These terms and conditions are an integral part of the Affiliate Marketing Agreement for the promotion of the Platform.
Vacay XP reserves the right to change at any time and in its sole discretion any of the terms and conditions contained in these General Terms and Conditions, the Policies and the Commission. Changes to these General Terms and Conditions will take effect at the latest seven (7) days from notification by notice to the Affiliate or posting on the Platform or otherwise. Changes to Policies and the Commission may be posted without notice and shall have immediate effect. The Affiliate is responsible for reviewing notices, Policies and the commission structure. The Affiliate’s continued participation in the Vacay XP the Affiliate Program following the changes taking effect will constitute the Affiliate’s acceptance of such changes and if the Affiliate does not agree to any changes, the Affiliate must discontinue its participation in the Vacay XP the Affiliate Program and the Agreement will be terminated. For the avoidance of doubt, newer versions of the General Terms and Conditions, Policies and to the commission structure supersede older versions.
The Agreement is limited to parties that can enter into and form contracts under applicable law. the Affiliate represent and warrant that: i) it is, and will remain at all times, a business duly organized, registered, validly existing and in good standing under the laws of its country of registration; ii) it has all requisite right, power and authority to enter into the Agreement and perform its obligations hereunder; and iii) any information provided or made available to Vacay XP is, and shall remain at all times, accurate, up to date and complete.
CLAUSE 1. DEFINITIONS AND INTERPRETATION
- Advertising Material: includes banners, pop-ups or any other Vacay XP information shown in equivalent forms.
- Affiliate Media: All advertising media, including but not limited to website, application and newsletter, the Affiliate networks’ sub affiliates, their owned and brokered media, registered to the Affiliate Program by the Affiliate and approved by Vacay XP.
- Affiliate Platform: The online platform provided by Vacay XP, which enables the Affiliate to participate in the Affiliate Program and provides the Affiliate with statistical, financial and other information concerning the Affiliate’s performance, Commission amounts as well as Advertising Materials.
- Affiliate Program: The Vacay XP program that offers products, goods and/or services for sale to Customers by way of Hyperlinks originating on the Affiliate Media.
- App: The Vacay XP mobile application.
- Chargeback: Sales which are not eligible for a Commission including, but not limited to:
- fraudulent & invalid transactions (including transactions identified manually or by way of automated fraudulent order check tools);
- cancelled transactions; and
- returned orders.
- Click: A user’s call of an Affiliate Program Hyperlink on the platform operated by the Affiliate, leading to the display of a Product or of a page on the Platform.
- Commission: The fee earned by the Affiliate for a Click leading to a Sale, or any other action agreed to by the Parties, excluding Chargebacks, as further defined in Clauses 7 and 8.
- Customer: A consumer who places an order on the Platform through a Hyperlink on the Affiliate Media.
- EDM: Advertising e-mails and other direct marketing products and processes.
- SST: Sales and Services Tax.
- Hyperlink: A link to a Product in the form of an URL provided via the Affiliate Program and identifying the Affiliate, for use by the Affiliate in the Affiliate Media.
- Platform: The Website and any other Internet domain property or mobile app owned or operated by Vacay XP.
- Policies: The various Vacay XP policies on prohibited products, acceptable use for advertisers, etc.
- Product: A product sold or a service provided on the Platform.
- Sale: The act of a Customer purchasing a Product where the Affiliate is in the last position of the Click chain (last paid marketing advertorial (paid channel) the end-user is using).
- SEM (Search Engine Marketing): Any form of online marketing that seeks to promote websites by increasing their visibility in search engine result pages through the use of paid placement, contextual advertising or paid inclusion.
- SEO (Search Engine Optimization): The process of (i) improving the volume or quality of traffic to a website 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.
- Successful Sale: A Sale without Chargeback, from the first purchase by a Customer and for thirty (30) calendar days thereafter.
- Sign-Up Form: The Sign-up form that is accessible via the Affiliate Program for registration with the Affiliate Program.
- Views (or impression): The number of times that an advertisement is shown on the Advertising Media.
- Website: The Vacay XP.biz e-commerce platform.
CLAUSE 2. CONTRACT FORMATION
The agreement shall be formed exclusively via the Affiliate Platform application procedure. The Sign-Up Form together with these General Terms and Conditions and the acceptance into the program will together constitute a framework agreement between the Parties. In case of a conflict between the Sign-Up Form and these General Terms and Conditions, these General Terms and Conditions shall prevail.
CLAUSE 3. SCOPE OF AGREEMENT
- The Agreement concerns the participation of the Affiliate in the Affiliate Program. To this end, Vacay XP shall make a selection of Advertising Materials available to the Affiliate via the Affiliate Platform for Affiliate to place on the Affiliate Media.
- The Affiliate shall be solely responsible for placing Advertising Materials on the Affiliate Media. Subject to the rights of Vacay XP under this Agreement, the Policies, all applicable laws, as well as to Vacay XP’s absolute right to direct the use of, suspend or terminate the use of Advertising Materials and of this Agreement, the Affiliate shall be free to decide whether and how long to place the Advertising Materials on the Affiliate Media and shall be entitled to remove the Advertising Materials at any time. The Affiliate may only place Advertising Materials on the Affiliate Media provided that such the Affiliate Media has been registered with and approved by Vacay XP, which approval may be withdrawn at any time and for any reason or no reason, without penalty to Vacay XP.
- In return for a Successful Sale, the Affiliate shall be entitled to the Commission.
- The Affiliate Program shall not establish any other contractual relationship between the Parties beyond that which is envisaged in this Agreement.
- The Affiliate’s own terms and conditions as well as any other terms shall require the express written consent of Vacay XP and shall therefore not be applicable even if Vacay XP is notified thereof and does not object to their validity.
CLAUSE 4. AFFILIATE OBLIGATIONS AND COVENANTS
- The Affiliate is prohibited from modifying the Advertising Materials and content accessed via the Affiliate Platform or using such materials other than as expressly provided for under this Agreement.
- The Affiliate shall not, without Vacay
XP’s prior written consent, be allowed to use EDMs to promote Vacay XP, the
Platform or for any other purpose under this Agreement.
Where so explicitly allowed, the Affiliate shall ensure that all EDM e-mail addressed are generated over a double op-tin e-mail, and used in consideration of all necessary restrictions.
The Affiliate will hold Vacay XP harmless in case of issues arising out of any EDM and guarantees it will take full and sole responsibility for any issues stemming from such EDM. The Affiliate is not allowed to use the brand “Vacay XP” within the e-mail address, within the URL, within the source code, and within the subject of the e-mail. The Affiliate has to make sure that it is clear that the e-mail comes from the Affiliate and not from Vacay XP directly. The e-mail has to be approved by Vacay XP before it is sent.
- The Affiliate shall be responsible for the content and routine operation of the Affiliate Media. The Affiliate shall place no content on Affiliate Media that breaches applicable law, public morals or third-party rights, or harms the reputation of Vacay XP or its parents, affiliates or the parties it does business with. Prohibitions shall include, but not be limited to, representations that glorify violence, sexual and pornographic content and illustrations, misleading statements or discriminatory content (e.g. in respect of gender, race, politics, religion, nationality or disability). Such content may neither be mentioned on the Affiliate Media, nor may links be created from the Affiliate Media to such content on other media.
- The Affiliate Media shall not conduct, undertake, use, perform or host, torrent, streaming and other such activities without Vacay XP’s prior consent.
- The Affiliate may not create, maintain or in any way, directly or indirectly, take any part or be associated with any websites/apps that may lead to risk of confusion between the Affiliate or the websites/apps with the Platform. Furthermore, the Affiliate may not create the impression that the Affiliate Media is a project of Vacay XP or that its operator is economically linked to Vacay XP in any way or that there is any relationship or affiliation between the Affiliate and Vacay XP that goes beyond the Vacay XP the Affiliate Program and this Agreement. In particular, but not limited thereto, the Affiliate may neither mirror the Platform, copy graphics, texts or other Platform content, crawl any parts of the Platform or use any materials or content from the Platform or Vacay XP (or those of Vacay XP parents or subsidiaries) logos or brands in connection with the Affiliate Program.
- The Affiliate shall ensure that its advertising contents are neither in direct nor in indirect breach of domestic or foreign third-party property rights or other rights that do not meet any special statutory protection.
- Advertising Vacay XP through social media activities (including but not limited to Facebook, Pinterest, Twitter) must be expressly approved by Vacay XP and may not include any Vacay XP trademarks, or display misleading content (i.e. that may not look like official Vacay XP social media activities) and any social media activities through the Facebook platform must be run through a “Fan Page” only and not through a “Personal Page” in accordance with Facebook policy.
- The Affiliate shall not set up campaigns on third party the Affiliate Networks. The Affiliate is only allowed to direct its own traffic and/or its own sub affiliate traffic in case of networks, to the Platform. The Affiliate shall warrant that it will set cookies only if the Advertising Material is in visible use on the Affiliate Media and the user Clicks voluntarily and consciously. The use of layers, add-ons, iFrames, pop-up, pop-under, site-under, auto-redirect advertisements which automatically redirect the user to the Platform without the user’s engagement or action (e.g. click, touch), cookie dropping, postview technology, misleading advertisements that result in misleading clicks that display expected content, etc., are strictly prohibited. Actions by the Affiliate that result in forced installations of the App are prohibited. For clarification purposes, forced-installation also includes the act of not asking for permission before initiating a download/ redirect.
- The use of offers, creative or brand names for competitions, lotteries and similar activities is prohibited.
- Where so approved by Vacay XP, the Affiliate may promote vouchers created explicitly for affiliates or communicated by means of the affiliate’s newsletter. The promotion of other vouchers, including but not limited to customer newsletters, print advertisements or customer service contacts, is prohibited.
- Any breach, by the Affiliate of its obligations under this Agreement or any intellectual property rights of Vacay XP or third parties shall entitle Vacay XP to terminate this Agreement for good cause. This shall not affect any additional claims against the Affiliate to which Vacay XP may be entitled. Vacay XP shall be entitled to withhold or cease all and any services related to the Affiliate.
- If so requested by Vacay XP, the Affiliate shall remove Vacay XP advertising material without delay from the Affiliate Media.
- Affiliate hereby agrees on its behalf and on behalf of sub-affiliates to release Vacay XP (and its agents and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the Affiliate Media, provided such release will not apply where actual claims, demands or damages arise due to the Advertising Media or Vacay XP’s fraud, negligence or wilful misconduct.
- The Affiliate will defend, indemnify and hold harmless, and at Vacay XP’s option defend against, Vacay XP and its employees, directors, agents and representatives, from and against any and all liens, damages, losses, liabilities, obligations, penalties, Claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts’ fees and other costs of litigation) arising out of, or related to the Affiliate, any sub-affiliate or the Affiliate Media, any actual or alleged infringement of any intellectual property rights, taxes (duties, fees and other charges, etc.), the failure to collect or pay taxes, etc. If, for its legal defense, Vacay XP requires the Affiliate to provide information or explanations, the Affiliate shall be obliged to make the same available to Vacay XP no later than three (3) days thereafter and shall also provide reasonable support to Vacay XP in its legal defense.
- The Affiliate shall not purchase, directly or indirectly (eg. through family, friends, or associates), any Product(s) by way of the Advertising Materials.
- The Affiliate covenants that it has and will maintain all licenses, permits, approvals, registrations or the like, to perform the matters contemplated under this Agreement and that it shall carry out this Agreement in compliance with all applicable laws in Malaysia and any other applicable jurisdiction.
- Without prejudice to other rights or remedies available to Vacay XP, if Vacay XP determines that the Affiliate is not in compliance with any requirement or restriction under this Agreement, including but not limited to those relating to the prohibited content in Clause 4, or if there are technical errors, such as improper link formatting, by the Affiliate, the Affiliate agrees that it shall forfeit the Commission otherwise payable under this Agreement and Vacay XP reserves the right to deem as Chargeback: (i) any pending payment owed to the Affiliate, (ii) the total amount of the Commission for the period the non-compliance was identified, and (iii) any future payout earned by the affiliate deemed to have originated from the non-compliance. In addition, in case of non-compliance of any obligations under Clause 4 by a sub-affiliate to the Affiliate, a penalty equivalent to 30% of the Commission may be applied by Vacay XP to the Affiliate.
CLAUSE 5: SERVICES BY VACAY XP
- The Affiliate shall be provided with advertising materials updated at regular intervals in line with the product range and seasonal influences. The Affiliate may request customized formats or newsletter templates.
- Vacay XP shall operate the Platform, the Affiliate Platform and the services offered thereon, such as the provision of product feeds, on a best efforts basis. Vacay XP shall not be required to provide error-free and interruption-free availability of the Platform or the Affiliate Platform. The level of quality and the correctness of Product descriptions on the Platform and on the Advertising Materials, csv files, etc. provided on the Affiliate Platform, shall fall within the exclusive discretion of Vacay XP.
- All activities of the Affiliate shall be logged via the Affiliate Platform tracking system and made accessible to the Affiliate via statistics and reports.
- The Affiliate shall be entitled to receive the Commission in relation to net transactions that are generated, by its active promotion of Vacay XP on the Affiliate Media, from the first purchase by a Customer and for thirty (30) calendar days thereafter.
- Any typographical clerical or other error or omission in the Advertising Media or other Vacay XP document shall be subject to correction without any liability for Vacay XP.
- Any claim of Affiliate under the Agreement must be notified to Vacay XP within ninety (90) days from the time the claim became known, or should have become known, to the Affiliate. For the avoidance of doubt, Vacay XP will not be liable for any claim made by Affiliate after said deadline.
CLAUSE 6: LIABILITY OF VACAY XP
- The total liability of Vacay XP under this Agreement shall not exceed the total of the Commissions paid to the Affiliate under this Agreement in the six months immediately prior to the event giving rise to the most recent claim of liability.
- No further liability on the part of Vacay XP shall exist.
- The aforementioned limitation of liability shall also apply to the personal liability of Vacay XP employees, representatives and executive bodies
CLAUSE 7: COMMISSION FOR TRANSACTIONS GENERATED FROM THE VACAY XP WEBSITE
- Vacay XP shall pay the Affiliate a Commission on Successful Sales. The standard commission rate is currently at 10% for every sales of VXP GPS Audio Tour Guide App Access Code.
- The Commission structure can be found here: http://www.eshop.vacayxp.com/affiliate-area and may be amended by Vacay XP from time to time.
- The Commission is calculated from the net shopping basket value corresponding to the amount that the Customer pays for a Product minus shipping fee, where charged separately (the “Net Shopping Value”).
- The payout to the Affiliate equals the Net Shopping Value multiplied by the Commission rate applicable to the Product.
- The Commission structure may be modified at any time by agreement with selected affiliates in order to incentivize best practices and reward outstanding results as provided for under Clause 12.3.
CLAUSE 8: COMMISSION FOR TRANSACTION GENERATED FROM THE VACAY XP APP
- Vacay XP shall pay the Affiliate a Commission on Successful Sales. The standard commission rate is currently at 10% for every sales of VXP GPS Audio Tour Guide App Access Code.
- The Commission structure can be found here: https://www.eshop.vacayxp.com/affiliate-area and may be amended by Vacay XP from time to time.
- The commission structure can be modified at any time by adding additional points of commission to selected affiliates, in order to incentivize best practices and reward outstanding results as provided for under Clause 12.3.
CLAUSE 9: TRACKING METHODOLOGY
- Tracking and reporting shall be carried out by and for the purposes of the Affiliate Platform whereby a cookie is stored on a user’s browser to track transactions back to each specific affiliate by identifying the user’s device ID for transactions generated from the App.
- Cookies will last for thirty (30) days.
CLAUSE 10: PAYMENT
- The Affiliate can log into the Affiliate Platform to view accumulated Commissions one hour after conversions are made and a first payment check has been performed. When requested by the Affiliate and deemed necessary, a technical integration can be established between the Affiliate Platform and the Affiliate’s systems. In the event of any discrepancy of data between the platforms of Vacay XP and the Affiliate, the date provided by Vacay XP shall be deemed correct. Under no circumstances will data from the Affiliate’s system be used to measure payable amount.
- Vacay XP will issue monthly invoices for all Sales in the previous month for total Commission amounts exceeding payouts of Fifty Ringgit Malaysia (RM50). Where the amounts fall below Fifty Ringgit Malaysia (RM50), monthly Commission will accrue on a cumulative basis until the threshold is reached.
- The Affiliate will be paid on 14th and the 28th of each calendar month.
- All payment made from the Vacay XP to the Affiliate will be in the form of direct bank transfer to the bank account identified by the Affiliate on the Signup Form. Vacay XP shall bear reasonable payment processing fees.
- The Affiliate shall be responsible for payment of all taxes on its own income. If the payment is subject to withholding taxes, Vacay XP shall deduct such taxes from the payment, pay the Affiliate the net amount and concurrently provide the Affiliate with a certificate or any equivalent document of withholding tax.
CLAUSE 11: ORGANISATION AND INDEPENDENCE OF THE AFFILIATE
- Vacay XP and the Affiliate are independent contractors, and nothing in this agreement will create any partnership, joint venture, agency, franchise, sales representative relationship or exclusivity between the Parties. The Agreement will not cause the establishment of any relationship of employment between the Parties or with any person who provides services to either. The Affiliate will have no authority to make or accept any offers or representations on behalf of Vacay XP.
- The Affiliate shall not subcontract any of its rights or obligations under this agreement without prior written consent of Vacay XP.
CLAUSE 12: TERM OF AGREEMENT, AMENDMENT AND TERMINATION
- The Agreement will come into force on the Effective Date and continue unless otherwise terminated in accordance with its provisions.
- Amendments and addendum to the Agreement shall be in writing.
- Vacay XP reserves the right to modify the Commission structure with seven (7) day prior notification. In such a case, an e-mail shall be sent to the Affiliate, based on the e-mail address provided for the Affiliate Program. Vacay XP shall have no responsibility to ensure that communications about changes in the program are received by the Affiliate. In case of disagreement, the Affiliate’s sole recourse shall be to end its participation in the program.
- Vacay XP reserves the right to suspend the implementation of this Agreement for up to seven (7) working days to investigate suspicious Affiliate activities. Where Vacay XP determines that the Affiliate has violated any provision of this Agreement, it may require the Affiliate to reimburse all expenses related to the investigation and to refund Vacay XP of any costs, expenses, losses or Commission overpayments within fifteen (15) days from being so notified.
- This Agreement may be terminated
under the following circumstances:
- by fourteen (14) day written notice by any Party to the other; or
- without any prior notice in case of violation by the Affiliate of any of its obligations or covenants under this Agreement.
- Vacay XP reserves the right to withhold unpaid commissions for a reasonable period of time following termination to account for possible Chargebacks.
- Upon termination of this Agreement, all rights and obligations of the Parties will be extinguished, except for matters that expressly or by their nature are intended to survive.
- Following termination of the contract, the Affiliate shall, without being requested to do so, immediately delete the information and advertising material submitted to it. The Affiliate shall have no right of retention in this respect. The Affiliate shall, at Vacay XP’s request, provide Vacay XP with written confirmation of the deletion.
CLAUSE 13: CONFIDENTIALITY AND PERSONAL DATA
- The recipient of any information proprietary to a Party disclosed to the other Party, whether marked as confidential or not, that should be considered confidential information under the circumstances (which does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully obtained and provided to the recipient by a third party) (the “Confidential Information”) will not disclose such Confidential Information, except to its employees and/or agents who need to know it and who have agreed in writing to keep it confidential. The recipient will ensure that those people and entities use Confidential Information only to exercise rights and fulfil obligations under the Agreement and keep the Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving the discloser reasonable notice and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure. The rights and obligations of the Parties under this Section will survive the termination of the Seller Agreement.
- Affiliate undertakes, represents and warrants that it will use and process personal data as provided for under Malaysian law (the “Personal Data”): i) only for the purpose of the execution of the Agreement and not disclose it to third parties; ii) in accordance with the requirements under the applicable personal data protection law; and iii) in manner that ensures Vacay XP remains in compliance with the requirement under the applicable personal data protection laws. Affiliate further warrants that it does implement sufficient security measures to ensure that the Personal Data are securely kept and maintained as required by the applicable personal data protection law and agrees to subject itself to the necessary audits undertaken by Vacay XP to ensure compliance of the above warranties.
- Affiliate agrees to indemnify and hold harmless Vacay XP and each of its respective officers, employees, directors and agents from, and at Vacay XP’s option defend against, any and all liens, damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts’ fees and other costs of litigation) (the “Personal Data Claims”), to the extent such Personal Data Claims arise from or may be in any way attributable to: i) any violation of the Agreement; ii) the negligence, bad faith or intentional or wilful misconduct of the Affiliate or its subcontractors (whether or not approved by Vacay XP); or iii) any security incident for which the Affiliate is directly or indirectly responsible.
- Vacay XP agrees to indemnify and hold harmless the Affiliate and each of its respective officers, employees, directors and agents from any claims that arise from, or may be attributable to any violation of the Agreement by Vacay XP or the negligence, gross negligence, bad faith or intentional misconduct of Vacay XP or its subcontractors.
CLAUSE 14: ASSIGNMENT, RIGHTS OF RETENTION, SET-OFF
- The Affiliate may only transfer claims against Vacay XP based on this Agreement to third parties with the written consent of Vacay XP.
- Neither Party may transfer, assign or subcontract all or part of its rights or obligations under this Agreement without the written consent of the other Party.
- Either Party may set off or exercise a right of retention only in relation to the other Party’s receivables that are uncontested or have become res judicata.
CLAUSE 15: GOVERNING LAWS AND DISPUTE SETTLEMENT
- This Agreement shall be governed and construed under the law of Malaysia without giving effect to any international and supranational (contractual) laws, particularly the UN Convention on the International Sale of Goods.
- Any disputes arising out of or relating to the execution of this Agreement or the breach, termination, or invalidity thereof shall be attempted to be settled through good faith negotiations between the Parties during a period of up to thirty (30) days or such longer period to which the Parties may agree but not otherwise.
- Any Party may, by giving the other Party written notice at any time after the expiration of the thirty (30) day period referred to above, submit any dispute that is not settled through mutual agreement to arbitration. Arbitration will be in English, in Kuala Lumpur, and in accordance with the rules of the Kuala Lumpur Regional Centre for Arbitration (“KLRCA”). Furthermore, the arbitral tribunal will consist of a sole arbitrator, to be designated by the Chairman of the KLRCA. Any award by the arbitration tribunal will be final and binding upon the Parties. The arbitrator will award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by such Party in connection with the arbitration. If the arbitrator determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.
CLAUSE 16: FINAL PROVISIONS
- There shall be no oral ancillary agreements to this Agreement and in particular, but not limited thereto, no terms and conditions of Affiliate or of any other Party shall apply, even if they have not been contested by Vacay XP.
- Should individual provisions in this Agreement be deemed invalid or unenforceable, this shall not affect the validity of the other provisions. The Parties shall endeavour to replace the invalid or unenforceable provision with one that best meets the contractual objective in legal and economic terms. The same shall apply in the event of a lacuna.
- Any stamp duty due under this Agreement will be borne by the Affiliate.
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