TripAdvisor™ Affiliate Program Agreement
TripAdvisor™ Affiliate Program Operating Agreement This Agreement, made and entered by and between
TripAdvisor™ and you, the affiliate ("you" or "affiliate"), contains the complete terms and conditions that apply to your participation in the
TripAdvisor™ Affiliate Program (the "Affiliate Program" or "Program").
1. Terms of the Agreement
The
term of this Agreement will begin upon our acceptance of your
affiliate application and will end when terminated by either party.
Either you or we may terminate this Agreement at any time, with or
without cause, by giving the other party written notice of
termination. You are only eligible to earn commission on commerce
clicks (as defined below) occurring during the term.
You must provide and use a valid email address through which you can
be reached to participate in the Program. If you do not, your account
will be deactivated and this Agreement will be terminated.
2. Compensation Defined; Banner/Link Placement
You can earn commissions under the Program through a cost-per-action
campaign called the "TripAdvisor™ Commerce Click" Campaign. This
Program pays you fifty percent (50%) of the gross revenue that
TripAdvisor™ collects from its advertisers (net of fraudulent clicks)
that purchase sponsored links on TripAdvisor.com when you use an
authorized TripAdvisor™ banner or text link to drive a visitor to an
authorized TripAdvisor™ page and the visitor then clicks on a sponsored
link on TripAdvisor.com during the same Internet browser session
("commerce click"). You agree to place the TripAdvisor™ banner or text
link provided to you hereunder above-the-fold on your web site. Such
banner or text link will link to the page of TripAdvisor.com as
determined by TripAdvisor™, in its discretion.
3. Termination;
Survival
Upon termination of this
Agreement for any reason, you will immediately cease use of, and
remove from your site, all links to our site, and all TripAdvisor™
trademarks, trade dress, and logos, and destroy all other materials
provided by or on behalf of us to you pursuant hereto or in connection
with the Program. Sections 3, 7, 9, 10, 13, 14 and 16 through 23 will
survive any termination or expiration of this Agreement.
4. Modifications to the Agreement
We may modify any of the terms and conditions contained in this
Agreement, at any time and in our sole discretion, by posting a change
notice or a new agreement on this site. Modifications may include, for
example, changes in the scope of available commission structure, fee
schedules, payment procedures and Program rules. If any modification
is unacceptable to you, your only recourse is to terminate this
Agreement. Your continued participation in the Program following our
posting of a change notice or new Agreement on our site will
constitute binding acceptance of the change.
5. Eligibility in the Program
Competitors, as well as their employees and agents (collectively,
“Ineligible Party”), are not eligible to enroll in the Program. If
you have any questions whether you are or are not an Ineligible Party,
please contact us. In addition, you agree to: (a) terminate this
Agreement immediately if you become an Ineligible Party following your
enrollment in the Program; and (b) keep confidential any Confidential
Information that we have provided to you during your enrollment in the
Program. “Competitors” means any person or business that provides a
travel search engine and directory services via the Internet or
comparable or competitive technology that is focused on helping
consumers perform travel- or destination-related research or price
comparison research, including, without limitation, Kayak.com, AOL,
Yahoo, Farechase, Sidestep, Qixo, Mobissimo, Virtual Tourist, IgoUgo, or
TravelZoo. ANY BREACH OF THIS SECTION 5 SHALL BE
DEEMED A MATERIAL BREACH OF THIS AGREEMENT. In addition, employees of
TripAdvisor™ or its Affiliates (as defined below), and the immediate
family members of such employees, are not eligible to participate in
the Program.
6. Enrollment in the Program;
Exclusivity
To begin the
enrollment process, you will submit a complete application from our
web site. We will evaluate your application and notify you of your
acceptance or rejection. We may reject your application if we
determine (at our sole discretion) that you an Ineligible Party or
your site is unsuitable for the Program. If we reject your
application, you are welcome to reapply to the Program at any time.
You should also note that if we accept your application and your site
is thereafter determined (at our sole discretion) to be unsuitable for
the Program, we may terminate this Agreement. During the term of
this Agreement, in exchange for the rights and payments provided
hereunder, you will not advertise, market, or promote any
Competitor or the services of any Competitor or participate in an
affiliate or similar program of any Competitor, whether directly or
indirectly, through any link or advertisement or otherwise.
Your site should:
a) Generate sufficient traffic to our websites;
b) Attract a customer base who may be interested in our products
c) Not promote violence such as: hate crimes, fire arms, terrorists organizations and/or related sites;
e)
Not promote discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age.
7. Confidentiality
The parties agree that the
recipient of any confidential or proprietary information of the other
party provided or received hereunder will use such confidential
information solely for the purposes for which it is provided by the
other party; will not disclose such confidential information to any
third party; and will protect such confidential information from
unauthorized use and disclosure; provided, however, that TripAdvisor™
may share the confidential or proprietary information that it receives
hereunder with its Affiliates. The foregoing obligations will not
apply to any (a) information that becomes generally publicly available
through no fault of the recipient, (b) information that the recipient
obtains from a third party (other than in connection with this
Agreement); (c) information that is independently developed or
acquired by the recipient; (d) disclosure with the prior written
consent of the disclosing party; or (e) disclosures which are required
by applicable law. Notwithstanding the foregoing, the recipient may
disclose such confidential information if required by any judicial or
governmental request, requirement or order; provided that the
recipient will take reasonable steps to give the disclosing party
sufficient prior notice in order to contest such request, requirement
or order. For the purposes of this Agreement, “Affiliates” means any
person, partnership, joint venture, corporation or other form of
enterprise, domestic or foreign, including but not limited to
subsidiaries, that directly or indirectly, control, are controlled by,
or are under common control with a party.
8. Fraud
If you commit fraud or falsify information in connection with
the registration of members in TripAdvisor.com through the TripAdvisor™
banners or links on your site, this Agreement will be terminated
immediately. In addition, you will be liable to TripAdvisor™ for any
and all damages that we suffer as a result of such actions. You will
also be responsible for returning to TripAdvisor™ all commissions
received for fraudulent/falsified members, and we will not hesitate to
pursue all legal causes of action against you to the fullest extent
possible under the law.
9. Limitation of Liability
TRIPADVISOR™ AND ITS ADVERTISERS AND SUPPLIERS 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 WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY OF TRIPADVISOR™ AND
ITS ADVERTISERS AND SUPPLIERS ARISING WITH RESPECT TO THIS AGREEMENT
AND THE PROGRAM WILL NOT EXCEED ONE MONTH’S COMMISSION PAID OR PAYABLE
TO YOU UNDER THIS AGREEMENT
10. Relationship of Parties
You and we are independent contractors, and nothing in this
Agreement will create any partnership, joint venture, agency,
franchise, sales representative, or employment relationship between
parties. You will have no authority to make or accept any offers or
representations on our behalf. You will not make any statement,
whether on your site or otherwise, that reasonably would contradict
anything in this Section 10. TripAdvisor™ may cite your name or URL in
connection with your participation in the Program in materials
including but not limited to postings on our site, newsletters,
advertisements, and other communications.
11. Payment
a) Commissions will be paid in U.S. dollars only.
b) Commission checks will be made payable to the order of the
person and/or company name designated on your application at the time
of sign-up. Absolutely no exceptions will be made to this rule.
c) Commissions are accrued on a 30/31 day calendar month.
Failure to provide TripAdvisor™ with a correct address, or if checks
mailed to you are returned to TripAdvisor™, will result in forfeiture
of any amounts otherwise due to you hereunder. You must send updated
information to affiliates@TripAdvisor.com. Any attempt by you to
manipulate, falsify or inflate clicks or referrals, to defraud
TripAdvisor™ or to violate the terms of this Agreement constitutes
immediate grounds for TripAdvisor™ to terminate this Agreement and will
result in forfeiture of any amounts otherwise due to you hereunder.
d) All clicks are verified.
e) Commissions are paid on a monthly basis when your account
has reached a minimum threshold of one hundred dollars ($100.00).
Accounts with a balance of less than $100.00 will roll over to the next
month.
f) Commission payments to you will be mailed on the 11th day of
the month. Should the 11th day fall on a weekend, checks will be
mailed on the next business day.
12. Tracking of Clicks and Advertising Orders
TripAdvisor™ will be solely responsible for tracking clicks made by
visitors who follow your TripAdvisor™ banners or links to
TripAdvisor.com. You will be solely responsible for ensuring that such
banners or links are formatted properly and maintained in a manner
that allows TripAdvisor™ to track commerce clicks. No commission shall
be paid if the commerce clicks cannot be tracked by TripAdvisor™ or if
the visitor accesses the TripAdvisor.com site other than through such
banner or links.
13. Responsibilities of Your Site
You will be solely responsible for the development, operation,
and maintenance of your site and for all content that appears on your
site.
You are solely responsible for:
a) The technical operation of your site and all related
equipment;
b) The accuracy and appropriateness of materials posted on your
site (including, among other things, all TripAdvisor™ materials);
c) Ensuring that content posted on your site does not violate
or infringe upon the rights of any third party (including, copyrights,
trademarks, privacy, or other personal or proprietary rights); and
d) Ensuring that content posted on your site is not libelous or
otherwise illegal.
14. Indemnification
We disclaim all liability for the matters listed in Section 13.
Further, you will defend, indemnify and hold us harmless from all
claims, damages, and expenses (including, without limitation,
attorneys’ fees) relating to the development, operation, maintenance,
and contents of your site or your breach of this Agreement.
15. Limited License
We grant you a nonexclusive, nontransferable, revocable right
to display solely on your web site the TripAdvisor™ banners or text
links provided to you hereunder and to enable access to our site
through these authorized banners or links, solely in accordance with
the terms of this Agreement, for the sole purpose of linking your site
to our site, solely for the purpose of identifying your site as a
participant in the Program and assisting in increasing traffic to
TripAdvisor™. You may not alter, modify, or change the banners or links
in any way. You are only entitled to use the banners or links to the
extent that you are a member in good standing of the Program. We may
revoke your license and terminate this Agreement anytime by giving you
written notice.
16. Publicity
You shall not create, publish, distribute, or permit any
written material that makes any public statement or reference to us
without receiving our prior written consent, which may be denied in
our sole discretion. Also, as an affiliate of TripAdvisor™, you may not
advertise TripAdvisor™ services or solicit members on any Internet
forums, boards, email service or communities that are the trademarked
and owned property of another company designed for use only by their
registered members. "Roping" of customers from any other company's
member base by placing personalized ads on their online product (or
any other way) is not an acceptable method of promoting TripAdvisor™
services.
17. Anti-Spam Policy
You will be removed from the Program and forfeit any pending
commission if you are caught spamming. Spamming is not allowed and
will not be tolerated and will result in the immediate termination of
this Agreement.
18. Anti-Predatory Policy
You will not replace, intercept, interfere, hinder, disrupt or
otherwise alter in any manner a Web user’s access, view or usage of,
or other aspect of such Web user’s experience at, any applicable web
site or page in a manner that causes or otherwise results in a
different experience from that which was otherwise intended. In
addition, you will not block, alter, direct or redirect, or
substitute, insert or append yourself to, or otherwise intercept or
interfere in any manner with, any click-through or other traffic-based
transaction that originated from an applicable web page or site
(including, without limitation, any return visit to TripAdvisor.com to
which such click-through or other traffic reached or intended to
reach) with the result of reducing compensation or other payment
earned by or owing to another affiliate or increasing any payment
obligation of TripAdvisor™ with respect to any individual transaction.
19. Disclaimer
We make no express or implied warranties or representations
with respect to the TripAdvisor™ Web site or the Program (including,
without limitation, warranties of fitness, merchantability, no
infringement, or any implied warranties arising out of course of
performance, dealing, or trade usage). In addition, we make no
representation that the operation of our site will be uninterrupted or
error-free, and we will not be liable for the consequences of any
interruptions or errors.
20. Miscellaneous
You may not assign this Agreement, by operation of law or
otherwise, without our 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. Any attempted assignment in violation of this
Section 20 will be null and void. TripAdvisor™ will send written
notices to you required hereunder to the email address provided in
connection with your Program application or to the physical address
specified on such application. You will send written notices to
affiliates@TripAdvisor.com. Our failure to enforce your strict
performance of any provision of this Agreement will not constitute a
waiver of our right to subsequently enforce such provision or any
other provision of this Agreement. This Agreement will be governed by
and construed in accordance with the laws of the State of
Massachusetts, without regard to the conflict of laws rules of any
jurisdiction. Any dispute arising out of or relating to this
Agreement will be resolved by binding arbitration (“Arbitration”).
Such Arbitration shall be conducted under the rules of the American
Arbitration Association’s Commercial Arbitration Rules. The
arbitrator will be selected by agreement of the parties. If the
parties cannot agree on an arbitrator, an arbitrator will be
designated by the American Arbitration Association. Any arbitrator so
designated must be acceptable to all parties. The arbitrator shall
have the authority to award compensatory damages only. The award
rendered by the arbitrator shall be final, binding and non-appealable,
and judgment upon such award may be entered by any court of competent
jurisdiction. Other than those matters involving injunctive relief as
a remedy, including during a pending Arbitration, or any action
necessary to enforce the award of the arbitrators, the provisions of
this Section 20 shall be a complete defense to any suit, action or
other proceeding instituted in any court with respect to any dispute,
controversy or claim arising out of or related to this Agreement, or
the creation, validity, interpretation, breach or termination of this
Agreement. Each party shall be responsible for its own expenses,
including legal fees, incurred in the course of the Arbitration. The
fees of the arbitrator shall be divided evenly between the parties.
The Arbitration shall be conducted in Boston, Massachusetts, USA. The
provisions of this Section 20 will not prevent either party from
seeking (a) equitable relief regarding the other party’s breach of its
confidentiality provisions of the Agreement or (b) specific
performance of the other party’s material breach of its obligations
under this Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter
hereof, and supersedes any prior agreements and understandings, both
written and oral, which may have existed or exist between the parties
with respect to the subject matter hereof. You may not modify this
Agreement.
21. Independent Investigation
You acknowledge that you have read this Agreement and agree to
all its terms and conditions. You understand that we may at any time
(directly or indirectly) solicit customer referrals on terms that may
differ from those contained in this Agreement or operate web sites
that are similar to or compete with your web site. You have
independently evaluated the desirability of participating in the
Program and are not relying on any representation, guarantee or
statement other than as set forth in this agreement.
22. Proper Age;
Authority
BY ACCEPTING THIS AGREEMENT, YOU CONFIRM: (A) YOU ARE AN ADULT
OF AT LEAST 18 YEARS OF AGE (19 OR 21 WHERE APPLICABLE); AND (B) YOU
HAVE FULL AUTHORITY TO BIND YOURSELF OR YOUR COMPANY TO THE TERMS AND
CONDITIONS HEREIN.
23. Trademark-Related Protections
Except for the limited
license granted to you in Section 15 above, you and your Affiliates are
prohibited from using or displaying (directly or indirectly), and agree
not to use or display (directly or indirectly), any URL, trade name,
trademark, logo, or branding of TripAdvisor™ or of any of its
Affiliates, in any manner whatsoever (including, without limitation, in
any meta-tags, search engine advertising, marketing or optimization,
any other online or offline marketing or advertising, press releases,
etc.) without the express, written permission of TripAdvisor™ or its
applicable Affiliates, which may be denied in the sole discretion of
TripAdvisor™ or such Affiliates. All rights not expressly granted are
reserved by TripAdvisor™ and/or its Affiliates.
