Affiliate Partner Agreement
This Affiliate Partner Agreement (this “Agreement”) between Tripadvisor LLC dba Bókun (“Bókun” or “we” or “our”) and you, the person or business identified within the Affiliate Tool, as defined below (the “Partner” or “you” or “your”). Each of Bókun and the Partner is a “party”, and together the “parties”.
This Agreement applies to your participation in our Affiliate Partner Program (the “Affiliate Program”), and you may not participate in our Affiliate Program unless you agree to them.
We periodically update this Agreement. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing program. If we update or replace this Agreement, we or the Affiliate Tool will let you know via electronic means, e.g. by email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.
For the purposes of this Agreement:
“Affiliate Tool” means the tool/software that we make available to you upon your acceptance into the Affiliate Program and for you to use in order to participate in the Affiliate Program.
“Affiliate Lead” means a prospective customer referred to Bókun, using the Affiliate Link, in accordance with the terms of this Agreement.
“Affiliate Link” has the meaning set forth in Section 6 of this Agreement.
“Bókun Services” means Bókun’s services as described on Bókun’s website (www.bokun.io), and which shall for the purposes of this Affiliate Program be limited to Bókun’s paid subscription plans (START, PLUS and PREMIUM).
“Commission” means the amount to be paid to the Partner, being a percentage of the revenue earned by Bókun from customers referred by the Partner through the Affiliate Links, who have subscribed to the Bókun Services.
Commission will be paid monthly as a percentage (as defined within the Affiliate Tool) of Bókun’s revenue from Bókun Services subscription payments in the 12 months following the customer’s first subscription to the Bókun Services. Commission applies solely to the recurring subscription fees and does not apply to any booking fees, one-time charges, or other non-subscription related fees. Bókun reserves the right to change the Commission rate or terms, and notify you within the Affiliate Tool.
“Customer Transaction” has the meaning set forth in Section 3 of this Agreement.
- Non-Exclusivity
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
2. Affiliate Acceptance
Once you complete an application to participate in the Affiliate Program, we will review your application and notify you whether or not you have been accepted to participate. Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. We may require that you complete certain requirements or certification(s) before we accept your application. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected.
If you are accepted to participate in the Affiliate Program, then the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below.
You will comply with the terms and conditions of this Agreement at all times, including any applicable policies that are communicated to you from time to time through the Affiliate Tool or otherwise (“Program Policies”).
3. Customer Transactions and Commission Structure. The Partner will earn Commissions for accepted Affiliate Leads, provided a customer account purchasing Bókun Services is created by that Affiliate Lead within the applicable period (as provided in the Affiliate Tool or Program Policies) of using the Affiliate Link (a “Customer Transaction”). Notwithstanding the foregoing, if (a) an Affiliate Lead clicks on a different partner’s link after clicking on your Affiliate Link (and then subsequently completes a Customer Transaction), that Customer Transaction will be attributed to the other partner and not you; and if (b) an Affiliate Lead deletes or otherwise does not accept cookies used to track return visits, Bókun shall not be required to pay Commissions in respect of untracked return visits.
4. Eligibility. To be eligible to receive a Commission hereunder, (i) an Affiliate Lead must be accepted and valid in accordance with Section 6; and (ii) a Customer Transaction must have occurred. You are not eligible to receive Commission or any other compensation from us based on transactions for other products or services, or if: (x) such compensation is disallowed or limited by applicable law; (y) the applicable customer objects to or prohibits such compensation or excludes such compensation from its payments to us; or (z) the Commission payment has been obtained by fraudulent means, through misuse of the Affiliate Link, in violation of any Partner Program Policies, through misuse of the Affiliate Tool or by any other means that we deem to breach the spirit of the Affiliate Program. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.
In order to be eligible for appointment as a partner under this Agreement you must not at any time be engaged in business that competes with Bókun or any of its affiliates. You hereby represent, warrant, and covenant that you will at all times: (a) promote and market Bókun in accordance with the terms of this Agreement; (b) conduct business in a competent and professional manner that reflects favorably at all times on Bókun and the Bókun Services; (c) not engage in deceptive, misleading, or unethical practices; (d) not make any false, misleading, or unauthorized representations, statements or guarantees with respect to Bókun or the Bókun Services; (e) comply with all applicable laws and hold all necessary registrations and approvals required for the performance of your obligations hereunder.
5. Authority. The Partner has no authority to distribute or resell the Bókun Services or to make any commitments or agreements, or incur any liabilities whatsoever, on behalf of Bókun. Except to the extent expressly set forth in Bókun’s marketing materials, service descriptions, documentation, or other collateral provided to you by Bókun hereunder expressly for the purpose of performing the referral activities described hereunder (collectively, “Bókun Materials”), the Partner shall not make any representations or warranties, promises or guarantees to any Affiliate Leads or any other third party with respect to Bókun or the Bókun Services.
6. Acceptance and Validity. You will only be eligible for a Commission payment for any Customer Transactions that derived from Affiliate Leads generated by the affiliate link that we make available to you in accordance with the terms of this Agreement (the “Affiliate Link”). An Affiliate Lead will be considered valid and accepted if, in our reasonable determination: (i) it is a new potential customer of ours, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept an Affiliate Lead in our sole discretion. If an Affiliate Lead does not enter into a Customer Transaction within the time period described on the Affiliate Tool (or if applicable, in the Program Policies) of their first click on the Affiliate Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired. An Affiliate Lead is not considered valid if its first click on the Affiliate Link is after this Agreement has expired or terminated.
7. Engagement with Prospects. Once we have received the Affiliate Lead information, we may elect to engage with the prospective customer directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid then we may choose to maintain it in our database and we may choose to engage with such Affiliate Lead. Any engagement between Bókun and an Affiliate Lead will be at Bókun’s discretion.
8. License. Subject to the Partner’s compliance with all terms of this Agreement, Bókun hereby grants to the Partner a revocable, non-transferable, worldwide, non-exclusive license during the Term to market, promote, display a link specifically assigned to the Partner by Bókun (whether in the form of text, or a logo or other graphic) (the “Affiliate Link”), to be utilized in a manner consistent with Bókun’s trademark policies as communicated to you from time to time. Bókun grants no rights under this Agreement to the Partner to sublicense, resell, or otherwise distribute to customers or third parties or for subsequent sublicensing, resale, or other distribution to end users or other distributors.
9. Commission and Payment. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement (generally completed through the Affiliate Tool); (ii) completed all steps necessary to create your account in the Affiliate Tool in accordance with our directions, (iii) have a valid and up-to-date payment method in the Affiliate Tool with such account, and (iv) completed any and all required tax documentation in order for the Affiliate Tool to process any payments that may be owed to you.
10. Requirements for Payment; Forfeiture. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in Section 4 remain outstanding for three (3) months immediately following the close of a Customer Transaction, then your right to receive Commission arising from any and all Customer Transactions with the associated customer will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you Commission associated with a Forfeited Transaction. Once you comply with all of the requirements in section 5(a)(i-iv), then you will be eligible to receive Commission on Customer Transactions, as long as these Customer Transactions do not involve the same customer associated with a Forfeited Transaction.
11. Third party payment processors. Bókun may utilize third party payment processors or service providers (collectively, “Payment Processors”) in order to facilitate payments under the Bókun Affiliate Program. The Partner is solely responsible for providing and maintaining with Bókun and the Payment Processor(s), its current contact information and address for receipt of payments under this Agreement. Bókun will have no liability for, and will not resend, payments returned due to incorrect payment addresses, nor have liability for any payment failure for any reason whatsoever.
12. Taxes. You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
13. Training and Support. We may make available to you, without charge, various webinars and other resources made available as part of our Affiliate Program. If we make such resources available to you, you will encourage your sales representatives and/or other relevant personnel to participate in training and/or other certifications as we recommend and may make available to you from time-to-time. We may change or discontinue any or all parts of the Affiliate Program benefits or offerings at any time without notice.
14. Quality Control. Any uses by the Partner of the Bókun Marks or Bókun marketing materials shall conform to all standards set by Bókun from time to time, and not be sold, used, distributed, or disclosed by the Partner unless approved by Bókun. The Partner acknowledges and agrees that this Section constitutes a material term of this Agreement.
15. Trademarks. You grant to us a non-exclusive, non-transferable, royalty-free right to use and display your trademarks, service marks and logos (“Partner Marks”) in connection with the Affiliate Program and this Agreement. During the term of this Agreement, in the event that we make our trademark available to you within the Affiliate Tool, you may use such trademark (“Bókun Marks”) as long as you follow the usage requirements in this Section. You must: (i) only use the Bókun Marks that we make available to you, without altering them in any way; (ii) only use the Bókun Marks in connection with the Affiliate Program and this Agreement; and (iii) immediately comply if we request that you discontinue use. You must not: (i) use the Bókun Marks in a misleading or disparaging way; (ii) use Bókun Marks in a way that implies we endorse, sponsor or approve of your business, or your services or products; or (iii) use Bókun Marks in violation of applicable law, or in connection with an obscene, indecent, or unlawful topic or material.
16. Proprietary Rights. No license to any software is granted by this Agreement. The Bókun Services are protected by intellectual property rights. The Bókun Services belong to and are the property of us or our licensors (if any). The Partner acknowledges and agrees that Bókun maintains exclusive ownership of the Bókun Services, Bókun Marks, and Bókun marketing materials, including all derivative works, updates, or modifications thereto, and all copies and all portions thereof. All goodwill arising with respect to the use of the Bókun Services, Bókun Marks, and Bókun marketing materials shall inure to Bókun’s exclusive benefit. The Partner will not remove, alter, or conceal any Bókun copyright or other proprietary notice displayed on the Bókun Services, Bókun Marks, or Bókun marketing materials. The Partner shall not use any language or display Bókun Marks or Bókun marketing materials in such a way as to create the impression that the same belongs to the Partner.
We encourage all customers, affiliates and partners to comment on the Bókun Services, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Bókun Services, without payment to you.
17. Confidentiality As used in this Agreement, “Confidential Information” means all data and information of a confidential and non-public nature, whether in written, machine readable, or other tangible form, or disclosed orally, and whether disclosed before, on, or after the effective date of this Agreement, that is communicated or otherwise made available by one party to the other party. A party disclosing Confidential Information is a “Disclosing Party”. A party receiving Confidential Information is a “Receiving Party”. Confidential Information shall include, but not be limited to, information relating to the Disclosing Party’s assets, properties, personnel, customers, suppliers, products, technology, services, facilities, current or proposed business plans, marketing and roll-out plans, distribution channels, financial information, prices, trade secrets, know-how, formulae, processes, data, drawings, proprietary information, and any other non-public information which concerns the business and operations of the Disclosing Party or its Affiliates, whether marked or otherwise labelled as confidential. The term “Affiliate” shall mean any person or entity directly or indirectly controlling, controlled by, or under common control with either party.
18. Term and Termination
18.1. Term. This Agreement will apply for as long as you participate in the Affiliate Program.
18.2. Termination Without Cause. Either party may terminate this Agreement on fifteen (15) days’ written notice to the other party.
18.3. Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days’ written notice to us, provided that you send us written notice within ten (10) days after we provide notice of the change (which may be by email notice or posting within the Affiliate Tool, or by other reasonable means).
18.4. Termination for Cause. We may terminate this Agreement: (i) upon fifteen (15) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days’ notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you breach the terms applicable to your use of the Bókun Services (if applicable), or (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
18.5. Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by us, (ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the Customer Transaction is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you Commission on Customer Transactions recognized by us after thirty (30) days after the date of such termination or expiration set out above. Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete the Affiliate Tool that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.
Upon termination or expiration, you will immediately discontinue all use of the Bókun Marks, Bókun marketing materials, and Bókun Services, and remove all references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a customer’s agreement for use of the Bókun Services to be terminated.
19. Partner Representations and Warranties. You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provide Bókun with Affiliate Leads; (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Partner Marks.
You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program; (ii) you will accurately provide in the Affiliate Tool all websites and domains where you intend to use Affiliate Links to generate Affiliate Leads; (iii) you will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with Bókun’s own advertising, including, but not limited to, our branded keywords; (iv) you will not participate in cookie stuffing or pop-ups, or false or misleading links; (v) you will not attempt to mask the referring URL information; (vi) you will not use your own affiliate link to purchase Bókun Services for yourself; and (vii) you will not use any mechanisms to deliver leads other than through an intended customer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, iframes, or hidden frames), or offering incentives to encourage purchases or signups.
20. Indemnification
You will indemnify, defend and hold us harmless, at your expense, against any claim, suit, action, or proceeding (each, an “Action“) brought against us (and our officers, directors, employees, agents, service providers, licensors, and Affiliates) to the extent that such Action arises out of or is connected with (a) your participation in the Affiliate Program, (b) our use of the Affiliate Lead data you provided us, (c) your breach of this Agreement, (d) your use of the Affiliate Tool, or (e) our use of the Partner Marks. We will: notify you in writing promptly after becoming aware of any such Action; give you sole control of the defense or settlement of the Action; and provide you (at your expense) with information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
21. Disclaimers; Limitations of Liability
NEITHER PARTY, NOR ITS RESPECTIVE OFFICERS, REPRESENTATIVES, AGENTS, EMPLOYEES, INSURERS, LICENSORS, AND SERVICE PROVIDERS, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY, WARRANTY, AND NEGLIGENCE, AND WHETHER OR NOT SUCH PERSON WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BÓKUN’S AGGREGATE LIABILITY TO THE PARTNER UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF COMMISSION OWED TO THE PARTNER WITHIN THE LAST SIX (6) MONTHS IMMEDIATELY PRIOR TO THE CLAIM(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO THE DEFENSE AND INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT OR FOR ANY BREACH OF CONFIDENTIALITY.
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT EITHER PARTY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
22. General
22.1. Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Tool and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Tool have notified you. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
22.2. Applicable Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts of Boston, Massachusetts.
22.3. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
22.4. Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement. The Partner has no authority to make or accept any offers or representations on our behalf. The Partner will not make any statement, whether on its sites or otherwise, that reasonably would contradict the foregoing.
22.5. Disclosure of Partner Relationship. It is the sole responsibility of the Partner to disclose accurately the nature of its referral relationship with Bókun to any Affiliate Leads, and the Partner shall indemnify and hold harmless Bókun against any liability arising from the Partner’s lack of disclosure to an actual or potential customer.
22.6. Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Bókun Services. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Bókun Services to prohibited countries or individuals or permit use of the Bókun Services by prohibited countries or individuals.
22.7. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
22.8. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
To Tripadvisor LLC dba Bókun: 400 1st Avenue, Needham, MA 02494, United States Attention: General Counsel.
We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you and/or to your address as provided in our affiliate/partner account information for you..
22.9. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, including, without limitation, the terms of any purchase order. This Agreement will be interpreted in accordance with its terms and without any strict construction in favor of or against either party.
22.10. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any Affiliate or third party.
22.11. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
22.12. Program Policies Page. We may change the Program Policies from time to time. Your participation in the Affiliate Program is subject to the Program Policies, which are incorporated herein by reference.
22.13. No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Bókun Services, the Bókun Marks, or any other property or right of ours.
22.14. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
22.15. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, and ‘General’.