KLOOK AFFILIATE PROGRAM-TERMS & CONDITIONS
Please read this Terms and Conditions carefully in relation to your participation in the KLOOK Affiliate Program as well as the services offered by Klook Travel Technology Limited (“KLOOK”) or the third party operators (“the Operator”) through www.klook.com and Klook Apps (“KLOOK Website”, “KLOOK App”) (“the Services”). “You” and “your” when used in this Terms and Conditions includes any participant in the KLOOK Affiliate Program (“Affiliate Partner”, “Affiliate”).
NOW IT IS HEREBY AGREED as follows:
- YOUR AGREEMENT
- This Terms and Conditions is not intended, nor should anything herein or in any of the arrangements contemplated herein, be construed, to create a joint venture or the relationship of partners, partnership or principal and agent between or among the Parties. Unless the Parties agree to otherwise in writing, none of them shall:
- enter into any contract or commitment with third parties as agents for or on behalf of the other Party; or
- describe or present itself as such an agent or in any way hold itself out as being such an agent; or
- act on behalf of or represent the other Party in any manner, or for any purpose.
- In addition to terms defined elsewhere in this Terms and Conditions, the following definitions apply throughout this Terms and Conditions, unless the contrary intention appears:
“Affiliate” means the party who participates in the KLOOK Affiliate Program.
“Affiliate Group” means the Affiliate and the ultimate holding company of the Affiliate, including the group of companies or entities which are under the direct or indirect Control of the ultimate holding company or shareholder(s) of the Affiliate.
“Affiliate Website(s)” means the websites directly or indirectly owned, controlled, hosted and operated by the Affiliate or companies within the Affiliate Group on which the Services shall be made available to.
“Cloaking” means a Black Hat search engine optimization (“SEO”) technique in which the content presented to the search engine spider is different to that presented to the user's browser, with the purpose to deceive search engines so they display the page when it would not otherwise be displayed. Cloaking includes the doorway page technique and the Open Directory Project web directory.
“Connections” means all links, landing pages and/or XML feeds and/or deeplinks and/or hyperlinks, created, hosted and maintained by KLOOK.
“Content” means all (descriptive) information of Services available on the KLOOK Website including but not limited to product information and descriptions, guest reviews, meta data and cancelation or no show policies and general terms of the Operator and photos, video, pictures, including any updates, modifications, replacements, additions or amendments.
“Control” means the possession of the power or the ability to directly or indirectly, alone or in concert with others, whether through the ownership of voting securities or other ownership interests, a partnership or otherwise (i) exercise or cause to exercise more than one-half of the voting rights in the shareholders' meeting of a company, (ii) appoint more than one-half of the executive or non-executive directors or supervisory directors of a company, or (iii) direct or cause the direction of management relating to a company.
“Customer” means a visitor of the Affiliate Website(s) that completed a booking for the Services.
“Double Serving” means multiple ads on the same results page of a search engine with the purpose to direct traffic to similar websites or pages with similar content.
“KLOOK Booking Platform” means the the Internet and Mobile Booking Platform (www.klook.com), or any other platform that may exist in the future, whereby bookings can be made for KLOOK’s Services, including but not limited to tours, activities and experiences.
“KLOOK Brands” means any term or keyword which is the same as or is similar to any of KLOOK’s terms, including but not limited to any variations, translations, misspellings and singular/plural forms, with or without any associated Internet domain names.
“KLOOK Competitor” means any direct or indirect competitor of KLOOK.
“KLOOK Data” means the Intellectual Property Rights of KLOOK and the Content as provided to the Affiliate under this Terms and Conditions and such other information from time to time owned or used by KLOOK or embodied or included in KLOOK Websites or made available by KLOOK to the Affiliate (e.g. rates and availability).
“Intellectual Property Right” means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (with whatever (country code) top-level domain, e.g. .com, .net., co.th, .hk, .sg, .tw., etc.) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world.
“Link” means an embedded icon, object, graphic, or text within a web page or email that consists of a hypertext pointer to the URL address of KLOOK on the Affiliate Website(s).
“Materialized Affiliate Transaction(s)” means the reservation through the KLOOK Booking Platform by a visitor of the Affiliate Website(s) who has made a reservation for any of the Services, which reservation has resulted in the actual provision of KLOOK products, as confirmed to KLOOK by the Operator. Materialized Affiliate Transactions will always be adjusted for amendments, chargebacks, credit card fraud, bad debt or otherwise. For the avoidance of doubt, cancelations, no-shows, bookings that were not redeemed, etc., can never be considered as Materialized Affiliate Transactions.
“Operator” means the end party that provides the Services as listed on the KLOOK Website.
“Operator Brands” means any term or keyword which is the same as or confusingly similar to any trademarks or trade names, registered or unregistered and including any variations, translations, misspellings and singular/plural forms, belonging to or owned by any Operator.
“Paid Search” means any form of online advertising that ties the presentation of an ad to a specific keyword-based search request.
“Party” means either KLOOK or the Affiliate.
“The Parties” means both KLOOK and the Affiliate.
“SEM” means search engine marketing and includes any form of online marketing that seeks to promote websites by increasing their visibility in search engine result pages through the use of search engine optimization, paid placement, contextual advertising or paid inclusion.
“SEO” means search engine optimization and includes the process of (i) improving the volume or quality of traffic to a web site or a web page from search engines via "natural" or un-paid ("organic" or "algorithmic") search results, or (ii) realizing or creating an improved or better ranking in search engine results for a specific keyword or keywords.
“Spamming Regulations” means any policies, regulations, restrictions or obligations as from time to time prescribed, declared applicable or announced by Third Party Platforms which (i) prohibit or prevent Double Serving, Cloaking or any similar technique or method, or (ii) contain such further restrictions or regulations in respect of spamming or preserving a unique user experience.
“Third Party Platforms” means any third party search engine (marketing provider), meta-search engine, search engines spiders, travel search sites, price comparison sites, social networking communities, browsers, content sharing and hosting services and multimedia blogging services or other similar channels or other forms of traffic hosting media, whether online or offline.
- Unless otherwise required by the context in this Terms and Conditions, words importing the singular includes the plural and vice versa, words importing one gender include every gender and references to a “person” include any persons, any other forms of legal entities, corporate bodies and unincorporated associations.
- Subject to this Terms and Conditions, the Affiliate shall operate as a non-exclusive distributor of KLOOK.
- Parties have agreed that the Services shall be made available by KLOOK to the Affiliate.
- When a booking is made by a visitor through the Affiliate’s Websites, on the KLOOK Booking Platform, KLOOK shall be responsible for the transmission of the relevant booking details from the visitor who completed a booking to the Operator (e.g. the date of activity, type of activity, Customer name, etc.) and the sending of the subsequent email confirmation and/or confirmation voucher to the Customer.
- The Services shall include customer services to and for the benefit of the Customer. The Affiliate shall promptly refer and/or forward all customer service related issues and questions in respect of the Services, the consummation of the booking and all other relevant issues, complaints and questions directly to KLOOK (email@example.com) and not provide any further services in this respect.
- The Affiliate shall at its own costs integrate and make the Link available at such prominent place(s), web-pages and in such place, size and form on the Affiliate Website(s) as instructed by KLOOK or as mutually agreed upon by the Parties.
- Mutual License
- Subject to Clause 5.4, KLOOK hereby grants the Affiliate a non-exclusive, revocable, restricted, royalty free and worldwide right and license (or sublicense as applicable):
- to display such elements of the KLOOK Data and such further information of the Services on the Affiliate Website(s), as provided or made available by KLOOK to the Affiliate;
- to promote and market the Services subject to the terms set out in this Terms and Conditions.
- The Affiliate hereby grants KLOOK a royalty free and worldwide right and license:
- to incorporate, integrate, include and display the Link and/or the Connection, as applicable, on the Affiliate Website(s); and
- to make the Services available on the Affiliate Website(s).
- No Sublicense Right and Non-disclosure
- Unless agreed to otherwise in writing by KLOOK, the Affiliate shall not:
- be entitled to sublicense the rights granted to it under Clause 4.1; or
- sublicense the Link or Connection to any third party; or
- hyperlink to the KLOOK Website via or in collaboration with the websites of companies within the Affiliate Group and/or third parties.
- Unless agreed to otherwise by KLOOK in writing or save as set out otherwise in this Terms and Conditions, the Affiliate shall not directly or indirectly be entitled to sell, use, transfer, (sub)license, communicate, disclose, make available, allow access to, divulge or otherwise disseminate the KLOOK Data or the Content:
- to any third party; or
- for price/availability comparison purposes, sites, reviews or investigations; or
- for any other purpose other than the generating of booking reservations for the Services; or
- COVENANTS AND UNDERTAKINGS
- Performance of Affiliate Website(s)
- Subject to the terms of this Terms and Conditions, the Affiliate agrees to use commercially reasonable endeavors to:
- customize the Affiliate Website(s) and integrate the Link and/or Connections in such a way as to generate as much traffic as possible to the KLOOK Website or the Affiliate Website(s); and
- promote and market the Services and the option to make bookings on the Affiliate Website(s) within its commercial and internal network and for this purpose shall make its distribution network and channels (e.g. its internet and intranet) available.
- The Affiliate shall duly and diligently maintain and adjust the contents of the Affiliate Website(s) and shall keep the Affiliate Website(s) up-to-date and accurate. The Affiliate shall promptly correct any errors or omissions on the Affiliate Website(s) and in the information relating to the Services after becoming aware of such errors or being notified by KLOOK.
- The Affiliate shall not:
- programmatically evaluate and extract information, including customer reviews, from any part of the KLOOK Website (e.g. screen scrape) or attempt to do so and shall not determine the source code of the links or any content contained on or services provided by the KLOOK Website or attempt to do so; or
- upload any computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or
- make any representations to visitors, to the general public or to any other party related in any way to the Company, the services, the links or the KLOOK Website; or
- attempt to obtain credit or Commissions from KLOOK by misrepresentation, making false statements, fraudulent behavior or any other scheme or trick to deceive KLOOK; or
- otherwise attempt to cause detriment to KLOOK and the KLOOK Website.
- Any violation of the provisions under Clause 5.1(c) may lead to the Affiliate being terminated from the KLOOK Affiliate Program and to forfeiture of any outstanding payments due to the Affiliate by KLOOK.
- Influence on KLOOK’s Relationship with Operators
- To the greatest extent possible, the Affiliate agrees not to take or omit to take any action which may affect KLOOK’s relationship with the Operator. The Affiliate agrees not to cause or permit to be done anything which may cause KLOOK to be excluded from the process of booking with any Operator, and shall not in a negative or detrimental way speak (i.e. badmouth) of or comment on the business of KLOOK or its staff, and shall not persuade, induce or attempt to induce any Operator to terminate its contract with or reduce its dealings and business with KLOOK.
- The Affiliate agrees not to communicate with any Operator in respect of bookings made through the KLOOK Booking Platform.
- General Covenants and Undertakings
- The Affiliate shall not make any static copy of the Content or any part of the KLOOK Website including but not limited to customer reviews.
- The Affiliate shall not make any bookings for the Services on the KLOOK Website or the Affiliate Website with the purpose of reselling such booking or reservation to or for the benefit of a third party.
- KLOOK will provide the Affiliate with a unique link to a secured affiliate partner website of KLOOK (“the Affiliate Platform”), user ID and password which will allow the Affiliate to monitor the booking of KLOOK products through the Affiliate Website(s) and all relevant management information made available by KLOOK online. The Affiliate shall safeguard and keep the user ID and password confidential and safely stored and not disclose it to any person other than those who need to have access to the Affiliate Platform. The Affiliate shall immediately notify KLOOK of any suspected security breach or improper use.
- The Affiliate agrees and acknowledges that the restrictive covenants and undertakings set out in Clause 5 are reasonable and of material importance to KLOOK, in particular for:
- its willingness to enter into this Terms and Conditions with the Affiliate and make the Services, the Content and the KLOOK Intellectual Property Rights directly or indirectly available to the Affiliate; and
- the protection of goodwill, product, service and (market) reputation of KLOOK.
- The Affiliate agrees and acknowledges that all covenants and undertakings set out in Clause 5 shall:
- be promptly, duly and diligently complied with by the Affiliate; and
- also apply in respect of the companies within the Affiliate Group and the Affiliate shall procure, warrant and undertake that the companies within the Affiliate Group shall observe, adhere to, comply with and act in accordance with the terms and conditions set out in Clause 5.
- Goodwill, Brand Protection and Traffic
- In order to protect the product, service, brand and goodwill of KLOOK, the Affiliate hereby covenants, undertakes and warrants that the Affiliate Website(s) is and shall remain sufficiently and substantially distinct and different from the KLOOK Website, to be determined at KLOOK’s sole discretion. The Affiliate hereby agrees and acknowledges that for the term in which the Affiliate continues to participate in the KLOOK Affiliate Program:
- the look and feel of the Affiliate Website(s) shall be distinctly and significantly different to the KLOOK Website, save for those features reasonably required for the performance of the Affiliate's obligations under this Terms and Conditions;
- any logo(s) used on the Affiliate Website(s), shall be distinctly different from the KLOOK logo, save for any logo that may be provided by KLOOK for use by the Affiliate under or pursuant to this Terms and Conditions; and
- the Affiliate shall not in any way imitate or copy the KLOOK Website in general or in respect of certain features, pages, form, composition or aspects.
- The Affiliate must ensure a reasonable look-to-book ratio and avoid excessively low quality traffic, as reasonably determined by KLOOK. If the Affiliate sends excessively low quality traffic volumes to KLOOK, KLOOK may suspend the Affiliate at its sole discretion, without prejudice to other remedies as set out in this Terms and Conditions, including termination and forfeiture of Commission.
- Intellectual Property Rights
- The Affiliate acknowledges that KLOOK and/or its licensors shall retain ownership of all rights, titles and interest in and to all Intellectual Property Rights of KLOOK or embodied in the KLOOK Website, including but not limited to the KLOOK logo, the Content and the KLOOK Data. Nothing contained in this Terms and Conditions shall be deemed to transfer any such right, title or interest to the Affiliate in any way.
- The Affiliate shall not disclose, integrate, include, use, combine, exploit, incorporate or otherwise make the Content and KLOOK Data, or any part thereof available:
- with its own content and/or the content of any KLOOK Competitor, including the Operator; or
- to or for the benefit of itself, save for the enabling of the Services and the KLOOK Booking Platform in accordance with the terms of this Terms and Conditions, or any KLOOK Competitor, including the Operator, whether for the promotion of, marketing of, reference to, promotion of, advertising of or otherwise in the interest of or to such party; or
- for any other purpose or in any other manner and/or on or through Third Party Platforms, except as expressly provided for in this Terms and Conditions. The Affiliate shall not amend, alter, modify, distort, create derivative of and/or new works based on and/or derived from the Content and the Content shall not include a direct or indirect link, reference, click-through or reference to the website of a KLOOK Competitor, including the Operator.
- The Affiliate shall not, and shall procure that the companies within the Affiliate Group shall not directly or indirectly register, acquire, use, purchase or obtain Internet domain name, as elaborated in Clause 5.9.
- KLOOK does not explicitly or tacitly waive or forfeit any of its rights to which it is entitled by any law, contract or otherwise in respect of the KLOOK Intellectual Property Rights vis-à-vis the Affiliate or other third parties.
- Promotion and Marketing
- The Affiliate agrees and warrants that it shall not, and shall procure that companies within the Affiliate Group shall not, conduct, undertake, use, perform or exercise (a) Paid Search, SEM or SEO activities, (b) any activity to unfairly influence the results of Third Party Platforms, or (c) any other form of online targeted advertising in respect of:
- the Services; or
- the KLOOK Website; or
- the Content; or
- the KLOOK Data; or
- the Operator Brands (unless the owner of such Operator Brand has given its prior written consent to the Affiliate for the use of that specific Operator Brand); or
- the Affiliate Website(s) to the extent that the Paid Search, SEM, SEO or other online targeted advertising activities are related to (a) the offer, booking or reservation of Services (whether through the KLOOK Booking Platform or otherwise), or (b) information in respect of the Services.
- Affiliate Partners must not advertise Klook promo codes inappropriately, as determined by Klook. A Klook Affiliate Manager will send a warning to the Affiliate Partner if any violations have been found. Klook reserves the right to terminate affiliate fees & deactivate partners account if a promo code has not been removed within 3 business days.
- Clause 5.6(a) shall survive the duration of this Terms and Conditions, and will continue to do so upon its termination.
- The Affiliate shall not use, exploit or otherwise employ, directly or indirectly, any Third Party Platforms, to seek to avoid or circumvent its covenants, obligations or restrictions under this Terms and Conditions or those restrictions or covenants of which the Affiliate could reasonably expect that any such actions fall under the scope of this Terms and Conditions.
- The Affiliate shall not exploit or use the Content for any purpose or in any manner and/or on or through Third Party Platforms except as expressly provided for in this Terms and Conditions.
- During the term of participation in the KLOOK Affiliate Program, the Affiliate shall immediately comply with any request made by KLOOK to adhere to and comply with Clause 5.6, failing which KLOOK may terminate the Affiliate’s membership in the KLOOK Affiliate Program with immediate effect and without prejudice to its legal and contractual remedies.
- No Double Serving or Cloaking
- The Affiliate Website(s) shall not be linked to the KLOOK Website due to Double Serving or any similar techniques or methods or such other restrictions as set out in any Spamming Regulations.
- In the event that the Services is made available through the Link, the Affiliate shall not make the Services available through, or use for this purpose, travel search sites or price comparison sites, unless otherwise agreed to in writing by KLOOK.
- The Affiliate shall not make the Affiliate Website(s), the Content or the Services available or present the Content to the Third Party Platforms with the intention or purpose of misleading, deceiving, tricking or fooling human editors, computer search engine spiders, web-crawlers or (meta) search engines. including any similar tools or engines of Third Party Platforms in order to give the Affiliate Website(s) a higher ranking or display when it would not otherwise be displayed or higher ranked if it would not have been using Cloaking or any similar technique or method.
- The Affiliate undertakes and warrants to promptly adhere to the Spamming Regulations in order to avoid any breach by KLOOK or the Affiliate Website(s) of such policies due to or in respect of the Affiliate Website(s).
- The Affiliate agrees not to contact, solicit or accept any Operator:
- as its business partner for bookings or reservation on or through the Affiliate Website(s); or
- for sale of advertisement space or other advertisement or marketing purposes on the Affiliate Website(s); or
- for any other reason.
- Similar Domain Names
- In the event that the Affiliate has or uses a domain name similar to the KLOOK Brands (“the Similar Domain Name”) for the Affiliate Website(s) or in the event that the Affiliate wishes to register, acquire, use, purchase or obtain a Similar Domain Name, the following applies. The Affiliate shall not, and shall procure that the companies within the Affiliate Group shall not:
- bid on or purchase internet placement rights for the Similar Domain Name or any part or similarities thereof in any manner in any of its advertising;
- include the Similar Domain Name or any part thereof, or similar variations, translations or misspellings, in the meta tags of any web site code;
- purchase, obtain or use, directly or indirectly, any keywords from Third Party Platforms so as to redirect traffic to the Similar Domain Name; and
- purchase the Similar Domain Name or any part thereof, or any variations, translations or misspellings thereof, for use in text links, banner ads, pop-up ads or any other type of ad that could be associated with a keyword campaign.
- In respect of Similar Domain Names other than the Affiliate Website(s), the Parties have agreed that:
- all such Similar Domain Names shall be directly linked to the Affiliate Website(s) through or via a direct re-direct and not actively be available or online for whatever purpose; and
- the Affiliate shall not in any way market, promote, dispose, sell, offer, advertise, license, make available, allow access to, refer to, publish or distribute the Similar Domain Names.
- Burden of Proof, Compliance, Injunctive Relief and Further Remedies
- Parties agree and acknowledge that in the event of an infringement or breach by the Affiliate of its obligations under Clause 5, the burden of proof is borne by the Affiliate.
- In the event of a threatening breach of the Spamming Regulations by the Affiliate, the Affiliate shall, upon request by KLOOK:
- promptly notify KLOOK of such breach after becoming aware of such breach; and
- promptly implement, comply with and abide by all of the terms, restrictions and prohibitions set out in this Terms and Conditions or requested by KLOOK. The Affiliate shall promptly contact each Third Party Platform or third party agency, and revise the Affiliate Website(s) and all ad copy, titles, descriptions, keywords, URL's, text links, advertisements, including all meta tags (meta titles, meta keywords and meta descriptions) to comply with the terms of this Terms and Conditions or as requested by KLOOK.
- The Affiliate agrees and acknowledges that pending any compliance or implementation of the reasonable requests made by KLOOK, KLOOK shall be entitled to postpone or suspend its obligations under this Terms and Conditions, including the offer of the Services, KLOOK Booking Platform and the KLOOK Data. This Terms and Conditions may also be immediately terminated without prejudice to KLOOK’s rights under this Terms and Conditions or otherwise.
- In the event of a breach of the covenants and undertakings set out under Clause 5 by or attributable to the Affiliate, KLOOK shall be entitled to exercise the following actions and rights, notwithstanding the remedies and actions for specific performance, damage compensation or injunctive or equitable relief available by law or contract:
- suspension of KLOOK’s obligations under or termination of this Terms and Conditions with immediate effect; and
- reduction of the Commission to 0% for all bookings made and/or each Materialized Affiliate Transaction during the term that the Affiliate breaches the relevant obligations set out in Clause 5 or has not remedied its breach of the relevant obligations as set out in Clause 5 in full.
- KLOOK shall pay the Affiliate a Commission based on the traffic generated by the Affiliate Website(s) via its Links or Connections. Such traffic could be based on a Revenue Share basis.
- Revenue Share
- KLOOK will pay the Affiliate a Commission, being a percentage of the revenue generated by Materialized Affiliate Transactions. Unless otherwise agreed to in writing, the The Affiliate Commission Percentage (“ACP”) shall default to the "Default ACP Rate" which will be reflected in the table, as made available on the KLOOK Website.
- Additionally, there may be certain Revenue Sharing Rates for certain special activities (“Special Activity Rate”). The details and Special Activity Rates will be updated in the Affiliate account.
- Bonus and Additional Incentives
- KLOOK shall provide further incentives based on the amount of sales the Affiliate is able to generate. An additional bonus calculated based on the relevant Additional Bonus Rate, in accordance with the table, multiplied by the Commission value shall be awarded. The calculation of Commission shall be based upon Materialized Affiliate Transactions that can be directly attributed to the Affiliate's marketing efforts (“Affiliate Departures”), in a manner determined at the sole discretion of KLOOK.
- KLOOK will make commercially reasonable efforts to ensure that all Affiliate Departures are tracked, reported and paid for. However, KLOOK's records will be final and the Affiliate shall have no recourse for any lost revenue or damages, except in the case of gross misconduct or fraudulent behavior by KLOOK. Except in these latter cases, the Affiliate's sole recourse shall be to terminate its participation in the KLOOK Affiliate Program.
- KLOOK reserves the right to change or alter any Commission Rates on the first day of any month. In such instances, a notice shall be posted on the KLOOK Website and Affiliate Platform, and an e-mail shall be sent to the Affiliate, based on the e-mail address provided by the Affiliate. Notification shall occur at least 15 days prior to any change.
- KLOOK shall have no responsibility to ensure that communications about changes in the program are received by the Affiliate.
- Calculation and Payment of the Commission
- The Commission will be calculated for each calendar month, in US Dollars (USD) or the selected currency as agreed upon, based on the month's Affiliate Departures. The Affiliate and KLOOK agree that any adjustments to reservations that KLOOK is notified about after the end of the month or after payments have been made to the Affiliate shall be adjusted accordingly in the following month's payment. Such adjustments whether positive or negative should accurately reflect the value of the reservations.
- The Affiliate shall be paid by the 10th working day of the following month. The Affiliate may choose its preferred method of payment – Direct Bank Transfer, PayPal, Alipay. There is no minimum commission payout required for PayPal and Alipay. However, if the Affiliate chooses International Money (TT) Transfer under Direct Bank Transfer, a minimum commission payout of US$500 will be required. If the Agent does not achieve the minimum commission payout, the balance will be carried forward until the minimum commission payout is reached. Alternatively, the Affiliate may also choose to settle the payment before the minimum commission payout is reached at a US$25 bank transaction fee cost which will be deducted before the payment. The Affiliate will be paid in the month following the customer's completion of the booking and commission payments are calculated in your account and payments will be made by the minimum before 10th of the month.
- Notification of Balance Due
- KLOOK will, on request by the Affiliate, send a notification of any outstanding balance due to the Affiliate. KLOOK will send these notices to the contact details that are held on file or that have been communicated beforehand. It is the responsibility of the Affiliate to ensure that these details are correct and up to date.
- Accuracy of Financial Information
- The Affiliate is responsible for ensuring the accuracy of the bank and/or payment information maintained in KLOOK's profile. If the bank account number is incorrectly provided, an additional processing fee will be levied by the banks. KLOOK will deduct this processing fee from the next Commission payment.
- The Commission specified shall be the sole compensation that the Affiliate is entitled to receive under this Terms and Conditions. It is KLOOK's responsibility to verify the accuracy of the Commission payments prior to payment and it is the Affiliate's responsibility to verify all Commission payments upon receipt and promptly raise alleged errors. No claims for overpayment or underpayment can be made by either Party thirty (30) calendar days after the payment due date. All orders are subject to acceptance by KLOOK in accordance with its policies at the time of the booking request.
- Audit and Account Summary
- KLOOK will make commercially reasonable efforts to keep an audit of all transactions subject to this Terms and Conditions. KLOOK will provide the Affiliate with an account summary, which will track the number of clicks to KLOOK's sites, booking requests, and confirmed, and departed bookings submitted by users whose intent is to utilize the service and who are referred by the Affiliate. The Affiliate will also have access to payment reports, which will display projected earnings and payment history.
- REPRESENTATIONS AND WARRANTIES
- Affiliate Warranties
- The Affiliate hereby represents and warrants to KLOOK that for the term of this Terms and Conditions:
- the Affiliate has all necessary rights, title to, power and authority to own, operate and use the Affiliate Website(s) (including the relevant domain name(s)) and to include the Link or the Connection (as applicable) on the Affiliate Website(s);
- the Affiliate Website(s) shall not: (a) engage in Black Hat tactics, violate Spamming Regulations, public policy and morals, or (b) contain or display any inappropriate, improper or unlawful content, reference, material, information, links or banners, defamatory statements, elements which violate the privacy of third parties or are abusive, offensive or obscene, (c) copy or resemble the design, domain names (including sub-domains), look and feel of, or create the impression that it is part of the KLOOK Website or any of KLOOK's affiliates' or subsidiaries' websites; (d) advocate discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (e) promote or engage in illegal activities; (f) violate intellectual property rights of third parties; or (g) otherwise be of an inappropriate nature. Any violation of the aforementioned provisions may lead to the Affiliate being terminated from the KLOOK Affiliate Program and to the Affiliate’s forfeiture of any outstanding payments due.
- the Affiliate shall not use any predatory advertising methods designed to generate traffic away from any website owned or operated by KLOOK or any of its related companies. Predatory advertising is defined as any method that creates or overlays links or banners on websites, spawns browser windows, or any method invented to generate traffic from a website without that website owner's, knowledge, permission, and participation. Any violation of the aforementioned provisions may lead to the Affiliate being terminated from the KLOOK Affiliate Program and to the Affiliate’s forfeiture of any outstanding payments due.
- the Affiliate holds and has complied with all permits, licenses and other governmental authorizations necessary for conducting, carrying out and continuing its operations and business, and
- the Affiliate is an independent contractor for all purposes, and will be responsible and liable for its own taxes, social contributions and all other tax related matters.
- Parties’ Warranties and Undertakings
- Each Party represents and warrants to the other Party that for the term of this Terms and Conditions:
- it has the full corporate power and authority to enter into and perform its obligations under this Terms and Conditions;
- it has taken all corporate action required by it to authorize the execution and performance of this Terms and Conditions;
- this Terms and Conditions constitutes legally valid and binding obligations, which each Party shall comply with and be bound by; and
- it shall use its commercially reasonable efforts to protect and safeguard its Website(s).
- Except as otherwise expressly provided for in this Terms and Conditions, neither Party makes any representation or warranty, express or implied, in connection with the subject matter of this Terms and Conditions and hereby disclaims any and all implied warranties, including all implied warranties of merchantability or fitness for a particular purpose regarding such subject matter. KLOOK provides the Service on an "as is" and "as available" basis and does not guarantee uptime.
- Each Party acknowledges the difficulties inherent to the use of the Internet, in particular, the varying speeds and congestion in the network that can cause interruptions and difficulties in accessing the KLOOK Website or the Affiliate’s Website(s).
- INDEMNIFICATION AND LIABILITY
- The Affiliate shall be liable towards, compensate, indemnify and hold KLOOK harmless for and against any direct damages, losses, liabilities, obligations, costs, claims, claims of any kind, interest, penalties, legal proceedings and expenses actually paid, suffered or incurred by KLOOK pursuant to:
- a breach of this Terms and Conditions by the Affiliate, or
- any claim from any third party based on any infringement of the third party's Intellectual Property Rights by the Affiliate.
- Maximum Liability
- Save as otherwise provided for in this Terms and Conditions, the maximum liability of a Party for all claims made against such Party by the other Party under or in connection with this Terms and Conditions in a year shall not exceed the higher of:
- the aggregate commission received or paid by such Party in the preceding 6 months; or
- USD 5,000.
- Clause 8.2(a) applies unless in the event of fraud or willful misconduct by the Indemnifying Party, in which event such limitation of liability is not applicable for such liable Party.
- Third Party Claim
- In the event of a third party claim, the indemnified Party shall promptly notify the other Party and the Parties shall act together in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defense and/or settlement of such claim, whereas the Indemnifying Party shall be entitled to take over a claim and assume the defense and settlement.
- Waiver of Consequential Damages
- In no event shall any Party be liable to the other Party for any loss of production, profit, revenue, contract, claim or loss of or damage to goodwill or reputation, that arise as a consequence of this Terms and Conditions or any indirect, special, punitive, incidental or consequential damages or losses whether such damages are alleged as a result of a breach of contract, tort or otherwise. All such damages and losses are hereby expressly waived and disclaimed.
- TERM, TERMINATION AND SUSPENSION
- Term, Termination and Suspension
- Unless agreed to otherwise, this Terms and Conditions shall commence on the date hereof for an indefinite period of time.
- Each Party may terminate this Terms and Conditions with immediate effect at any time and for any reason, by written notice to the other Party.
- Each Party may terminate this Terms and Conditions, with immediate effect and without a notice of default being required in the case of:
- a material breach by the other Party of any term of this Terms and Conditions; or
- the filing of a request for bankruptcy or suspension of payment in respect of the other Party; or
- a change of Control in respect of the other Party.
- KLOOK reserves the right to terminate the Affiliate's participation in the KLOOK Affiliate Program without notice in the case where no Materialized Affiliate Transactions have occurred in a period of 6 consecutive months.
- Upon termination of the Affiliate's participation of the KLOOK Affiliate Program, KLOOK shall continue to pay to the Affiliate any outstanding Commission in accordance with Clause 6 for a period of 3 months after the termination date. Should the Affiliate fail to claim any unpaid Commission within that 3-month period, such failure shall constitute an effective waiver of the Affiliate's right to claim such Commission.
- Upon termination and save as set out otherwise, this Terms and Conditions shall absolutely and entirely be terminated and cease to have effect without prejudice to a Party's rights and remedies in respect of an indemnification or a breach by the other Party of this Terms and Conditions. Clauses 5.1, 5.2, 5.3, 5.4, 10, 11, 12 shall survive the termination of this Terms and Conditions.
- Immediately upon the termination taking effect, the Affiliate will remove any and all links to the KLOOK Website, all KLOOK-related content, links, banners, logos, and other references to KLOOK.
- BOOKS, RECORDS AND AUDIT RIGHTS
- Books and Records
- The systems, books and records of KLOOK shall be considered conclusive evidence in respect of the amount of the Commission due to the Affiliate under this Terms and Conditions.
- Audit Rights
- If KLOOK in good faith has reason to believe that the Affiliate has breached its obligations in respect of Clause 5, KLOOK may audit such records and books of the Affiliate for the purposes of verification, review, and investigation of the obligations of the Affiliate under Clause 5, in accordance with the following:
- The Parties shall promptly appoint an independently certified auditor (“the Auditor”) and shall provide the Auditor with all such information, data, co-operation, assistance and access to books and records of account, documents, files and papers and information stored electronically as the Auditor may reasonably request for the purpose of completing the scope of his/her assignment in a timely manner.
- The Auditor will provide both Parties with a copy of his/her report (“the Report”) which Report shall provide for the results and finding of the audit.
- KLOOK shall bear the costs and expenses of the Auditor unless the Auditor determines otherwise on the basis of reasonableness and fairness.
- Confidential Information
- Parties understand and agree that in the performance of this Terms and Conditions, each Party may have access to or may be exposed to confidential and sensitive information of the other Party (“the Confidential Information”). Confidential Information includes but is not limited to Customer Data, transaction volume, marketing and business plans, business, financial, technical and operational information, usage statistics, ranking data, information in respect of rate, product and availability parity, pricing policies, conversion data and volume of click-throughs, and other related statistics, personal data of Customer, any software or information regarding software provided or used by KLOOK, which should be treated as private and confidential.
- Protection and Safeguarding of Confidential Information
- Each Party agrees that:
- all Confidential Information shall remain the exclusive property of the disclosing Party and the receiving Party shall not use the Confidential Information for any purpose except in furtherance of this Terms and Conditions;
- it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (“the Permitted Persons”) to maintain, the confidentiality and secrecy of the Confidential Information;
- it shall disclose Confidential Information only to those Permitted Persons and those who need to know such information in furtherance of this Terms and Conditions;
- it shall not copy, publish, transmit, reproduce, divulge, disclose or make the Confidential Information available to any third party, or use or store it in an unprotected retrieval system or database; and
- it shall return or destroy all hard and soft copies of Confidential Information upon written request of the other Party.
- Permitted Disclosure
- Notwithstanding Clause 11.2, Confidential Information shall not include any information to the extent that it:
- is or becomes part of the public domain through no act or omission on the part of the receiving Party; or
- was possessed by the receiving Party prior to the date of this Terms and Conditions; or
- is disclosed to the receiving Party by a third party with no obligation of confidentiality with respect to this Terms and Conditions; or
- is required to be disclosed pursuant to law, court order, subpoena or governmental authority.
- Customer Data
- Neither Party shall create, publish, distribute, or permit any written materials, which make reference to the other Party without first submitting such material and receiving the written consent from the other Party. This consent shall not be unreasonably withheld or delayed.
- All notices and communications can be delivered to KLOOK in writing or electronic form to the following address:
Klook Travel Technology Limited
Attn. Affiliate Manager
16-05 Car Po Commercial Building, 18-20 Lyndhurst Terrace, Central, Hong Kong
- Any notice or communication to be provided to the Affiliate under this Terms and Conditions can and shall also be validly sent to the email address as provided by the Affiliate.
- Entire Agreement
- This Terms and Conditions constitutes the entire agreement between the Parties and supersedes any previous agreement and representations made between the Parties relating to the subject matter of this Terms and Conditions.
- Variation of Terms
- KLOOK reserves the right to change or modify any part of this Terms and Conditions at any time without prior notice to the Affiliate. The Affiliate shall visit this page periodically to review the current Terms and Conditions. If KLOOK changes or modifies these Terms and Conditions, KLOOK will post the changes to or modifications of these Terms and Conditions on this page and will indicate at the top of this page the date on which these Terms and Conditions were last revised.
- The Affiliate’s continued participation in the KLOOK Affiliate Program after any such changes or modifications constitutes its acceptance of the revised Terms and Conditions. If the Affiliate does not agree to abide by the revised Terms and Conditions, prompt information of the relationship manager contact at KLOOK, along with a copy to firstname.lastname@example.org, is required to indicate the Affiliate’s withdrawal from the KLOOK Affiliate Program.
- All such terms are hereby expressly incorporated by reference into this Terms and Conditions
- Assignment and Third Party Beneficiary
- Neither Party shall be entitled to assign, transfer, or encumber any of its rights and/or the obligations under this Terms and Conditions without the prior written consent of the other Party, provided that KLOOK may assign, transfer, encumber any of its rights and/or the obligations under this Terms and Conditions to an affiliated company without the prior written consent of the Affiliate.
- If any of the provisions of this Terms and Conditions is adjudged to be illegal or unenforceable, the remaining part of this Terms and Conditions shall continue in full force and effect.
- Force Majeure
- Neither party will be liable to the other for any delay or non-performance of its obligations under this Terms and Conditions arising from any cause or causes beyond its reasonable control, including but not limited to any act of God, of government or regulatory authority, war, fire, flood, explosion, or civil commotion, or failure of the Internet. If such delay or non-performance arising from such cause or causes persists for more than 90 days, either party may terminate this Terms and Conditions on written notice to the other without incurring any further liability under its terms.
- For the avoidance of doubt, if any, the failure to obtain the approval or the withdrawal of approval from the relevant government authorities or other governing bodies shall not be considered a Force Majeure Event.
- Independent Investigation
- This Terms and Conditions has been read and all the terms have been agreed to by the Affiliate. The Affiliate understands that KLOOK may at any time solicit customer referrals on terms that may differ from those contained in this Terms and Conditions or operate websites that are similar to or compete with the Affiliate's Website.
- The Affiliate has independently evaluated the desirability of participation in the KLOOK Affiliate Program and is not relying on any representation, guarantee or statement other than as set forth in this Terms and Conditions. The Affiliate explicitly agrees that participation in the KLOOK Affiliate Program constitutes an explicit agreement to the terms in this Terms and Conditions, including those related to modifications, as being valid, binding and enforceable.
- GOVERNING LAW & JURISDICTION
- Dispute Resolution
- In the event of any dispute or difference arising out of or in connection with or in relation to this Terms and Conditions, including any question regarding the existence, validity, application or interpretation of this Terms and Conditions or any of its provisions, both Parties shall endeavor to settle the dispute informally by agreement between the Parties. Both Parties shall always act in good faith and co-operate with each other to resolve any disputes.
- If the Parties are unable to resolve the dispute by the aforementioned means, the dispute shall be referred to and finally resolved by arbitration in Hong Kong, conducted in private in accordance with the Arbitration Rules of the Hong Kong International Arbitration Centre. Arbitration shall be conducted in the English language in Hong Kong.
- Governing Law & Jurisdiction
- This Terms and Conditions is governed by and construed in accordance with the laws of Hong Kong, and the Parties submit to the non-exclusive jurisdiction of the court of Hong Kong.
Last updated July 2016.