Partner Integration Terms & Conditions

HomeToGo has updated these T&Cs (version 4). Changes apply within four (4) weeks upon notification which is announced on May 7, 2019, if the Partner has agreed to a previous version.

These Terms and Conditions for Partner Integration (“T&Cs”) and the respective agreement on individual deal terms concluded by written agreement, e-mail, technical interface or other means (including its Annexes (if any) “Insertion Order”, the T&Cs and the Insertion Order each as may be amended from time to time collectively “Agreement”) between you (“Partner”) and HomeToGo GmbH (“HomeToGo”, Partner and HomeToGo individually “Party” and collectively “Parties”), constitute a legally binding agreement on the distribution of travel accommodations, especially holiday homes/vacation rental offers or hotels (“Offers”). “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, including in particular Casamundo GmbH, Wimdu META GmbH, and Tripping GmbH.


§ 1 Recitals

a)    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.

b)    HomeToGo Group aggregates Offers from numerous partners and suppliers distributing the same via several web and/or app services operated by HomeToGo Group or by a contractual distribution partner within the HomeToGo distribution network (“HomeToGo Platform”).

c)    In 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. An Insertion Order is binding on the Parties and not subject to any cancellation or termination right, except as provided for under § 7.

d)    HomeToGo may 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. For the avoidance of doubt, this Agreement is binding on the HomeToGo Group by virtue of a genuine contract for the benefit of third parties (in accordance with § 328 German Civil Code, BGB). HomeToGo shall have the right to decide at its sole discretion which HomeToGo Group Entity may perform specific services or other obligations pursuant to this Agreement.

§ 2 Rights and Obligations

a)    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”). Within the boundaries of the Insertion Order the Partner 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. 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.

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 via API, static feed or any other virtual interface as may be requested by HomeToGo Group (“Partner Feed”). HomeToGo may assign one or more HomeToGo Group Entities to connect the Partner Feed directly and the Partner will support such connectivity with the HomeToGo Group Entity. 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 Group 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 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), 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, 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 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. 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). The Partner shall communicate changes in the Partner Feed to HomeToGo or HomeToGo Group Entity (as the case may be) 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 (as the case may be) 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.

The Partner acknowledges that the HomeToGo Group has only limited time slots available for the technical onboarding of the Partner. Against this background, Partner agrees to provide necessary technical and business support with high response times (at max. 24 hours) once the onboarding has been initiated by 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 the HomeToGo Group may need to render additional onboarding and/or development services for the technical integration, the Partner shall pay 1,000 EUR or the costs for such development services based on the hourly rate of the developer, whichever is higher, for its extra integration costs.

As technical integration of the Partner and/or the Partner Offers by HomeToGo Group constitutes an upfront investment, 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.

b)    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 Group’s cookies. 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.

c)    The Partner shall provide HomeToGo Group with daily Partner Offer specific booking, enquiry and/or action statistics/sales overviews 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 (if applicable), and (v) the corresponding HomeToGo Group Click-IDs.

d)    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.

e)    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 contained in the Partner Offer (“Customer”). All external transactions with the Customer shall be executed by the Partner (or its inventory suppliers). 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. 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 to the extent required.

f)     The Partner herewith grants HomeToGo Group 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 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 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.

g)    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.

h)    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 to HomeToGo or – at HomeToGo’s sole discretion – to such HomeToGo Group Entity rendering the respective service (or parts thereof).

§ 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, enquiries or other transactions generated in relation to Partner Offers (“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.

b)    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.

c)    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 HomeToGo Group Entity as set out in the Insertion Order or Invoice.

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 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 of legal fees and HomeToGo Group 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 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.

c)    HomeToGo Group is not liable for technical disruptions, the cause of which is not HomeToGo Group’s responsibility, nor for damages caused by force majeure.

d)    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. HomeToGo Group 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 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, 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 of the Insertion Order (if applicable), the person agreeing to and/or submitting an Opt-In (as defined below in § 8 lit. a) 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 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 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.

§ 7 Term and Termination

a)    The Agreement comes into force with HomeToGo’s acceptance of the Insertion Order and shall be valid for one (1) year from the date thereof. The Agreement 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.

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)    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, 7 and 8 lit. e) (if applicable) of these T&Cs shall remain effective even after termination.

§ 8 Special Terms for Channel Manager Provider

In case the Partner uses a channel management software, global distribution system or comparable software, technology or digital platform (“CM System” and the provider of such CM System “Channel Manager”) to connect to the HomeToGo Platform, the following stipulations shall apply supplementing and/or amending the other terms of this Agreement as the case may be (such special stipulations referred to as “HomeToGo Indirect Integration Terms”):

a)    To the extent available via the CM System, instead of an Insertion Order, the Partner shall accept these T&Cs via a checkbox or other technical opt-in solution (“Opt-In”). Any reference in agreements between HomeToGo and a Channel Manager to this Agreement shall relate to this Agreement as amended by the HomeToGo Indirect Integration Terms.

b)    Partner shall provide the Partner Data, as specified in § 2 lit. a), via the CM System.

c)    In amendment of § 2 lit. c), Partner shall procure that Channel Manager provides to HomeToGo Group Entity the Conversion Report containing monthly Partner Offer specific statistics/sales overviews on all Relevant Transactions of Partner.

d)    In amendment of § 2 lit. h), HomeToGo Group shall be free to determine the applicable business model (i.e. commercial deal such as CPC, CPA, CPL etc.) as well as the Fees to be paid by Partner. The relevant HomeToGo Group Entity will provide Partner (directly or indirectly via Channel Manager) with details of the Fees as may be applicable from time to time.

e)    In the event, HomeToGo and the relevant Channel Manager have agreed on a collective invoicing procedure applicable also to Partner, § 3 shall not apply to Partner. Instead, Partner shall procure that Channel Manager 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. In the event the aforementioned collective invoicing procedure is not applicable, Partner shall pay the relevant HomeToGo Group Entity the Fees directly and § 3 shall apply accordingly.

f)     In deviation of § 7 lit. a) sentence one, the Agreement between Partner and HomeToGo comes into force upon Opt-In subject to such Opt-In being available via the CM System. In all other cases, § 7 lit. a) remains unchanged.

g)   All other stipulations of the T&Cs shall remain unaffected and be equally applicable to Partner using a CM System.

§ 9 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 email, information on its website or by any other reasonable means (e.g., information via the Channel Manager’s interface if § 8 applies).

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.

 

Version 4 – As of April 15, 2019

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