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III: Terms and Conditions
Affiliate Terms and Conditions
“Agreement” means (i) all the terms and conditions set out in this document, (ii) the terms and conditions of the Commission Structures applicable to the products, (iii) any other rules and/or guidelines of the Company and/or the Website made known to the Affiliate from time to time.
“Affiliate” means you, the person or entity, who applies to participate in the Affiliate Program or is invited to participate by being given a Unique Affiliate Code and actively distributes it.
“Affiliate Application” means the application form found at [ ] whereby the Affiliate applies to participate in the Affiliate Program
“Affiliate Program” means the collaboration between the Company and the Affiliate whereby the Affiliate will promote the Holiday rentals Website and create the Links from the Affiliate Website(s) to the Seaside Apartments Malta Site and thereby be paid a commission as defined under this Agreement depending on the traffic generated to the Website subject to the terms and conditions of this Agreement and to the applicable Commission Structure.
“Affiliate Website(s)” means one or more websites on the Internet which are maintained and operated by the Affiliate.
“Affiliate Coupon Code” – A Unique Code given to an affiliate to promote the website in order to give the customer a discount while also tagging that customer to the affiliate.”
“Seaside Apartments Malta” means the trading name of the Company and any related group company responsible for the operational activities of the Seaside Apartments Malta Website.
“Website” means the website with domain name www.seasideapartmentsmalta.com
“Commission” means the percentage of the Net Revenue as set out in the Website Commission Structure.
“Company” means Elinks Services Company Ltd. a company incorporated in Malta, with its registered address “ 2 Triq il Frawli Attard ATD 1811 Malta Europe, company registration number C67027.
“Confidential Information” means any information of commercial or essential value for any of the Parties such as, but without limitation, financial reports and condition, trade secrets, know-how, prices, business information, products, strategies, databases, information about New Customers, other customers and users of Seaside Apartments Malta Website, technology, marketing plans and manners of operation.
“Intellectual Property Rights” means any copyrights, patents, trademarks, service marks, inventions, domain names, brands, business names, utility brands, rights in computer software, source codes, rights in databases and know-how, design rights, Confidential Information, registrations of the aforesaid and/or any other rights in the nature of the aforesaid.
“Links” means Internet hyperlinks from the Affiliate Website(s) to the Seaside Apartments Malta Website.
“Net Revenue” means in relation to Holiday Rentals: all monies received by Seaside Apartments Malta from New Customers in relation to holiday rentals activities less (a) Cleaning Fees (b) Discounts, bonuses and/or loyalty bonuses, (c) administration fees, (d) fraud costs, (e) charge-backs, (f) refunds (g) VAT and Eco- contribution Tax (g) Credit Card processing fees
For the avoidance of doubt, all amounts referred to above are only in relation amounts generated from New Customers referred to the Website by the Affiliate Website(s) or the Coupon Code Affiliate/s.
“New Customer” means a new first time customer of the Company who:
(a) has effected a reservation on the website directly after having been referred from the Affiliate by means of a Coupon Code or through an affiliate website; but excluding the Affiliate, or any other travelling party in that reservation and is not already in Seaside Apartments Malta customer database
“Parties” means the Company and the Affiliate (each a “Party”).
1.1 The Company is responsible for the marketing services of the Seaside Apartments Malta activities offered through the Website.
1.2 The Affiliate maintains and operates the Affiliate Website(s).
1.3 This Agreement sets out the general terms and conditions of the Affiliate Program and is entered into between the Company and the Affiliate.
1.4 By completing and accepting the Affiliate Application the Affiliate accepts, and agrees to abide by, all the terms and conditions of the Agreement.
1.5 This Agreement shall be binding on the Affiliate once the Affiliate Application has been submitted but shall not be binding or enter into effect in relation to the Company until the Company approves the Affiliate Application.
- Acceptance of Affiliate
The Company shall evaluate the Affiliate Application hereby submitted and shall notify the Affiliate in writing (via email) whether the Affiliate Application is accepted or not. The Company reserves the right to refuse any registration in its sole and absolute discretion.
- Qualifying Conditions
The Affiliate hereby represents and warrants that:
(a) it has, and will retain throughout the term of this Agreement, title and authority to enter into this Agreement, to grant the rights and perform all its obligations in this Agreement;
(b) it has obtained and will maintain in force all necessary registrations, authorizations, consents necessary to fulfill its obligations under this Agreement; and
(c) it fully understands and accepts the terms and conditions of this Agreement.
- Responsibilities and Obligations of the Company
4.1 Upon conclusion of the Agreement, a unique tracking code/affiliate Coupon Code is assigned to the Affiliate, and the Affiliate is integrated in the technical platform of the Seaside Apartments Malta Website. By means of the tracking code New Customers acquired via the Link(s) on the Affiliate Website and the reservations placed during such sessions are registered and/or can be tracked.
4.2 The Company shall provide the Affiliate with all information and marketing material necessary for the implementation of the Links.
4.3 The Company shall administrate the turnover generated via the Links, record the net revenues and the total amount of commission earned via the Links, provide the Affiliate with commission statistics, and handle all customer services related to the business of the Company. A unique tracking identification code will be assigned to all New Customers.
4.4 The Company shall pay the Affiliate its compensation depending on the traffic generated subject to the terms and conditions of this Agreement.
- Company’s Rights to refuse or close accounts and applicants
5.1 The Company may refuse any applicant New Customer or reservation if it in sole opinion of the Company is necessary to comply with Elinks Services Company Ltd.’s policy and/or to protect the interest of the Company.
5.2 The Company may refuse any applicant Affiliate and/or may close any Affiliate’s account if it in the sole opinion of the Company is necessary to comply with Elinks Services Company Ltd’s policy and/or to protect it’s interest. If the Affiliate is in breach of this Agreement the Company may besides closing the Affiliate’s account take any other steps at law to protect its interest.
- Responsibilities and Obligations of the Affiliate
6.1 The Affiliate hereby warrants and undertakes:
(a) to use its best efforts to actively and effectively advertise, market and promote Seaside Apartments Malta Website as widely as possible in order to maximize the benefit to the Parties and that it will abide with the guidelines of the Company as may be forwarded from time to time and/or accessible online;
(b) to market and refer potential players to the the website at its own risk, cost and expense. The Affiliate will be solely responsible for the distribution, content, legality and manners of its marketing activities. All of the Affiliate’s marketing activities must be professional, proper and lawful under applicable laws and regulations and in accordance with this Agreement;
(c) to use only links provided within the scope of the Affiliate Program; and
(d) to be responsible for the development, the operation, and the maintenance of the Affiliate Website(s) as well as for all material appearing on the Affiliate Website(s).
6.2 The Affiliate hereby undertakes, represents and warrants that:
(a) it will not perform any act, and that the Affiliate Website(s) neither does nor will contain any material, which is libelous, discriminatory, obscene, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent materials;
(b) it will not target any person who is vulnerable or with known credit control issues
(c) that it will not generate traffic to Seaside Apartments Malta Website by illegal or fraudulent activity, particularly but not limited to by:
(i) sending spam;
(ii) Making a reservation directly or encourage potential customers to sign up as affiliates for their own personal use and/or the use of its relatives, friends or other third parties, or in any other way attempt to artificially increase the commission payable or to otherwise defraud Seaside Apartments Malta. Violation of this provision shall be deemed to be fraud;
(iii) that it will not present the Affiliate Website(s) in such a way that it might evoke any risk of confusion with the authentic Seaside Apartments Malta Website and/or the Company or convey the impression that the Affiliate Website(s) is partly or fully originated with/from the main Website and/or the Company.
(f) subject to the marketing material as may be forwarded by the Company and/or made available online through the website, the Affiliate may not use “Seasideapartmentsmalta.com” or other terms, brands keywords, similar domains, trademarks and other Intellectual Property Rights of the Company or its group companies unless the Company consents to such use in writing.
6.3 The Company reserves the right to freeze the Affiliates account and/or deduct money from the Affiliate if any traffic is deemed to have been referred through fraudulent means or in breach of the terms and conditions of the Agreement.
7.1 The Company agrees to pay the Affiliate the Commission. The Commission shall be deemed to be inclusive of value added tax or any other applicable tax. The Affiliate shall be entitled to receive the Commission exclusively in respect of New Customers. A Commission is due only in cases where the full reservation payment has been received. For this to occur, a Credit Card must be valid, accessible and has funds for the company to process. The credit card should be valid until after the period of stay. In case of cancellations, no commission is due.
7.2 The Commission is calculated at the end of each month and payments shall be made by the 15th of the following calendar month, provided that the amount due exceeds €50 or higher. If the balance due is less than the Minimum Threshold, it shall be accumulated and carried over to the following month and shall be payable when the total Commissions collectively exceeds the Minimum Threshold.
7.3 Payment of Commissions shall be made in accordance with the payment method chosen by the Affiliate in the Affiliate Application. If an error is made in the calculation of the Commission, the Company reserves the right to correct such calculation at any time and will immediately pay out underpayment or reclaim overpayment made to the Affiliate.
7.4 The Affiliate’s acceptance of the payment of the Commission shall be deemed to constitute the full and final settlement of the balance due for the relevant period.
7.5 If the Affiliate disagrees with the balance due as reported, it shall notify the Company within thirty (30) days from the date of payment and state the reasons of the disagreement. Failure to notify the Company within the prescribed time limit shall be deemed to be considered as an irrevocable acknowledgment of the balance due for the period indicated.
7.6 The Company may in its sole discretion withhold the payment of any balance to the Affiliate for up to one hundred-and-eighty (180) days if the Company needs to investigate and verify that the relevant transactions comply with the provisions of the Agreement.
. In order to pay out the commission, at first instance the affiliate should produce a copy of his identification that should match the signup form.
7.7 No payment shall be due if the Company has reasons to believe that the traffic generated by the Affiliate is illegal or is in breach of any of the provisions of the Agreement.
7.8 The Affiliate agrees to return all Commissions received based on fraudulent or falsified transactions and indemnify the Company for all costs and losses incurred in relation to such transactions (including, but without limitation, legal fees and costs).
7.9 The Company reserves the right to set limits for a minimum level of activity on Affiliate’s accounts. Such minimum activity levels will be continuously reviewed and the Company reserves the right to terminate any agreement not reaching the limit. Such limit shall not be unreasonably high and basically reflect the intention of avoiding accounts where the revenue does not cover the Company’s internal costs for maintaining the account and the payout procedure.
7.10 The Affiliate shall have the sole responsibility to pay any and all taxes, levies, fees, charges and any other money payable or due both locally and abroad (if any) to any tax authority, department or other competent entity as a result of the compensation generated under this Agreement. The Company shall under no circumstances whatsoever be held liable for any such amounts unpaid but found to be due by the Affiliate and the Affiliate shall indemnify the Company in that regard.
- Affiliate Website(s) and the Links
8.1 The Affiliate expressly acknowledges and agrees that the use of the Internet and the Affiliate Program is at the Affiliate’s own risk. The Company makes no guarantee in relation to the accessibility of Seaside Apartments Malta Website at any particular time or any particular location. The Company shall in no event be liable to the Affiliate or anyone else for any inaccuracy, error or omission in, or loss, injury or damage caused in whole or in part by failures, delays or interruptions of, the Website or the Affiliate Program.
8.2 During the term of this Agreement, the Links shall be prominently displayed on the Affiliate Website(s) in accordance with what is agreed between the Company and the Affiliate.
8.3 The Company has the right to monitor the Affiliate Website(s) in order to ensure the Affiliate’s compliance with the terms and conditions of this Agreement and the Affiliate shall provide the Company with all data reasonably requested in order to perform such monitoring.
8.4 The Affiliate shall not register or purchase domain names, keywords, search terms or other identifiers for use in advertising or search or referral services which are similar or identical with the trademarks of the Company and its group companies or which include the word “Seaside Apartments Malta” or variations thereof.
8.5 The Affiliate shall not take any action which could cause any confusion as to the Company’s or the Website’s relationship with the Affiliate and the Affiliate Website(s).
8.6 The Affiliate shall at all times comply with the Maltese Data Protection Act (as applicable from time to time), the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any other similar legislation. For example, the Affiliate shall always inform its users that tracking technology will be installed on the users hard drive when the user clicks on the Links and provide the user with an option to reject such installation.
9.1 This Agreement may be terminated by either Party by giving thirty (30) days written (by email) notice to the other Party, provided that this Agreement shall be automatically terminated in the event that Seaside Apartments Malta is precluded from offering holiday rentals to customers through the Website.
9.2 The Parties hereby agree that on termination of this Agreement:
(a) the Affiliate must remove all references to Seaside Apartments Malta Website from the Affiliate Website(s) and communications, irrespective of whether the communications are commercial or otherwise;
(b) all rights granted to the Affiliate under this Agreement shall immediately terminate and the Affiliate shall cease the use of any and all trademarks, service marks, logos and other designations vested in the Company and the Website;
(c) the Affiliate will only be entitled to such Commission that is earned but unpaid as of the effective termination date of this Agreement; however provided that the Company may withhold the Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid. The Affiliate will not be eligible to earn or receive Commissions after the effective termination date;
(d) if this Agreement is terminated by the Company due to the Affiliate’s breach of any terms and conditions of this Agreement, the Company shall be entitled to withhold the Affiliate’s earned but unpaid Commissions as of the termination date as collateral for any claim arising from such breach;
(e) the Affiliate must return to the Company any and all Confidential Information (and all copies and derivations thereof) in the Affiliate’s possession, custody and control; and
(f) the Affiliate will release the Company from all obligations and liabilities occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination. Termination will not relieve the Affiliate from any liability arising from any breach of this Agreement, which occurred prior to termination and/or to any liability arising from any breach in relation to Confidential Information even if the breach arises at a time following the termination of this Agreement.
- Liabilities and Indemnification
10.1 The Company shall not be liable (in contract, tort, for breach of statutory duty or in any other way) for:
(a) any economic losses, including but without limitation, loss of profits, revenues, business, contracts or anticipated savings);
(b) any indirect or consequential losses; or
(c) any loss of goodwill or reputation.
10.2 The Affiliate agrees to defend, indemnify and hold the Company and its group companies/affiliates, successors, officers, employees, agents, directors, shareholders and attorneys, free and harmless from and against any and all claims and liabilities, including reasonable legal and expert fees, related to or arising from:
- a)any breach of Affiliate’s representations, warranties or obligations under this Agreement;
b)Affiliate’s use (or misuse) of the marketing material and the Company’s and/or its group companies’ Intellectual Property Rights;
c) all conduct and activities occurring under Affiliate’s user ID and password;
d) any defamatory, libelous or illegal material contained on the Affiliate Website(s) or Affiliate’s information and data;
e) any claim or contention that the Affiliate Website(s) or the Affiliate’s information and data infringes any third party’s patent, copyright, trademark, or other intellectual property rights or violates any third party’s rights of privacy or publicity;
f) third party access or use of the Affiliate Website(s) or the Affiliate’s information and data;
g) any claim related to Affiliate Website(s) or the Links; and
h) any violation of this Agreement or any applicable laws.
10.3 The Company and its group companies reserves the rights to participate, at its own expense, in the defense of any matter or claim in relation to the above.
11.1 All Confidential Information shall be treated confidential must not be used for own commercial or other purposes or shared to any person or third party neither direct nor indirectly without the prior explicit and written consent of the Company.
11.2 The Affiliate shall not to use the Confidential Information for any purpose other than the performance of its obligations under this Agreement.
11.3 This clause 11 shall survive the termination of this Agreement.
- Intellectual Property
12.1 Nothing contained in this Agreement will grant either Party any right, title to or interest in the Intellectual Property Rights of the other Party. For the avoidance of doubt, nothing in this Agreement shall constitute any license, assignment, transfer or any other right to any Intellectual Property Rights.
12.2 All Intellectual Property Rights created and/or deriving from this Agreement, (including, but without limitation, advertising materials, databases and personal data) shall be and become the sole property of the Company without any rights to the Affiliate.
12.3 At no time during or after the term of this Agreement shall a Party attempt, challenge, assist or allow others to challenge or to register or attempt to register the Intellectual Property Rights or any rights similar to the Intellectual Property Rights of the other Party or of any group companies of the other Party.
- Relationship of the Parties
13.1 Nothing contained in this Agreement, nor any action taken by any Party to this Agreement, shall be deemed to constitute either Party (or any of such Party’s employees, agents, or representatives) as an employee, agent or legal representative of the other Party, nor to create any partnership, joint venture, association or syndication among or between the Parties, nor to confer on either Party any express or implied right, power or authority to enter into any agreement, commitment or to impose any obligation on behalf of the other Party.
14.1 In case of any discrepancy between the meanings of the English version of this Agreement and any non-English translation of this Agreement, the English version shall prevail.
14.2 Should one of the contractual provisions in this Agreement be or become invalid or unenforceable, such provision will be replaced by one which shall come as close as possible to the commercial purpose of the void provision. All other provisions of this Agreement shall continue in full force and effect.
14.3 No waiver in relation to this Agreement will be implied from conduct or failure to enforce any rights and all waivers must be in writing to be effective.
14.4 Any notice given or made under this Agreement to the Company shall be sent by email to and marked for the attention of the Affiliate Manager of Seaside Apartments Malta Website unless otherwise notified by the Company. The Company shall send all notices by email to the email address supplied by the Affiliate in the Affiliate Application.
14.5 The Affiliate may not assign this Agreement or any rights hereunder, by operation of law or otherwise, without the prior written consent of the Company. The Company may assign this Agreement and all its rights hereunder to any group company or third party.
14.6 The Company’s failure to enforce the Affiliate’s adherence to all terms outlined in the Agreement shall not be construed to constitute a waiver of the right to enforce such right.
14.7 The Company and the Affiliate will work in close cooperation at all times for the mutual benefit of making the Affiliate Program a successful collaboration.
14.8 Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from a cause beyond its reasonable control, including but not limited to labour disputes, strikes, industrial disturbances, acts of God, acts of terrorism, floods, lightning, utility or communications failures, earthquakes or other casualty. If such event occurs, the non-performing Party is excused from whatever performance is prevented by the event to the extent prevented provided that if the force majeure event subsists for a period exceeding thirty (30) days then either Party may terminate this Agreement with immediate effect by providing a written notice.
- Amendments to this Agreement
15.1 The Company reserves the right to, at any time and at its sole discretion, with or without giving any prior notice to the Affiliate, amend, alter, delete or add any of the provisions of this Agreement. If applicable, a written notice of the amendments will be sent to the Affiliate’s registered email address and such notice will be deemed to be served once sent by the Company. The Affiliate’s continuing participation in the Affiliate Program after any amendments or modifications have been made public will be deemed as the Affiliate’s tance of the new terms and conditions.
- Governing Law & Jurisdictions
The validity, construction and performance of this Agreement and any claim, dispute or matter arising under or in connection to this Agreement or its enforceability shall be governed and construed in accordance with the laws of Malta. Each Party irrevocably submits to the Malta Arbitration Centre, Malta, over any claim, dispute or matter under or in connection with this Agreement and/or its enforceability.
- Commission Structures
17.1 Holiday Rental Commission Structure calculated on a monthly basis:
|10% of Net Revenue and 5% for the customer on Standard and Early bird Rates.|