Lonely Planet Affiliate Agreement

THIS PUBLISHER AFFLIATE AGREEMENT (“Agreement”) SETS OUT THE TERMS THAT APPLY TO THE AD UNITS PROVIDED BY LONELY PLANET.  REFERENCES TO “YOU”, “YOUR” OR “CLIENT” MEANS YOU AND THE COMPANY YOU REPRESENT.  ALL REFERENCES TO “LONELY PLANET”, “OUR”, OR “US” MEAN LONELY PLANET GLOBAL, INC. AND ITS AFFILIATED COMPANIES.  LONELY PLANET AND CLIENT ARE EACH A “PARTY” AND COLLECTIVELY, THE “PARTIES'.”  THIS IS A LEGAL AGREEMENT BETWEEN CLIENT AND LONELY PLANET WHICH TAKES EFFECT ON THE DATE THE TERMS HEREIN ARE ACCEPTED BY CLIENT (“Effective Date”).

Background

Lonely Planet operates an advertising network and technology platform, and Lonely Planet creates content, widgets, and other tools regarding a variety of travel related topics.  Lonely Planet has relationships with many Third-Party Advertisers that advertise their products and services on Lonely Planet’s content, widgets, and other tools.  Lonely Planet also manages Third Party Advertisers’ ads on other companies’ websites and mobile applications, like Your websites and mobile applications.

You are a publisher that owns and operates one or more websites or mobile applications, and You wish to incorporate ad(s) for products or services and the related software code, algorithms, documentation, ad or marketing copy, trademarks, visual and audio assets, and other ad content (collectively the “Ad Units”) onto Your websites, mobile applications or emails, and in exchange, Lonely Planet will pay You a fee as detailed in this Agreement (the “Program”).  Ad Units may also include editorial content (e.g., an article regarding maximizing credit card points or product and service reviews), which content is owned by or licensed to Lonely Planet or the Third-Party Advertiser.

Terms and Conditions

1. Overview

1.01         Lonely Planet’s Consideration 

(A) Lonely Planet will provide one or more Ad Units for Your use on Your Assets. Your Assets are the websites, mobile applications, underlying pages, and emails that You own or have all necessary rights to manage, operate, or control. Lonely Planet may also provide You implementation instructions for the Ad Units.  Lonely Planet may make the Ad Units and other information available to You through an on-line management portal.

(B) Lonely Planet will, itself or through a third party, track information and data that will allow Lonely Planet to: calculate the Ad Revenue; monitor the Ad Units; and improve the Ad Units and Lonely Planet’s services.  Ad Revenue is the revenue that Lonely Planet is actually paid directly as a result from the Ad Units published on Your Assets, less any applicable federal, state, and local taxes, and other similar payments Lonely Planet is legally required to withhold

(C) Lonely Planet will ensure that the Ad Units are working properly and fix Ad Unit problems within a reasonable time. You will support Lonely Planet’s efforts to correct the problem. However, Lonely Planet will not be liable for any problems (operational, reporting or otherwise) because of Your actions or omissions related to the Ad Units. 

1.02 Your Consideration

(A) You will implement one or more Ad Units into one or more of the Assets, and You will follow Lonely Planet’s implementation instructions, if any.

(B)            You promise not to directly or through a third party:

(1) take any action that impacts an Ad Unit’s functionality without Lonely Planet’s prior approval.

(2) change an Ad Unit in any manner; reverse engineer, decompile, or disassemble any part of an Ad Unit; attempt to discover any proprietary or confidential information about an Ad Unit; convert an Ad Unit into a human-readable form; or create derivative works of any part of an Ad Unit.

(3) take any action that might cause an Ad Unit to fail to comply with the Federal Trade Commission’s Disclosure Guidelines.

(4) use the Ad Units in any manner that could constitute an expressed or implied endorsement of any products, services, activities, or brands contained on Your Assets or Your Content (which is an article, photography, graphic, others visual, audio, or written asset owned or licensed by You) Your Content.

(5) transfer in any manner any right to an Ad Unit to any other party.

(6) copy or store any information in any manner arising from or relating to an Ad Unit.

(C) You promise not to directly or through a third party use an Ad Unit on an Asset or with YourYour Content (if You use an Ad Unit with Your Content) that:

(1) violates any applicable law, Your privacy policy, or Your website terms.

(2) violates a third party’s right (including infringement of any third party’s intellectual property; is defamatory; violates a confidentiality promise or privacy right; lacks necessary authorizations).

(3) is inappropriate given Lonely Planet’s business (e.g., the content is obscene; promotes illegal behavior, violence, hatred, or discrimination).

(4) disparages Lonely Planet’s or Third-Party Advertiser’s business in any way.

1.03         Approved Use of Ad Units

(A) Before You may use an Ad Unit, Lonely Planet must approve: (1) the Asset on which You wish to implement the Ad Unit; (2) the Ad Unit’s implementation and placement on the approved Asset; and (3) the Your Content if the Ad Unit is used with Your Content.  For clarity, Lonely Planet prohibits the placement of Ad Units on all other websites, mobile applications, or other medium, even if such websites, mobile applications, or mediums are associated with an approved Asset.  In other words, approval of Your website does not give You a right to use the Ad Unit on a social media website associated with the approved website or email campaign related to the approved website, without prior approval by Us.

(B) You agree to notify Lonely Planet of any material changes to Your Assets or Your Content (including Your T&Cs, Your privacy policy, You redesign Your Asset, or You change the Ad Unit placement) within 24 hours of the change. Lonely Planet may request You to make certain changes to Your Asset or Your Content.  Lonely Planet reserves the right to suspend or terminate Your use of the Ad Units if this Section is violated.

1.04 Changes, Suspension, Removal, or Termination of Ad Units 

(A) Lonely Planet may change or eliminate an Ad Unit at any time in Our sole discretion.  Lonely Planet will notify you of material Ad Unit changes via email or notice in the on-line management portal.  You may suspend use of the Ad Units or terminate this Agreement in accordance with Section 6 if You disagree with the change.  You will be deemed to have accepted the change if You continue to participate in the Program for a reasonable time following the change.

(B) Lonely Planet may itself or Lonely Planet may require You to immediately suspend or terminate the use of the Ad Units on the Assets or immediately remove the Ad Units from the Assets for cause or no cause. 

2. Revenue Share

2.01 Revenue Share Split.  Your Revenue Share will equal 70% of Lonely Planet’s Ad Revenue, which Lonely Planet receives from a Third-Party Advertiser, arising from an Ad Unit published on Your Asset.

2.02 Conditions & Limitations

(A) Lonely Planet is only required to pay Your Revenue Share if all the following conditions are fully satisfied: (1) Lonely Planet is actually paid the Ad Revenue; and (2) the Ad Revenue directly arose from an individual engaging with the Ad Unit that was included in and published on Your Asset.  For clarity, You will not receive any Revenue Share if the Ad Unit is also published on another location, the consumer clicked on that link and Lonely Planet received a fee related to that consumer’s action.

(B) Lonely Planet is not obligated to pay You any Revenue Share because of Your actions or omissions related to the Ad Units.

(C) You will not receive a Revenue Share of Ad Revenue if Lonely Planet believes, in its sole discretion, that the Ad Revenue is the result of any means that does not represent a genuine desire by an individual to acquire the advertised product or service).  You will take reasonable steps to prevent such activity, and You will cooperate with Lonely Planet with its investigation, such as providing Lonely Planet with access to Your access logs and other similar information if You can legally and contractually share such information.

(D) You will not receive a Revenue Share arising from Ad Units placed on Assets, mobile applications, or other medium that Lonely Planet did not approve or from Ad Units not placed not in accordance with this Agreement’s terms.

2.03   Payment & Reporting

(A) Within 30 days after the end of the month, Lonely Planet will: (1) calculate Your Revenue Share; (2) pay You the Revenue Share that was earned and owed; and (3) provide You or make available a reasonably detailed report supporting the calculated Revenue Share.

(B) Lonely Planet will only send payments to You if Your Revenue Share exceeds $25.

(C) Lonely Planet will, itself or through a third party, retain Ad Revenue data related to Your Revenue Share calculation for at least a rolling 12-month period.

(D) You may be granted access to an on-line management portal that will allow You to monitor the Ad Units, tracking, and other information.  But the information and data contained in the on-line management portal is not final; is subject to change; and may include income that is not Ad Revenue.

(E) In the event of a dispute regarding the calculation of You Revenue Share, only Lonely Planet’s (or its third party’s) tracking information, data, records, and reports will control the calculation of Your Revenue Share.

2.04 Taxes. You are fully responsible for Your own taxes and other similar payments resulting from Your Revenue Share. However, Lonely Planet will withhold or charge taxes and other similar payments when applicable or legally required.

2.05 Overpayment.  Lonely Planet will notify You if Lonely Planet discovers a Revenue Share overpayment to You.  After that notice, Lonely Planet may reduce Your future Revenue Share until it recovers the Revenue Share overpayment. Nothing in this Section 2.06 limits or waives any other rights, remedies, or claims Lonely Planet may have against You. 

3. No Guarantees & Disclaimers.  Lonely Planet does not promise or guarantee Revenue Share You may (or may not) receive under this Agreement. You do not promise or guarantee the number of impressions or traffic that may (or may not) occur on Your Assets. Neither party may rely on any promise/statement about the services provided under this Agreement, the Ad Units, the Revenue Share, or this Agreement in the future, unless such promise/statement is documented in this Agreement or an amendment to this Agreement.

4. Representations & Warranties

4.01 Lonely Planet’s representations and warranties. Lonely Planet represents and warrants that:

(A) Lonely Planet will comply with all applicable law, its privacy policy, and its website terms in connection with the services it is providing You under this Agreement.

(B) Lonely Planet owns the Ad Units (including, but not limited to, the Intellectual Property in the Ad Units), or Lonely Planet has all necessary rights and authority to grant You the right to use the Ad Units as detailed in this Agreement.

(C) Lonely Planet’s Ad Units, including the content contained in its Ad Units, will not infringe any third party’s rights, including, but not limited to a third party’s Intellectual Property rights, privacy rights, and rights against defamation.

(D) Lonely Planet has all necessary rights and authority to take the actions detailed in this Agreement, and enter, fully perform, and be fully bound by this Agreement.

4.02 Your representations and warranties. You represent and warrant that:

(A) You will comply with all applicable laws, Your privacy policy, and Your website terms in connection with Your use of the Ad Units on Your Assets.

(B) You own the Assets and Your Content (including, but not limited to the Intellectual Property in the Assets and Your Content), or You have all necessary rights and authority to use the Assets and Your Content detailed in this Agreement.

(C) the Assets, including the content contained in the Assets, will not infringe any third party’s rights, including, but not limited to a third party’s Intellectual Property rights, privacy rights, and rights against defamation.

(D) You have all necessary rights and authority to take the actions detailed in this Agreement, and enter, fully perform, and be fully bound by this Agreement.

(E) all the information provided by You to Lonely Planet in connection with the Program and this Agreement is true and current.

5. Term and Termination

5.01 Term.  This Agreement takes effect on the Effective Date and terminates on the Agreement’s one (1) year anniversary (the “Initial Term”). After the Initial Term, this Agreement automatically renews for successive one-year periods (the “Renewal Term”), unless either party provides the other party with written notice at least 60 days before the end of the Term of that party’s intention not to renew the Agreement. In such event, the Agreement will terminate at the end of the then current Term.  The Initial Term and each Renewal term are collectively referred to as the Term.

5.02 Termination

(A) Your termination rights before the end of the Term.  You may terminate this Agreement with 60-days’ notice if Lonely Planet breaches the Agreement and Lonely Planet fails to fix the breach within that time frame or fails to provide You within that timeframe with a reasonable plan to fix the breach if the solution requires more than 60 days.

(B) Lonely Planet’s termination rights before the end of the Term. Lonely Planet may terminate this Agreement at any time and for any reason. In that event, Lonely Planet must provide You with notice of its decision to terminate in writing in any form.  The Agreement will terminate 24 hours after the date You receive Lonely Planet’s termination notice.

5.03 Effects of Termination

(A) Lonely Planet will pay You all Your Revenue Share that was earned before the termination date but not paid before the termination date. Lonely Planet will make final payments in accordance with its normal payment practices outlined in Section 2.

(B) Upon termination, Lonely Planet may itself or Lonely Planet may require You to immediately remove the Ad Units from Your Assets.

(C) Neither Party may enforce any right, duty, or other provision contained in this Agreement against the other party once this Agreement terminates. However, both parties’ indemnity obligation, limitation of liability, and confidentiality obligations survive termination (i.e., Sections 8, 9, and 10), and Your audit right survives termination (i.e., Section 2.05).

6. Ownership, Licenses, and Data

6.01 Ownership. Except as detailed otherwise herein: Lonely Planet exclusively owns and retains every right, title, and interest in and to the Ad Units (including, but not limited to, the Intellectual Property in the Ad Units); and You exclusively own and retain every right, title, and interest in and to Your Assets and Your Content (including, but not limited to the Intellectual Property in Your Assets and Your Content).

6.02 Licenses

(A) License to the Ad Units. Lonely Planet grants to You a limited right and license to use the Ad Units only in connection with Your Assets and the Your Content on Your Assets.

(B) License to Your Trademark. You grant to Lonely Planet and its subsidiaries and affiliates the right and license to use Your name, logo, trademarks, and certain statistics arising from the Program only in connection with marketing materials for advertisers and other business partners; customer lists; financial reports; and its websites.  You agree to provide Lonely Planet with a logo or other trademark to be used in conjunction with these activities.

(C) License to Interact with Your Assets. You grant Lonely Planet and its subsidiaries and affiliates the right and license to use and interact with the Assets and Your Content that use the Ad Units to provide the services detailed in this Agreement; and use, interact with, and collect and store data related to the Program and users’ interaction with the Assets and Your Content that use the Ad Units. Lonely Planet will use software tools in connection with these activities.

6.03 Data ownership and use. During and after the Term, Lonely Planet and its subsidiaries and affiliates own (and may use as in any manner allowed by applicable law and consistent with its Privacy Policy) the data collected related to the Program and from users’ interaction with the Assets or Your Content that use the Ad Units following the termination of this Agreement. However, nothing in this Section transfers any ownership interest to Your Asset, Your Content, or Your Intellectual Property in Your Asset or Your Content. Lonely Planet will post its privacy policy alongside its Ad Units and Assets where required by Law.

7. Indemnification

7.01 Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other party and its affiliates, and each of their respective directors, officers, shareholders, employees and agents (the “Indemnified Party”) from and against losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, that are incurred by member(s) of the Indemnified Party (collectively, "Losses"), arising out of any third-party claim alleging: (1) a material breach of this Agreement; (2) the acts, errors or omissions of the Indemnifying Party or any of its officers, directors, employees, agents; or (3) fraud, willful misconduct, gross negligence or criminal acts.

7.02 Lonely Planet Indemnification of You. Lonely Planet will indemnify and defend the Your Indemnified Party(ies) arising out of any third-party claim alleging Losses: (A) that the Ad Unit violated the third party’s Intellectual Property; or (B) Lonely Planet’s use of the data it collects related to the Program.

7.03 Your Indemnification of Lonely Planet. You will indemnify and defend the Indemnified Party(ies)for all Losses arising out of any third-party claim alleging that the Assets or Your Content violated the third party’s Intellectual Property.

7.04 The Parties will follow the following indemnification procedures: (1) the Indemnified Party will provide the Indemnifying Party with prompt notice of any claim for which indemnification is sought, except that failure to provide such notice will not excuse the Indemnifying Party’s indemnification obligations under this Section; (2) the Indemnified Party will permit the Indemnifying Party to assume and control the defense of such claim, with counsel chosen by the Indemnifying Party (for which written consent is not required so long as no financial or material burden is imposed on the Indemnified Party); (3) cooperating and, at the Indemnifying Party’s request and reasonable expense, assisting in a timely manner in such defense; (4) the Indemnifying Party will pay any and all costs, damages and expenses, including, but not limited to, reasonable attorneys’ fees and costs (even if incident to any appeals) awarded against or otherwise incurred by the Indemnified Party in connection with or arising from any such Losses; and (5) the Indemnifying Party’s obligations under this Section will in no manner be affected by the existence or non-existence of insurance.  The Indemnified Party’s right to indemnity under this Agreement will arise notwithstanding that joint or concurrent liability may be imposed on both Lonely Planet and the Client and/or its affiliates and subsidiaries by statute, ordinance, regulation or otherwise.

7.05 Such indemnification by Lonely Planet shall be assumed by Client in the event the Losses asserted or otherwise incurred by Indemnified Party described in this Section 8 arose out of Client’s more culpable conduct, Client's violation of applicable law, or Lonely Planet’s infringement of the Intellectual Property rights of a third party because of the Lonely Planet's use of Client’s Intellectual Property in accordance with the Agreement.

8. Limitation of Liability

8.01 Excluding damages that result from a breach of Section 10 (Confidentiality) or a Party’s intentional misconduct: (A) in no event will a Party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of this Agreement, even if such party has been advised of the possibility of such damages, and (B) each Party’s maximum aggregate liability will be limited to the lesser of: Two-hundred and fifty thousand dollars ($250,000 US) OR the actual dollar value of Revenue Share paid to You by Lonely Planet pursuant to the terms of this Agreement during the 12 months immediately preceding the event giving rise to the claim.  If less than 12 months have passed, the amount of fees paid to You by Lonely Planet over the period extrapolated to a 12 00month period. 

8.02 Neither Party will be liable for the interruption, errors, or the loss of data or content caused by its respective products, services, software, or websites.

8.03 Any claim or cause of action against the other Party in connection with this Agreement or the Program must be commenced within one (1) year after the claim or cause of action first accrued. Claims and causes of action asserted after one (1) year are permanently barred.

9. Confidentiality.

9.01 Confidential Information. “Confidential Information” means all confidential or proprietary information of a party (“the Disclosing Party”), whether oral or written, including, without limitation, documents, reports, analyses, data, studies, drawings, samples, suppliers, customers, pricing, pricing techniques, copyright, trademark and patent applications, marketing and sales techniques and plans, projections, technology, methods, procedures, software (including all documentation and code), hardware and system designs, architectures and protocols, trade secrets, know-how, and observations, and other disclosures pertaining to, based on, or containing, directly or indirectly, in whole or in part, any of the Disclosing Party’s confidential or proprietary information. “Confidential Information” does not include any information that, as evidenced by a written document: (1) was in the public domain at the time of disclosure; (2) became publicly available after disclosure to the receiving party without breach of this Agreement; (3) was lawfully received by the receiving party from a third party without restriction; (4) was known to the receiving party, its employees or agents prior to its receipt from the disclosing party, as evidenced by the written records of the receiving party; or (5) was independently developed by the receiving party without use or reference to the Confidential Information and without breach of this Agreement.

9.02 Duty of Confidentiality. The Receiving Party will: (1) hold the disclosing party’s Confidential Information in strict confidence; (2) take all steps necessary or appropriate to protect the confidentiality of the Confidential Information and to ensure compliance with this Agreement by its officers, directors, employees, contractors, agents and representatives; (3) use Confidential Information for the sole purpose of performing pursuant to this Agreement; (4) restrict disclosure of Confidential Information to those of its officers, directors, employees, contractors, agents and representatives with a need to know such information for the sole purpose of performing pursuant to this Agreement; and (5) not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information.

9.03 Return or Destruction of Confidential Information. Upon termination of this Agreement, at the written request of the disclosing party, the receiving party will, at its option, either return to the disclosing party or certify destruction of all copies of the disclosing party’s Confidential Information in the possession of the receiving party, its employees, or agents.  

10. Non-Solicitation. The parties agree that during the Term of this Agreement and for a period of one (1) year after termination, they will not directly or indirectly solicit any employee of the other party or any of its subsidiaries or affiliates (i) for employment by the other party or its subsidiaries or affiliates, or (ii) to provide consulting or other services to or on behalf of the other party or its subsidiaries or affiliates. This obligation does not apply to employing any such person who contacts a party or its subsidiaries or affiliates on the person’s own initiative or in response to a published general solicitation not specifically targeted at such person.

11. Assignment. This Agreement and any rights or obligations may not be assigned or delegated without the prior written consent of the other party, which consent may not be unreasonably withheld. However, either party may assign this Agreement to an acquirer of all or substantially all such party’s assets or voting securities, without the other party’s prior written consent; in such event, the rights and obligations of each party will transfer to the benefit of its respective successors and assigns.

12. Entire Agreement. This Agreement: (A) contains the parties’ complete agreement regarding all the matters detailed in this Agreement; (B) supersedes all other agreements, representations, and understandings (express or implied); and (C) may be amended only by a document physically signed by You and an officer of Lonely Planet. However, to improve the Program services or to address an issue, Lonely Planet may also change this Agreement’s terms.  Lonely Planet will either send You an email or post a notice in the on-line management portal about material changes.  You may suspend use of the Ad Units and terminate this Agreement in accordance with Section 6 if You disagree with the change.  But You will be deemed to have accepted the change if You continue to participate in the Program following the email/posting.  Terms and markings that may accompany the materials (e.g., emails, invoices) You share with Lonely Planet do not amend this Agreement, will not be a basis for any waiver of rights under this Agreement, and are not enforceable against Lonely Planet, unless the above conditions are satisfied.  No rights, duties, or obligations may be read into this Agreement or the relationship of the parties under any theory, such as custom, trade usage, course of dealing, course of performance, or implied contract.

13. Governing Law.  The Agreement is governed by the laws of the United States, specifically the state of North Carolina where state law applies, without giving effect to conflicts of laws principles. All disputes arising out of or related to the Agreement shall be finally settled under the Commercial Arbitration Rules of the American Arbitration Association before a single arbitrator appointed in accordance with such rules.  In the event a dispute relates primarily to payments owed under Agreement, the Parties will use the Expedited Procedures under the AAA Commercial Arbitration Rules. The arbitration shall take place in Charlotte, North Carolina. The Parties shall keep confidential: (i) the fact that any arbitration occurred, (ii) any awards awarded in the arbitration, (iii) all materials used, or created for use in, in the arbitration, (iv) all other documents produced by another party in the arbitration and not otherwise in the public domain, except, with respect to each of the foregoing, to the extent that disclosure may be legally required (including to protect or pursue a legal right), or to enforce or challenge an arbitration award before a court or other judicial authority. The arbitrators shall award to the substantially prevailing party, if any, its costs, and expenses, including its reasonable outside attorneys' fees. The substantially prevailing party shall also be entitled to its reasonable outside attorneys' fees and costs in any action to confirm and/or enforce any arbitration award in any judicial proceedings. 

Consult our privacy policy at https://www.lonelyplanet.com/legal/privacy-policy