HomeToGo has updated these T&Cs (version 7). Changes apply within four (4) weeks upon notification which is announced on November 1, 2021, if the Partner has agreed to a previous version.
These Partner Integration Terms and Conditions (“T&Cs”) and the respective agreement on individual deal terms concluded by written agreement, email, technical interface or other means (including its Annexes (if any), “Insertion Order”) between You (“Partner”) and HomeToGo GmbH (“HomeToGo”, Partner and HomeToGo individually “Party” and collectively “Parties”), constitute together a legally binding agreement (“Agreement”) on the distribution of travel accommodations, especially holiday homes, vacation rental offers or hotels (“Offers”).
- Definitions and Recitals to the Conclusion of the Agreement
a. HomeToGo. HomeToGo is an online marketplace platform, metasearch and booking engine aggregating and distributing Offers of numerous providers and suppliers worldwide.
“HomeToGo Group” shall for the purposes of this Agreement include any current or future entity that is, directly or indirectly, controlled by, or is under common control of HomeToGo, and any current or future entity by which HomeToGo is directly or indirectly owned or controlled.
HomeToGo may at its sole discretion fulfill its obligations under this Agreement (or parts thereof) by any entity of the HomeToGo Group (“HomeToGo Group Entity”) and the respective HomeToGo Group Entity shall have the right to claim and enforce the fulfillment of such obligations rendered by the Partner under this Agreement.
Offers aggregated by HomeToGo Group shall be distributed via several web and/or app services, operated by HomeToGo Group or by a contractual distribution partner within the HomeToGo distribution network (“HomeToGo Platform”).
b. Partner. The Partner operates a web service on one or several websites and/or mobile apps, making Offers available for users (“Partner Platform”) or uses other means to (indirectly) distribute Offers via the internet.
c. Insertion Order. To have its Offers distributed via the HomeToGo Platform, the Partner shall execute and submit to HomeToGo the Insertion Order that HomeToGo shall be free to accept. In the Insertion Order the Parties shall agree on the details of the compensation, the scope of distribution, the reporting and invoicing process as well as other individual agreements (if any), if deviating from the T&Cs. An Insertion Order is binding on the Parties and not subject to any cancellation or termination right, except as provided for under section 10 of this Agreement.
d. Opt-In. In case the Partner uses an accommodation rental management software, global distribution system or comparable software, technology or digital platform, for instance, via a channel management and/or property management system (“Software” and the provider of such Software a “Software Provider”) to connect to the HomeToGo Platform, to the extent available via the Software, the Partner shall accept these T&Cs via a checkbox or other technical opt-in solution (“Opt-In”). Except where explicitly set out, all stipulations of these T&Cs shall be equally applicable to the Opt-In and the Partner using a Software.
2. Partner Rights and Obligations
a. Partner Offers and Partner Data. The Partner entitles and assigns HomeToGo Group to display and advertise on the HomeToGo Platform the Offers and the corresponding content and data provided by the Partner (“Partner Offers”). The Partner shall provide free of charge and without technical request limits all available information and all data that is necessary to (re-) distribute, display and advertise the Partner Offers (“Partner Data”) on the HomeToGo Platform. The Partner Data shall include to the extent requested by HomeToGo Group all property/accommodation attributes, texts, images/photos, geo data, prices, payment and cancellation details, availabilities, if necessary deep links (to the Partner Offers’ detail pages on the Partner Platform), necessary valid mandatory license or registration numbers (if any, depending on local legal requirements in territories where the Partner Offers are situated), and, to the extent available, customer ratings as well as full text customer reviews, but – due to GDPR – no personal data.
b. Lawfulness of Partner Data. The Partner Data shall only include data, in particular images/photos and texts, for which (i) the Partner holds the necessary rights to distribute and grant the usage and intellectual property rights as set out in section 3 lit. d; and (ii) which do not violate any third-party rights or applicable laws or regulations. The Partner shall comply with any and all mandatory requirements, acts, rules and other federal, local or city laws and regulations applicable to the rental, intermediation, publication and/or advertising of Offers online (“Tourism Regulations”). If an administrative body, applicable law or regulation requires an official permit or license of the local property/accommodation, Partner shall ensure that all such legal requirements are fulfilled for the provided Partner Offers. The Partner guarantees and takes full liability that the rental price (including any displayed price components, and any applicable Customer facing fees, taxes, tourist taxes or other charges) 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 inventory suppliers). The Partner shall update the availabilities and prices of the Partner Offers at least once daily.
c. Price components. Prices provided by the Partner (as part of Partner Data) shall visibly include each mandatory and optional cost position and price component which will be comprised in the final price of the accommodation. This means that the Partner shall provide in detail all components of the final price (rental price, additional costs, discounts, etc.) to HomeToGo Group, regardless of whether they will be paid after booking or on site.
d. Inventory. The Parties agree on full-inventory-integration. Therefore, the Partner shall procure that Partner Data will always be correct and up to date and shall in no event contain less Partner Offers (the minimum number as stated in the Insertion Order with a tolerance of 5% deviation, if applicable), less information or less data or information per Partner Offer as may be displayed on the Partner Platform from time to time. HomeToGo Group shall be entitled to verify the accuracy and completeness of the Partner Data by means of reasonable manual and technical checks of the Partner Platform at its sole discretion.
e. Partner Feed. For distribution on the HomeToGo Platform, the Partner shall provide Partner Data via API, static feed or any other virtual interface as may be requested by HomeToGo Group (“Partner Feed”) or, if applicable, via the Software. HomeToGo may assign one or more HomeToGo Group Entities to connect the Partner Feed or Software directly and the Partner will support such connectivity with the HomeToGo Group Entity. To the extent applicable, HomeToGo or a HomeToGo Group Entity will provide the Partner with the most recent version of the technical specifications of the Partner Feed. The Partner shall communicate changes in the Partner Feed or Software to HomeToGo or HomeToGo Group Entity at least 21 days before coming into effect to put HomeToGo Group in the position to implement all necessary adjustments in time. In particular, the Partner shall promptly inform HomeToGo or HomeToGo Group Entity of any drastic drop in the number of Partner Offers provided via the Partner Feed or Software 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.
f. Technical Integration. Partner agrees to provide necessary technical and business support with high response times (at max. 24 hours) once the onboarding has been initiated by HomeToGo or the respective HomeToGo Group Entity. The Partner shall provide HomeToGo Group with all necessary Partner Feed credentials and access to full live inventory within five (5) business days starting from submitting the necessary HomeToGo IT questionnaire in the context of the onboarding. In case there is a discrepancy between the live and test inventory provided by the Partner due to which HomeToGo Group may need to render additional onboarding and/or development services for the technical integration, the Partner shall reimburse HomeToGo Group for the costs for such development services based on the hourly rate of the developer for its extra integration costs. As technical integration of the Partner and/or the Partner Offers by HomeToGo Group constitutes an upfront investment, except if the Partner uses a Software to connect to the HomeToGo Platform, HomeToGo Group shall be entitled to charge a service fee in the amount stated in the Insertion Order, provided the annual net revenues generated by the Partner falls short of the minimum target revenues stated in the Insertion Order.
g. Cookie Integration. In case the Partner is integrated in a way that does not allow for a full check out process for the Customer (as defined below) on the HomeToGo Platform, including a booking enquiry being sent to the Partner (“Onsite Booking”), the Partner agrees to integrate cookies or other tracking technologies 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 from the HomeToGo Platform. The Partner agrees to integrate and maintain HomeToGo Group’s cookies or other tracking technologies. If the Partner Platform also provides for bookings or enquiries via phone, the Partner is obliged to identify users that were brokered by HomeToGo Group by a dedicated trackable telephone line.
h. Reporting. In case the Partner is integrated in a way that does not allow Onsite Booking, the Partner shall apply best efforts to enable an API call whereby HomeToGo Group can pull the live status of all bookings generated through the HomeToGo Platform. In case such an API call is not technically feasible for the Partner, the Partner shall provide HomeToGo Group with daily statistic/sales overviews of each relevant click-out, booking, cancellation, enquiry or other transaction generated in relation to Partner Offers (“Relevant Transaction”) via an online dashboard, via email or by any other means in the format defined by HomeToGo Group (which may be requested by HomeToGo Group from time to time) as agreed upon in the Insertion Order (“Conversion Report”). If technically feasible and not requested otherwise by HomeToGo Group, the Partner shall list in the Conversion Report (i) the IDs of the Partner Offer, (ii) the check-in and check-out dates, (iii) the prices, (iv) the applicable commission base per booking and/or cancellation (if applicable), and (v) the corresponding HomeToGo Group click-IDs.
i. Intellectual Property. The Partner accepts and respects the copyright and intellectual property rights of the HomeToGo Group, its affiliates and other entities or individuals employed or contracted by HomeToGo Group. 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.
j. Rental Contracts. 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 inventory suppliers) and the user/traveler who booked the vacation property/accommodation contained in the Partner Offer (“Customer”). All external transactions with the Customer shall be executed by the Partner (or its inventory suppliers), unless otherwise agreed between the Partner and HomeToGo or a HomeToGo Group Entity. The Partner is (or its inventory suppliers 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 Group – at HomeToGo’s sole discretion – shall be entitled to implement directly on the HomeToGo Platform (some or all) parts of the booking or enquiry process as Onsite Booking. This shall include in particular 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 Group 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 and/or between the Parties to the extent required.
k. Cancellation of Bookings. In case the Partner cancels a booking, in particular due to technical reasons (e.g. incorrect prices or availability displayed to the Customer), the Partner shall immediately inform the Customer of the cancellation and the reason thereof and shall offer the Customer an adequate solution as alternative. If the price for the alternative accommodation is higher than the price of the cancelled booking or if any further costs incur for the Customer resulting from the cancellation, the Customer may claim these extra costs from the Partner (or its inventory supplier), depending on the applicable law, claim and underlying contractual stipulations of the booking. The Partner shall promptly inform HomeToGo Group of any cancellation via email to [email protected] and report the cancellation either via API (if technically feasible), or within the respective Conversion Report (as set out in section 2 lit. h).
l. Authority. The Partner shall guarantee that the signatory of the Insertion Order and the person agreeing to and/or submitting an Opt-In has the necessary power of attorney to bind the Partner to this Agreement, has read and understands it and agrees to it on behalf of the Partner, and that the implementation of the Agreement is not in contradiction to other contractual agreements of the Partner.
3. HomeToGo Rights and Obligations
a. HomeToGo Services. In exchange for all applicable fees and commissions, and subject to the Partner’s compliance with this Agreement, HomeToGo Group shall enable the distribution of the Partner Offers via the HomeToGo Platform.
b. Identical Offers. HomeToGo Group shall be entitled to display and promote the Partner Offers together with offers and/or products of other partners, in particular if the Offers are identical. The Partner cannot claim exclusivity.
c. Distribution. Within the boundaries of the Insertion Order the Partner acknowledges and expressly agrees that HomeToGo Group is free to (re-) distribute and promote all Partner Offers to contractual distribution partners within the HomeToGo distribution network, either via referral links through features (e.g., search bar widget, pop-/tab-unders, inline/end of result ads or other ad placements), white labels, API or via other technical solution at its sole discretion. For the avoidance of doubt, such features with referral links may be placed on any part of the HomeToGo Platform at HomeToGo Group’s sole discretion directing users to the Partner Platform showing the Partner’s search results for the selected search criteria. However, to the extent Partner has a reasonable objection to a particular distribution arrangement or channel, Partner will provide prompt written notice to HomeToGo Group, identifying the third-party platform, or website from which Partner seeks to remove or withhold the Partner Offers. HomeToGo Group will use commercially reasonable efforts to remove or withhold such Partner Offers in a timely manner and will refrain from further distribution of such Partner Offers through that particular channel to the extent reasonably practicable.
d. Intellectual Property Rights, License. The Partner herewith grants HomeToGo Group non-exclusive, geographically unlimited, royalty free usage rights with respect to the Partner Data including (without limitation):
- the right to store, copy, reproduce, distribute, publish, display, and otherwise use all or any part of the Partner Data to render the services under this Agreement, also in connection with HomeToGo Group products or distribution services, including (without limitation) the right to display the Partner Data in the HomeToGo Group post-booking process, if needed also beyond the term of this Agreement;
- the right to edit texts, images/photos 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, PR and re-marketing (online, offline, in electronic and/or printed form) as well as for creation of static landing pages, accessible on the HomeToGo Platform; for the avoidance of doubt, Partner Data (inter alia images/photos) may be used as a standalone with or without reference to the Offer;
- the right to share all unedited or edited Partner Data with third parties, e.g. search engines or social media platforms, for advertising purposes, which explicitly includes (but is not limited to) integrating the Partner Data through the HomeToGo Group in the third parties’ advertising formats such as (but not limited to) dynamic banners, vacation rental listings, online ads and other online marketing formats, if required by making necessary adjustments to the Partner Data;
- the right to merge and match Partner Data with data provided by other HomeToGo Group partners or contractual parties (particularly inter alia for multi-book offers or search results, bundling of rates, packaging with other types of travel services);
- the right to extract, compile and aggregate Partner Data in connection with data of other partners, so long as such extraction, 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 work results based on such aggregated data, including all reports, statistics or analyses, solely to provide and improve the services rendered by HomeToGo Group under this Agreement and to provide consultative and analytical information to the Partners;
- the right to store and retain the Partner Data and to use it in order to assert and/or pursue, as HomeToGo Group may deem necessary or appropriate, any defenses available against legal claims, also beyond the term of this Agreement;
- 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 to third parties that act as subcontractors or outsourced data processors of the HomeToGo Group as well as to contractual distribution partners within the HomeToGo Platform and other cooperation partners of HomeToGo Group to display and advertise the Partner Offers for the purposes mentioned in this Agreement; for the avoidance of doubt, HomeToGo Group may sublicense the granted rights to its contractual distribution partners within the HomeToGo Platform to render the services and distribution under this Agreement.
e. Sort Order of Search Results. The appearance of Partner Offers in the search results pages on the HomeToGo Platform is based on a dynamic, self-learning algorithm and may vary based on a number of factors. One of these factors comprises the particular combination of search criteria entered by each user of the HomeToGo Platform. Those criteria may include such variables as destination, price, number of guests, type of the accommodation, specific property/accommodation attributes and amenities. The sort order of Partner Offers among any set of Offers returned in response to a user’s initial request may further be influenced by user-selected sort preferences (i.e., popularity, value, guest ratings/reviews), the compensation model applicable to a particular Offer as well as other variables that include such parameters as ranking among similar properties and overall performance metrics. To ensure the functionality of each search query, HomeToGo Group may limit the number of displayed search results if it exceeds a purposive maximum.
4. Remuneration and Payment
a. Fee. For the services rendered by HomeToGo Group under this Agreement, the Partner shall pay a compensation (“Fee”) which is individually agreed upon in the Insertion Order, including via Opt-In, to HomeToGo or – at HomeToGo’s sole discretion – to such HomeToGo Group Entity rendering the respective service (or parts thereof).
b. Cancellation Fee. In case of a booking cancellation as described in section 2 lit. k, the Partner shall pay to the Software Provider or relevant HomeToGo Group Entity (depending on the invoicing procedure as set out in section 4 lit. c and d a cancellation fee amounting to 50% of the Fee payable by the Partner for this particular booking, plus applicable VAT.
c. Invoicing. 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 Relevant Transactions in the previous month in a format to be defined by HomeToGo Group (“Invoice”). In case a HomeToGo Group Entity is rendering the services and is authorized to receive the Fee, a respective Invoice for such services (or parts thereof) may be issued by or to that respective HomeToGo Group Entity. To the extent requested by HomeToGo Group, the Partner will apply best efforts to implement an electronic invoicing process to transmit/receive booking reports/click reports/credit memos and/or invoices.
d. Invoicing via Software Provider. In the event, HomeToGo and the relevant Software Provider have agreed on a collective invoicing procedure applicable also to the Partner, the invoicing procedure as set out in section 4 lit. d) shall not apply to Partner. Instead, Partner shall procure that Software Provider collects and pays out to the relevant HomeToGo Group Entity (with discharging effect for Partner) all Fees for all Relevant Transactions of Partner on a monthly basis.
e. Due Date of Payment. The payment of the Fees stated in the Invoice shall be made in the month in which the Invoice was issued, free of charge by money transfer to the bank account of HomeToGo or a HomeToGo Group Entity as set out in the Insertion Order or Invoice. 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.
5. Confidentiality and Data Security
a. Confidential Information. “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).
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.
b. Data Security. The Partner shall ensure that it complies with all applicable data protection regulations of the Federal Republic of Germany, of the European Union (GDPR) 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. The Partner implements and maintains an adequate and proper level of technical and organizational security measures at least with the same level and degree of care that it uses to protect its own data (but not less than reasonable care).
c. Disclosures. For the avoidance of doubt, the Partner agrees that HomeToGo Group may disclose Confidential Information, including without limitation personal data (if provided within Partner Data), to law enforcement agencies, financial authorities, authorities or agencies mandated by public authorities pursuing administrative offenses or legal claims as well as, if applicable, to third parties who sufficiently claim an infringement of their rights, if HomeToGo Group has indications of an illegal or abusive conduct of the Partner or upon request of public authorities as well as in case of warning notices arising from intellectual property rights, copyright or competition law. HomeToGo Group is not obliged to check beforehand if these alleged claims are justified. Disclosure will be made if this serves the enforcement of the contractual agreement, or is required due to a legal, official or court order. HomeToGo Group will - as far as possible and reasonable in the course of business - take necessary measures to limit the extent of data disclosure to a minimum.
a. Liability for Partner Data. The Partner guarantees that it possesses all necessary rights to the Partner Data, in particular content, linked sites and other information HomeToGo Group 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. HomeToGo Group 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 Group, 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 or any other legal fees and HomeToGo Group shall be fully indemnified from the respective costs.
b. Liability for Data Security. In case the Partner violates any data security regulation and thereby causes any loss for HomeToGo Group (including image loss), the Partner shall provide appropriate compensation for HomeToGo Group and indemnify it from any claims of third parties caused by the violation of this Agreement.
c. Force Majeure. Neither Party shall be liable for technical disruptions or failure to perform its obligations under this Agreement (except from obligations of payment), the cause of which lies not within the Party’s responsibility or control, nor for damages caused by an event of force majeure. Force majeure includes without limitation acts of god, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures or denial-of-service attacks, other elements of nature (e.g. earthquake, storms, etc.), blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government. This applies as long as the respective event is ongoing and the Parties use commercially reasonable efforts to resume performance of their obligations.
d. Availability. HomeToGo Group does not guarantee the uninterrupted availability of data and services. HomeToGo Group is free to perform technical maintenance to the HomeToGo Platform at any time and to the necessary extent.
e. Limitation of Liability. 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 Group, or one of its legal representatives or agents, as well as for damages due to non-compliance with a given HomeToGo Group guarantee, warranted qualities or for fraudulently concealed faults;
- HomeToGo shall be liable for each negligent breach of a fundamental contractual obligation by HomeToGo Group, its legal representatives or its agents. However, in that regard 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.
EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
f. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HOMETOGO MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES, HOMETOGO PLATFORM OR ANY ASSOCIATED DISTRIBUTION OR INTEGRATION; AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE.
a. Business Conduct. Partner shall observe ethical business principles and comply with all laws, other regulations and requirements applicable to Partner. This applies, in particular but without limitation, to regulations relating to anti-corruption, antitrust, data protection, anti-money-laundering, child labor, prevention of terrorism, export controls and sanctions, Tourism Regulations as well as health, safety, security and environment standards. HomeToGo Group has laid out its ethical business principles in the HomeToGo code of conduct (which is made available upon Partner’s request). Partner shall comply with the principles and values set out in the HomeToGo code of conduct or with the rules set out in the Partner’s own code of conduct with the same or very similar standards.
b. Anti-Corruption. Partner warrants and guarantees that no payments or other benefits have been or will be offered, promised or made, directly or indirectly, to any public official, representative of the judiciary, employee of a government-controlled company or employee/agent of a company that are likely to unduly influence official or business conduct. This also includes facilitating payments.
c. Export Controls and Sanctions. HomeToGo respects directly applicable economic, trade or financial sanctions and embargoes of the European Union and the Federal Republic of Germany (“Sanction(s)”) and expects from Partner to do the same. Partner hereby warrants and guarantees that no Sanctions are directly applicable to the business relationship between HomeToGo and Partner; in particular Partner warrants and guarantees that (i) Partner and its shareholders, directors, officers or employees are not subject to any Sanctions, and (ii) Partner does not have any registered office, real estate or bank account in any sanctioned country.
d. Compliance Guarantee. Partner warrants and guarantees that during the last three years Partner or any of its shareholders, directors, officers or employees (i) have not been charged with any criminal act or administrative violation related to the Partner’s business, (ii) have not been the subject of any investigation of fraud, corruption, antitrust or similar offences, (iii) have not been on a list of denied parties or barred from public offers (blacklisted) due to violations, and (iv) are not a person subject to economic or financial sanctions imposed by a state government or international organization. Partner warrants and guarantees that the warranties and guarantees under this lit. d also fully apply to affiliated entities of Partner and their shareholders, directors, officers or employees.
e. Compliance Organization. Partner guarantees that it has implemented suitable compliance measures that are adequate to reduce risks of non-compliance with respect to the regulations mentioned under lit. a, b and c. Partner undertakes to contractually require its agents, subcontractors and other business partners to comply with the principles set forth under lit. a, b and c. Partner shall carefully select its agents, subcontractors and other business partners taking into account the requirements set out in this section 7.
f. Tourism Regulations. Partner represents and guarantees that it complies with all Tourism Regulations applicable to its business, whether relating to transparency requirements to its users, provision of information within Partner Data, communication of information to competent authorities or any other legal obligations in the context of Tourism Regulations.
g. Reporting Obligation. A suspected violation of the provisions in lit. a to d by the Partner or one of its affiliated entities, representatives and/or subcontractors must be reported immediately by Partner to HomeToGo. In the event that HomeToGo investigates a suspected violation of the provisions set out in lit. a to d, Partner shall fully cooperate with HomeToGo.
h. Right of Termination. Partner acknowledges and agrees that a breach of the provisions in lit. a to d of this section shall be deemed a material breach of the Agreement which gives HomeToGo the right to terminate the Agreement at any time with immediate effect. HomeToGo shall not be liable for any damages Partner may suffer as a result of such termination. HomeToGo is also entitled to terminate in case there are reasonable grounds for suspecting a violation of the provisions set out in lit. a to d.
i. Damages and Indemnification. In the event of a breach of the provisions under lit. a to d, HomeToGo Group shall be entitled to damages. In addition, Partner shall indemnify and hold HomeToGo Group harmless in relation to all claims raised by third parties as well as in relation to all penalties, fines, sanctions, seizures, or other payment requests ordered by authorities based on violations of the provisions set out in lit. a to d by Partner.
j. Audit Right. HomeToGo has the right to inspect all books, financial statements, records, invoices and other business documents of Partner during business hours in order to check compliance with the provisions under lit. a to d in relation to the business relationship with HomeToGo (“Audit”). HomeToGo will notify Partner prior to the Audit. HomeToGo will use professionals who are bound by professional secrecy to conduct the Audit. Partner shall ensure that it and its representatives and subcontractors fully cooperate. Each Party shall bear its own costs incurred in connection with the Audit, unless Partner has culpably caused the Audit in which case Partner shall bear the costs of the Audit. Applicable data protection regulations shall be observed by both Parties.
8. Prohibited Acts
a. Prohibited Content. 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. Misuse. Furthermore, misuse of the offers and the services of HomeToGo Group 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 Group 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.
9. Consequences of Violations and Settlement
a. Consequences. Insofar as there is sufficient suspicion that Partner violates
- its contractual obligation under this Agreement;
- rights of third parties;
- the law or morality;
or has received
- repeated complaints from Customers or;
- low reviews to Partner Offers,
HomeToGo Group may at its sole discretion, to protect the interests of Customers, or other contractual partners, or the HomeToGo Platform from the occurrence of significant damage, considering the legitimate interests of the Partner, take the following appropriate measures:
- warning of the Partner;
- removal of the Partner Offers or Partner Data from the HomeToGo Platform;
- temporary or permanent blocking of the Partner’s account;
- change of Partner Offers’ ranking.
The listed order of the individual measures does not represent any valuation or stringent ranking or, accordingly, does not bind HomeToGo Group.
b. Consequences for HomeToGo Payment related Violations. If Partner uses HomeToGo Group’s payment related services as mentioned in section 2 lit. j last sentence, HomeToGo Group shall be entitled to assert a right to withhold a share of the Partner’s credit for the period permitted by law or contract, at least 30 days, until the facts of the potential violation have been fully clarified and cured. In addition, HomeToGo Group reserves the right to demand further documents and evidence from the Partner required for the clarification of disputed transactions, as well as to insist on the Partner’s cooperation.
c. Settlement. If and to the extent the Partner wishes to complain about any measure taken based on this Agreement, the Partner may contact [email protected]. HomeToGo Group will cooperate with the Partner in order to reach a settlement of any disputes in good faith.
10. Term and Termination
a. Term. The Agreement comes into force either with HomeToGo’s acceptance of the Insertion Order or upon Opt-In subject to such Opt-In being available via the Software. In case of the acceptance of an Insertion Order, the Agreement shall be valid for one (1) year from the date thereof and shall be 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. For the avoidance of doubt, any termination of the T&Cs and/or the Insertion Order shall result in a termination of the entire Agreement. In case of an Opt-In via a Software, the Agreement shall be valid until the Partner terminates the Agreement by opting out via the Software.
b. Extraordinary Termination. The right to give extraordinary notice of termination for cause will remain unaffected. In case of extraordinary termination within the first year of this Agreement, HomeToGo or the respective HomeToGo Group Entity shall be entitled to claim the costs which occurred for the technical integration of the Partner.
c. Effect of Termination. Following any termination of this Agreement, all associated Partner Offers will be deactivated and removed from the HomeToGo Platform as soon as technically feasible. However, a termination shall have no effect on Fees for Relevant Transactions already processed by the time of termination or processed in the time between termination and deactivation that have not yet been paid. In addition, the provisions of sections 4, 5, 6 and 8 of these T&Cs shall remain effective even after termination.
11. Final Provisions
a. Precedence. In cases of deviations between the Insertion Order and the T&Cs, the terms of the Insertion Order shall prevail.
b. Form and Notice. Changes or additions to this Agreement (including termination) must be made in writing (email shall suffice).
c. Expenses. Unless otherwise expressly provided in the Agreement, all costs and expenses incurred in connection with the Agreement and in carrying out the transactions contemplated hereby will be the obligation of the Party incurring such cost or expense.
d. Amendments. 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 it objects to the amendment within four (4) weeks after notification by HomeToGo via email, information on its website or by any other reasonable means (e.g., information via the Software Provider’s interface if applicable).
e. Applicable Law and Venue. 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.
f. Assignment. 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.
g. Severability. 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.
Version 7 – As of December 1, 2021
Data privacy is a matter of trust, and your trust matters to HomeToGo. It is therefore important to us that your personal data is protected and that its collection, processing and use in relation to HomeToGo's services in our application and on our website hometogo.com/partner/ complies with the law. In this Policy, we want to tell you about how we collect and use data from you as our partner, in order to give you an overview of how your personal data will be used.
2. Name and contact details of the controller responsible for processing and the company's Data Protection Officer
The company Data Protection Officer of HomeToGo can be reached at [email protected] (Waterside DS GmbH, Bergstr. 28, 22095 Hamburg, Germany).
3. The purposes for which data is processed and the legal basis pursued by HomeToGo or a third party
3.1. Submitting your data to the HomeToGo Partner Page (hereinafter “HomeToGo Partner Page”) or app
If you are a partner distributing travel accommodation, you can submit your contact details as well as information on your properties by accessing our website at www.hometogo.com/partner/ or with our app. Receiving your data through our HomeToGo Partner Page will give our HomeToGo team the opportunity to get in touch with you and provide assistance distributing your travel accommodation.
On our HomeToGo Partner Page we ask you to enter the following information, including:
- your first and last name
- email address
- telephone number
- company details
The legal basis for processing your personal data is Article 6 (1) (a) of the General Data Protection Regulation (GDPR). By submitting your data to HomeToGo you consent that our HomeToGo team can get in touch with you and provide assistance on a potential integration of your inventory. You can revoke your consent provided in this manner at any time with effect for the future.
3.2. Third party services
We process and submit data utilizing third parties, so that our HomeToGo team can get in touch with you and be of any assistance. Legal basis is Articel 6 (1) (a) GDPR.
3.2.1. Typeform SL
In order to get in touch with you we process and store your data securely and privately using salesforce.com, Salesforce Tower, 415 Mission Street, 3rd Floor, San Francisco, CA 94105, USA.
HomeToGo and salesforce.com signed a data processing agreement, including standard contractual clauses for transferring data to the United States of America.
3.3. Right to object
You have the right, at any time and at no charge, to object to data processing for the aforementioned purposes, separately for each respective communication channel, and with effect for the future. To do so, you need only send an email to [email protected] or send a letter to the HomeToGo address mentioned in section 2 above.
In the event that you object, the relevant contact address will be blocked for further processing. We point out that, in exceptional cases, we may temporarily continue to contact you after your objection has been received. This is due to technical reasons and does not mean that your objection will not be observed by us. Thank you for your understanding.
3.4. Reference to all other data processing
4. Your rights
In addition to the right to revoke the consent you have granted to us, you are entitled to the following further rights if the relevant legal requirements apply:
- Right of access to information about your personal data stored with us pursuant to Article 15 GDPR
- Right of rectification of inaccurate personal data and right to have incomplete personal data completed pursuant to Article 16 GDPR
- Right to erasure of your personal data stored by us pursuant to Article 17 GDPR
- Right to restriction of processing of your data pursuant to Article 18 GDPR
- Right to data portability pursuant to Article 20 GDPR
4.2. Right to object
Under the conditions of Article 21 (1) GDPR, data processing can be objected to on grounds relating to the particular situation of the data subject.
Version 1 – As of August, 2020
Payment Solution Terms & Conditions
These Payment Solution Terms and Conditions (“Payment T&Cs”) and the respective agreement on individual deal terms concluded by written agreement, email, technical interface or other means (“Insertion Order”, which may also be concluded in the context of partner integration) between you (“Sub-Merchant” or “You”/”Your”) and HomeToGo GmbH including any current or future entity that is (directly or indirectly) owned, controlled by, or under common control of HomeToGo GmbH (the latter individually “HomeToGo”; operating as “Marketplace Platform” for vacation rentals, hotels and other travel accommodation and ancillary services (“Vacation Properties”)) constitute together a legally binding agreement (“Agreement”) on the use of payment services integrated with the Marketplace Platform. By the Agreement further conditions (terms and restrictions of the Processor as defined and specified below) of a third party are incorporated which You must read and accept in order to be able to use the payment services on the Marketplace Platform.
1. Recitals and Definitions
a. Payment Services. The “Payment Services” are offered by Adyen N.V. (“Processor”), a provider of payment processing and acquiring services that enables marketplaces to offer the use of the Payment Services as an integrated payment solution on their marketplace platforms to enable their merchants to offer various payment methods to their customers to pay for goods or services sold (“Adyen for Platform Solution”).
b. HomeToGo Payment Solution. The Payment Services via the Adyen for Platform Solution integrated with the Marketplace Platform (“HomeToGo Payment Solution”) enable You as Sub-Merchant to accept payments from a user of the Marketplace Platform that made a booking with a sub-merchant (“Customer”).
c. Compliance. In order to comply with financial service laws and applicable rules of payment methods (“Scheme Rules”), Processor will need to have a direct contractual relationship with each Sub-Merchant to be able to make the Payment Services available to the Sub-Merchant. However, the intention of the parties is that with respect to Sub-Merchants, the commercial relationship, customer service relationship, risk management and account management will – as much as practically feasible and allowed under applicable laws and Scheme Rules – be rendered by HomeToGo with resources of Processor providing third line support to HomeToGo.
2. Delivery of Payment Services
a. Order of Payment Services. By accepting the Payment T&Cs You simultaneously enter into a direct contractual relationship with Processor for the delivery of the Payment Services offered to You by Processor and You confirm to have taken notice of and to accept the following terms and restrictions:
- Adyen for Platforms Terms and Conditions (click here to download and review)
- Adyen Restricted and Prohibited Products and Services list (“Prohibited Services List”) (click here to download and review)
b. Registered Use Only. You further confirm and guarantee that You will only use the Payment Services to accept payments in connection with bookings, booking requests, etc. of Vacation Properties and related services via the Marketplace Platform (“Booking”) and not for any sale of any product or service which is violating any applicable law or any Scheme Rules (“Registered Use”).
WARNING: Please note that the right to use the Payment Services is only for sales in Your own name. You may not resell, hire or on any other basis allow third parties to use the Payment Services to enable such third parties to be paid for their services. You may not use the Payment Services for types of product and services other than the Registered Use. In particular, You confirm that you will not use the Payment Services for any type of product or service appearing in the Prohibited Services List.
3. Provision of Information
a. Your Information. You shall provide Processor and HomeToGo with such information as may be lawfully requested to perform the Payment Services promptly and accurately. You shall promptly notify HomeToGo of any inaccuracies in, or changes to, the information provided by You during the registration process. HomeToGo shall, in no event, be liable for any damages directly or indirectly resulting from Your failure to comply with this paragraph. You warrant unconditionally and guarantee that all information You provide to HomeToGo and/or Processor is true, correct and up to date at any time, and acknowledge that both HomeToGo and Processor are relying upon such information in providing the Payment Services.
b. Merchant Reviews. You authorize HomeToGo and Processor from time to time to collect and verify the information provided by You in the process of Your registration or otherwise. This information may be used to perform merchant due diligence, verify Your identity, verify You are not subject to trade sanctions, perform various fraud and risk reviews on You, and monitor the transactions through the Payment Services to protect the integrity of HomeToGo’s as well as Processor’s systems and business and to comply with any applicable laws (“Risk Review”).
Processor will in particular carry out formal verifications and mandatory checks of the information provided and will need to perform Know Your Customer (“KYC”) and Anti-Money Laundering and Anti-Terrorist Financing (“AML”) verifications with respect to Sub-Merchants in accordance with applicable laws and Scheme Rules.
WARNING: Based upon the Risk Review, HomeToGo and Processor will determine from time to time and at their sole discretion whether the Payment Services can be provided to You, in the intended scope. Should you fail to successfully complete and pass the Merchant Review, You cannot be onboarded to the HomeToGo Payment Solution. If HomeToGo or the Processor at any time discover that the information You provided about Your business is incorrect or has changed without informing HomeToGo and/or the Processor or if You violate any of these conditions, the Payment Services may be suspended and/or terminated with immediate effect and fines may be applied by the credit card schemes and/or the authorities for unregistered or inappropriate use of payment services which will in such case be payable by You.
a. For HomeToGo. In order to safeguard Your smooth onboarding onto the Adyen for Platform Solution and future undisturbed provision of the Payment Services, HomeToGo shall facilitate the provision of the Payment Services by handling all first line contacts with the Sub-Merchant. Sub-Merchant will have no access to the Adyen for Platform Solution back office, instead, HomeToGo will be designated as an authorized representative of the Sub-Merchant towards Processor with respect to the use by the Sub-Merchant of the Payment Services and as such authorized by the Sub-Merchant to access and use the data of the Sub-Merchant processed within the Adyen for Platform Solution. Therefore, You mandate, instruct and authorize HomeToGo as follows:
- Configuration of Settings: HomeToGo shall set up and manage for You any and all settings and configurations in the Adyen for Platform Solution required to implement the Payment Services and enable You to technically connect to the Adyen for Platform Solution and related systems of Processor to be able to use the Payment Services.
- Fraud Tool: All Bookings processed via the Payment Services (“Transaction(s)”) will be screened by the Processor’s fraud control tool, which performs a number of checks on a Transaction and attaches a resulting total score to the Transaction, which represents the likelihood of the Transaction being fraudulent. HomeToGo may on behalf of the Sub-Merchant configure the scoring values for such fraud control tool via the Adyen for Platform Solution to determine how the Processor’s fraud control tool will judge Transactions at its free discretion in close coordination with Processor.
b. For Processor. You authorize and instruct Processor to provide HomeToGo access to Your data and settings in the Adyen for Platform Solution and related systems of Processor which are used by Processor to provide the Payment Services.
5. Settlement of Funds
Processor will receive settlement for processed Transactions for the Sub-Merchants from the relevant third-party acquirers or scheme owners (“Sub-Merchant Funds”). Upon successful completion of the required screening, and subject to any fraud or risk holds by HomeToGo, You will be offered the following settlement scheme:
a. Split of Funds. Sub-Merchant acknowledges and agrees that Processor will settle Sub-Merchant Funds available on the virtual account of the Sub-Merchant on the Adyen for Platform Solution used by Processor to settle funds (“Virtual Merchant Account”) to the designated bank account of the Sub-Merchant, withholding (i) commissions and other fees in accordance with the applicable partner integration contract between Sub-Merchant and HomeToGo (“HomeToGo Commission”) as well as any Payment Fees (as defined below, together “Marketplace Fees”) which will be settled to the virtual account of HomeToGo on the Adyen for Platform Solution used by Processor to settle funds to (“Virtual Marketplace Account”), (ii) the Refunds and Chargebacks (as defined below) processed for such Sub-Merchant, the Customer Compensation (as defined below) as well as (iii) the Security Buffer (as defined below) applicable to the Sub-Merchant.
b. Settlement Frequency. The settlement of the Sub-Merchant Funds – in particular the settlement frequency – shall be made pursuant to the binding Sub-Merchants' settlement instructions specified in the Insertion Order hereto (“Sub-Merchant Instructions”). HomeToGo is under no circumstances entitled to make any individual instructions towards Processor regarding the settlement of the Sub-Merchant Funds. However, it is herewith agreed by You – and HomeToGo is instructed accordingly – that the Sub-Merchant Instructions will be submitted by HomeToGo on Your behalf via the Adyen for Platform Solution, it being agreed, that HomeToGo may amend the Sub-Merchant Instructions from time to time in Your name and for Your account in accordance with the supported pricing formats of the Adyen for Platform Solution.
c. Chargebacks and Refunds. Any Transaction related payment by a Customer is subject to a right of (i) “Refund” (the right of a bank account owner to seek the return of funds for a transaction that was funded by a bank account, for example, as a result of suspected unauthorized use of a bank account or insufficient funds), or (ii) “Chargeback” (the right of card holders to file a claim for a refund with their card issuer or bank, for example, as a result of fraud or dissatisfaction with a purchase). These rights exist between the Customers and their respective bank or credit card issuer. You herewith acknowledge and agree that You shall be solely liable for any Refund or Chargeback and related charges and costs, regardless of the reason of such Refund or Chargeback. In particular, if a Chargeback occurs for a Transaction in respect of which Sub-Merchant already received settlement of the related funds, this results in the unconditional obligation of the Sub-Merchant to return the settled funds to Processor, to enable Processor to return such funds to the scheme owner or acquirer.
d. Security Buffer. In order to prevent a negative balance on the Virtual Merchant Account as a result of Refunds, Chargebacks and/or (as far as applicable) Scheme Owner Fines (as defined below) caused by a Sub-Merchant, You herewith agree and authorize HomeToGo to instruct Processor to retain and withhold a certain balance credited to the Virtual Merchant Account from any settlement by Processor (“Security Buffer”). The exact amount of the Security Buffer may vary from time to time subject to diverse parameters (such as cancellation rates, volume of Refunds, Chargebacks, potential Scheme Owner Fines, etc.). The initial Security Buffer shall be specified in the Insertion Order and may be changed depending on the basis of the underlying parameters by HomeToGo instructing Processor. HomeToGo is entitled to categorize Sub-Merchants into different segments for Security Buffers at any time.
e. Negative Balance. In case of negative balance on the Virtual Merchant Account which cannot be funded from Sub-Merchant Funds, Processor will charge HomeToGo the respective negative balance and withhold such amounts from settlements of the Marketplace Fees. Against this background, You herewith agree that you are solely liable for such Refunds, Chargebacks and for any penalties or fines imposed on You or HomeToGo by any person who regulates and provides a specific payment method (e.g. Visa, MasterCard) resulting from Your use of the Payment Services in a manner not permitted by this Agreement, Scheme Rules, or related rules and regulations (“Scheme Owners Fines”) and that you will reimburse HomeToGo for any costs incurred by HomeToGo in this regard. HomeToGo has the right to offset such reimbursement and You hereby instruct Processor to settle such amounts directly to the Virtual Marketplace Account.
f. Reimbursement. In the event HomeToGo is unable to recover Refunds, Chargebacks and/or Scheme Owners Fines for any reason, You will pay all reasonable costs of collection, including without limitation any legal fees, incurred by HomeToGo.
g. Insufficient Sub-Merchant Funds. In the event Processor entirely or partially will not receive settlement for processed Transactions for the Sub-Merchants from the relevant third-party acquirers or scheme owners (“Insufficient Sub-Merchant Funds”) due to (i) none-collectable payments by Customers, (ii) discrepancies between the Sub-Merchant’s payment settlement rules and cancellation policies (as further set out in 6.b), or (iii) any other reason leading to a non-collectable payment, Sub-Merchant will not be entitled to claim such Insufficient Sub-Merchant Funds.
6. Operational Agreements
a. Service Fee. For the avoidance of doubt, HomeToGo retains the right to charge a service fee to users of the Marketplace Platform who book and pay via the HomeToGo Payment Solution. The calculation of the service fee may change from time to time and will depend on different criteria defined solely in HomeToGo’s discretion. The specific amount of the applicable service fee will be displayed to users within the booking interface on the Marketplace Platform.
b. Cancellation Policies. In order to provide the Customer with a seamless and convenient booking experience, it is vital that the HomeToGo Payment Solution is backed with a consistent and standardized cancellation policy across all participating Sub-Merchants. Sub-Merchants can choose which of the cancellation policies separately provided by HomeToGo to offer to Customers (“HomeToGo Cancellation Policies”). You herewith acknowledge and agree that the terms and conditions as well as any other terms included in the advertisement of Your Vacation Properties on the Marketplace Platform adhere to and do not conflict with the HomeToGo Cancellation Policies at any given time, once the HomeToGo Cancellation Policies have been provided and chosen. For the avoidance of doubt, before the introduction and provision of the HomeToGo Cancellation Policies Your cancellation terms apply in relation to the Customer.
c. Cancellations & Chargebacks. In order to mitigate any potential damage resulting from a Chargeback, You herewith authorize HomeToGo to cancel any Booking that is connected to a Chargeback at its sole discretion and at any given point in time.
d. Service Levels. The satisfaction of the Customer is key to HomeToGo and the parties agree that in case of a question, inquiry, issue or complaint of a Customer (“CS Request”) relating to a Vacation Property provided by You (e.g. issues relating to its accessibility, cleanliness, safety or deviation from description etc.), it is vital to answer CS Requests as fast and as conclusive as reasonably feasible. In order to enable HomeToGo to provide top-quality first level customer support, You acknowledge that HomeToGo will need respective second level (agent-to-agent) support by You and, if lacking such support, the Customer affected will be offered adequate goodwill. Against this background, You agree to (i) reply to every second level customer support request by HomeToGo relating to a CS Request within 48 hours after its receipt from HomeToGo, and (ii) to pay to such Customer an amount of up to 20% of the total gross booking volume of the respective stay as goodwill (exact amount to be determined by HomeToGo at its sole discretion in each case), it being understood that this shall have no impact on the HomeToGo Commission or Marketplace Fee. In addition, if You receive a cancellation request of the Customer via the Marketplace Platform, You agree (i) to reply to such cancellation request within 72 hours and (ii) that – if You failed to answer the cancellation request in time – HomeToGo may at its sole discretion cancel the respective booking in Your name and (iii) that You shall refund the Customer up to the total gross booking volume of the stay involved (exact amount to be determined by HomeToGo at its sole discretion in each case). You herewith authorize HomeToGo to instruct Processor in Your name and on Your account to withhold any amounts to be paid to the Customer under this paragraph (such amount “Customer Compensation”) from any settlement and to pay out such amounts to the Customer affected within 30 days as of receipt of the CS Request. You acknowledge and agree that this paragraph shall supersede any other applicable cancellation policy.
e. Customer Communication. In order to optimize the usability of the check-out and improve the user experience of the HomeToGo Payment Solution, You acknowledge and agree that HomeToGo shall – at its own discretion – be entitled to streamline all or parts of the post booking communication vis-à-vis its Customers and, to the extent requested by HomeToGo, You agree to technically hold back all or parts of your direct Customer communication that HomeToGo already renders.
f. Payment Methods. For the avoidance of doubt, payment methods displayed to the Customer on the Marketplace Platform will be determined by HomeToGo and Processor. Sub-Merchant will not be able to choose specific or individual payment methods within the HomeToGo Payment Solution.
7. Payment of Fees
a. Fees for Services. In consideration for the Payment Services, You will pay HomeToGo a “Payment Fee” which is agreed upon in the Insertion Order for every Booking processed on Your behalf via the Adyen for Platform Solution through any payment method offered by Processor. You agree not to add a mark-up to your net rate within your gross travel price charged to users exceeding the total Marketplace Fees charged to you. The Marketplace Fees will become due upon completion of the payment processing. Marketplace Fees due are inclusive of applicable value-added tax, but exclusive of other tax such as withholding or other transaction-based tax in any country, state or locality. Where such tax applies, it shall be paid to HomeToGo by You.
b. Deduction from Settlement. You hereby authorize Processor to automatically deduct all Marketplace Fees due from Transactions collected by Processor, as well as amounts related to Chargebacks, Refunds or Scheme Owners Fines prior to settlement from the Virtual Merchant Account.
8. Privacy and Data Security
a. Privacy. Sub-Merchant and HomeToGo act as independent data controllers in relation to the processing taking place under this Agreement. Personal data of Customers will be processed by either party in accordance with applicable privacy regulations and data protection laws, while Processor processes personal data of Customers for HomeToGo when processing the payments initiated on the Marketplace Platform on behalf of HomeToGo as controller. In respect of personal data of Sub-Merchant within Risk Reviews, KYC and AML, Processor acts as controller and not as HomeToGo’s processor. For clarification, Sub-Merchant and Processor enter into a separate data processing agreement.
a. Disclaimer. SUBJECT TO THE BELOW, HOMETOGO SHALL IN NO WAY BE LIABLE TO YOU DUE TO ANY DISRUPTION OR NON-AVAILABILITY OF THE PAYMENT SERVICES OR MARKETPLACE PLATFORM DURING WHICH CUSTOMERS ARE UNABLE TO ACCESS OR USE THE SAME OR ANY FAILURES THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF A PAYMENT OR THE PAYMENT SERVICES. HOMETOGO BEARS NO RESPONSIBILITY FOR ANY ERRONEOUS STATEMENT, ANY ERROR OR DELAY IN PAYMENT, OR ANY PAYMENT DECLINED BY YOUR BANK CAUSED BY YOUR FAILURE TO PROVIDE ACCURATE AND/OR VALID INFORMATION.
EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY, ITS AFFILIATES OR ITS SUPPLIERS SHALL BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING,WITHOUT LIMITATION LOST PROFITS, EVEN IF THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HOMETOGO MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE PAYMENT SERVICES, MARKETPLACE PLATFORM OR ANY ASSOCIATED INTEGRATION; AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE.
SUBJECT TO THE BELOW, HOMETOGO’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE PAYMENT FEES THAT IT HAS RECEIVED FROM YOU AND RETAINED UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ARISES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
b. Limitation of Liability. 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 Group, its legal representatives or its agents. However, in that regard 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 the Payment Fees that HomeToGo has received from You and retained under this Agreement during the three (3) months immediately preceding the date on which the damage arised, 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.
c. Force Majeure. Neither party shall be liable for damages caused by force majeure.
d. Acknowledgement. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability and disclaimer stated in this paragraph and that these limitations are an essential basis of the bargain between the parties.
You will indemnify, defend and hold HomeToGo and its officers, directors, consultants, agents, and/or employees (each “Indemnified Party”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees) brought against any of the Indemnified Parties, arising out of or related to: (i) Your use of the Payment Services or the Marketplace Platform; and/or (ii) any breach of or non-compliance with this Agreement by You. HomeToGo may join in defense with counsel of its choice at its own expense. The indemnity obligations set forth in this section will not apply to the extent any claim, loss, liability, demand or expense is the result of the gross negligence or willful misconduct of any Indemnified Party. The indemnity obligations set forth in this section are contingent upon: (i) HomeToGo providing prompt written notice to You of any such claim(s), loss(es), liability(ies), action(s), demand(s) or expense(s) (except that Your obligation to indemnify hereunder shall only be relieved to the extent it is prejudiced by HomeToGo’s failure to provide such notice); and (ii) You having sole control of the defense or settlement of such claim(s), loss(es), liability(ies), action(s), demand(s) or expense(s); provided that any settlement requiring other than the payment of monetary amounts shall be subject to HomeToGo’s consent, not to be unreasonably withheld. At Your reasonable request and expense, HomeToGo shall cooperate in the investigation, defense and settlement of such claim(s), loss(es), liability(ies), action(s), demand(s) or expense(s).
11. Term and Termination
a. Term. This Agreement comes into force with either party’s acceptance of the Insertion Order and shall be valid for one (1) year from the date thereof being 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. For the avoidance of doubt, any termination of the Payment T&Cs and/or the Insertion Order shall result in a termination of the entire Agreement. In case the Sub-Merchant uses an accommodation rental management software, global distribution system or comparable software, technology or digital platform (e.g., via a channel management and/or property management system) to connect to the Marketplace Platform and therein accepts this Agreement via an opt-in, this Agreement shall be valid until the Sub-Merchant terminates it by opting out via such software, technology or digital platform.
b. Extraordinary Termination. The right to give extraordinary notice of termination for cause will remain unaffected. In case of extraordinary termination within the first year of this Agreement, HomeToGo shall be entitled to claim the costs which occurred for the technical integration of the Sub-Merchant.
c. Effect of Termination. Termination of this Agreement will not relieve either party of any obligation to pay the other party any amounts, Marketplace Fees or other compensation due and owing to the other party under this Agreement prior to such termination. Any Transactions still in process at the time of termination will be completed by Processor as if the Agreement were still in effect, including following relevant settlement timelines and deduction of any amounts. However, You will remain liable for Chargebacks, Refunds, Scheme Owners Fines and any other obligations incurred by You after the expiration or termination of this Agreement and You authorize Processor herewith to automatically, without prior notice to You, deduct such amounts from open settlements. Upon termination, HomeToGo will disable Your access to the Payment Services (other than such access required to complete any payments still in process).
12. Final Provisions
a. Precedence. In cases of deviations between the Insertion Order and the Payment T&Cs, the terms of the Insertion Order shall prevail.
b. Amendments. HomeToGo reserves the right to change these Payment 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 it objects to the amendment within four (4) weeks after notification by HomeToGo via email, information on its website, in a technical interface or by any other reasonable means.
c. Applicable Law and Venue. 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.
d. Assignment. Without the prior written consent of HomeToGo, the Sub-Merchant 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 (email shall suffice) to be bound by this Agreement.
e. Severability. 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.
Version 1 – As of 1 March, 2021