmed to TAXI2.EU by the transfer partner.
"Micro Site" means all white label versions of the primary website of TAXI2.EU, which are owned, created, hosted and maintained by TAXI2.EU. The Micro Site may be marked with a 'powered by TAXI2.EU ' logo.
"Paid Search" means any form of online advertising that ties the presentation of an ad to a specific keyword-based search request.
"Parties" means TAXI2.EU and the Affiliate (each individually a "Party").
"SEM" means search engine marketing and includes any form of online marketing that seeks to promote websites by increasing their visibility in search engine result pages through the use of search engine optimization, paid placement, contextual advertising or paid inclusion.
"SEO" means search engine optimization and includes the process of (i) improving the volume or quality of traffic to a web site or a web page from search engines via "natural" or un-paid ("organic" or "algorithmic") search results, or (ii) realizing or creating an improved or better ranking in search engine results for a specific keyword or keywords.
"Spamming Regulations" means any policies, regulations, restrictions or obligations as from time to time prescribed, declared applicable or announced by Third Party Platforms which (i) prohibit or prevent Double Serving, Cloaking or any similar technique or method, or (ii) contain such further restrictions or regulations in respect of spamming or preserving a unique user experience.
"Third Party Platforms" means any (third party) search engine (marketing provider), website, meta-search engine, search engines spiders, travel search sites, price comparison sites, social networking communities, browsers, content sharing and hosting services and multimedia blogging services or other (similar) channels or other forms of (traffic hosting) media, whether online or offline.
"Transaction Fee" means the fee received by TAXI2.EU from each transfer partner for each Materialised Transaction.
"Websites means the website(s) of TAXI2.EU and its affiliated companies and affiliated partners (including the Affiliate Website(s)) on which the product and service of TAXI2.EU is available.
1.2 No Partnership
1.2.1 This Agreement is not intended, nor should anything herein or in any of the arrangements contemplated herein, be construed, to create a joint venture or the relationship of partners, partnership or principal and agent between or among the Parties. Unless the Parties agree otherwise in writing, none of them shall (i) enter into any contract or commitment with third parties as agent for or on behalf of the other Party, (ii) describe or present itself as such an agent or in any way hold itself out as being such an agent, or (iii) act on behalf of or represent the other Party in any manner, or for any purpose.
1.2.2 Unless agreed otherwise in writing by TAXI2.EU or save as set out otherwise in this Agreement, the Affiliate shall not publish anywhere on the Affiliate Website(s) any statement, either express or implied, that the website is part of, endorsed by, or an official website of TAXI2.EU.
2. SCOPE OF THIS AGREEMENT
2.1 Non-exclusivity
Subject to the terms and conditions of this Agreement, the Affiliate shall operate as a non-exclusive distributor (affiliate) of TAXI2.EU.
2.2 Service
2.2.1 For the term of this Agreement, Parties have agreed that the Service shall be made available by TAXI2.EU to the Affiliate as set out in Affiliate Partner Registration Form (i.e. Link, or Micro Site) and on the website(s) as set out in Affiliate Partner Registration Form (i.e. the Affiliate Website(s)).
2.3 Link or Micro Site
2.3.1 In the event that the Service is made available through the Link, the Affiliate shall at its own costs integrate and make the Link available at such prominent place(s), web-pages and in such place, size and form on the Affiliate Website(s) as mutually agreed upon by Parties.
2.3.2 In the event that the Service is made available through the Micro Site, the Affiliate shall at its own costs integrate and make the Connections and/or the Micro Site available at such prominent place(s), web-pages and in such place, size and form on the Affiliate Website(s) as mutually agreed upon by Parties.
3. LICENSE
3.1 Mutual license
3.1.1 TAXI2.EU hereby grants the Affiliate a non-exclusive, royalty free and worldwide right and license (or sublicense as applicable):
(a) to display such elements of the TAXI2.EU Data and such further information of the transfer on the Affiliate Website(s), all as provided or made available by TAXI2.EU to the Affiliate;
(b) to promote and market the Service subject to the terms set out in this Agreement.
3.1.2 The Affiliate hereby grants TAXI2.EU a royalty free and worldwide right and license:
(a) to incorporate, integrate, include and display the Link, the Micro Site and/or the Connection (as applicable) on the Affiliate Website(s), and
(b) to make the Service available on the Affiliate Website(s).
3.2 No sublicense right and non-disclosure
3.2.1 Unless agreed otherwise in writing by TAXI2.EU, the Affiliate shall not (i) be entitled to sublicense the rights granted to it under Clause 3.1.1, or (ii) sublicense the Link or Connection to any third party, or (iii) hyperlink to the TAXI2.EU via or in collaboration with (the websites of) companies within the Affiliate Group and/or third parties.
3.2.2 Unless agreed otherwise by TAXI2.EU in writing or save as set out otherwise in this Agreement, the Affiliate shall not directly or indirectly be entitled to sell, use, transfer, (sub)license, communicate, disclose, make available, allow access to, divulge or otherwise disseminate the TAXI2.EU Data or the Content (i) to any third party, (ii) for price/availability comparison purposes, sites, reviews or investigations, or (iii) for any other purpose other than (generating transfer bookings through) the Service.
4. COMMISSION
4.1 Commission
4.1.1 TAXI2.EU will pay the Affiliate for each Materialised Transaction the Commission, by using a percentage commission the number of Materialised Transactions, in accordance with the following table (the "Percentage Commission"):
Materialised Transactions per month Percentage Commission
0-6 4%
more than 6 4.5%
more than 10 5%
more than 50 6%
4.1.2 The Percentage Commission used to calculate the Commission owed to the Affiliate shall be subject to change, based on the number of Materialised Transactions and calculated over the Transaction Fee. Such change shall be made no more than once per month and shall be applicable to Materialised Transactions which occur following such change only; changes shall not apply retroactively.
4.2 Self-invoicing and invoice
4.2.1 TAXI2.EU operates, and the Affiliate accepts, a "self-invoicing" system for any Commission owed to the Affiliate.
4.2.2 On or before the 5th business day of each month (the actual date being the "Release Date"), TAXI2.EU shall provide the Affiliate with a credit invoice stating the Commission payable that month (the "Invoice").
4.3 Payment and transfer Commission
4.3.1 TAXI2.EU shall pay Commission to the Affiliate on a monthly basis, 30 days after the end of the month in which the transfer is being completed, unless the amount of Commission due to the Affiliate at that time is less than €50, in which event TAXI2.EU will be entitled to postpone payment until the month when such amount is due or until the amount is claimed by the Affiliate after the termination of this Agreement.
4.3.2 All Commission payments shall be made by direct bank transfer, into the bank account specified by the Affiliate in the Affiliate Partner Registration Form, or into any other bank account that the Affiliate may notify to TAXI2.EU from time to time.
5. REPRESENTATIONS AND WARRANTIES
5.1 Affiliate warranties
The Affiliate hereby represents and warrants to TAXI2.EU that for the term of this Agreement:
(i) the Affiliate has all necessary rights, title to, power and authority to own, operate and use the Affiliate Website(s) (including the relevant domain name(s)) and to include the Link, the Micro Site or the Connection (as applicable) on the Affiliate Website(s);
(ii) the Affiliate Website(s) shall not (a) violate Spamming Regulations, public policy and morals, or (b) contain any inappropriate, improper or unlawful content, reference, material, information, links or banners (e.g. in respect of porn or racism), defamatory statements, elements which violate the privacy of third parties or are abusive, offensive or obscene;
(iii) the Affiliate holds and has complied with all permits, licenses and other governmental authorisations necessary for conducting, carrying out and continuing its operations and business, and
(iv) the Affiliate is an independent contractor for all purposes, and will be responsible and liable for its own taxes, social contributions and all other tax related matters.
5.2 Parties warranties and undertakings
5.2.1 Each Party represents and warrants to the other Party that for the term of this Agreement:
(i) it has the full corporate power and authority to enter into and perform its obligations under this Agreement;
(ii) it has taken all corporate action required by it to authorise the execution and performance of this Agreement;
(iii) this Agreement constitutes legal valid and binding obligations of that Party in accordance with its terms.
5.2.2 Each Party shall use its commercially reasonable efforts to protect and safeguard its Website(s).
5.3 Disclaimer
5.3.1 Except as otherwise expressly provided in this Agreement, neither Party makes any representation or warranty, express or implied, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability or fitness for a particular purpose regarding such subject matter. TAXI2.EU provides the Service on an "as is" and "as available" basis.
5.3.2 Each Party acknowledges the difficulties inherent to the use of the Internet, in particular, varying speeds and congestion in the network can cause interruptions and difficulties in accessing a Website. Each Party excludes any and all liability in respect of the other Party which is related to any (temporary (scheduled or unscheduled) and/or partial or wholly) breakdown or downtime (for maintenance, updates or otherwise) of the Websites, the Secured Website, the System and/or the Service.
6. TERM, TERMINATION AND SUSPENSION
6.1 Term, termination and suspension
6.1.1 Unless agreed otherwise, this Agreement shall commence on the date hereof for indefinite period of time.
6.1.2 Each Party may terminate this Agreement with immediate effect at any time and for any reason, by written notice to the other Party.
6.1.3 Each Party may terminate this Agreement or suspend this Agreement in respect of the other Party, with immediate effect and without a notice of default being required in case of:
(a) a material breach by the other Party of any term of this Agreement;
(b) (filing of a request for) bankruptcy or suspension of payment (or similar action) in respect of the other Party, or
(c) a (direct or indirect) change of Control in respect of the other Party.
6.1.4 This Agreement will terminate automatically in the case that no Materialized Transactions are effected in a period of 12 consecutive months.
6.15 Upon termination of this Agreement TAXI2.EU shall continue to pay to the Affiliate any outstanding Commission in accordance with Article 5 for a period of 12 months after the termination date, on the condition that TAXI2.EU has the correct contact and banking details for the Affiliate during that period. Should the Affiliate fail to claim any unpaid Commission within that 12 month period, such failure shall constitute an effective waiver of the Affiliate’s right to claim such Commission.
6.1.6 Upon termination and save as set out otherwise, this Agreement shall absolutely and entirely terminate and cease to have effect without prejudice to Party’s rights and remedies in respect of an indemnification or a breach by the other party of this Agreement. Clause 7, 8, 9 and 10 shall survive termination of this Agreement.
7. BOOKS, RECORDS AND AUDIT RIGHT
7.1 Books and records
7.1.1 The systems, books and records of TAXI2.EU (including Extranet, faxes and/or emails) shall be considered conclusive evidence in respect of the amount of the Commission due to the Affiliate under this Agreement.
7.2 Audit right
7.2.1 If TAXI2.EU in good faith has reason to believe that the Affiliate has breached its obligations in respect of this Agreement, TAXI2.EU may audit such systems, records and books (of account) of the Affiliate for the purpose of verification, review, and investigation (as applicable) of the obligations of the Affiliate under this Agreement, in accordance with the following:
(a) Parties shall promptly appoint an independent certified auditor (the "Auditor"), reasonably acceptable to both Parties, who will be permitted to conduct an audit in respect of the relevant ((alleged) breached) covenant, undertaking, warranty or obligation under this Agreement.
(b) Parties shall provide the Auditor with all such information, data, co-operation, assistance and access to books and records of account, documents, files and papers and information stored electronically as the Auditor may reasonably request for the purpose of completing the scope of his/her assignment in a timely manner.
(c) The Auditor will provide both Parties with a copy of his/her report (the "Report") which Report shall provide for the results and finding of the audit.
(d) Audits will be conducted on business days during regular business hours.
(e) TAXI2.EU shall bear the costs and expenses of the Auditor unless the Auditor determines otherwise on the basis of reasonableness and fairness.
8. CONFIDENTIALITY
8.1 Confidential Information
Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the "Confidential Information"). Confidential Information includes Customer Data, transaction volume, marketing and business plans, business, financial, technical and operational information, usage statistics, ranking data, information in respect of rate, product and availability parity, pricing policies, conversion data and volume of click-troughs, and other related statistics, personal data of Guests, any software or information regarding software provided or used by TAXI2.EU in connection with this Agreement, the terms of this Agreement and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
8.2 Protect and safeguard Confidential Information
Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement, (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the "Permitted Persons") to maintain, the confidentiality and secrecy of the Confidential Information, (c) it shall disclose Confidential Information only to those Permitted Persons and who need to know such information in furtherance of this Agreement, (d) it shall not, and shall use prudent methods to ensure that Permitted Persons do not (i) copy, publish, transmit, reproduce, divulge, disclose or make the Confidential Information available to any third party, or (ii) use or store it in an unprotected retrieval system or data base (other than pursuant to the terms hereof), and (e) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
8.3 Permitted disclosure
Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was possessed by the receiving party prior to the date of this Agreement, (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority.
8.4 Customer Data
Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Customer Data and to protect it from unauthorized use or release. Parties agree to comply with Directives 95/46/EC and 2002/58/EC on the processing of personal data and the protection of privacy.
9. MISCELLANEOUS
9.1 Notices
9.1.1 All notices and communications must be in English, in writing, and sent by facsimile or nationally recognized overnight air courier to the applicable facsimile number or address set out in this Agreement. Notices are deemed delivered and received upon successful facsimile transmission or one business day after the date of delivery by a recognized overnight air courier.
If to TAXI2.EU:
TAXI2.EU.
Attn. Strategic Partnerships
Mosselsepad 14
6731 SM Otterlo
The Netherlands
If to the Affiliate:
See Affiliate Partner Registration Form.
Any notice or communication to be provided to the Affiliate under this Agreement shall be sent to the email address as provided by the affiliate in the Affiliate Partner Registration Form.
9.1.2 The Affiliate shall clearly include in all correspondence (e.g. in the reference or subject line) its assigned Affiliate ID number.
9.2 Covenant and undertaking
9.2.1 Each Party shall, at its own costs and expenses, use all reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done all things necessary, proper or advisable under applicable law or upon reasonable request of TAXI2.EU, and execute and deliver such instruments of assignment, transfer, deeds, documents and other papers, as may be reasonably required to carry out the provisions of this Agreement or perform under or in accordance with the Agreement.
9.3 Whole Agreement
9.3.1 This Agreement (including the schedules, annexes and appendixes, which form an integral part of this Agreement) constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, ((non) binding) offers, undertakings or statements regarding such subject matter.
9.4 Assignment and third party beneficiary
9.4.1 Neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party, provided that TAXI2.EU may assign, transfer, encumber any of its rights and/or the obligations under this Agreement (in whole or in part or from time to time) to an affiliated company without the prior written consent of the Affiliate.
9.4.2 This Agreement is concluded for the benefit of the Parties and their respective successors and permitted assigns, and nothing herein is intended to or shall implicitly confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement, except to the extent explicitly stated otherwise in this Agreement.
9.5 Partial invalidity
9.5.1 If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions hereof. In that event, the Parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
9.6 Translation
9.6.1 The original English version of this Agreement may have been translated into other languages. The translated version of this Agreement is a courtesy and office translation only and the Affiliate cannot derive any rights from the translated version. In the event of a dispute about the contents or interpretation of these terms and conditions of this Agreement or in the event of a conflict, ambiguity, inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall apply and prevail and be conclusive and binding. The English version shall be used in legal proceedings. The English version is available on the following website https://www.taxi2.eu and shall be sent to you upon written request.
9.7 Execution, performance and effect
9.7.1 The Agreement only enters into force and effect upon written confirmation of acceptance and approval of the Affiliate by TAXI2.EU. By registering and signing up to the TAXI2.EU partner programme as affiliate partner, the Affiliate agrees, acknowledges and accepts the terms and conditions of this Agreement.
10. GOVERNING LAW AND JURISDICTION
10.1 Governing law
This Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands.
10.2 Jurisdiction
Any disputes arising out or in connection with this Agreement shall exclusively be submitted to and dealt with by the competent court in Amsterdam, the Netherlands.