These Terms and Conditions for Partner Integration (“T&Cs”) and the respective Insertion Order including its Annexes (collectively “Insertion Order”, the T&Cs together with the Insertion Order collectively “Agreement”) signed by you (“Partner”) and HomeToGo GmbH, Berlin (“HomeToGo”, both individually referred to as “Party” and collectively referred to as “Parties”) constitute a legally binding agreement with effect as of signing of the Insertion Order by the last signatory Party. The term HomeToGo shall for the purposes of the Agreement include any entity that controls, is, directly or indirectly, controlled by, or is under common control of HomeToGo.
§ 1 Recitals
The Partner operates a web service on one or several websites and/or mobile apps (“Partner Platform”) making travel accommodations, especially holiday homes/vacation rentals (“Vacation Properties”) of numerous providers and partners worldwide) available for online distribution. All requests by the Partner for integrating its Vacation Properties into the HomeToGo’s web and/or app service, websites, mobile apps and entire distribution network operated by HomeToGo and/or its Affiliates (“HomeToGo Platform”) are governed by these T&Cs, unless otherwise specified in the Insertion Order.
For the Partner’s integration into the HomeToGo Platform, Partner shall complete and submit to HomeToGo an Insertion Order that HomeToGo shall accept. Each Insertion Order shall be signed by the Parties. In the Insertion Order the Parties agree on the HomeToGo distribution network, compensation, and other individual agreements. Upon mutual written consent and approval (email shall suffice) the Parties may change the details of an integration previously set forth in an executed Insertion Order (e.g. rates, further agreements, etc.). Insertion Orders are binding on the Parties and not subject to any cancellation, except as provided below under § 7.
§ 2 Rights and Obligations
a) The Partner entitles and assigns HomeToGo to display to its users and advertise on the HomeToGo Platform the Vacation Properties and the corresponding content and data provided by the Partner (“Partner Offers”).
b) The Partner shall provide free of charge and without technical request limits all available information and all data that is necessary to display and advertise the Partner Offers on the HomeToGo Platform (“Partner Data”) via API, static feed or any other virtual interface as may be requested by HomeToGo (“Partner Feed”). To the extent applicable, HomeToGo will provide the Partner with the most recent version of the technical specifications of the Partner Feed. The Partner Data shall include to the extent requested by HomeToGo inter alia property attributes, texts, images, geo data, prices, payment and cancellation details, availabilities and deep links (to the Partner Offers’ detail pages on the Partner Platform), and, to the extent available, customer ratings as well as full text customer reviews, but no personal data. The Partner Data shall always be correct and up to date and shall in no event contain less information or less data as may be displayed per Vacation Property on the Partner Platform from time to time. HomeToGo shall be entitled to verify the accuracy and completeness of the Partner Data, including but not limited to prices and price components, texts, images and availabilities, by means of reasonable manual and technical checks of the Partner Platform at its sole discretion. The Partner Data shall only include non-personal data, in particular images and texts, for which the Partner holds the necessary usage rights, and which do not violate any third-party rights or applicable laws or regulations.
c) The Partner shall in particular update the availabilities and prices of the Partner Offers at least once daily. The Partner guarantees that the rental price (including any displayed price components) and the description of the Partner Offers are correct and valid and remain the same until the booking is confirmed by the Partner (or its property listers).
d) The Partner shall communicate changes in the Partner Feed to HomeToGo at least 21 days before coming into effect to put HomeToGo in the position to implement all necessary adjustments in time. In particular, the Partner shall promptly inform HomeToGo of any drastic drop in the number of Partner Offers provided via the Partner Feed by more than 10% (in the individual case or as a result of a series of events within a month). In this case, the Parties shall renegotiate the compensation according to the current Insertion Order reflecting the new inventory count.
e) Each Party shall bear its own costs relating to the technical integration of the Partner and/or the Partner Offers.
f) The Partner agrees to integrate cookies into the Partner Platform with a minimum lifetime of 30-days to track all bookings, enquiries and/or related actions made in that period by users that clicked on a Partner Offer and were linked out to the Partner Platform. The Partner agrees to integrate and maintain HomeToGo’s tracking feature. If the Partner Platform also provides for bookings or enquiries via phone, the Partner is obliged to identify users that were brokered by HomeToGo or by a dedicated trackable telephone line.
g) The Partner shall provide HomeToGo with daily Vacation Property specific booking, enquiry and/or action statistics/sales overviews via an online dashboard, via email (to firstname.lastname@example.org) or by any other means (which may be requested by HomeToGo from time to time) as agreed upon in the Insertion Order. If technically feasible and not requested otherwise by HomeToGo, the Partner shall list (i) the IDs of the Vacation Properties, (ii) the check-in and check-out dates, (iii) the prices, (iv) the applicable commission base per booking (if applicable), and (v) the corresponding HomeToGo Click-IDs.
h) HomeToGo shall be entitled to display the Partner Offers together with offers and/or products of other partners, in particular if the Vacation Properties are identical. The Partner cannot claim exclusivity.
i) The contractual relationship with the user/traveler (e.g. rental contracts) underlying each booking generated through a Partner Offer must be executed directly between the Partner (or its property listers) and the user/traveler who booked the Vacation Property (“Customer”). All external transactions with the Customer shall be executed by the Partner (or its property listers). The Partner is (or its property listers are) bound by contract to settle the full booking process including collection of the bookings, cancellations or any other customer service support. Without prejudice to the aforementioned, HomeToGo – at HomeToGo’s sole discretion – implements directly on the HomeToGo Platform (some or all) parts of the booking or enquiry process. This shall be limited to collecting via the HomeToGo Platform and transmitting to the Partner enquiry or booking related customer data on its own and/or the behalf of the Partner. The Parties acknowledge that HomeToGo might involve third party service providers in particular with regard to collecting and forwarding payment information and are prepared to enter into separate agreements with such service providers to the extent required.
j) The Partner herewith grants HomeToGo geographically unlimited, royalty free usage rights with respect to the Partner Data including (without limitation):
- the right to edit texts, images and attributes as well as to develop its own add-ons for the purpose of improving the presentation and/or optimizing the integration of the Partner Offers on/into the HomeToGo Platform;
- the right to use all unedited or edited Partner Data for purposes of advertising (online, offline, in electronic and/or printed form);
- the right to compile and aggregate Partner Data with data of other partners, so long as such aggregation or compilation omits any data that would enable the identification of the Partner, its clients, or any individual, company or organization and to use or modify such aggregated data and to create derivative works based on such aggregated data, including all reports, statistics or analyses, solely to provide and improve the services rendered by HomeToGo under this Agreement and to provide consultative and analytical information to the Partners;
- the right to use the business name of the Partner, the registered and non-registered trademarks of the Partner, including the logos to be displayed on the HomeToGo Platform and the right to name the Partner as a reference partner in the media and for any other commercial uses;
- the right to disclose the Partner Data and other Partner Data to third Parties that act as subcontractors or outsourced data processors of HomeToGo, for the purposes mentioned in this lit.
k) The Partner accepts and respects the copyright and intellectual property rights of HomeToGo, its affiliates and other entities or individuals employed or contracted by HomeToGo. The Parties agree that the Partner does not receive a license or sub-license for such rights under this Agreement. The Partner is therefore not permitted under any circumstances to sell these rights, to grant licenses to them, to otherwise encumber them or give them to third parties, to use or to change them.
l) For the services rendered by HomeToGo under this Agreement, the Partner shall pay a compensation (“Fee”) which is individually agreed upon under “Deal and Compensation” in the Insertion Order.
m) To the extent agreed upon in the Insertion Order, HomeToGo may at its sole discretion integrate the Partner Platform also via a checkbox under HomeToGo’s search bar (or a respective other part of the HomeToGo Platform frontend) and embed hyperlinks that, once activated and selected, will open one or several browser tabs or windows and direct users to the Partner Platform showing the Partner’s search results for the city/region and the travel dates selected by the user (“Compare-To-Feature”). The Partner shall pay a cost per click (CPC) for every click-out to the Partner Platform or the commission for every booking of a property/product of the Partner that was generated through a Compare-To-Feature in the amount agreed upon in the Insertion Order.
§ 3 Invoicing, Payment
a) Before the 10th day of every month, such Party identified in the Insertion Order shall send to the respective other Party an invoice/sales overview or credit memo with all relevant Click-Outs, Bookings or Enquiries and all applicable Fees generated in the previous month as agreed upon in the Insertion Order in a format to be defined by HomeToGo (“Invoice”).
b) To the extent requested by HomeToGo, the Partner will apply best efforts to implement an electronic invoicing process to transmit/receive booking reports/click reports/credit memos and/or invoices.
c) The payment of the Fees stated in the Invoice shall be made after the Partner Offers have gone live on the HomeToGo Platform and in the month in which the Invoice was issued, free of charge by money transfer to the bank account of HomeToGo set out in the Insertion Order.
d) Any payment of the Partner due under this Agreement and not received by the respective due date may accrue late charges of 4% of the outstanding balance per month.
§ 4 Confidentiality, Data Protection
a) “Confidential Information” shall mean any and all information a Party directly or indirectly obtained from the other Party or its affiliates in particular regarding users, Customers or potential Customers, personal data, draft contracts, documents, media, graphics, technical information, information on economic and financial conditions and other verbal or written messages. The receiving Party shall (i) limit disclosure of any Confidential Information to its directors, officers, employees, agents or representatives (“Representatives”) who have a need to know such Confidential Information in connection with the implementation of this Agreement, and only for that purpose; (ii) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement, (iii) require such Representatives to be bound by written confidentiality restrictions no less stringent than those contained herein, and (iv) assume full liability for acts or omissions by its Representatives that are inconsistent with its obligations under this Agreement; (v) keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (vi) not disclose any Confidential Information received by it to any third parties (except as otherwise provided for herein).
b) The duty of confidentiality does not apply to information
- which was already legally in the possession of the receiving Party, who was, at the time of information disclosure, not subject to any obligation of confidentiality to the disclosing Party;
- which, at the time of its disclosure to the receiving Party, is public knowledge or subsequently becomes public knowledge other than as a result of some act of omission on the part of the receiving Party or its representatives in the breach of the terms of this Agreement;
- which is obtained lawfully from a third party, who is not subject to a duty of confidentiality;
- which has been expressly approved by a written statement from the disclosing Party;
- which, due to statutory information disclosure duties, must be disclosed. In this case, the disclosing party shall be informed immediately prior to disclosure and to proceed with their consent.
c) The Partner shall ensure that it complies with all applicable data protection regulations of the Federal Republic of Germany, of the European Union and of its own country (if applicable) and uses the transmitted data only in accordance with these regulations. The Parties have committed all its employees in writing to comply with all applicable data protection regulations.
§ 5 Liability
a) HomeToGo is not liable for the accuracy, quality, completeness, reliability or credibility of the Partner Data. For this, the Partner itself shall be liable on the basis of general laws. The Partner will indemnify HomeToGo, upon first demand, from claims by third parties and any resulting damages, resulting from claims from third parties in connection with any Partner Data or because the Partner (allegedly) infringed rights or caused damages through the Partner Data, in particular its own content, linked pages, other information or deliverables. The Partner will bear the costs arising for any legal proceedings, including court and attorney costs of legal fees and HomeToGo shall be fully indemnified from the respective costs.
b) The Partner guarantees that it possesses all necessary rights to the Partner Data, in particular content, linked sites and other information HomeToGo is depending on in order to deliver its service. All information and permissions provided by the Partner or on its behalf must be complete, correct and up-to-date.
c) HomeToGo is not liable for technical disruptions, the cause of which is not HomeToGo’s responsibility, nor for damages caused by force majeure.
d) HomeToGo does not guarantee the uninterrupted availability of data and services. HomeToGo is free to perform technical maintenance to the HomeToGo Platform at any time and to the necessary extent. HomeToGo gives no guarantee with respect to the operation of the HomeToGo Platform or other services.
e) Within the framework of legal stipulations, HomeToGo shall be liable, irrespective of the legal ground, only subject to the following provisions:
- HomeToGo assumes unlimited liability for claims under the German Product Liability Act and for damages resulting from injury to life, body or health as well as for damages based on intent or gross negligence from HomeToGo, or one of its legal representatives or agents, as well as for damages due to non-compliance with a given HomeToGo guarantee, warranted qualities or for fraudulently concealed faults;
- HomeToGo shall be liable for each negligent breach of a fundamental contractual obligation by HomeToGo, its legal representatives or its agents. However, HomeToGo's liability shall be limited to the amount of foreseeable damage typical for such contracts and, in such a case, to a maximum amount of EUR 5,000 per occurrence. Fundamental contractual obligations are obligations that make the orderly implementation of the contract possible in the first place, and the observance of which the contract partner regularly relies on and can expect to rely on.
f) The Partner shall guarantee that the signatory has the necessary power of attorney and the implementation of the contract is not in contradiction to other contractual agreements of the Partner.
§ 6 Prohibited Acts
a) The Partner is obliged to refrain from the following acts relating to the Partner Offers and/or Partner Data, in particular all content provided by the Partner and displayed on the HomeToGo Platform:
- producing material of a lewd or sexual nature (explicit or implicit) contrary to the protection of minors and general personal rights;
- the spread of extremist, anti-constitutional or dangerous materials;
- the dissemination of obscene materials or materials with violent content.
b) Furthermore, misuse of the offers and the services of HomeToGo is prohibited, especially the following acts:
- the by-passing of safety or security measures;
- fraudulent services;
- the (automatic) redirection of users coming via the HomeToGo Platform from the Partner Offers’ detail pages to a search result list on the Partner Platform or to a mobile app of the Partner;
- the (automatic) launching of compare-to-features, pop-unders or other advertisements for users coming from the HomeToGo Platform;
- the use of services in a way that results in damage to the equipment or can lead to a functional failure of services;
- the dissemination of viruses or other malicious code;
- partial or complete plagiarism of services;
- the disclosure or reconstruction of source code for abusive or commercial purposes;
- parsing and automated reading of software, directories, data and contents of HomeToGo and its services, as well as of its affiliates and their services;
- the use or the integration of external apps or other content that display or disseminate youth-endangering or illegal material – in the former case in particular if the enforcement of appropriate age restrictions is not ensured.
§ 7 Term and Termination
a) The Agreement comes into force upon signature of the Insertion Order by the last signatory Party and is valid for one (1) year from the date thereof. The Agreement, including the Insertion Order, will be automatically, continuously and tacitly extended for a period of one (1) additional year, unless one of the Parties terminates the same with a three (3) months’ notice period to the respective contract end.
b) Any termination shall require the written form (email shall suffice).
c) In case the Partner terminates the Agreement within the first year, a compensation of 5,000.00 EUR is to be paid to HomeToGo as a compensation for its integration costs.
d) Any termination of the Insertion Order and/or the T&Cs shall result in a termination of the entire Agreement.
e) A termination shall have no effect on Fees due under this Agreement that have not yet been paid. In addition, the provisions of §§ 3, 4 and 7 of these T&Cs shall remain effective even after termination.
§ 8 Final Provisions
a) In cases of deviations between the Insertion Order and the T&Cs, the terms of the Insertion Order shall prevail.
b) “Month” in the Agreement shall mean calendar month. The Parties agree that the fiscal year is from the 1st of January until the 31st December of every year.
c) HomeToGo reserves the right to change these T&Cs at any time, in particular due to changes of legal stipulations or high court jurisdiction. The Partner hereby agrees to such amendment, unless he objects to the amendment within four (4) weeks after notification by HomeToGo via information on its website.
d) This Agreement shall be subject to the laws of the Federal Republic of Germany under the exclusion of the United Nations Convention on contracts for the International Sale of Goods, CISG. The place of fulfilment and jurisdiction for all disputes arising from and in connection with this Agreement shall be Berlin, Germany.
e) Without the prior written consent of HomeToGo, the Partner may not, assign, transfer, novate, sub-license any rights or obligations under this Agreement, whether in their totality or in part, to a third party, unless otherwise agreed upon in the Insertion Order. Nonetheless, each Party may assign this Agreement to the surviving entity, in connection with a merger, reorganization, consolidation, change in control or a sale of basically all of its assets, provided that the surviving entity is not a direct competitor, or the other Party and assignee agrees in writing to be bound by this Agreement.
f) If individual provisions in the Agreement shall become null or void, this will not affect the remaining provisions of this Agreement. In place of ineffective or inapplicable provisions, or in order to fill any gaps, the Parties shall agree on an appropriate agreement, which comes closest to what the Parties intended and which corresponds to what would have been agreed in accordance with the purpose and intention of this Agreement if the matter in question had been considered earlier.