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This agreement establishes the terms of the relationship between Agoda Company Pte Ltd ("the Company") and the Affiliate Partner ("Partner") whereby the Company will allow the Partner to offer for sale Agoda Travel Network's products and services through the Partner's website(s) ("Partner Site"), including customer sales or other end-user relationships. The Company has terminated any and all other affiliate programs or affiliate agreements. The Company and the Partner agree that:
1.1 The Company operates a hotel reservations system, which provides distribution, pricing and reservation for hotels and resorts worldwide. (Herein referred to as "Hotels")
1.2 The Partner has agreed that they will promote Hotels via online and/or offline means to customers on the terms set out in this agreement. The Partner also accepts all of the pricing, distribution and reservation policies and procedures as carried out by the Company and all of its staff and partners.
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2.1 The Company shall list all of its hotel products, services, pricing and information (“Product Data”) on its website, Agoda.com (“the Site”) or any other site that it deems appropriate at its sole discretion. The Product Data on the Site shall constitute the confidential and private intellectual property of the Company. The Partner shall not copy or reuse Product Data without prior written permission from the Company. During the term of this agreement, the Company may grant, at its sole discretion, the right for the Partner to use or display Product Data on the Partner’s website(s). The Partner agrees that if such permission is granted, the Partner agrees to make no changes to the content and information listed on the Site, unless agreed upon, in writing by both parties. The Company reserves the right to change the name or URL of the Site with reasonable advance notice to the Partner.
2.2 The Company will provide the Partner with all the graphical and technical support required to execute the above mentioned if mutually agreed.
2.3 The Company will, at its sole discretion, offer technical and marketing assistance to the Partner. This will occur between the hours of 9 am - 6 pm, Monday to Friday (Bangkok Time). The Company will endeavour to make commercially reasonable efforts to solve any problem pertaining to any technical issue relating to this agreement within 48 hours. However, the Company shall not be required to provide any level of service or support.
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3.1 Under the terms of this agreement, the Partner will market the Company's products and services in return for commissions earned.
3.2 The Partner understands that the Company would prefer that this agreement to sell the Company's products is exclusive, but the Company respects the Partner’s right to display hotels offered by other affiliate programs. The Company would, however, request that the Partner disclose what other affiliate programs they are using, in order for us to improve our services so that we may become the exclusive partner of the affiliate by choice. The Company may appoint one or more additional Partners having marketing responsibility in the same geographic area. The Company itself and other Partners may also sell the same products to purchasers located anywhere.
3.3 The Partner agrees to promptly and prominently display links on the Partner’s site and to promptly update such links upon reasonable notice from the Company. The Partner may use any number of links on the Partner site so long as, at all times, the Company has the right to approve the location and use of such links. Other than as expressly set forth herein, the Partner is not authorized to establish any other type of link to the Site or to use the links for any purpose other than to link visitors to the Site. The Partner also agrees to promptly notify the Company in the event of any problem or malfunction with one or more links.
3.4 The Partner is solely responsible and liable for the development, operation, maintenance, content, software, equipment and all costs associated with the Partner’s site. In addition to any and all other express prohibitions set forth herein, the Partner’s site shall not, in any way: (i) copy or resemble the design, domain names (including sub-domains), look and feel of, or create the impression that it is part of this Site or any of the Company’s affiliates or subsidiaries websites; or (ii) display sexually explicit or obscene materials, or materials that are otherwise deemed offensive; (iii) advocate discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (iv) promote or engage in illegal activities; (v) violate intellectual property rights of third parties; or (vi) contain or promote deceptive information or promote gambling. Any violation of the aforesaid agreements and the Partner will be terminated from the program and forfeit any outstanding payments due.
3.5 The Partner shall not (a) by any means, including, but not limited to, mechanical, electronic, photocopying, recording or otherwise, copy, reproduce, modify, alter, adapt, disassemble, reverse engineer, or otherwise attempt to determine the source code of (or underlying ideas, algorithms, structure or organization of) the links or any content contained on or services provided by this Site; (b) create derivative works of or from the links or any of the content or services contained on this Site including redirection links and cloaking of web pages; (c) forward, transfer, sublicense, assign, sell, rent, distribute, display or disclose the links or this Site (for use or otherwise) to any other person or entity by any means whatsoever; (d) upload (i) any virus, Trojan horse, worm, time bomb, robot commands or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (ii) any unsolicited, commercial emails ("spam") through or into this Site; (e) remove, alter or conceal any intellectual property ownership or identification notices, marks, warnings or restrictions from the links or this Site; (f) 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 this Site. Any violation of the aforesaid agreements and the Partner will be terminated from the program and forfeit any outstanding payments due.
3.6 The Partner shall register each website or URL to be tracked separately and shall not use the same Child Identification Number (CID) on multiple websites. The Child ID (CID) is a unique tracking code that is used to identify the website or URL that it relates to. The Partner shall not be permitted to move a CID from one site to another. Once granted, a CID will remain tied to the URL for which it was granted. The CID will expire and be invalid if moved to a new site and the Partner shall forfeit all revenue from such CID and all other CIDs if this is violated without express written permission from the Company. Each additional website or URL shall be subject to the prohibitions and penalties set forth in article 3.4 of this agreement.
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4.1 The Company will be solely responsible for the development, operation and maintenance of the Company's operation and sales systems and for all materials that appear on The Company's place of business or website. For example, the Company will be solely responsible for:
The technical operation of the Company's systems, Site and all related equipment The accuracy and appropriateness of communications with customers, ensuring that materials posted on the Company's site are not libelous or otherwise illegal 4.2 The Company will provide Customer Service to assist the Partner’s customers with travel enquiries, grievances, complaints, and reservation requests and provide other travel-related services in the ordinary course of business in accordance with standard travel industry practice. The Partner agrees and acknowledges that the Company is responsible for reservation fulfillment and customer service. All reservation enquiries shall be directed exclusively to the Company.
4.3 The Partner disclaims all liability for these matters. Further, the Company will indemnify and hold the Partner harmless from all claims, damages, and expenses (including, without limitation, attorney's fees) relating to the development, operation, maintenance, and contents of the Company's operation and website.
4.4 Consequently, the Partner will indemnify and hold the Company harmless from all claims, damages, and expenses (including, without limitation, attorney's fees) relating to the development, operation, maintenance, and contents of the Partner's operation and website.
4.5 All issues relating to the booking process are the responsibility of the Company and the Partner shall not enter into any correspondence with the client in any way, unless approached first. All queries relating to the Partner or any of its associations shall be forwarded on to the Partner immediately, as agreed by both parties.
4.6 We make no express or implied representations or warranties regarding the Site or its performance, availability or functionality. Any implied warranties of merchantability, fitness for a particular purpose, and non-infringement from the Company are expressly disclaimed and excluded. In addition, we make no representation or warranty that the operation of the Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
4.7 The Company’s Terms of Use and its Privacy Policy shall govern the use of the Site by visitors. The Company shall own all rights, titles and interests in and to all information related to the visitors and such information is deemed the Company's confidential and proprietary information.
4.8 The Company shall be solely responsible for making the services available to visitors of the Site, and excepting any reporting, The Company is not obligated to provide to the Partner any data or information related to visitors, whether personally identifiable or otherwise. All terms relating to the provision of the services shall be between the Company and each visitor. The Company reserves the right to refuse to serve a visitor.
4.9 The Partner shall not use the program, any software code or otherwise in any way, to obtain or attempt to obtain personally identifiable information or learn the identity of users of this Site.
4.10 The Partner agrees to promote the services, subject to the terms and conditions specified on this Site. The Partner acknowledges and agrees that such terms and conditions may change without notice and may vary from hotel property to hotel property. The Company may discontinue offering reservations on this Site for any hotel property for any reason without prior notice to the Partner.
The revised commission scale noted below takes effect from the date of this agreement and will apply to booking departures recorded after this date. For existing affiliates who registered with a previous program under a previous agreement, please note that the new rates only apply to bookings made after January 1st, 2006. 5.1 The Company will pay the Partner a percentage of the revenue generated by sales of hotel rooms resulting from this new cooperative venture ("the Commission"). The Commission will be paid in accordance with the following formula:  |  |  | | | Commission Paid = (CI - HI - (CI*PP)) * ACP | |  | |  |
CI= Client Invoice (what the client paid to us)
HI= Hotel Invoice (what we paid to the hotel)
PP= Processing Percentage = 2.6%
ACP= Affiliate Commission Percentage The Affiliate Commission Percentage or ACP will be determined by agreement in writing between the parties (hereafter the "Custom ACP Agreement"), but in the absence of a Custom ACP Agreement, will be based on the scale listed in this agreement below and on the Company’s website (hereafter the "Default ACP Agreement"). Both the Default ACP Agreement and any Custom ACP Agreement shall be based on the number of departures that can be attributed with certainty to the Partner’s marketing efforts ("Partner Departures"), in a manner determined at the sole discretion of the Company. The method the Company has chosen to calculate Partner Departures is as follows: A "cookie" (a small text file) will be placed on any visitor’s browser when they choose a link given to the Partner specifically for the purpose of sending the visitor to the Company’s site. This cookie will contain the Partner’s ID Number. Our software tracks the visitor using the Affiliate Partner ID number and cookies for 365 days. If the visitor subsequently returns directly to the Company’s site to make a reservation, the Partner will be credited with the sale. If, however, they visit another Affiliate Partner website, the cookie will be reassigned. The Company will make every effort to ensure that all Partner Departures are tracked, reported and paid. However, the Partner shall have no recourse for any lost revenue or damages in the event that the Company fails to accurately track or report Partner Departures. The Partner’s sole recourse shall be to end its participation in the program. Default ACP Agreement The following scale shall be used to calculate the ACP in the absence of a Custom ACP Agreement. These rates take effect January 1, 2006, and apply to booking departures recorded after this date. | | | | | Number of Departures | Affiliate Commission Percentage | |  | | 1 - 49 | 35% | | 50 – 99 | 37.5% | | 100 – 199 | 45% | | 200 - 999 | 55% | | 1000+ | 60% | | |
The Company reserves the right to change or alter the Default ACP Agreement on the first day of any month. In such a case, a notice shall be posted on the Company’s website, and an e-mail shall be sent to all Partners, based on the e-mail address provided by the Partner when executing this agreement. Notification shall occur at least 15 days prior to any change. The Company reserves the right to change or terminate any Custom ACP Agreement on the first day of any month, with 15 days prior notice to Partners. If The Company terminates the Custom ACP Agreement, in the absence of a new Custom ACP Agreement acceptable to both parties and executed in writing, the Default ACP Agreement will be used for any future calculations. 5.2 Commission will be calculated for each calendar month, in US Dollars (USD), based on the month's departures. The Partner and the Company agree that any adjustments to bookings that the Company is notified about after the end of the month or after payments have been made to the Partner shall be adjusted accordingly in the next month's payment. Such adjustments whether positive (extended stays) or negative (early check-outs) should accurately reflect the value of the bookings. 5.3 Partners will paid by the 15th of the month following the departure date. If the Partner requires payment by International Money Transfer (TT) a US$25 bank charge will be deducted from the payment to cover the cost of the International Money Transfer. The Company can currently make local payments in Hong Kong, Singaporeand Thailand(*) in which case the payment will not be subject to a TT charge. (* Note: Under current Bank of Thailand regulations a local payment in Thailandcan only be made to a resident account. Accordingly for a local transfer we will require proof that the Thai bank account is a Thai resident account). Partners may request extended holding periods for commission payments to avoid excessive bank charges. These requests will be handled on a case by case basis and at the sole discretion of the Company. The minimum payment amount is set at US$200 with any outstanding balances being accrued. 5.4 The Company will send notification every month of any outstanding balance due to the Partner. The Company will send these notices to the contact details that are held on file. It is the responsibility of the Partner to ensure these details are correct and up to date. In the event that a Partner fails to claim any unpaid amounts over US$200 within 14 days of receiving three consecutive monthly notices, the Partner shall forfeit any commission due.
5.5 The Partner is responsible for ensuring the accuracy of the bank information maintained in the Company's affiliate profile. If the bank account number is provided incorrectly, an additional processing fee will be levied by the banks. The Company will deduct this processing fee from the next commission payment.
5.6 The Commission specified shall be the sole compensation that the Partner is entitled to receive under this agreement. All orders are subject to acceptance by the Company in accordance with its policies at the time of the booking request. The Company’s policies are subject to change without notice. The Company will make its best efforts to keep an audit of all transactions subject to this Agreement. The Company will provide the Partner with an account summary, which will track the number of click-throughs, legitimate bookings, and confirmed bookings submitted by users whose intent is to utilize the service and who are referred by the Partner. The Partner will also have access to payment reports, which will display projected earnings and payment history. Should the Company fail to keep accurate records or audit, the Partner's sole recourse shall be to end its participation in the program.
6.1 Any use by the Partner of any other user's information, personal or otherwise, for any commercial purpose or to obtain direct financial gain (e.g. mass marketing) is prohibited. Any such use is deemed to be a violation of this agreement. The Site is to be used for the Partner's customers' personal use only. The Partner agrees that it will not use company information obtained from the Site for chain letters, junk mail, "spamming," solicitations (commercial or non-commercial) or bulk communications of any kind including but not limited to distribution lists to any person who has not given specific permission to be included in such a list. However the abovementioned does not prohibit the Partner from marketing products and services to its customers, who have purchased travel through the Site, via e-mail provided; however, the customer has the ability to unsubscribe to such solicitations and cease to be a recipient of such e-mails. If the Partner is in violation of this, the Company reserves the right to immediately terminate this agreement without notice and the Partner will forfeit all outstanding payments due.
6.2 Neither party shall create, publish, distribute, or permit any written materials, which makes reference to the other party without first submitting to the other party such material and receiving prior written consent from the non-submitting party. This consent shall not to be unreasonably withheld or delayed.
6.3 Neither party will make announcements or statements to the public or any third party concerning the relationship between the parties or the transaction described in this agreement without the prior written consent from the other party. This consent shall not be unreasonably withheld or delayed.
7.1 This agreement comes into force the earlier of either the day the Partner signs up to the affiliate program or the day the Partner begins using the service. The Company shall review all applications before granting admission to the program and access to the Affiliate Center. This review process should take no longer than two business days, during which time the Company may contact the applicant to confirm any details submitted with the application. After the review is complete, the Company will forward an e-mail advice requesting confirmation of the acceptance of the program’s terms and conditions as outlined in this agreement. Upon receipt of the Affiliate Partner’s reply e-mail confirming such acceptance, The Company will provide the Affiliate Partner with the necessary details required to access the Affiliate Center and the Affiliate Partner’s account will be activated. The Parties also agree that use of the Company’s services constitutes acceptance of this agreement in full. Both parties retain the right to immediately terminate this agreement at any time, with or without cause, for any reason. E-mail, verbal or written communication shall be considered acceptable forms of notification of termination. Upon termination by the Company, the Partner shall forfeit commissions from any future bookings from the date of termination.
7.2 The Company reserves the right to terminate any affiliate account should the account produce no confirmed bookings for three consecutive months.
7.3 The Company reserves the right to terminate any affiliate account for repeated inaccuracies displayed on the Partner’s website. These inaccuracies may relate to rates, content, or general information displayed on the Site. The Company will notify the Partner, either in writing or by e-mail, of such inaccuracies and give the Partner 14 days to remedy the situation. Failure to do so will result in the Partner’s account being terminated. Therefore, Partner sites which replicate the Company’s Product Data must contain a disclaimer stating that the Company’s info is primary and that the visitor must check directly with the Partner to ensure accuracy of content.
7.4 Upon termination for a reason not specifically warranting complete forfeiture of funds as stated in this agreement, any monies owed to the Partner, which are below the minimum amount paid (US$200), will be forfeited by the Partner. Upon termination, the Partner agrees to remove all reference and links to the Company within a reasonable time period. The Partner is eligible to earn Commissions only for departures that occur during the term of this agreement.
8.1 Each party owns and retains all rights, title and interest in its names, logos, trademarks, service marks, copyrights, patents, proprietary features, and proprietary technology. Neither party shall copy, distribute, reproduce, or use the above proprietary items except as expressly permitted under this agreement.
8.2 Both parties will be responsible for their own costs and legal fees associated with this agreement.
8.3 The Partner and the Company agree that the Partner is an independent contractor for all purposes, and the Partner will be responsible for his own withholding taxes, workers compensation and all other matters related to work.
8.4 This agreement and the Affiliate Partners Sign Up Page constitute and contain the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces any prior oral or written agreements. The Company may at any time enroll any other affiliate on terms different from those contained herein. The Partner agrees not to assert that this agreement is invalid or unenforceable solely because it was created and executed in electronic form rather than in a written form or another form or method.
8.5 This agreement will be governed by the laws of the United States and the State of Michigan, without reference to rules governing choice of laws. Any action relating to this agreement must be brought in the federal or state courts located in Detroit, Michigan, and the Partner irrevocably consents to the jurisdiction of such courts. The Partner may not assign this agreement, by operation of law or otherwise, without prior written consent. Subject to that restriction, this agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Our failure to enforce the Partner’s strict performance of any provision of this agreement will not constitute a waiver of right to subsequently enforce such provision or any other provision of this agreement.
8.6 This agreement shall not be assignable, except by operation of law, by either party without the prior written consent of the other party, and any purported assignment by either party without the prior written consent of the other party shall be void.
8.7 Modification: The Company may modify any of the terms and conditions contained in this agreement, other than the Default ACP Agreement or Custom ACP Agreement, at any time and at the Company’s sole discretion, by posting a change notice or a new agreement on the Site on the first of any month. Modifications will take effect on the first of the following month. Modifications may include, for example, changes in the scope of available referral fees, payment procedures and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO THE PARTNER, THE PARTNER’S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. IT IS THE PARTNER’S RESPONSIBILITY TO CHECK THE WEBSITE AFTER THE 1ST OF ANY MONTH FOR CHANGES IN THE PROGRAM OR AGREEMENT. IF THE PARTNER CANNOT LOCATE THE LEGAL AGREEMENT ON THE SITE, IT IS THE PARTNER’S RESPONSIBILITY TO NOTIFY THE COMPANY AND THE COMPANY SHALL HAVE 15 DAYS TO PROVIDE A COPY TO THE PARTNER. CONTINUING PARTICIPATION IN THE PROGRAM, FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE, WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. SHOULD THE COMPANY STOP PROVIDING THE SERVICES TO ALL PARTNERS, THIS AGREEMENT SHALL IMMEDIATELY TERMINATE WITH OR WITHOUT NOTICE TO THE PARTNERS.
8.8 Limitation of Liability: The Company will not be liable for indirect, special or consequential damages, or any loss of revenue, profits or data, arising in connection with this agreement or the program, even if the Company has been advised of the possibility of such damages. Further, the Company’s aggregate liability arising with respect to this agreement and the program will not exceed the total referral fees paid or payable to the Partner under to this agreement.
8.9 Independent Investigation: THE AGREEMENT HAS BEEN READ AND ALL THE TERMS AND CONDITIONS HAVE BEEN AGREED TO BY THE PARTNER. THE PARTNER UNDERSTANDS THAT THE COMPANY MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH THE PARTNER’S WEBSITE. THE PARTNER HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATION IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
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