kimkim, Inc.

Local Operator Agreement

Last Updated: July 14, 2016

This kimkim Local Operator Agreement (“Agreement”), and any other terms incorporated herein by reference, sets forth the terms and conditions between you and kimkim, Inc. (“kimkim,” “we,” “us” or “our”) that govern use of kimkim’s online travel services, including www.kimkim.com, (the “Services”) by local operators who may arrange and book trips for other users of the Services (“Travelers”).

Please refer to the kimkim privacy policy (www.kimkim.com/privacy) for information about how the Services collects, uses and shares information about you.

By registering as a local operator through the Services, you are agreeing to the terms of this Agreement.

  1. Additional Terms

    You agree that the kimkim Terms of Use (available at www.kimkim.com/terms) (“kimkim Terms of Use”) apply to your access and use of the Services as a local operator. This Agreement supplements the kimkim Terms of Use, which are hereby incorporated by reference into this Agreement. Any and all disputes arising out of or relating to this Agreement will be subject to the limitations of liability and dispute resolution procedures specified in the kimkim Terms of Use (including the class action waiver and mandatory arbitration provision).

  2. Eligibility, Registration and Account
    1. If you are using the Services on behalf of an entity, (i) you represent and warrant that you are authorized to bind the entity to this Agreement, (ii) all references to “you” will refer to you and such entity, and (iii) such entity agrees to be responsible for you and any other user that accesses the Services on its behalf, including for your and their compliance with this Agreement.
    2. You represent and warrant that you (i) are not incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department or U.S. Treasury Department's Office of Foreign Assets Control (“OFAC”); and (ii) are not listed as a "Specially Designated National," a "Specially Designated Global Terrorist," a "Blocked Person," or similar designation under the OFAC sanctions regime.
  3. Use of the Services; Relation to kimkim
    1. Subject to the terms of this Agreement, you may use the Services to communicate with Travelers about their interest in a trip and to arrange a trip that a Traveler may purchase via the Services (“Trip”). When a Traveler purchases a Trip, kimkim, as a convenience to Travelers, will purchase the Trip from you and resell the Trip to the Traveler. While Travelers purchase Trips from us via the Services, you are solely responsible for Trips and will provide or procure all travel products and services included in the Trip itinerary, including lodging reservations, activity reservations, equipment rentals and any other products, goods or services included in the Trip itinerary (collectively, the “Travel Services”). kimkim is not responsible for, and does not provide any warranties in connection with, the delivery, quality, fulfillment or performance of any Trip you supply or offer to supply to a Traveler. You will take full responsibility for the risk of non-delivery, loss or damage that occurs in connection with any Trip purchased by a Traveler.
    2. You agree that: (i) kimkim does not certify, investigate or in any way guarantee the legal capacity of any Traveler, nor is kimkim obligated to conduct background checks on Travelers; (ii) kimkim does not make any representation or warranty with respect to the integrity or identity of any Traveler; (iii) you are responsible for doing any due diligence about a Traveler, prior to allowing a Traveler to purchase a Trip via the Services, and you bear all of the risk associated with your interactions and transactions with Travelers; (iv) kimkim is not responsible or liable in any manner for your interactions or transactions with a Traveler, nor for any loss or damage of any sort incurred as the result of any such interactions and transactions; (v) you will not expose Trip participants to unsafe or hazardous conditions; (vi) you will supply any equipment or other items required for a particular Trip provided by you, and you will ensure that, prior to the commencement of any such Trip, such equipment and items are in good working order and are safe for ordinary use; and (vii) you offer, provide and procure Trips entirely at your own risk.
  4. Communication, Purchase and Fulfillment
    1. Invitations. kimkim may, from time to time, but is not obligated to, invite you via the Services to assist a Traveler in preparing an itinerary for a Trip. If you accept our invitation to arrange a Trip for a Traveler, you agree to: (i) promptly initiate communications with the Traveler and promptly respond to any Traveler communications; (ii) only include Travel Services that the Traveler expressly requests as part of a Trip; (iii) communicate fully and accurately with the Traveler to ensure that the Traveler understands each of the Travel Services offered in connection with the Trip; (iv) clearly and conspicuously disclose all terms associated with a Trip, including any limitations or restrictions relating to the relevant Travel Services, and verify that the Traveler understands and agrees to these terms; (v) submit a firm proposal to the Traveler via the Services that offers to provide or procure all Travel Services specified in the Trip for the fixed fee specified in the proposal (the “Traveler Fee”); (vi) not request payment for a Trip outside of the Services, and not accept payment for a Trip outside of the Services; and (vii) promptly notify us if a Traveler attempts to pay for a Trip outside of the Services.
    2. Traveler Fee; Taxes. The Traveler Fee must be shown in U.S. dollars (except where otherwise permitted via the Services) and any taxes, fees or other charges (including shipping charges) must be shown as additional and included within the Traveler Fee. Each Traveler Fee is fixed when accepted by the Traveler and may not be changed without notice and the Traveler’s written approval. You will be responsible for paying for any and all taxes, duties and impositions resulting from any Trip purchased via the Services, or any compensation payment you receive from kimkim, including interest and penalties thereon.
    3. Purchase and Fulfillment. If the Traveler elects to purchase your Trip, (i) kimkim will notify you through the Services and you will be bound to fulfill the Trip in strict accordance with the Trip itinerary communicated to the Traveler immediately prior to such purchase; (ii) you will take all steps necessary to procure and provide the associated Travel Services to fulfill the Trip itinerary in strict compliance with the terms of the Trip itinerary; and (iii) kimkim will remit compensation to you for the purchased Trip in accordance with Section 6.
    4. Post-Booking Communications. Following a Traveler’s purchase of a Trip, if a Traveler communicates with you to request to amend or cancel a Trip, complain about a Trip or your services in connection with a Trip, or inform you of any problems experienced in connection with a Trip (collectively, a “Post-Booking Communication”), you will notify us as soon as possible and in no event later than 24 hours after receiving such Post-Booking Communication. If the Post-Booking Communication occurs outside of the Services, then, upon kimkim’s request, you will provide us with a copy of the Post-Booking Communication. You will promptly provide all reasonable assistance in order to resolve the Traveler’s Post-Booking Communication. If you are unable to resolve the Post-Booking Communication following the provision of such reasonable assistance, then you will notify us.
  5. Conduct

    You will (a) not act in a way that, in our reasonable opinion, adversely affects our brand, reputation or goodwill; (b) carry out your obligations under this Agreement honestly, fairly and in accordance with applicable law and industry best practices; (c) safeguard any Traveler data you receive via the Services or in connection with your fulfillment of a Trip (“Traveler Data”) against loss, damage or unauthorized access, use or disclosure; (d) use and disclose Traveler Data solely as necessary to perform your obligations under this Agreement; (e) notify us immediately of any breach or suspected breach of this Agreement by you; and (f) promptly upon our request, provide us with information, cooperation and assistance required by us in connection with this Agreement.

  6. Your Compensation
    1. Payment. kimkim will pay you compensation (“Compensation”) in the amount of the Traveler Fee actually received by kimkim, less the then-current kimkim commission (“Commission”), to the payment method you designate via the Services. In the event that you breach the terms of this Agreement in connection with any Trip, we will have no obligation to pay you any Compensation. We may set off any liability owed by you under this Agreement against any amounts payable by us under this Agreement. Some third-party payment methods used to receive Compensation may impose their own additional charges in connection with the Compensation you receive, and kimkim is not responsible for such charges.
    2. Third-Party Suppliers. You will purchase or otherwise procure all Travel Services described in a Trip purchased by a Traveler, including by paying any third-party suppliers for associated goods, products and services.
    3. Repayment. We will be entitled to immediate annulment and (where applicable) repayment of Compensation if a purchased Trip (i) is cancelled; (ii) is, in our reasonable opinion, fraudulent; (iii) results in a chargeback for any reason (including, without limitation, fraud, duplicated or other errors in payment processing or a credit not processed); or (iv) that breaches the terms of this Agreement.
    4. Errors. In the event of an error in charging for a Trip, kimkim reserves the right to correct such error and revise the Traveler’s order accordingly (including charging the correct price and reducing the amount of Compensation you are entitled to receive) or to cancel the order and refund any amount charged.
  7. Disclaimer of Warranties

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KIMKIM EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

  8. Indemnity

    You will defend, indemnify and hold harmless kimkim, its independent contractors, service providers and consultants, and its and their respective directors, officers, employees and agents (collectively, “kimkim Parties”), from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to: (a) your access to or use of our Services; (b) any Trip you offer or provide, including claims made by Trip participants or third-party suppliers of Travel Services; (c) your breach of this Agreement; or (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights). kimkim reserves the right to control the defense of any such claim, at your expense. In our attempt to defend, resolve or settle the claim, you will, at your expense, provide us all reasonable information and assistance that we request.

  9. Termination

    Either you or we may terminate this Agreement upon notice to the other for any reason whatsoever. Upon termination of this Agreement, (a) you will immediately cease using the Services as a local operator, (b) you will fulfill any Trip purchased by a Traveler prior to the effective date of termination in accordance with the terms of this Agreement, and (c) the following Sections of this Agreement will otherwise survive termination of this Agreement: Sections 7-10.

  10. General Terms
    1. Insurance. You will maintain insurance policies sufficient to fulfill your obligations under this Agreement.
    2. Notices. All notices required or permitted under this Agreement must be in English and in writing. Unless otherwise specified in this Agreement, all notices sent by either you or kimkim in connection with this Agreement will be sent by email as follows: (i) if to you, to the email address associated with your kimkim account; and (ii) if to us, to team@kimkim.com with the following subject line “Official Notice - Local Operator Agreement.” Notice will be treated as given on receipt, as verified by automated receipt or by electronic log (as applicable).
    3. Amendments. kimkim reserves the right to amend this Agreement from time to time, by providing notice of such amendments. kimkim will provide notice of such amendments by posting the amended Agreement to the Services and updating the “Last Updated” date above. We may also, in our discretion, provide additional notice, such as by email to the email address associated with your kimkim account. Unless we say otherwise in our notice, the amended Agreement will be effective immediately and your continued access to and use of the Services will confirm your acceptance of the amended Agreement. If you do not agree to the amended Agreement, you must stop using the Services as a local operator.
    4. Assignment. You may not assign or transfer your rights or obligations under this Agreement, and any attempt to do so is void. kimkim may assign or transfer any of its rights or obligations under this Agreement.
    5. Subcontracting. You may not delegate or subcontract any of your obligations under this Agreement without kimkim’s written consent. You will remain liable for all subcontracted obligations and all acts or omissions of your subcontractors.
    6. No Waiver. We will not be treated as having waived any of our rights by not exercising (or delaying the exercise of) any of our rights under this Agreement.
    7. No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
    8. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
    9. Entire Agreement. This Agreement together with the kimkim Terms of Use states all the terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement or the kimkim Terms of Use.
    10. Severability. If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of this Agreement will remain in effect.