1    Parties and Recitals

• Parties

  • This Affiliate Agreement (the "Agreement") is between , having its registered office at , ("Affiliate"), and Hostelworld.com Ltd, having its registered office at Charlemont Exchange, Charlemont Street, Dublin 2, Ireland ("Hostelworld.com Ltd" or "Hostelworld"),
    (Hostelworld.com Ltd and Affiliate each constitute a "Party", and collectively the "Parties").

• Recitals

  1. Hostelworld.com Ltd has developed certain software technology suitable for application as an on-line confirmed reservations and communication system for use over the Internet, mobile platforms and associated technologies.
  2. Hostelworld.com Ltd’s technology enables it to grant access to and facilitate the booking of Hostelworld Accommodation Product and other related services via the Hostelworld.com Ltd Affiliate Platform.
  3. Hostelworld.com Ltd has entered into agreements with accommodation and other related Service Providers (as defined below) whereby the Service Providers’ Hostelworld Accommodation Product may be booked on-line using Hostelworld.com Ltd’s technology. Under the terms of these agreements Hostelworld.com Ltd has agreed to promote the Service Providers’ Hostelworld Accommodation Product through Hostelworld.com Ltd’s site and Affiliate Site.
  4. The Parties have agreed that in consideration of each of the Parties entering into this Agreement, Hostelworld.com Ltd shall make available the Hostelworld Affiliate Integration Solutions (as defined below) to the Affiliate and the Affiliate shall market Hostelworld Accommodation Product through the Affiliate Site.

2    Definitions

In this Agreement the following words and expressions shall have the following meanings, unless the context otherwise requires:

• 2.1   Affiliate Content means any and all content (including the Affiliate Trade Marks) provided by the Affiliate appearing on the Affiliate Site which relates to the Affiliate content, product and/or services;
• 2.2   Affiliate Platform means the integration solutions that Hostelworld makes available to its Affiliates for the purpose of integrating the Hostelworld Accommodation Product;
• 2.3   Affiliate Platform Performance Availability means that Hostelworld.com Ltd’s Affiliate Platform can be accessed and utilised by Visitors for an average of 99% of the time, measured over the course of each four-week period on a 24 hours a day, seven days a week basis;
• 2.4   Affiliate Share means amounts due to Affiliate in respect of Reservations processed;
• 2.5   Affiliate Site is Affiliate’s website located at and all affiliate websites, APIs, web, mobile and desktop applications owned or operated by Affiliate (collectively "Affiliate Sites");
• 2.6   Affiliate Trade Marks means the trade marks, names and logos belonging to the Affiliate;
• 2.7   Apartment means self catering accommodation available to rent on a short term basis which is categorized as such by Hostelworld.com Ltd;
• 2.8   B&Bs/Guesthouses means bed and breakfast/ guesthouse accommodation and other Hostelworld Accommodation Product classified as such by Hostelworld.com Ltd;
• 2.9   Booking Fee means a charge in addition to the cost of accommodation, levied on the Visitor at the time of booking;
• 2.10   Business Day means any normal working day on which clearing banks are open for business in Dublin and London;
• 2.11   Customer Information means information and data supplied by Visitors when making a Reservation;
• 2.12   Hostel means backpacker hostels and other Hostelworld Accommodation Product that is classified by Hostelworld.com Ltd as hostels;
• 2.13   Hotel means all hotels, motels, inns and resorts and other Hostelworld Accommodation Product that are classified by Hostelworld.com Ltd as hotels;
• 2.14   Hostelworld Accommodation Product means any accommodation including but not limited to B&Bs/Guesthouses, Hostels, Apartments, Hotels and other budget accommodation such as riads, pensions, motels, pousadas, inns and campsites marketed by Hostelworld.com Ltd for booking to Visitors to the Affiliate Site via the Affiliate Platform as determined by Service Provider Agreements entered into between Hostelworld.com Ltd. and such Service Providers. For the avoidance of doubt, Hostelworld Accommodation Product includes accommodation run by Service Providers with which Hostelworld has entered into a Service Provider Agreement;
• 2.15   Hostelworld Accommodation Product Content means any and all data and/or content provided by Hostelworld Ltd in relation to the Hostelworld Accommodation Product including but not limited to descriptions, facilities, photos, video, customer ratings, maps, directions, property contact details, and special offers;
• 2.16   Hostelworld Affiliate Integration Solutions means the technical integration solutions made available to the Affiliate through which the Affiliate can enable Visitors to search and book Hostelworld Accommodation Product via the Affiliate Platform which include but are not limited to Booking Engine, Direct Tracked Links, XML API and Data feeds;
• 2.17   Hostelworld.com Ltd Platform means any technology encompassing services, Websites, data, applications, API’s, web, mobile and/or desktop applications, networking and server infrastructure owned or operated by Hostelworld.com Ltd, or by a member of the Hostelworld.com group of companies, including but not limited to www.hostelworld.com;
• 2.18   Hostelworld Trademarks means all the registered and unregistered trade marks owned by or licensed to Hostelworld.com Ltd;
• 2.19   Intellectual Property Rights means patents, rights in design, trade marks, trading, business or domain names and e-mail addresses, copyrights (including any such rights in typographical arrangements, Web Sites or software) whether registered or not and any applications to register or rights to apply for registration of any of the foregoing, rights in inventions, know-how, trade secrets and other confidential information, rights in databases and all other intellectual property rights of a similar or corresponding character which subsist now or in the future in any part of the world including the Hostelworld Trademarks and the Affiliate Trademarks;
• 2.20   Link(s) means a link (or links) embedded within a page using HTML which permits Visitors to access the Affiliate Platform via the Affiliate’s Site;
• 2.21   Market or market means the right to link to, advertise, promote, feature and make available to book Accommodation Product on the Affiliate Site;
• 2.22   Other Services means all other non-accommodation services that may be offered by Hostelworld.com Ltd or by a contracted third party through the Hostelworld.com Ltd technology. These services may include but are not limited to tours and activities;
• 2.23   Prepaid Commission Reservation means a Reservation for which Hostelworld.com Ltd collects only the Transaction Commission from the Visitor at the time of booking, with the balance being paid directly to the Service Provider;
• 2.24   Reservation means a transaction made on Hostelworld.com Ltd’s Affiliate Platform in respect of a Hostelworld Accommodation Product;
• 2.25   Service means the service provided to Affiliate by Hostelworld.com Limited pursuant to the terms of this Agreement, being the provision of technology solutions for the facilitation of data processing of reservation services;
• 2.26   Service Provider means the operator (including any person holding themselves out as operating, running, having responsibility for or owning a business offering accommodation in Hotels, Hostels, B&Bs/guesthouses, apartments and Other Service Providers together with an employee, officer, assignee or licensee of an operator) of Accommodation Product;
• 2.27   Service Provider Agreement means any and all Service Providers with which Hostelworld.com Ltd. has entered into a signed agreement for the purposes of making Accommodation Product available for booking online on Hostelworld.com Ltd Websites and on the Affiliate Site;
• 2.28   Tax means all taxes, duties, levies, withholdings and other governmental charges of any nature whatsoever and wherever arising together with all interest, filings, penalties and additions imposed with respect to such amounts;
• 2.29   Term means the term of this Agreement as further defined in clause 10.1;
• 2.30   Transaction Commission means commission amounts (excluding Booking Fees) collected by Hostelworld.com Ltd from Service Providers, less all amounts paid or payable by Hostelworld.com Ltd to provide the services under this Agreement directly relating to Reservations. These amounts include refunds and chargebacks and credit card processing fees related only to chargebacks;
• 2.31   Visitor means any identified person accessing the Affiliate Site who generates requests, views pages and/ or who may conduct a transaction via the Affiliate Platform; and
• 2.32   Web Site means pages or a related group of pages which are linked together using the hypertext transfer protocol ("http").

3    General Affiliate Rights & Responsibilities

• 3.1   License
  1. Subject to full compliance by Affiliate with the terms of this Agreement, Hostelworld.com Ltd grants Affiliate a worldwide, non-exclusive, revocable, royalty-free right and license to access Hostelworld.com Ltd's Affiliate Platform and associated technology to market Hostelworld Accommodation Product, such licence limited to and solely for the purposes of this Agreement.
  2. Affiliate shall not use the Hostelworld Accommodation Product or Hostelworld Accommodation Product Content for any other purpose, including, without limitation, directly or indirectly contacting any Service Provider, without Hostelworld.com Ltd’s prior written consent.
  3. Affiliate shall not at any time for any reason use any brand name owned by or licensed to Hostelworld.com Ltd. and in particular Affiliate shall not attempt or purport to purchase any Hostelworld.com Ltd. brand name or Hostelworld Trademark as key words for the purposes of pay-per-click advertising, nor shall Affiliate register or attempt to register any Hostelworld.com Ltd. brand name or Hostelworld Trademark (or any derivative spellings or misspellings thereof) as internet domain names.
• 3.2   Hostelworld.com Ltd Affiliate Platform
  Affiliate shall be responsible for all design, coding, and testing necessary to integrate the Hostelworld.com Ltd Affiliate Platform into the Affiliate Site. Affiliate shall be responsible for establishing and maintaining an Internet connection to the Affiliate Platform and integration of the Hostelworld Affiliate Integration Solutions.
• 3.3   Usage of Hostelworld Trademark
  Other than as anticipated by this Agreement, Affiliate shall not use the Hostelworld Trademarks in any way whatsoever without Hostelworld.com Ltd’s prior written consent and Affiliate shall not in any manner whatsoever promote, advertise and/or publicise Hostelworld.com Ltd’s Platform and/or the existence, subject matter and/or provisions of this Agreement save to the extent and in the manner herein prescribed. Email shall be deemed an acceptable form of written consent.
• 3.4   Affiliate Content Update
  Affiliate agrees to use such reasonable efforts as are commercially applicable to provide accurate and up to date information on the Affiliate Site throughout the term of this Agreement.
• 3.5   Affiliate Liability for Content
  Affiliate shall be solely responsible in respect of Affiliate Content.
• 3.6   Affiliate Site
  The Affiliate agrees to notify Hostelworld.com Ltd of all mobile sites / applications owned or operated by the Affiliate which use and/or incorporate Hostelworld.com content and/ or the Affiliate Platform. The Affiliate agrees to reference the Hostelworld.com brand throughout all mobile / application pages owned or operated by the Affiliate.
• 3.7   Affiliate Site Availability
  Affiliate will use its best efforts to ensure that the Affiliate Site is available and that the server that hosts the Affiliate Site is of sufficient capacity to ensure such availability. If at any time the Affiliate Site is not available, Affiliate shall use all best commercially reasonable endeavours to resolve such unavailability of the Affiliate Site within the fastest possible timeframe.
• 3.8   Visitors Exposure
  Affiliate will ensure that any and all Visitors shall not be subject to illegal acts either by Affiliate or any third party within the Affiliate’s control as a result of such access and/or use including (without limitation) threats, harassment, stalking, abuse, unsolicited commercial communications (or any other form of illegal or unsolicited communication known as "spam") or violations of that Visitor's legal rights, including rights of privacy.
• 3.9   Restricted Countries
  1. The Affiliate hereby warrants, confirms and undertakes that it is not a national or controlled by a national of Cuba, Iran, Syria, Sudan, Myanmar (Burma) or North Korea (each a "Restricted Nation" and together the "Restricted Countries") and agrees that should its status in this regard change it shall immediately notify Hostelworld.com Ltd and Hostelworld.com Ltd shall, in such circumstances, have an immediate right to terminate this Agreement without notice to the Affiliate.
  2. The Affiliate hereby further confirms and agrees that no Hostelworld Accommodation Product shall be offered for sale to Visitors via the Affiliate Site and booked through the Hostelworld.com Ltd Affiliate Platform where:-
     1. the Hostelworld Accommodation Product and/or Other Services is situated in or offered for sale in any Restricted Nation or by any national of a Restricted Nation; or
     2. to any national of a Restricted Nation,
     and agrees to take such steps as are necessary to co-operate with Hostelworld.com Ltd to ensure that each of provisions (i) and (ii) above are complied with.
• 3.10   Revenue Collection
  Affiliate acknowledges that under the terms of the agreements which Hostelworld.com Ltd has with Service Providers, Hostelworld.com Ltd shall collect and retain the Transaction Commission in respect of each Reservation.
• 3.11   Exclusivity
  Affiliate agrees not to link, promote, feature or advertise on the Affiliate Site any other online hostel or budget accommodation provider for the term of this agreement.

4    General Hostelworld.com Ltd Rights & Obligations

• 4.1   Hostelworld.com Ltd grants the Affiliate the right to use and display Hostelworld Accommodation Product or Hostelworld Accommodation Product Content for the sole purpose of making available for booking Hostelworld Accommodation Product and Other Services on Affiliate Site through the Hostelworld.com Affiliate Platform
• 4.2   Data Access
  Hostelworld.com Ltd shall have the right to access all customer data furnished by Visitors pursuant to this Agreement.
• 4.3   Transaction Participation
  Hostelworld.com Ltd is never party to Reservations, and Affiliate hereby acknowledges that Hostelworld.com Ltd shall never be, and Affiliate shall not hold Hostelworld.com Ltd out as being, a party to a Reservation at any time. Affiliate further agrees and acknowledges that Hostelworld.com Ltd's sole role is that of provision of the Service and, where agreed in writing in advance by the parties, the Other Services, and that Hostelworld.com Ltd does not provide any form of accommodation and is not and shall never be party to a Reservation under the terms of this Agreement.
• 4.4   Hostelworld Reporting
  Hostelworld.com Ltd will supply Affiliate with access to reports, as agreed between the two Parties. These reports will contain information on the number of Visitors (where possible and applicable), Reservations, the gross purchase price and the Transaction Commission deducted or collected by Hostelworld.com Ltd.

5    General Parties Rights & Obligations

• 5.1   Data Compliance
  Hostelworld.com Ltd warrants and represents to Affiliate that it does and shall continue to:
  1. Comply with all applicable laws enacted in Ireland relating to privacy and data protection when collecting, storing, disclosing or using in any manner any customer information when performing its obligations under this Agreement;
  2. Comply with all relevant industry codes and applicable regulatory best practice in Ireland in respect of the processing and fulfilment of e-commerce transactions with consumers; and
  3. Take all reasonable steps to ensure that any Customer Information disclosed to it in connection with this Agreement is protected against misuse and loss and from unauthorized access, modification or disclosure.
• 5.2   Affiliate warrants and represents to Hostelworld.com Ltd. that it does and shall continue to:
  1. Comply with all applicable laws enacted in the markets in which it operates relating to privacy and data protection when collecting, storing, disclosing or using in any manner any Visitor Information when performing its obligations under this Agreement;
  2. Comply with all relevant industry codes and applicable regulatory best practice in the jurisdictions where its servers and data are stored in respect of the processing and fulfilment of e-commerce transactions with consumers; and
  3. Take all reasonable steps to ensure that the Visitor information disclosed to it in connection with this Agreement is protected against misuse and loss and from unauthorized access, modification or disclosure.
• 5.3   Intellectual Property
  All Intellectual Property Rights in Hostelworld.com Ltd's Platform, the Hostelworld Trademarks and in Hostelworld Ltd's Affiliate Platform technology are licensed to Hostelworld.com Ltd by another member of its corporate group and shall remain the exclusive property of the owner and licensor of such Intellectual Property Rights (subject to the terms of any license granted by such owner to Hostelworld.com Ltd). All Intellectual Property Rights in Affiliate Content and Affiliate Site shall remain the exclusive property of Affiliate.
• 5.4   Execution Cost
  Save where otherwise expressly provided herein Affiliate shall, at its own cost and expense, comply with any and all of its obligations under this Agreement and Hostelworld.com Ltd shall, at its own cost and expense, comply with any and all of its obligations under this Agreement.
• 5.5   Responsibility
  Affiliate and Hostelworld.com Ltd acknowledge that for all Reservations, an agreement comes into existence between the Visitor and the Service Provider and that neither Affiliate nor Hostelworld.com Ltd shall be held responsible for any services provided under that agreement. Affiliate and Hostelworld.com Ltd can only be liable for their services provided in connection with supporting the processing of such transactions.

6    Hostelworld.com Ltd Affiliate Integration Solutions

Pursuant to the terms of this Agreement, Affiliate is licensed to integrate the Affiliate Platform within the Affiliate Site through one or more of the following integration solutions:

• 6.1   Affiliate Integration Solutions (XML)
  1. Under this Agreement, Hostelworld.com Ltd shall provide Affiliate access to Hostelworld.com XML Application Programming Interface (API) to enable the affiliate to connect to the Hostelworld.com Affiliate Platform. The XML API will enable the affiliate to retrieve Hostelworld Accommodation Product in order to facilitate transactions and associated functionality on the Affiliate Platform. Hostelworld.com Ltd shall provide services to Affiliate as defined in the latest version of the document entitled “Hostelworld.com Ltd XML API-Developers Guide”. Hostelworld.com Ltd shall give Affiliate reasonable written notice of any material change to the specifications that may affect integration with the Affiliate Site. Hostelworld.com Ltd will provide reasonable notice when deprecating this API. Hostelworld.com Ltd will continue to provide the deprecated API but not under any defined service level agreement. Hostelworld.com Ltd will discontinue support for deprecated API and after 6 months of being deprecated the API will reach end-of-life and will no longer be provided through the Hostelworld.com Ltd Affiliate Platform.
  2. The Affiliate agrees to take full responsibility to ensure that their content is updated in line with the latest version of Hostelworld.com Ltd XML API Developers Guide
• 6.2   Affiliate Integration Solutions (XS API)
  1. Under this Agreement, Hostelworld.com Ltd shall provide Affiliate access to Hostelworld.com XS Application Programming Interface (API) to enable the Affiliate to connect to the Hostelworld.com Affiliate Platform. This API supersedes the XML API. The XS API will enable the affiliate to retrieve availability and other content for Hostelworld Accommodation Product and facilitate transactions and associated functionality on the Affiliate Platform. Hostelworld.com Ltd shall provide services to Affiliate as defined in the associated version of the document titled “Hostelworld.com Ltd XS API-Developers Guide”. Hostelworld.com Ltd shall give Affiliate reasonable written notice of any material change to the Specifications that may affect integration solutions implemented by the Affiliate.
  2. Hostelworld.com Ltd will support multiple versions of the XS API. Hostelworld will provide reasonable notice when deprecating a particular version of the API. Hostelworld.com Ltd will continue to provide the deprecated versions but they will not fall under defined service level agreements. Hostelworld.com Ltd will discontinue support for deprecated version and after 6 months of being deprecated the API will reach end-of-life and will no longer be provided through the Hostelworld.com Ltd Platform
  3. The Affiliate agrees to take full responsibility to ensure that their content is updated in line with the latest version of Hostelworld.com Ltd XML API Developers Guide.
• 6.3   Affiliate Integration Solutions(Booking Engine)
  The Booking Engine is a website platform provided by Hostelworld.com Ltd to the Affiliate that enables Visitors to search and book Hostelworld Accommodation Product and Other Services:
  1. Affiliate Integration Solutions (Direct Tracked Link)
     A direct (deep) link containing a unique affiliate identifier code (ID) provided to the Affiliate that directs the Visitor to the Hostelworld.com Ltd Platform. Affiliate Share will be awarded if the cookie is present in the Visitor's internet browser.
  2. Affiliate Integration Solutions (Service Provider Data Feed)
     A monthly CSV file shall be made available to the Affiliate containing updated Hostelworld Accommodation Product Content. The Service Provider Data Feed is provided to supplement one of the above integration solutions and Affiliate agrees to update Affiliate Site with the most current Service Provider Data Feed content within fifteen (15) days of receiving each monthly data export.
  3. Hostelworld Server Capacity Limits
     Affiliate shall design the integration of the Hostelworld.com Ltd Affiliate Integration Solutions in a manner that does not impose an undue capacity burden on Hostelworld.com Ltd servers. In the event of undue capacity burden on Hostelworld.com Ltd servers, Hostelworld.com Ltd may block or limit service requests from Affiliate and give written notice to Affiliate of a server load issue. If thirty (30) days after written notice, Affiliate continues to impose an undue capacity burden on Hostelworld.com Ltd servers, Hostelworld.com Ltd may either charge Affiliate for the reasonable cost of increasing capacity to meet the higher service request levels of Affiliate or terminate this Agreement giving Affiliate 15 days notice in writing.
  4. Notice of Change
     Affiliate shall give Hostelworld.com Ltd at least thirty (30) days prior written notice of any change to the Affiliate Site or Integration of the Hostelworld Affiliate Integration Solutions provided by Hostelworld.com Ltd under this Agreement that the Affiliate intends to make any changes, upgrades or other amendments that may materially affect service request or reservation volumes.
  5. Third-Party Content and Changes to Hostelworld Accommodation Product Content
     Hostelworld.com Ltd provides the Affiliate with detailed Product text and photo content (Hostelworld Accommodation Product Content) to market Hostelworld Accommodation Product on the Affiliate Site. Affiliate may not make changes to Hostelworld Accommodation Product Content supplied by Hostelworld.com Ltd, nor may Affiliate request Hostelworld.com Ltd to make changes to content as supplied by Service Providers. Affiliate may supplement Hostelworld Accommodation Product Content with other content supplied by a third-party. If Affiliate elects to supplement Hostelworld Accommodation Product Content, Affiliate shall fully indemnify Hostelworld.com Ltd against claims by Visitors, Service Providers or any third-party arising out of a reservation made on Affiliate Site as a result of inaccurate information provided by any third-party.
  6. Service Provider Set
     Hostelworld.com Ltd shall manage the database of Service Providers available to Affiliate. Hostelworld.com Ltd may periodically add or remove Service Providers to/from the Service Provider Set without notice. Inclusion or exclusion of specific Service Providers is at the sole discretion of Hostelworld.com Ltd.

7    Customer Service

• 7.1   First level Customer Service means customer service provided to Visitors regarding Reservations. Hostelworld.com Ltd shall provide all First-level Customer Service.
• 7.2   Technical Support
  Hostelworld.com Ltd shall provide the Affiliate with support for technical issues.
• 7.3   Both Parties shall use their best efforts and endeavours to resolve any issues arising with respect to any Reservation as quickly and efficiently as possible.
• 7.4   Customer Dispute Resolution
  Both Parties will use reasonable efforts to resolve any issues arising with respect to any Reservation as quickly and efficiently as possible. Hostelworld.com Ltd holds full discretion for resolution of customer queries and any eventual refunds shall be at Hostelworld’s sole discretion.

8    Share and Payments

• 8.1   Collection Responsibilities
  Where applicable, Hostelworld.com Ltd shall track, bill and collect payment from Service Providers for Reservations made on the Affiliate Site.
• 8.2   Affiliate Share Calculation
  The Affiliate Share will be calculated at a standard rate of 20% (See appendix for specifics) of the Transaction Commission less the amount of any refunds or direct credit card processing fees associated with chargebacks (i.e. where a customer disputes a charge from Hostelworld.com Ltd on their card) relating solely to Reservations made via the Affiliate Site.
• 8.3   Payment
  Hostelworld.com Ltd shall remit to Affiliate the Affiliate Share on a monthly basis or as and when such amounts accumulate to US$200.00. The Affiliate Share payment will be based on Prepaid Commission Reservations processed in the previous month.
• 8.4   Currency
  All sums payable under this Agreement shall be paid in United States Dollars or Euro, as agreed in writing between the Parties.

9    Standard Terms and Conditions

• 9.1   Taxation
  All sums payable by Hostelworld.com Ltd under this Agreement shall be free and clear of and without any deduction or withholding for or on account of any set off or counterclaim on any account whatsoever unless such deduction or withholding is required by law. If any Tax is so required to be withheld or deducted from any amounts payable to the Affiliate, Hostelworld.com Ltd shall deduct and pay to the relevant Tax authorities the full amount so required to be deducted or withheld.
• 9.2   Deductions
  To the extent that Hostelworld.com Ltd is required by law to withhold or deduct any amount from any amount payable to the Affiliate in connection with this Agreement, Hostelworld.com Ltd is taken to have paid to the Affiliate the amount withheld or deducted and the Affiliate is not entitled to receive any additional amount or gross up of any amount payable to the Affiliate in relation to such withholding or deduction.

10    Term and Termination

• 10.1   Term
  This Agreement shall have a term beginning on the Effective Date and lasting 3 years. It shall be automatically renewed for successive one-year periods unless otherwise terminated by either Party giving notice to the other Party not less than ninety (90) days prior to the end of a term.
• 10.2   Effective Date
  
  1. The Agreement is effective on the later of the two signature dates below (the "Effective Date").
  2. Notwithstanding clause 10.1 either Party may, without prejudice to any of the other rights which it may have, terminate this Agreement forthwith upon written notice to the other if:
     1. any material breach of this Agreement made by a Party is not remedied (if remediable) within thirty (30) days after the service of written notice requiring remedy of the breach; or
     2. the other Party commits any act of insolvency, enters into liquidation, whether voluntary or compulsory; passes a resolution for its winding up; has a receiver appointed over the whole or any part of its assets; makes any composition or arrangement with its creditors; or is unable to pay its debts as they fall due; or takes or suffers any similar action in consequence of its debt, or generally suffers any analogous procedure; or
     3. pursuant to clause 12.8 below.
• 10.3   Either Party shall have the right to terminate this Agreement by giving 3 months’ notice in writing if:
  1. a proposal is made for the sale of all or a majority of the issued share capital of either Hostelworld.com Ltd or the Affiliate to a bona fide third party; or
  2. an announcement is made in respect of a planned initial public offering of Hostelworld.com Ltd or of the Affiliate upon a recognized stock exchange.
• 10.4   Hostelworld.com Ltd may terminate this Agreement with immediate effect in the event that all or a majority of the then-issued share capital of Affiliate, or all or a majority of the business and/or assets of Affiliate, is or are sold to a direct competitor (as determined by Hostelworld.com Ltd) at any time during the Term.
• 10.5   Effect of Termination
  Upon expiration of the Term or the earlier termination of this Agreement for any reason:
  1. the rights and licenses granted to each Party pursuant to this Agreement shall automatically terminate;
  2. each Party shall deliver to the other, within thirty (30) days, all tangible items in its possession which are proprietary to the other that were used in connection with this Agreement;
  3. both Parties shall remove and cease to use all Intellectual Property of the other Party
  4. both Parties shall eliminate any reference to this Agreement from their own websites and marketing materials
  5. Affiliate shall immediately remove any and all Hostelworld Accommodation Product, Hostelworld Accommodation Product Content and Hostelworld Affiliate Integration Solutions from the Affiliate Site and provide Hostelworld.com Ltd with written confirmation that such content has been so removed and destroyed; and
  6. all amounts accrued under this Agreement shall immediately become due and payable.

11    Warranties

• 11.1   Each Party represents and warrants to the other that it has the right and authority to enter into and perform all obligations under this Agreement.
• 11.2   The Parties each warrant that for the benefit of the other.
  1. Their entry into this Agreement does not breach any other agreement to which either is a party.
  2. Their respective Websites and/or Platforms shall be free from any and all third party claims.
  3. Each has and complies with, and shall obtain and duly comply with all approvals, consents, licenses, permits, certificates, registrations or other authorisations necessary for it to enter into this Agreement and perform its obligations under this Agreement.
• 11.3   Affiliate further warrants that it will not make contact, either directly or indirectly, with any Service Provider, without the prior written consent of Hostelworld.com Ltd.
• 11.4   Affiliate acknowledges that the Service Providers are responsible for the delivery, entry, maintenance, timeliness and accuracy of all data provided to Hostelworld.com Ltd, and for any updating of Hostelworld Accommodation Product data or other data during the term of this Agreement. Hostelworld.com Ltd WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR SUCH DATA OR INFORMATION INCLUDED IN THE SYSTEM, INCLUDING WITHOUT LIMITATION ANY INACCURACIES, NOR WILL HOSTELWORLD.COM LTD HAVE ANY LIABILITY UNDER ANY CIRCUMSTANCES FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES.
• 11.5   WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER ANY LEGAL OR EQUITABLE THEORY (A) FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, OR (B) FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, UNDER OR RELATING TO THE FAILURE OF THE INTERNET TRANSMISSION OR LINKS. DAMAGES UNDER THIS SUBSECTION INCLUDE BUT ARE NOT LIMITED TO LOST PROFITS, REVENUES AND BUSINESS.
• 11.6   Indemnification
  Affiliate shall fully indemnify and hold Hostelworld.com Ltd and its officers and employees harmless from and against all liabilities, losses, damages, costs and expenses in relation to any claims or actions brought against Hostelworld.com Ltd (including, without limitation, any claim in contract, tort or for defamation, obscenity or breach of privacy) based on or resulting from information (including but not limited to the Affiliate Content) and/or Hostelworld Accommodation Product originating from, any negligence or gross misconduct of Affiliate and/or any assessment of value added, sales or similar tax raised by any relevant taxation authority in respect of Affiliate Share and/or any breach by Affiliate of the terms of this Agreement.
• 11.7   Confidential and Proprietary Information
  1. During the term of this Agreement, the Parties acknowledge that each may receive confidential and proprietary information of the other party, including without limitation, information concerning proprietary technology and products, technical data, system programming, software, processes, ideas, concepts, formulas, designs, engineering, trade secrets, know-how, research, marketing plans, strategies and client information and all reports, shared pursuant to the terms of the Agreement identified at the time of disclosure as confidential or proprietary information ("Confidential Information").
  2. All such Confidential Information will be treated as confidential and proprietary by the receiving party, and shall not be disclosed by the receiving party to third parties unless required by law. The receiving party will only disclose the Confidential Information of the disclosing party to those of its employees:
     1. with a need to know in order to perform this Agreement;
     2. who are informed of the nondisclosure obligations imposed by this Agreement; and
     3. who are parties to appropriate confidentiality agreements sufficient to comply with the obligations imposed by this Agreement.
     The receiving party shall use at least the same degree of care it takes to protect the confidentiality of the disclosing party’s Confidential Information that the receiving party normally exercises with respect to its own Confidential Information, but in no event shall the receiving party use less than its reasonable efforts to protect the confidentiality of the disclosing party’s Confidential Information.
  3. Confidential Information shall not include any information which:
     1. is now or hereafter becomes available to the public through no wrongful actions of the receiving party;
     2. is known to, or in the possession of, the receiving party before its disclosure hereunder, as demonstrated by documented evidence;
     3. is disclosed to the receiving party by a third party not under any obligation of secrecy or confidentiality to the disclosing party;
     4. can be shown by written evidence was independently developed by the receiving party; or
     5. the receiving party is required by law to disclose; provided, however, in that instance, that the receiving party provides the disclosing party with sufficient prior notice for the disclosing party to take any legal or other steps it deems necessary to protect its Confidential Information.
     The provisions of this Clause 11.7 will remain binding and in full force and effect, notwithstanding the expiration or termination of this Agreement at any time.
• 11.8   Notwithstanding the provisions of Clause 11.7, either party may publicise the existence of the Agreement between them, but the terms of the Agreement shall remain confidential.

12    Miscellaneous

• 12.1   Amendments and Waivers
  Any term of this Agreement may be amended or waived only with the written consent of the Parties or their respective successors and assigns. The waiver of any particular breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
• 12.2   Assignment
  This Agreement may not be assigned without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement, in whole or in part, to its parent or any of its affiliates in which it has greater than fifty percent (50%) ownership or to any successors to substantially all of that part of its business to which this Agreement relates. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the Parties. Nothing in this Agreement, express or implied, is intended to confer upon any Party other than the Parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
• 12.3   Independent Contractor
  Neither Party shall for any purpose be deemed to be an agent of the other Party and the relationship between the Parties shall only be that of independent contractors. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
• 12.4   Notices
  1. All communications between the Parties about the Agreement must, unless stated otherwise, be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission to the recipients at the addresses set out below:
     1. Hostelworld.com Ltd
        Attn: Nell Ward
        Address: Charlemont Exchange
        Charlemont Street
        Dublin 2
        Ireland
        
        Fax: +353 1 498 0715
        Email: nell.ward@webresint.com
        
        with a copy to: The Company Secretary
        Hostelworld.com Ltd
        Charlemont Exchange
        Charlemont Street
        Dublin 2
        Ireland
        
     2. Affiliate
        Attn: [ ]
        Address: [ ]
        Fax: [ ]
        Email: [ ]
        
        with a copy to: [ ]
  2. Communications shall be deemed to have been received:
     1. if sent by pre-paid first class post, two (2) Business Days after posting (exclusive of the day of posting);
     2. if delivered by hand, on the day of delivery; and
     3. if sent by facsimile, on the date of successful transmission if that day is a Business Day, or where the time of successful transmission is after 4.30 p.m. or is not on a Business Day, the notice will be deemed to have been received by 10 a.m. on the next Business Day. In each case, provided that a confirmatory copy is sent by first class post on the date of transmission
• 12.5   Counterparts
  This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
• 12.6   Governing Law
  This Agreement shall be governed by and construed in accordance with the laws of Ireland. Each of the Parties hereby agrees that the courts of Ireland shall have jurisdiction to hear and determine any suit, action or proceedings that may arise out of or in connection with this Agreement and for such purposes irrevocably submits to the jurisdiction of such courts
• 12.7   Invalidity
  If any provision of this Agreement is or becomes (whether or not pursuant to any judgment or otherwise) invalid, illegal or unenforceable in any respect under the law of any jurisdiction:
  1. the validity, legality and enforceability under the law of that jurisdiction of any other provision; and
  2. the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision, shall not be affected or impaired in any way.
  In any of the circumstances described in this clause 12.7, the Parties shall meet to discuss the void and unenforceable provisions and shall substitute it with a lawful and enforceable provision which so far as possible results in the same economic effects.
• 12.8   Force Majeure
  Neither Party shall be liable to the other in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely circumstances beyond the control of either Party which shall include (but not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, embargo, riots, labour strikes, civil commotion or civil authority including acts of local government and parliamentary authority, provided that, if any force majeure event shall continue for more than six months, either Party may terminate this Agreement immediately.
• 12.9   Surviving Obligations
  All obligations under this Agreement which by their nature would continue beyond the termination and /or expiration of this Agreement shall survive such termination and/or cancellation.
• 12.10   Entire Agreement
  This Agreement is the product of both of the Parties hereto, and constitutes the entire agreement between such Parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the Parties with regard to the transactions contemplated herein.
  Any and all other written or oral agreements existing between the Parties hereto regarding such transactions are expressly cancelled. However, the following attachments form part of this Agreement:
  1. APPENDIX II: Hostelworld.com Ltd XML API Developers Guide

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