TERMS & CONDITIONS – FERRYSCANNER AFFILIATE PROGRAM
By registering and signing up to the Ferryscanner Affiliate Program via the Affiliate Registration Form, the Affiliate hereby agrees, acknowledges, and accepts to enter a full and binding agreement with FERRYSCANNER MONOPROSOPI IKE, a company incorporated under the laws of Greece and having its registered seat at 7 Miltiadou Str., P.C. 10560, Athens, Greece ("The Company"), registered to the General Electronic Commercial Registry under company number 147720301000, under the following Terms and Conditions:
1. SCOPE OF THE AFFILIATE PROGRAM
1.1 To join the Ferryscanner Affiliate Program, the Affiliate must own, control, host and/or operate one (or more) Internet domain(s) and website(s) and seek to make the Company’s Service of managing and operating a search and booking engine that helps people find ferry tickets to ferry destinations all over the world (the "Service") available to their customers and visitors of their Website(s) and in such form and on such terms and conditions as set out herewith.
1.2. Τhe Affiliate shall provide the Service via the use of a referral link/ landing page and/or XML feed and/or deeplink and/or hyperlink (“Connection”) on the Affiliate Website(s) or via e-mail sent by the Affiliate to visitors of the Affiliate website(s) or to users of the Affiliate’s services which contains a Connection to the Company’s Service.
1.3. The Affiliate shall operate as an exclusive distributor (Affiliate) of the Company in the sense that the Affiliate shall not partner with any other online travel agent providing ferry services during its participation in the Affiliate Program.
2. MUTUAL LICENSE
2.1 The Company hereby grants the Affiliate a royalty free and worldwide right and license:
(a) to display such elements of the Company’s Data (defined below under Clause 4.4.1 (iv)) and such further information of the ferry companies on the Affiliate Website(s), all as provided or made available by the Company to the Affiliate;
(b) to promote and market the Service subject to the terms set out in these Terms and Conditions.
2.2 The Affiliate hereby grants the Company a royalty free and worldwide right and license to make the Service available on the Affiliate Website(s) or available to the Affiliate to share via link to visitors of the Affiliate’s website or to users of the Affiliate’s services.
2.3 Neither party may sublicense the rights granted to it under Clauses 2.1 and 2.2.
3. COMMISSION, INVOICING AND PAYMENT
3.1 The Affiliate is entitled to a commission equal to 33% revenue share for every booking by a visitor of the Affiliate Website(s) who, through the Connection, has made a booking with a ferry company, and which booking has resulted in the actual provision of ferry transportation services, as confirmed to the Company by the ferry company (Materialized Transaction).
3.2 On or before the 5th business day of each month (the actual date being the "Release Date"), the Company shall provide the Affiliate commission and send the Affiliate the number of approved commissions and the commission amount. The Company will proceed with self-invoicing and will further send such monthly invoices to the Affiliate by the 15th business day of each month. If the invoice amount is less than 50 EUR then such accrued and payable balance shall be held over to the following month and paid together with the Commissions due for that month.
3.3 All Commission payments shall be made by direct bank transfer into the bank account specified by the Affiliate.
4. COVENANTS AND UNDERTAKINGS
4.1 General covenants, undertakings and obligations
4.1.1 The Affiliate shall not at any time provide any type of coupon or any other discount in relation to the Service.
4.1.2 The Affiliate shall use commercially reasonable endeavors to (i) customize the Affiliate Website(s) and integrate the Link and/or Connections in such a way as to generate as much traffic as possible to the Company’s Website or the Affiliate Website(s), and (ii) promote and market the option to book ferry ticket services on the Affiliate Website(s) within its commercial and internal network.
4.1.3 The Affiliate agrees not to take or omit to take any action which may affect the Company's relationship with the ferry companies available on the Company’s Websites. The Affiliate agrees not to cause or permit to be done anything which may cause the Company to be excluded from the process of booking with any ferry company.
4.1.4 The Affiliate agrees not to communicate with any ferry company in respect of (consumed) bookings made through the Company’s online system or for any customer service in respect of such bookings made through the system or consumed.
4.1.5 In case that the Affiliate proceeds to advertising in relation to the Service in Google Adwords, the Affiliate further agrees not to use the same key works the Company does, thus competing with the Company.
4.1.6 The Affiliate shall duly and diligently maintain and adjust the contents of the Affiliate Website(s) and shall keep the Affiliate Website(s) up-to-date and accurate without any errors or omissions in the information relating to the Service.
4.1.7 The Affiliate shall not programmatically evaluate and extract information from any part of the Company’s Website.
4.1.8 The Affiliate shall not make any static copy of the Content or any part of the Company’s Website on the Affiliate’s own server.
4.1.9 The Affiliate shall not make any bookings or reservations with any ferry company on the Company’s Website or the Affiliate Website with the purpose of reselling such booking to or for the benefit of a third party.
4.1.10 The Company will provide the Affiliate with a link to a website (http://partners.ferryscanner.net/login) operated by the Company, a user ID and a password which allows the Affiliate to monitor the booking of travel services through the Affiliate Website(s) and all relevant management information made available by the Company online. The Affiliate shall safeguard and keep the user ID and password confidential and safely stored and not disclose it to any person other than those who need to have access to the Partner Dashboard. The Affiliate shall immediately notify the Company of any (suspected) security breach or improper use.
4.1.11 The Affiliate agrees and acknowledges that the restrictive covenants, undertakings, commitments, obligations and restrictions set out in this Clause 4 are of material importance to the Company. Furthermore, the Affiliate agrees and acknowledges that all covenants, undertakings, commitments, warranties, obligations and restrictions set out in this Clause 4 shall (a) be promptly, duly and diligently complied with by the Affiliate, and (b) also apply in respect of the companies within the Affiliate Group and the Affiliate shall procure, warrant and undertake that the companies within the Affiliate Group shall observe, adhere to, comply with and act in accordance with the terms and conditions set out in this Clause 4.
4.2 Goodwill and brand protection
4.2.1 In order to protect the product, service, brand and goodwill of the Company, the Affiliate shall warrant that the Affiliate Website(s) (including all other websites (directly or indirectly) owned, controlled or hosted by the Affiliate or companies within the Affiliate Group), is (and shall remain) sufficiently and substantially distinct and different from the Company’s Website (to be determined at the Company’s sole discretion). For the duration of the Affiliate Program the Affiliate shall ensure that:
(a) the look and feel of the Affiliate Website(s) (including all other websites (directly or indirectly) owned, controlled or hosted by the Affiliate) shall be distinctly and significantly different to the Company’s Website including in respect of the color scheme, the composition, the typefaces, the design and the layout (including the brand), the (click) buttons, boxes and banners and the available features (save for those features reasonably required for the performance of the Affiliate’s obligations under the Affiliate Program);
(b) any logo(s) used on the Affiliate Website(s) (including all other websites owned, controlled or hosted by the Affiliate) shall be distinctly different to the Company’s logo (save for any logo that may be provided by the Company for use by the Affiliate under or pursuant to the Affiliate Program);
(c) the Affiliate shall not in any way imitate or copy the Company’s Websites (in general or in respect of certain (new) features, pages, form, composition or aspects), and
(d) the Affiliate shall promptly comply at its own costs with any reasonable requests from the Company to make such (further) changes, alterations or amendments to any aspect of the Affiliate Website(s) which is or can be regarded to be confusingly or significantly similar to any element of the Company’s Website.
4.3 Intellectual Property Rights
4.3.1 The Affiliate acknowledges that the Company and/or its licensors shall retain ownership of all rights, title and interest in and to all Intellectual Property Rights of the Company or embodied in the Company’s Website, including (but not exclusively) the Company’s logos and the Content.
4.3.2 The Affiliate shall not (directly or indirectly) disclose, integrate, include, use, combine, exploit, incorporate or otherwise make the Company’s Data (or any part thereof) available (a) with its own content and/or the content of any Company’s Competitor (including ferry companies), or (b) to or for the benefit of (i) itself (save for enabling the Service and the ferry ticket online system in accordance with the terms of the Affiliate Program), or (ii) any third party (including any of the Company’s Competitor and the ferry companies) (whether for the promotion of, marketing of, reference to, promotion of, advertising of or otherwise in the interest of or to such party), or (c) for any other purpose or in any other manner and/or on or through Third Party Platforms except as expressly provided for in these Terms and Conditions. Upon termination or expiration of the Affiliate Program, the Affiliate shall destroy, delete or upon first request of the Company return all Company’s Data (including all hard and soft copies).
4.3.3 The Affiliate shall (and shall procure that the companies within the Affiliate Group shall) not (directly or indirectly) register, acquire, use, purchase or obtain Internet domain name which incorporates any word or words which are identical, or confusingly or substantially similar to "Ferryscanner" or any variations, translations or misspellings thereof, included as part of the address.
4.4 Promotion and marketing
4.4.1 During the term of the Agreement, the Affiliate agrees and warrants that it shall not (and shall procure that companies within the Affiliate Group shall not) conduct, undertake, use, perform or exercise (or have or authorize third parties (to) conduct, undertake, use, perform or exercise) (a) Paid Search, SEM or SEO activities, (b) any activity to unfairly influence the results of Third Party Platforms, or (c) any other form of online targeted advertising (whether directly, indirectly, or via or through Third Party Platforms) in respect of:
(i) the Service;
(ii) the Company’s Website (https://www.ferryscanner.com);
(iii) all (descriptive) information of ferry ticket services from different ferry companies available on the Company’s Website ("the Content")
(iv) any data falling within the scope of the Intellectual Property Rights of the Company and any data provided to the Affiliate within the scope of the Affiliate Program and such other information from time to time owned or used by the Company or embodied or included in the Company’s Websites or made available by the Company to the Affiliate (e.g. prices and availability) ("the Company’s Data").
(v) 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): Ferryscanner, Price Radar, Best Price Mix (with or without any associated Internet domain names (with whatever (country code) top-level domain) ("the Company’s Brands"),
(vi) the ferry companies’ Brands (unless the owner of such Brand has given its prior written consent to the Affiliate for the use of that specific Brand), or
(vii) the Affiliate Website to the extent that the Paid Search, SEM, SEO or other online targeted advertising activities are related to (a) the offer, booking or reservation of ferry ticket services (whether through the Service or otherwise), or (b) information in respect of ferry tickets.
4.4.2 The Affiliate shall not use, exploit or otherwise employ, directly or indirectly, any Third Party Platforms, to seek to avoid or circumvent its covenants, obligations or restrictions under these Terms and Conditions or those restrictions or covenants of which the Affiliate could reasonably expect that any such actions fall under the scope of these Terms and Conditions.
4.4.3 The Affiliate shall not exploit or use the Content for any purpose or in any manner and/or on or through Third Party Platforms except as expressly provided for in these Terms and Conditions.
4.4.4 During the term of the Affiliate Program (and continuing thereafter in respect of the Company’s Brands and the Company’s Data) the Affiliate shall immediately comply with any request made by the Company to adhere to and comply with this Clause 4.4.
4.5 Compliance with advertising rules and policies and spamming regulations
4.5.1 The Affiliate Website(s) shall not be (directly or indirectly) linked to the Company’s Website(s) due to Double Serving or any similar technique or method or such other restrictions as set out in 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 ("Spamming Regulations").
4.5.2 The Affiliate shall not (directly or indirectly) make the Affiliate Website(s), the Content or the Service available or present the Content, to the Third Party Platforms with the intention or purpose of or by (trying to) mislead(ing), deceive (deceiving), trick(ing) or fool(ing) human editors, computer search engine spiders, web-crawlers or (meta) search engines (including any similar tools or engines) of Third Party Platforms in order to give the Affiliate Website(s) a higher ranking or display when it would not otherwise be displayed or higher ranked if it would not have been using Cloaking or any similar technique or method.
4.5.3 The Affiliate covenants, undertakes and warrants to promptly adhere to, observe and comply with the Spamming Regulations (and all reasonable requests made by the Company in this respect) in order to avoid any breach by the Company or the Affiliate Website(s) of such policies due to or in respect of the Affiliate Website(s). For the avoidance of doubt, the Affiliate cannot enforce any rights in this respect towards or vis-à-vis the Company and hereby waives any (right of) defense or claims against the Company in this respect.
4.6 Burden of proof, compliance, injunctive relief and further remedies
4.6.1 Parties agree and acknowledge that in the event of an (alleged or threatening) infringement or breach by the Affiliate of its obligations under this Clause 4, the burden of proof is carried by the Affiliate. In other words, the Company carries the benefit of assumption, and the Affiliate needs to provide and deliver sufficient and satisfactory evidence (i.e. conclusive and irrefutable) in order to defend or reject a claim.
4.6.2 The Affiliate agrees and acknowledges that pending any compliance or implementation of the reasonable requests made by the Company or in the event that the Affiliate does not promptly comply with or adhere to all such requests of the Company under or pursuant to this Clause 4, the Company shall be entitled to postpone its obligations under the Affiliate Program as prescribed in these Terms and Conditions (including the offer of the Service and the Company’s Data) or immediately terminate this Agreement.
4.6.3 In the event of a breach of the covenants, undertakings, restrictions, obligations and/or warranties set out under this Clause 4 by or attributable to the Affiliate, the Company shall be entitled to exercise the following actions and rights, notwithstanding the remedies and actions for specific performance, damage compensation or injunctive or equitable relief available by law or contract:
(a) suspension of its (payment) obligations under or termination of this Agreement with immediate effect;
(b) the Company shall be entitled to use a Percentage Commission Split of 0% for all bookings made and/or each Materialised Transaction during the term that the Affiliate breaches the relevant obligations set out in Clause 4 or has not remedied its breach of the relevant obligations as set out in Clause 4 in full, and
(c) in the event of the use of a Similar Domain Name (or ownership or registration by the Affiliate of a website with a (confusingly) similar domain name as owned or used by the Company) and a repeated and/or material breach of Clause 4, the Affiliate shall transfer, assign and register the Similar Domain Name (including the website(s) with a (confusingly) similar domain name) to and in the name of the Company through a domain name registrar company of the Company's choice to be completed within 20 business days after the occurrence of a breach. In the event the Affiliate does not (cooperate with and effectuate the) set over, assignment and transfer (of) the relevant domain names, the Affiliate hereby irrevocably and unconditionally authorizes, empowers and gives a power of attorney to and in favor of the Company to sign and/or execute all documents that are necessary or useful in relation to or required for the assignment, registration, set over and transfer of the domain names to and in the name of the Company.
5. REPRESENTATIONS AND WARRANTIES
5.1 Affiliate’s warranties
The Affiliate hereby represents and warrants to the Company that for the duration of the Affiliate Program
(i) the Affiliate has all necessary rights, title to, power and authority to own, operate and use 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 authorizations necessary for conducting, carrying out and continuing its operations and business;
(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, and
(v) the Affiliate stays informed and up-to-date with the most recent and updated Terms and Conditions and regularly reviews these terms and conditions in order to ensure compliance with them understanding that the Company reserves the right to update, modify or change these terms and conditions at any time, without prior notice.
5.2 Parties’ warranties and undertakings
5.2.1 Each Party represents and warrants to the other Party that for the duration of Affiliate Program:
(i) it has the full corporate power and authority to enter into and perform its obligations under these Terms and Conditions;
(ii) it has taken all corporate actions required by it to authorize the execution and performance of these Terms and Conditions;
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 these Terms and Conditions, neither Party makes any representation or warranty, express or implied, in connection with the subject matter of these Terms and Conditions and hereby disclaims any and all implied warranties, including all implied warranties of merchantability or fitness for a particular purpose regarding such subject matter. The Company 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 and/or the Service.
6. INDEMNIFICATION AND LIABILITY
6.1 Indemnification
Each Party (the "Indemnifying Party") shall be liable towards, and compensate, indemnify and hold the other Party (the "Indemnified Party") harmless for and against any direct damages, losses (excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any special, indirect or consequential losses and/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties, legal proceedings and expenses (including, without limitation, reasonable attorneys’ fees and expenses) actually paid, suffered or incurred by the Indemnified Party pursuant to:
(i) a breach of these Terms and Conditions by the Indemnifying Party, or
(ii) any claim from any third party based on any (alleged) infringement of the third party's Intellectual Property Right by the Indemnifying Party.
6.2 Maximum liability
Save as otherwise provided for herein, the maximum liability of a Party for all claims made against such party by the other Party under or in connection with these Terms and Conditions in a year shall not exceed the aggregate commission received or paid by such Party in the preceding year or EUR 50,000 (whichever is higher), unless in the event of fraud or willful misconduct of Indemnifying Party, in which event the limitation of liability is not applicable for such liable party.
6.3 Third Party Claim
In the event of a third party claim, the indemnified Party shall promptly notify the other Party and Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defense and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defense and settlement (in consultation and agreement with the indemnified Party and with due observance of both Parties' interests), and neither Party shall make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
6.4 Waiver of consequential damages etc.
In no event shall any Party be liable to the other Party for any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any indirect, special, punitive, incidental or consequential damages or losses whether such damages are alleged as a result of a breach of contract, tort or otherwise. All such damages and losses are hereby expressly waived and disclaimed.
7. ENTRY INTO FORCE, TERMINATION AND SUSPENSION
7.1 Entry into force, termination and suspension
7.1.1 This Affiliate Program shall enter force and effect upon written confirmation of acceptance and approval of the Affiliate by the Company. By registering and signing up to the Company’s Affiliate Programme as Affiliate, the Affiliate agrees, acknowledges and accepts the Terms and Conditions of the Affiliate Program.
7.1.2 Each Party may terminate this Affiliate Program at any time and for any reason, by written notice to the other Party.
7.1.3 Upon termination of this Affiliate Program the Company shall continue to pay to the Affiliate any outstanding Commission in accordance with Article 5 for a period of 1 month after the termination date, on the condition that the Company has the correct contact and banking details for the Affiliate during that period. Should the Affiliate fail to claim any unpaid Commission within a 12-month period, such failure shall constitute an effective waiver of the Affiliate’s right to claim such Commission.
7.1.5 Upon termination of the Affiliate Program and save as set out otherwise, these Terms and Conditions 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 these Terms and Conditions. Clause 4.1.3, 4.1.5, 4.1.6, 4.1.7, 4.2, 4.3, 4.4.1, 4.6.3(c), 6, 8, 9 and 10 and shall survive such termination.
8. CONFIDENTIALITY
8.1 Confidential Information
Parties understand and agree that for the duration of the Affiliate Program, 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 the Company in connection with the Affiliation Program, these Terms and Condition 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 within the scope of these Terms and Conditions, (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 within the scope of these Terms and Conditions, (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) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, or (iii) 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 / Guest Data and to protect it from unauthorized use or release. Parties agree to comply with applicable Greek and EU Law on the processing of personal data and the protection of privacy including (but not exclusively) General Data Protection Regulation (EU) 2016/679.
9. MISCELLANEOUS
9.1 Notices
9.1.1 All notices and communications to the Company must be in English, in writing, and sent via email to the following email address of the Company: affiliates@ferryscanner.com
Notices are deemed delivered and received one business day after the date of sending of the email by the Affiliate. Any notice or communication to be provided to the Affiliate within the scope of the Affiliate Program shall be sent to the email address appointed at the Affiliate 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 Whole Agreement
9.2.1 These Terms and Conditions constitute the entire agreement and understanding of the Parties with respect to its subject matter and replace and supersede all prior agreements, arrangements, ((non) binding) offers, undertakings or statements regarding such subject matter.
9.3 Assignment and third-party beneficiary
9.3.1 Neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under these Terms and Conditions without the prior written consent of the other party, provided that the Company may assign, transfer, encumber any of its rights and/or the obligations under these Terms and Conditions (in whole or in part or from time to time) to an affiliated company without the prior written consent of the Affiliate.
9.3.2 Nothing herein is intended to or shall implicitly confer upon any other person apart from the Parties any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of these Terms and Conditions, except to the extent explicitly stated otherwise in these Terms and Conditions.
9.4 Partial invalidity
9.4.1 If any provision of these Terms and Conditions 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 these Terms and Conditions.
10. GOVERNING LAW AND JURISDICTION
10.1 Governing law
This Agreement shall be exclusively governed by and construed in accordance with the laws of Greece.
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 Athens, Greece.