Affiliate Share Program Participation Agreement
This Agreement sets out the initial Terms and Conditions that govern your participation as an Affiliate Member in the Hawaiian Airlines Affiliate Share Program (“Program”). These Terms and Conditions may be amended by Hawaiian Airlines from time to time in its sole discretion. As used in this Agreement, Hawaiian Airlines will be referred to as “Hawaiian” and you, as the applicant party, will be referred to as “Affiliate.” The www.hawaiianairlines.com website will be referred to as “HawaiianAirlines.com”. The website onto which Affiliate will host electronic links to HawaiianAirlines.com through the Commission Junction Network, and which shall be disclosed to Hawaiian and approved by Hawaiian prior thereto, will be referred to as the “Affiliate’s Site.” This Agreement is valid for the contract period stated below and will become valid upon the acceptance of Affiliate’s application by clicking on the “I have read & agree” button of this Agreement by Hawaiian.
1.1. Enrollment Procedure
To enroll in the Program, Affiliate shall have first submitted a Program Application (“Application”) to Hawaiian through the Commission Junction Network [http://www.cj.com/]. By submitting its Application to Hawaiian, Affiliate represents and warrants to Hawaiian that all information disclosed in the Application is accurate, truthful and complete. Any misrepresentation, whether or not intentional, shall be a material breach and may lead to termination. Within a reasonable time after receipt, Hawaiian will evaluate Affiliate’s Application and notify Affiliate of its acceptance or denial of enrollment in the Program. Hawaiian reserves the right to deny any Application if Hawaiian determines for any reason, in its sole discretion, that any website listed in the Application is unsuitable for the Program. Unsuitable websites include, without limitation, those that contain illegal, offensive, infringing, or objectionable content. Multiple site operators and ad networks are encouraged to submit Applications. However, Hawaiian reserves the right to review and approve each website owned or rented by such an applicant and in which electronic links to HawaiianAirlines.com will be hosted.
1.2 Ineligible Applicants
Current Hawaiian employees and their immediate family are prohibited from becoming Affiliates in the Program.
1.3 Changes in Circumstances
If Hawaiian accept the Application and Affiliate is accepted into the Program, Affiliate must notify Hawaiian of any material changes to the content or structure of the Affiliate’s Site within ten (10) days of such change(s). The addition or substitution of any Affiliate Site requires pre-approval of Hawaiian’s Program Manager. Failure to make such notification or obtain such prior approval shall be deemed a material breach of this Agreement which may result in termination.
1.4 Monitoring Affiliate Sites
Hawaiian has the right to monitor Affiliate’s Site from time to time and as deemed necessary by Hawaiian, to confirm that electronic links to HawaiianAirlines.com are appropriate and comply with the terms of this Agreement. If Hawaiian determines, in sole discretion, that links from Affiliate’s Site to HawaiianAirlines.com are, or any marketing tactics of Affiliate are, not appropriate or in violation of this Agreement, including without limitation any of the prohibited practices set forth herein, then Hawaiian may, in its sole discretion, either notify Affiliate of any changes that should be made, or terminate this Agreement and withhold payment of any illegitimate commissions.
1.5 Requested Changes
If Hawaiian notifies Affiliate of changes that must be made to Affiliate’s Site and such changes are not made immediately, then Hawaiian may terminate this Agreement upon notice. Upon termination of this Agreement, Affiliate shall immediately remove all links to HawaiianAirlines.com from Affiliate’s Site.
2. Links and Banners
2.1 Commission Junction
All banners and links to HawaiianAirlines.com that are used in the Program must be served by CommissionJunction.com. Hawaiian shall not permit or recognize other serving mechanisms, third parties or other sites served. Hawaiian may determine, in its sole discretion, to deny or discontinue affiliations based on non-compliance with the required Commission Junction Network.
2.2 Form of Link
Each electronic link from Affiliate’s Site to HawaiianAirlines.com shall be in a format to be pre-approved by Hawaiian, and such approval shall not be unreasonably withheld. Such links from Affiliate’s Site may take the form of graphics, banners and buttons that Hawaiian will make available to Affiliate upon approval of Affiliate’s Application and Affiliate’s Site and acceptance of Affiliate into the Program through the Commission Junction Network. General links may also include text-embedded links, which must receive pre-approval by Hawaiian’s Program Manager if the copy deviates from the words: “In association with Hawaiian Airlines,” or any other copy, text and promotions provided by Hawaiian through the Commission Junction Network.
From time to time, Hawaiian will provide usage guidelines when linking to HawaiianAirlines.com and using Hawaiian’s trademarks, logos and other intellectual property. Text or graphical links may be used within emails sent to the registered user of Affiliate’s Site by Affiliate’s own means. Electronic links embedded in emails, text or graphical matter, require the same treatment as all links described above. Any deviations from the terms of this Agreement or any supplemental usage guidelines must be approved in advance by Hawaiian’s Program Manager before any such links – text, graphical or otherwise – are used to promote Affiliate’s affiliation with Hawaiian in any way.
2.4 Email References
Emails making reference to Hawaiian, HawaiianAirlines.com, or any other aspects of the Program or Hawaiian, may be sent only to individuals who have elected or consented to receive such emails. Use of “spamming” (defined as emails unsolicited by the recipient) or similar tactics in conjunction with Hawaiian’s name, links to HawaiianAirlines.com, Hawaiian’s logo or other intellectual property, is strictly prohibited and shall result in immediate termination of this Agreement and forfeiture of any illegitimate commissions. Commissions generated directly or indirectly through “spamming” or similar tactics will not be honored.
2.5 Hawaiian Supplied Search Boxes and HTML Banners
Affiliate may provide on the Affiliate’s Site a HawaiianAirlines.com Search Box or HTML Banner that may permit visitors to Affiliate’s Site to navigate directly to individual areas on HawaiianAirlines.com or provide other similar functionality. When available, Hawaiian will make such HTML Banners to Affiliate through the Commission Junction Network. Affiliate shall not tamper with, alter or edit the computer code used for any such search boxes or HTML banner in any way whatsoever.
2.6 Link Modifications
Hawaiian may, at any time and without prior notice, remove the links described above, require Affiliate to remove the links, or dynamically replace the Hawaiian creative or text as Hawaiian deems necessary in its sole discretion. Hawaiian will not be responsible for errors that occur in the tracking of transactions due to any modification by Affiliate of the linking code in any of the various link types.
3. Prohibited Practices
It is the intent of this Agreement to financially reward Affiliates for driving visitors to Affiliate’s Site to HawaiianAirlines.com to enable such visitors to make purchases of Hawaiian products and services. It is the intent of the parties that the marketing practices of Affiliate that occur on the approved Affiliate Site that result in such purchases are legitimate, customary, and within the requirements of this Agreement and the rules andpolicies adopted by Hawaiian from time to time. Certain, inappropriate marketing and traffic driving tactics are set forth in this Section 3, but such list is not exhaustive and Hawaiian may expand this list and/or adopt rules and policies prohibiting other activities and tactics that are found by Hawaiian to be objectionable and outside the intent of the parties. The use of any prohibited practices may result in termination and forfeiture of illegitimate commissions.
3.1 Aggressive and/or Abusive Marketing
Use of aggressive and/or abusive marketing tactics include, but are not limited to, ad-ware/spy-ware, automated agents, robots, pop-ups/pop-unders, iFrames, hidden frames, cookie, device, program, or any other operation or process that may improperly influence the referral of an end user, generate impressions, clicks, transactions or interfere with Hawaiian Airlines ability to properly identify and track Qualified Customers. These and other types of aggressive or questionable affiliate marketing tactics, are unacceptable. Use of aggressive and/or abusive tactics and other cheats will be considered grounds for immediate termination of this Agreement and forfeiture of commissions earned.
3.2 Pay-Per Click or Sponsored Links
Affiliate may not engage in pay-per-click arbitrage techniques where a paid link is sent directly to HawaiianAirlines.com or automatically redirected from the Affiliate’s Site to HawaiianAirlines.com as these types of direct referrals create confusion on the part of the consumer and suggest that HawaiianAirlines.com placed the ad. A “Sponsored Link” means a link offered, created or displayed for a fee (whether on a “cost-per-click” basis, commission, or any other commercial arrangement) by any Internet search engine using search terms or key words to identify, draw attention to, or direct Internet traffic to an Internet site. Affiliate shall be solely responsible for any liabilities, losses, damages, demands, claims, or causes of action resulting from or arising out of claims made in advertising on the Affiliate Site.
3.3 Automatic Redirects
Affiliate may not redirect visitors from Affiliate’s Site or advertisments automatically to HawaiianAirlines.com. Such automatic redirects may suggest a relationship between Hawaiian and Affiliate that is beyond the scope of this Agreement.
3.4 Brand Name Bidding
Affiliate may not bid on any of Hawaiian’s logos, trade names, trademarks, images, URL’s, messages, similar identifying material, sponsored links on any Internet search engine or service which Sponsored Link uses or includes the terms “Hawaiian Airlines,” “Hawaiian Air,” “HawaiianAirlines.com,” HawaiianAir.com,” or “Hawaiian Miles” or any other trademarks, trade names, service marks, corporate names, URL’s, or other similar general intellectual property right owned or licensed by Hawaiian or any parent, subsidiary, or other affiliate of Hawaiian, or any common misspellings, typographical errors, or similar trademark or trade name that is substantially similar to the aforementioned marks. A “Sponsored Link” means a link offered, created, or displayed for a fee (whether on a “cost-per-click” basis, commission, or any other commercial arrangement) by any Internet search engine using search terms or key words to identify, draw attention to, or direct Internet traffic to an Internet site.
3.5 Rebates and Commission Splitting
Affiliate may not offer or make any false representations about offering discounts, coupons, rebates, premiums and/or commission splits to customer visitors of the Affiliate’s Site in connection with purchases on HawaiianAirlines.com, whether in the form of cash-back rebates or otherwise. Lowest online ticketing net prices shall be those offered on HawaiianAirlines.com. Affiliate shall not reproduce, distribute, republish, sub-license or otherwise make the Offers available to any third party.
3.6 Typosquatting/Cyber squatting
Affiliates may not use websites where the URL could be considered "cyber squatting" by registering, advertising on or using a domain name with a common misspelling of the Hawaiian Airlines URL, a misspelling based on missed key, or extra key typing errors, differently phrased domain name a different top-level domain or any other URL that is confusingly similar to the Hawaiian Airlines URL.
4. Commission Junction Transaction Processing
4.1 Qualifying Transactions
Hawaiian will process Affiliate transactions placed by customers who follow special links from Affiliate’s Site to HawaiianAirlines.com in accordance with the terms of this Agreement and applicable legal requirements. Hawaiian reserves the right to reject transactions that do not comply with the terms of this Agreement, any reasonable rules and policies adopted by Hawaiian from time to time. Accepted transactions are hereinafter referred to as “Qualifying Transactions.” Only Qualifying Transactions are eligible to receive commission payments in accordance with Section 5 below.
4.2 Purchased Goods and Services
Hawaiian will be responsible for all aspects of the ticketing transaction, processing and fulfillment for ticketing of Qualifying Transactions. Hawaiian will prepare order forms; process payments, and handle customer service regarding Qualifying Transactions.
4.3 Commission Junction Tracking
Hawaiian will track transactions made with customers who purchase products using special links that Affiliate will generate using Commission Junction's technology, from Affiliate’s Site to HawaiianAirlines.com, and reports summarizing this sales activity will be available to Affiliate through CommissionJunction.com. The form, content, and frequency of the reports are limited to those reports and capabilities available through the Commission Junction system and Hawaiian shall have no responsibility for the availability or content of the same. Hawaiian is not responsible for any changes that Commission Junction may make in Commission Junction’s reporting format, timing, or types of reports available to members of Commission Junction and the Program. A transaction made via the Commission Junction Network is not automatically a Qualifying Transaction unless it satisfies the requirements of Section 4.1 above.
4.4 Link Formatting
To permit accurate tracking, reporting, and commission accrual, Affiliate must ensure that the special links between Affiliate’s Site and HawaiianAirlines.com are properly formatted. Hawaiian will not be responsible for improperly formatted links regardless of whether Affiliate has made amendments to the code or not.
5.1 Payment for Qualifying Transactions
Hawaiian will pay Affiliate referral commissions on Qualifying Transactions made by third parties. For a transaction to generate a commission, the customer must follow a special link (in the format specified by Hawaiian) from Affiliate’s Site to HawaiianAirlines.com; purchase one or more Hawaiian Airlines tickets using Hawaiian’s automated reservation system; remit full payment to Hawaiian, and fly Hawaiian Airlines using the purchased ticket(s).
5.2 Non-Qualifying Transactions
In addition to transactions in violation of this Agreement, Hawaiian will not pay commissions to Affiliate on tickets that were purchased after the customer re-entered HawaiianAirlines.com (other than through a special link from Affiliate’s Site), even if the customer previously followed a link from Affiliate’s Site to HawaiianAirlines.com, unless the customer re-enters the site within thirty (30) days after the date they last entered site through a special link on Affiliate’s Site.
5.3 Blocking Features
Hawaiian accepts no responsibility for Affiliate’s Site and/or HawaiianAirlines.com visitors who may delete or not accept or block technology used to track return visits to the HawaiianAirlines.com within the 30-day time frame and Hawaiian shall not be responsible for commissions on any such untracked return visits.
5.4 Forfeited Commissions
Affiliate acknowledges and agrees that commissions for non-Qualifying Transactions may be forfeited or disallowed by Hawaiian and Affiliate, by its participation in the Program, forever waives any claim or right thereto.
6. Commission Payment
6.1. Commission Schedule
Affiliate will earn commissions for Qualifying Transactions generated by Affiliate’s Site, according to the commission schedules established by Hawaiian from time to time.
Hawaiian will pay Affiliate commissions for Qualifying Transactions on a monthly basis through Commission Junction Network approximately thirty (30) days following the end of each calendar month. Affiliate will receive a check for such commissions earned on Qualifying Transactions that were completed during the preceding month, less any taxes that Hawaiian is required by law to withhold or recalled commissions for refunded tickets or non-Qualifying Transactions. Commissions shall be paid as 1.5% of the price at booking less tax. Hawaiian reserves the right to place all or a portion of any payment on hold for an additional thirty (30) days if it has reason to believe Affiliate has not complied with the Terms and Conditions of this Agreement. During the holdback period, Hawaiian will ascertain whether Affiliate is in compliance with the Terms and Conditions and ensure that the correct amount of commissions is paid to Affiliate in accordance with the terms of this Agreement
Affiliate may track submitted transactions, the number of Qualifying Transactions, and the commissions thereon that result from special links on Affiliate’s Site through the CommissionJunction.com Affiliate Reporting interface. Qualifying Transactions are determined solely by Hawaiian and transactions reported by Commission Junction are not automatically Qualifying Transactions as described in this Agreement.
7. Policies and Pricing
7.1 Customer Information
Customers who buy products from Hawaiian through this Program will be deemed to be customers of Hawaiian and HawaiianAirlines.com without affecting their status as Affiliate’s customer. Accordingly, all HawaiianAirlines.com rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers with respect to their transactions at HawaiianAirlines.com.
7.2 Pricing Information
Hawaiian shall determine the prices to be charged for services sold under this Program in accordance with Hawaiian’s pricing policies. Prices and availability may vary from time to time. In the event Affiliate elects to display pricing and promotional offers of Hawaiian on Affiliate’s Site, such listings shall expressly disclaim that the final price for Hawaiian products and services are set by Hawaiian through HawaiianAirlines.com. Hawaiian shall have no liability or responsibility for any misquoted or incorrect fares listed on Affiliate’s Site, even if such information was originally provided by Hawaiian to Affiliate. Banners and links served to Affiliate via the Commission Junction Network by Hawaiian shall be the responsibility of Hawaiian.
7.3 Current Information and Policies
Hawaiian will use commercially reasonable efforts to present current and accurate information, but cannot and does not guarantee the availability or price of any particular service or fare. Hawaiian may change its rules, policies and operating procedures at any time consistent with applicable laws.
8. Promotion of Affiliation with Hawaiian
Affiliate may only identify itself as a member of the Hawaiian Airlines Affiliate Share Program and this affiliation may not be promoted by Affiliate in any way whatsoever that falls outside the scope of links described above, without prior approval by Hawaiian. Such prohibited promotions may include, but are not limited to, press releases, marketing materials, offline print advertising or marketing campaigns, media kits, screen shots, graphics altered for co-branding or any other such format. Any such promotion will be considered grounds for immediate termination of this Agreement and may invoke further legal action and forfeiture of commissions.
9.1. Limited License
For the term of this Agreement and so long as Affiliate is not in breach or default hereof, Hawaiian grants Affiliate a nonexclusive, revocable license to (i) access HawaiianAirlines.com through the links solely in accordance with the terms of this Agreement and (ii) use Hawaiian’s logos, trade names, trademarks, images, messages and similar identifying material (the "Licensed Materials"), for the sole purpose of identifying Affiliate’s Site as a Program participant and to assist in generating online Qualifying Transactions. Affiliate may not modify the Licensed Materials or any associated code (e.g. HTML) in any way. Except as expressly granted in this Agreement, Affiliate shall have no other rights of any kind in regards to the Licensed Materials or any other intellectual property rights of Hawaiian. Under no circumstances will anything in this Agreement be construed as granting by implication, or otherwise, a license to any of Hawaiian’s intellectual property or proprietary technology other than the use of the Licensed Materials, code and the linkage to HawaiianAirlines.com, in accordance with the terms of this Agreement.
Hawaiian may terminate Affiliate’s right to use the Licensed Materials for any reason at any time in Hawaiian’s sole and absolute discretion.
11. Responsibility for Affiliate Site
Affiliate shall be solely responsible for the development, operation, and maintenance of Affiliate’s Site and for all content that appears on Affiliate’s Site. By way of example, but not limitation, Affiliate shall be solely responsible for:
- The technical operation of Affiliate’s site and all related equipment;
- The selection of special links to HawaiianAirlines.com within the Commission Junction Network image inventory;
- The accuracy, timeliness and appropriateness of content posted on Affiliate’s Site (including, among other things, all product-related materials);
- Ensuring that materials posted on Affiliate’s site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights);
- *Ensuring that content posted on Affiliate’s Site is not libelous, defamatory, discriminatory, pornographic or otherwise illegal or inappropriate.
Hawaiian disclaims all liability for the foregoing and Affiliate shall indemnify, defend and hold harmless Hawaiian from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of Affiliate’s Site.
12. Term and Commissions
The Term of this Agreement will begin upon acceptance by Hawaiian of Affiliate’s Application and will end upon Hawaiian or Affiliate electing to terminate this agreement upon notice to the other. Either party may terminate this Agreement at any time, with or without cause. Upon termination, all Hawaiian and Hawaiian Airlines Affiliate Share Program related content, Licensed Materials, and links shall be promptly removed from Affiliate’s Site.
Affiliate is only eligible to earn commissions on sales of Qualifying Transactions occurring during the term, and commissions earned through the date of termination will remain payable only if the related orders are not canceled and qualify as flown tickets.
In the event of overpayment of commissions by Hawaiian, Affiliate agrees to promptly remit such excess payment upon notification. Hawaiian may withhold final payment for a reasonable time to ensure that the correct amount of commissions is paid to Affiliate.
13.1 Hawaiian’s Rights
Hawaiian may modify this Agreement and/or its rules, policies and procedure affecting the Program at any time and in its sole discretion by posting a change notice on HawaiianAirlines.com or on CommissionJunction.com. Hawaiian will also make commercially reasonable efforts to notify Affiliates of such changes prior to their implementation. Modifications may include, for example, changes in the scope of available commissions, commission schedules, payment procedures, and Program rules.
12.2 Recourse of Affiliate
IF ANY MODIFICATION BY HAWAIIAN IS UNACCEPTABLE TO AFFILIATE, AFFILIATE’S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE’S CONTINUED PARTICIPATION IN THE PROGRAM AND COMPLIANCE WITH THE CHANGE OR NEW AGREEMENT FOLLOWING POSTING OF A CHANGE, NOTICE OR NEW AGREEMENT ON HAWAIIANAIRLINES.COM OR COMMISSIONJUNCTION.COM AND/OR SENDING AFFILIATE CHANGE NOTICE VIA EMAIL SHALL CONSTITUTE AFFILIATE’S ACCEPTANCE THEREOF AND BIND AFFILIATE TO SUCH CHANGE.
14. Relationship of Parties
The parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate has no authority to make or accept any offers or representations on behalf of Hawaiian. Affiliate will not make any statement, whether on Affiliate’s Site or otherwise, that reasonably would contradict anything in this Section.
14.1 Limitation of Liability
Hawaiian shall not be liable in any event for indirect, special or consequential damages (or any loss of revenue, profits, goodwill or data) arising in connection with this Agreement or the Program, whether or not foreseeable and even if Hawaiian has been advised of the possibility of such damages.
Hawaiian makes no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). Hawaiian makes no representation that the operation of HawaiianAirlines.com will be uninterrupted or error-free, and will notbe liable for the consequences of any interruptions or errors. However, Hawaiian will make commercially reasonable efforts to correct errors or interruptions promptly.
16. Independent Investigation
AFFILIATE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENTAND HEREBY AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT HAWAIIAN 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 AFFILIATE’S SITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATIONS, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
17.1 Governing Law
This Agreement will be governed by the laws of the United States and the State of Hawaii, 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 Honolulu, Hawaii and Affiliate irrevocably consents to the jurisdiction of such courts.
17.2 Affiliate may not assign this Agreement, by operation of law or otherwise, without Hawaiian’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Hawaiian’s failure or agreement not to enforce your strict performance of any provision of this Agreement in a given instance will not constitute a waiver of Hawaiian’s right to subsequently enforce such provision or any other provision of this Agreement.