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DIRECT FERRIES AFFILIATE AGREEMENT

 

By signing up, Affiliate agrees to be bound by the terms of this Agreement:

 

IT IS AGREED AS FOLLOWS:

1.                        Interpretation

1.1                     The definitions shall have the following meanings:

"Affiliate Site" has the meaning set out in the Front Sheet;

" Commencement Date " has the meaning set out in the Front Sheet;

“Commission” has the meaning set out in the Front Sheet;

“Competitor” has the meaning set out in Clause 3.2;

“Control” means that a person possesses directly or indirectly the power to direct or cause the direction of the management and policies of another person, whether through the ownership of voting rights, shares, by contract or otherwise or is otherwise deemed to have control of another person for the purposes of section 840 of the Income and Corporation Taxes Act 1988, and “Controls”, “Controlled” and “Controlling” shall be interpreted accordingly

"Customer" means any person accessing the Direct Ferries Website via the Direct Ferries Materials that have been placed on the Affiliate Site;

" Data Protection Law ” means all applicable laws and codes of practice relating to the collection and processing of personal data, including: (i) the EU Data Protection Directive 95/46/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all implementing legislation in the Territory; (ii) the GDPR; and (iii) all other legislation, regulations, binding regulatory guidance, obligations, cases or rules in the Territory related to the collection, use, transfer, storage or any other activity connected with personal information;

" Direct Ferries Site " means a Direct Ferries hosted website which enables Customers to book ferry tickets operated by ferry operators;

" Direct Ferries Brands " means ‘DirectFerries.com’, ‘Direct Ferries’, ‘www.directferries.com’, ‘Ferries.com’, ‘Cheapferry.com’, CheapFerries.com, and any similar names, trade names and/or words;

Direct Ferries Marketing Guidelines means written guidelines for use of the Direct Ferries Materials by the Affiliate, as updated by Direct Ferries from time to time;

Direct Ferries Materials means the banners, links, logos and other materials to be provided by Direct Ferries to the Affiliate as set out in Schedule 1 and that the Affiliate will place on the Affiliate Site;

Direct Ferries Terms means the following terms: Direct ferries, directferries, directferries.co.uk, www.directferries.co.uk, ferries.co.uk, ferries, cheap ferry, cheapferry, cheapferry.co.uk, www.cheapferry.co.uk, fahren, www.fahren.de, fahren.de (with whatever (country code) top-level domain);

"GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as applicable as of 25 May 2018, as may be amended from time to time;

" Ferry Operator IP " means any material, content, database or document owned by the ferry operator, relating to the Ferry Tickets, and the ferry operator brands, logos, publicity materials;

"Ferry Tickets" means tickets for the various ferry routes sold by Direct Ferries and described on the Direct Ferries Site;

" Intellectual Property Rights " means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

"Personal Data" has the meaning given to it in applicable Data Protection Law (and related terms such as “process” have corresponding meanings); and

“Term” has the meaning set out in the Front Sheet.

1.2                     Save as may be expressly provided in this Agreement, any references, express or implied, to statutes or statutory provisions shall be construed as references to those statutes or provisions as respectively amended or re-enacted or as their application has been modified by other provisions (whether before or after the date hereof) and shall include any orders, regulations, instruments or other subordinate legislation under the relevant statute or statutory provision.

1.3                     References to clauses and Schedules are to clauses in and schedules to this Agreement (unless the context otherwise requires). The Schedules to this Agreement shall be deemed to form part of this Agreement.

1.4                     Unless expressly provided otherwise, in this Agreement a reference to a party shall be a reference to a party to this Agreement and parties shall be construed accordingly.

1.5                     The rule known as the ejusdem generis rule shall not apply to this Agreement and accordingly general words shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things or by reason of the fact they are followed by examples intended to be embraced by the general words.

2.                        Direct Ferries Obligations

2.1                     Throughout the Term of this Agreement, Direct Ferries shall use reasonable endeavours to provide the Direct Ferries Materials to the Affiliate.

2.2                     Direct Ferries shall pay the Affiliate the Commission, according to the terms agreed on the front sheet of this Agreement .

2.3                     All sums payable under this Agreement are exclusive of any VAT or other applicable sales tax.

2.4                     For the duration of this Agreement, the Affiliate agrees that it is registered for VAT and will not raise VAT invoices for the Commission. The Affiliate will notify Direct Ferries immediately if the Affiliate ceases to be registered for VAT, transfers its business as a going concern or becomes registered for VAT under another VAT registration number.

3.                        Commmercial terms

3.1         Affiliate is entitled to a commission equal to 50% of the net revenues generated by Direct Ferries as a result of the sale (being the total Ferry Ticket fees (for ferries that actually depart) less the Ferry Ticket cost payable to the ferry operator) less any chargebacks and deductions for fraudulent activity. Items such as port taxes, booking fees and payment card fees are non-commissionable.

3.2         Commission shall only be due and payable to the Affiliate:

o    in accordance with the payment terms;

o    after the ferry (for which a Ferry Ticket has been purchased) has departed; and

o    once the  aggregate amount of Commission exceeds [£50, €50 or $50]. Where the aggregate amount of Commission does not exceed [£50, €50 or $50], the Commission shall be rolled over to the following month.

3.3                     Direct Ferries will [within 45 days’ of the end of each calendar month] provide the Affiliate with a payment advice slip which shall include details of [Commission due to the Affiliate in respect of Ticket Sales for departed ships in the previous calendar month].

3.4                     On receipt of the payment advice slip, the Affiliate shall submit an invoice [through the Platform] to Direct Ferries for the Commission due to it (as set out in the payment advice slip). and

3.5                     Direct Ferries shall pay such Commission within [30] days of receipt of a valid invoice from the Affiliate.

3.6                     Direct Ferries may impose a charge on the Affiliate in relation to excessive requests as follows: If Look to Book Ratio is above 401:1 (1 reservation per 401 or more general messages) this will give rise to a transaction charge of £0.001 (excl. VAT) per extra message in excess of 400 general messages per reservation.

4.                        Affiliate’s Obligations

4.1                     The Affiliate undertakes and agrees at all times:

4.1.1               to act in good faith, promote the best interests of Direct Ferries and comply with all reasonable and lawful instructions of Direct Ferries from time to time;

4.1.2               display the Direct Ferries Materials on the Affiliate Site and comply with Direct Ferries  Marketing Guidelines;

4.1.3               co-operate with and assist Direct Ferries  in all matters relating to this Agreement; and

4.1.4               provide, in a timely manner, such accurate and up to date information and support, as Direct Ferries may reasonably require.

4.2                     The Affiliate acknowledges and agrees that it will work exclusively with Direct Ferries and no other price comparison website for the sale of ferry tickets or any ferry operator directly (“Competitor”).

4.3                     The Affiliate agrees that it will not:

4.3.1               take or omit to take any action which may affect Direct Ferries’ relationship with the ferry operators available on the directferries.com; or

4.3.2               cause or permit to be done anything which may cause Direct Ferries to be excluded from the process of booking with any ferry operator.

4.4                     The Affiliate agrees that any promotion or marketing of the Affiliate Site, directferries.com or the ferry operator that the Affiliate may undertake or conduct, shall comply with the following provisions:

4.4.1               if Direct Ferries becomes aware of behaviour by the Affiliate that breaches Direct Ferries’ or a ferry operator’s Intellectual Property Rights, then Direct Ferries will notify the Affiliate and the Affiliate will immediately remedy its breach;

4.4.2               the Affiliate shall not bid for, purchase or use the name of Direct Ferries (or any Direct Ferries Terms) to display sponsored advertising to internet users using any search engine;

4.4.3               the Affiliate shall not bid for, purchase or use the name of any ferry operator to display sponsored advertising to internet users using any search engine. As an example, “Brittany Ferries and “Tranmediterranea”, should not be used by the Affiliate;

4.4.4               the Affiliate shall not bid on, purchase, obtain, use or include in any text of any advertisement and/or in any ad copy, titles or descriptions or for use in text links, banner ads, pop-up ads or any other type of ad that could be associated with a keyword campaign, any term or phrase match keywords which include or are confusingly similar (including variations (including language variations), misspellings and singular/plural forms) to the term(s) including but not limited to:  ferry, ferries, ferri, bateux, bateau, boats, crossings, fahren, fahre, traghetti, traghetto traverse, traversees, traversée fähre, traverses, fähren;

4.4.5               the Affiliate shall comply immediately with any reasonable request from Direct Ferries  to cease using any term in any paid search or SEO;

4.4.6               the Affiliate may not use any term which is the same as or confusingly similar to Direct Ferries  (or the Direct Ferries Terms) or any ferry operator;

4.4.7               the Affiliate is not permitted to conduct Search Engine-based retargeted advertisement using Direct Ferries Terms or ferry operator names;

4.4.8               the Affiliate shall not advertise Ferry Tickets or Direct Ferries or a ferry operator through travel search sites or price comparison sites;

4.4.9               the Affiliate will notify Direct Ferries where it becomes aware of any third party purchasing Direct Ferries or Direct Ferries Terms on any internet search  engine; and

4.4.10           the Affiliate shall not present any content appearing on the Affiliate Site, or use techniques, to artificially influence search engine rankings or  give the Affiliate Site a higher ranking or display than it would otherwise have, or be  displayed or ranked higher than it otherwise should be, if such actions or omissions (as appropriate) and/or techniques (including, but not limited to, using automatically generated content, participating in link schemes, cloaking, sneaky redirects, hidden text or links, doorway pages, scraped content and abusing rich text snippets ) had not been used.

4.5                     The Affiliate covenants, undertakes and warrants to promptly adhere to, observe and comply with any and all regulations restricting the use of spamming (and all reasonable requests made by Direct Ferries)  in this respect in order to avoid any breach by Direct Ferries  or the Affiliate of such regulations.

4.6                     Nothing in this Agreement shall prevent, limit, preclude or restrict the Affiliate from:

4.6.1               using any of Direct Ferries  Terms in the url, meta tags, title tag, meta data, source code of the Affiliate Site or for other means essential for the technical integration, use, facilitation or navigation of the Affiliate Site or other technical reasons, provided that such use is not intended to intentionally unfairly influence organic search results; and

4.6.2               using, linking, including, making available, integrating or connecting Direct Ferries  Terms to, through or in connection with any social media platform, provided that any such use shall not be for paid marketing activities on such platforms.

5.                        DATA PROTECTION

5.1                     The parties acknowledge that under this Agreement no Personal Data is shared between the parties and neither party collects or processes Personal Data on behalf of the other party. Any Personal Data that Direct Ferries collects or process during the Term is solely for the benefit of Direct Ferries.

5.2                     Affiliate shall ensure that (i) the Affiliate Site contains an easily accessible and discoverable privacy policy and cookies policy that complies with all Data Protection Laws; and (ii) it obtains all required consents from all end users of the Affiliate Site for the setting of cookies and processing of Personal Data.

6.                        Intellectual Property Rights

6.1                     The Affiliate acknowledges that the Direct Ferries’ Intellectual Property Rights in the Direct Ferries Materials and Platform are and remain the property of Direct Ferries. Any goodwill arising in the name of Direct Ferries will inure solely for the benefit of Direct Ferries. Any rights not expressly granted are reserved by Direct Ferries.

6.2                     Direct Ferries grants to the Affiliate a non-exclusive and non-transferable licence to use Direct Ferries Materials so that the Affiliate may promote Direct Ferries on the Affiliate Site during the Term of this Agreement in the Territory.

6.3                     Direct Ferries grants the Affiliate a non-exclusive and non-transferable licence to use the Ferry Operator IP for the purpose of and to the extent necessary to promote the Ferry Tickets in the Territory for Term. The Affiliate acknowledges that any use of the Ferry Operator IP may also be subject to additional terms and conditions of the relevant ferry operator.

6.4                     Upon expiry or termination of this Agreement the Affiliate shall immediately discontinue such use of the Direct Ferries Materials and Ferry Operator IP, without any right of compensation for such discontinuation.

6.5                     Each Party shall immediately give written notice to the other Party of any actual, threatened or suspected infringement of either Party’s Intellectual Property Rights .

6.6                     The Affiliate shall not:

6.6.1               copy, reproduce, modify, make derivative works of, reverse engineer, decompile, disassemble or attempt to derive the source code of the Direct Ferries Materials or Operator IP; 

6.6.2               seek to register any Intellectual Property Rights on behalf of Direct Ferries; and

6.6.3               do or omit to do, or authorise any third party to do or to omit to do, anything which could invalidate or be inconsistent with the Intellectual Property Rights in the Direct Ferries Materials and/or Ferry Operator IP.

6.7                     The Affiliate shall, at the request of Direct Ferries , take all such steps during the term of this Agreement as Direct Ferries  may reasonably require to assist Direct Ferries  in maintaining the Intellectual Property Rights in the Direct Ferries Materials or Ferry Operator IP as valid and effective, or to take or defend any court or other dispute proceedings concerning intellectual property matters.

7.                        Warranties

7.1                     Each Party undertakes and warrants to the other that it:

7.1.1               is authorised to enter into this Agreement and has obtained all necessary approvals to do so;

7.1.2               shall comply with all applicable laws, regulations and any requirements of any regulatory, governmental or quasi-governmental body or agency when fulfilling its obligations under this Agreement; and

7.1.3               shall not make any representation or give any warranty on behalf of the other Party without the prior written consent of the other Party.

8.                        Liability

8.1                     Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury caused by its negligence, or the negligence of its employees, Affiliates or subcontractors (as applicable), fraud or fraudulent misrepresentation or any matter in respect of which it would be unlawful to exclude or restrict liability.

8.2                     The Affiliate shall indemnify and keep indemnified Direct Ferries against any liabilities incurred by Direct Ferries as a result of the Affiliate's breach of clause 4, 5, 10.1.

8.3                     Subject to clause 7.1 and without prejudice to the Affiliate's indemnification obligations in this Agreement, neither party shall under any circumstances be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, revenue, or anticipated savings or any loss that is an indirect or secondary consequence of any act or omission of the party in question.

8.4                     The total liability of Direct Ferries to the Affiliate in respect of all other loss or damage arising under or in connection with this Agreement whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the higher of £10,000 or the amount of Commission paid by Direct Ferries for the year in which the loss arose.

8.5                     If Direct Ferries performance of its obligations under this Agreement is prevented or delayed by any negligent act or omission of the Affiliate, Direct Ferries shall not be liable for any costs, charges or losses sustained or incurred by the Affiliate arising directly or indirectly from such prevention or delay.

9.                        Duration and termination

9.1                     Direct Ferries may terminate this Agreement at any time with immediate effect.

10.                     Consequences of termination

10.1                 The termination of this Agreement shall be without prejudice to the rights and remedies of the Parties which may have accrued before the date of termination.

10.2                 On termination of this Agreement the Affiliate shall immediately cease:

10.2.1           to promote, market and advertise the Ferry Tickets;

10.2.2           to describe itself as an Affiliate of Direct Ferries ; and

10.2.3           all use of trade marks, trade names and brand names of Direct Ferries or ferry operators, including but not limited to the Direct Ferries Materials and Ferry Operators IP.

10.3                 On termination of this Agreement, the provisions of clauses 2.2 shall continue in force in relation to all sales of the Ferry Tickets where the sale has been concluded before the date of termination.

10.4                 On termination of this Agreement, the following clauses shall continue in force: 5.4, 5.5, 7, 9, 10 together with those other clauses, the survival or coming into force of which is necessary for the interpretation or enforcement of this Agreement or which are expressly or by implication intended to survive expiry or termination,  shall continue to have effect.

11.                     General

11.1                 Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of the other party which may have or may in future come to its knowledge, together with the existence and contents of this Agreement, and each of the parties shall use its reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters. No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause .

11.2                 Any notice given under this Agreement shall be in writing (including by email) and served to the relevant party at its registered office or such other address as that party may have specified to the other party. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

11.3                 Nothing in this Agreement shall create or be deemed to create a partnership or joint venture relationship between the parties and neither party shall have authority to bind the other in any way unless expressly provided otherwise in this Agreement.

11.4                 The Affiliate shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with its rights and obligations under this Agreement without Direct Ferries’ prior written consent. Direct Ferries may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with its rights under this Agreement.

11.5                 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty that is not set out in this Agreement.

11.6                 Direct Ferries reserves the right to make changes to this Agreement from time to time.  Any material alterations will be notified to the Affiliate via email.  The Affiliate's continued provision of the services shall signify its agreement to such changes. A waiver of any right or remedy is only effective if given in writing.  A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy.

11.7                 If any provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. Any modification to or deletion of a provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

11.8                 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from acts of God, war or terrorist activity, riot, civil commotion, fire, flood or storm or any other event beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for one month, the party not affected may terminate this Agreement by giving 30 days' written notice to the affected party.

11.9                 No one other than a party to this Agreement shall have any right to enforce any of its terms.

11.10             This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of England. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

11.11             This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

 

Direct Ferries Ltd, February 2020