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Stella Affiliate Program Terms & Conditions - As at December 3, 2008
Background
  1. Stella and Affiliate wish to enter into an agreement under which Affiliate becomes an authorised web affiliate booking partner of Stella (“Affiliate Agreement”).
  2. Under the terms of this Affiliate Agreement, Affiliate will market Stella properties on the Internet with the intention of having Internet users book rooms in Stella properties.
  3. Affiliate will be rewarded with commission for driving successfully converted traffic into a Stella accommodation booking system.
Relationship between the parties
  1. The relationship created between the parties is one of independent contractors. The Affiliate refers potential customers to Stella, in return for which Affiliate receives a commission for successful bookings. People who are referred will become customers of Stella.
  2. Nothing in this Affiliate Agreement is deemed to create any partnership, joint venture, agency, franchise, sales representative relationship between Stella and Affiliate. Affiliate is not able to and has not authority to bind Stella in any way, and must not make representations on behalf of Stella.
  3. Affiliate acknowledges that this Affiliate Agreement is non-exclusive, and that Stella may appoint others to market Stella properties. Stella also markets the properties.
  4. Stella reserves the right to reject any application to become an affiliate in its sole discretion, without providing reason for its refusal.
Inventory
  1. Inventory is not guaranteed by Stella and all inventory made available to Affiliate by Stella will be subject to availability.
License
  1. Stella may make images, text and content available for use by Affiliates. In relation thereto, Stella grants Affiliate a non-exclusive, revocable licence to use the images, text and content provided by Stella to Affiliate sole for the purpose of allowing the Affiliate to promote Stella properties on websites. Affiliate may only use Stella images, text and content that Stella explicitly makes available to Affiliates as part of the Affiliate program. Affiliate agrees not to use any other Stella Intellectual Property without the written permission of Stella. In particular, Affiliate must not copy or use images, text and content from Stella websites or other third party websites.
Commission
  1. In return for directing bookings to Stella sourced via the Affiliate’s website, Affiliate will earn a commission from Stella. Affiliate will not be entitled to a commission for cancellations or no-shows.
  2. Commissions will be set by Stella in accordance with the Schedule 1 of this Affiliate Agreement or as made available on Stella’s website.
  3. Stella reserves the right to change the amount of commission paid to Affiliate at any time, on 14 days prior notice to Affiliate.
  4. Commissions are earned by Affiliate once the booking has checked out and the booking is paid in full. If all or part of a payment is refunded to the customer, the Affiliate must refund the commission paid on the refunded amount.
  5. Stella will pay Affiliate all commissions on a monthly basis once the commission earned by Affiliate exceeds the commission payment threshold as specified by Stella from time to time.
  6. Affiliate must provide Stella with its tax file number or Australian business number. Stella will issue Affiliate with a recipient created tax invoice for all commissions paid by Stella to Affiliate, within 14 days of the end of each month for which the Affiliate has reached the commission payment threshold.
  7. All commission rates under this Affiliate Agreement and specified in the Commission Schedule provided by Stella from time to time are inclusive of GST.
  8. Stella will under no circumstances be liable for any damages arising in connection with a failure to pay commissions due to a technical fault on Stella’s reservation system. In the event that a commission is mistakenly not paid in these circumstances, Stella agrees to pay the Affiliate for the commission due within a reasonable time after becoming aware of the mistake.
Property information
  1. The Affiliate’s referral website must not contain out-of-date, incorrect or misleading images, text or content.
  2. Affiliate acknowledges that Stella websites contain the most up-to-date information available for Stella properties, and Affiliate should link to Stella websites for property information, rather than reproducing the content on the Affiliate’s referral website.
Affiliate relationship
  1. Affiliate undertakes to:
    1. wherever requested by Stella, provide to Stella a list of all referral websites used by Affiliate to market Stella properties;
    2. include on the referral website a logo or tag line stating the name of the Affiliate and that website is a web referral website. The logo and tagline must be prominently displayed in such a way that there is no confusion that the referral website belongs to Affiliate and not to Stella;
    3. only market Stella properties in connection with general referral websites such as general travel, accommodation or location specific websites and not on websites designed to market a specific Stella property;
    4. ensure that the referral website complies with all laws and regulations in force and does not violate or infringe the rights of any third party;
    5. ensure that the referral website conforms with any Stella use or style guides, if and as provided by Stella from time to time;
    6. use its own website templates for the referral website; and
    7. be solely responsible for the development, operation and maintenance of the referral website, as well as any material contained on such website. Affiliate will be solely responsible for the technical operation of Affiliate’s systems as well as the accuracy and appropriateness of communications with customers.
Affiliate must not:
  1. During the term of this Affiliate Agreement and after termination, Affiliate must not do any of the following:
    1. copy the look and feel of any Stella website;
    2. in any way represent or create the impression that the referral website is an official Stella website or is a website sponsored or controlled by Stella;
    3. use any language which may mislead a user to believe that they are:
      1. dealing directly with Stella (e.g. referring to a Stella property as “our apartments”);
      2. dealing with a central reservation service for a Stella property; or
      3. dealing with the official booking agent for a Stella property.
    4. engage in conduct that is illegal, misleading or deceptive;
    5. register or use domain names or sub-domain names which contain, or which are deceptively similar to, Stella trade marks or property names;
    6. include on the referral website information which (or have a direct link to sites that contain information which) might be in any way detrimental to Stella’s brands, image or reputation;
    7. use Stella trade marks and logos other than those expressly approved for the Affiliate’s use by Stella;
    8. illegally copy or reproduce Stella content including photographs, logos and written details of Stella properties other than those expressly approved for the Affiliate’s use by Stella;
    9. enter into any sub-affiliate or junior affiliate arrangements in relation to Stella properties without the prior written consent of Stella;
    10. operate call centres to take bookings for Stella properties;
    11. purchase or use any search engine keywords or metatags that include Stella property names or trade marks, or anything deceptively similar thereto;
    12. place misleading content on blogs or opinion websites, or use blogs for the purpose of driving traffic to Affiliate’s website;
    13. create websites that have multiple pages about a single Stella property, without Stella’s prior consent; or
    14. use any predatory advertising methods in the promotion of Stella properties. Predatory includes any method that creates or overlays links or banners on web sites, spawns browser windows, or any other method invented to improperly generate traffic.
  2. Should Affiliate undertake any of the prohibited activities listed in clause 21 above, Stella reserves the right to suspend commission payment to Affiliate, and may terminate this Affiliate Agreement immediately upon notice to Affiliate.
Stella obligations:
  1. Subject to clauses 8 and 24, Stella will provide Affiliate with the ability to access and market a range of Stella inventory as made available by Stella from time to time, as an affiliate of Stella. This may include BreakFree, Mantra, Peppers and any additional brand room inventory as made available on the Stella Central Reservations system from time to time as well as other properties or property group which are owned, managed or controlled by Stella.
  2. Stella may vary the following at any time, at its complete discretion:
    1. the properties and room types which are available to be marketed by Affiliate;
    2. the availability periods for certain properties and room types; and
    3. room rates.
  3. Stella does not have an obligation to notify Affiliate of any variations made in accordance with clause 24, and such changes shall be effective immediately upon being updated in the Stella computer system.
  4. Stella will provide a suitable working Affiliate program website with access to real time reports online.
  5. Stella will provide support as determined by Stella.
  6. Stella may modify the terms of this Affiliate Agreement, by providing Affiliate with 30 days notice.
Term and termination
  1. This Affiliate Agreement commences when:
    1. signed by both parties; or
    2. when Affiliate accepts this agreement by clicking “I agree” in relation hereto or placing its electronic signature at the bottom of the registration form,
    and continues indefinitely unless terminated by either party by providing 14 days written notice to the other party.
  2. Following termination, Affiliate:
    1. a. must cease using all Stella Intellectual Property; and
    2. must, within 24 hours of termination, remove any Stella links or Stella Intellectual Property from the referral website.
  3. If this Affiliate Agreement is terminated by Stella without cause, Stella will pay to Affiliate any commission earned by Affiliate prior to termination, unless the amount of commission is less than the commission payment threshold, in which case the amount owing will be forfeited.
  4. If this Affiliate Agreement is terminated by Stella for breach, or if Affiliate terminates this Affiliate Agreement without cause, Stella will not pay any further commissions earned by Affiliate.
  5. The rights and obligations of the parties under clauses 21, 30, 31, 32, 34 and 36 survive termination or expiration of this Affiliate Agreement.
Indemnity
  1. Affiliate shall at all times indemnify and hold harmless Stella and its officers, employees and agents from any and all costs, losses, damages, liabilities, judgments and expenses (including legal costs and expenses on a full indemnity basis) or liability reasonably incurred or suffered by any of those indemnified in each case arising out of or relating to:
    1. the development, operation, maintenance and contents of the referral website;
    2. a breach by Affiliate of its obligations under this Affiliate Agreement; and
    3. any wilful, unlawful or negligent act or omission of Affiliate.
Notices
  1. Where Stella is required or permitted to give Affiliate information (eg a notice) under this Affiliate Agreement, Stella may do so in any way, including by:
    1. giving Affiliate the information by telephone, facsimile, mail or email using the contact details provided by the Affiliate to Stella; or
    2. making the information available on Stella’s website.
General
  1. The terms of this Affiliate Agreement are confidential and must not be disclosed by Affiliate to any other person.
  2. Stella may assign its rights and obligations under this Affiliate Agreement to a related body corporate of Stella as that term is defined in the Corporations Act 2001 (Cwlth). Stella may permit a related body corporate to carry out obligations of Stella herein.
  3. Affiliate may not assign this Affiliate Agreement to any third party without Stella’s prior consent.
  4. If control, ownership or management of Affiliate changes significantly, Stella may terminate this Affiliate Agreement by giving notice to Affiliate, such notice being effective immediately.
  5. This Affiliate Agreement constitutes the entire agreement of the parties and supersedes all previous agreements, negotiations, representations and warranties (whether written or oral) and understandings between the parties.
  6. This Affiliate Agreement may consist of a number of copies, each signed by one or more parties to this Affiliate Agreement. If so, the signed copies are treated as making up the one document.
  7. Each party acknowledges that in entering into this Affiliate Agreement it has not relied on any representations or warranties about its subject matter except as expressly provided for in the written terms of this Affiliate Agreement.
  8. If any provision of this Affiliate Agreement is held invalid, illegal or unenforceable in a jurisdiction it is severed for that jurisdiction. The remainder of this Affiliate Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
  9. Each party agrees, at its own expense, to do anything the other party reasonably asks (such as obtaining consents, signing and producing documents and getting documents completed and signed) in order to effectuate the purposes or terms of this Affiliate Agreement.
  10. This Affiliate Agreement is governed by the law in force in the State of Queensland, Australia. Each party submits to the non-exclusive jurisdiction of the courts of Queensland.