GENERAL DELIVERY TERMS
These general delivery terms (the “Terms“) form an integral part of the BookingSuite Accommodation Agreement (the ” BookingSuite Agreement” and together with the Terms, “Agreement“) entered into between an Accommodation and BookingSuite (each a “Party” and collectively the “Parties“).
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, save where the context otherwise requires or the Agreement otherwise provides, capitalized words and expressions shall have the meanings given to them in Appendix 1.
1.2 This Agreement is not intended, nor should anything herein or in any of the arrangements contemplated herein, be construed, to create a joint venture or the relationship of partners, partnership or principal and agent between the Parties. Neither Party shall act, or be construed to act, as the agent of the other.
2. PROPERTY WEBSITE SERVICES
2.1 General Prohibitions
2.1.1 The Accommodation agrees not to post, upload, publish, submit or transmit via or to the Site or Property Website Services any Content that: (1) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy/data protection or otherwise violates, or encourages any conduct that would violate, any applicable law, rule, statute, ordinance, court or agency decision or regulation (collectively, the “Laws“), (2) would give rise to civil liability, (3) is fraudulent, false, libelous, misleading or deceptive, (4) is defamatory, obscene, pornographic, sexual, vulgar or offensive links to an adult oriented, pornographic or otherwise sexually orientated service, (5) promotes sexually explicit materials, illegal activities, violence, discrimination (based on race, sex, religion, nationality, disability, sexual orientation, age or otherwise), bigotry, racism, hatred, harassment or harm against any individual or group (on the basis of age, color, national origin, race, religion, sex, sexual orientation, handicap or otherwise), or (6) is violent or threatening or promotes violence or actions that are threatening to any person or entity.
2.1.2. The Accommodation also agrees not to: (1) use, display, mirror or frame the Site, or any individual element within the Site or Property Website Services, including BookingSuite’s name or any BookingSuite Content, (2) access, tamper with, or use non-public areas of the Site or Property Website Services, BookingSuite’s computer systems, or the technical delivery systems of BookingSuite’s providers, (3) attempt to probe, scan, or test the vulnerability of any BookingSuite system or network or breach any security or authentication measures, (4) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by BookingSuite or any of BookingSuite’s providers or any other third party (including another user), (5) attempt to access or search the Site or BookingSuite Content or download BookingSuite Content from the Site or Property Website Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by BookingSuite or other generally available third party web browsers, (6) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation, (7) use any meta tags or other hidden text or metadata utilizing a BookingSuite Trademark or URL, (8) forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site or Property Website Services to send altered, deceptive or false source-identifying information, (9) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide or that is contained or displayed within the Site or via the Property Website Services, (10) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Property Website Services, (11) collect or store any Personal Information from other users of the Site or Property Website Services, (12) impersonate or misrepresent its affiliation with any person or entity, (13) access the Site behind proxy servers or URL cloaking techniques, or (14) encourage or enable any other party to do any of the foregoing.
2.2. Monitoring, investigation and remedies
2.2.1. The Accommodation acknowledges and agrees that BookingSuite has the right to investigate and prosecute violations of any of the above prohibitions, or of any of these Terms, to the fullest extent of the Laws. The Accommodation acknowledges that BookingSuite has no obligation to monitor the Accommodation’s access to or use of the Site or to review or edit any Accommodation Content, but has the right to do so for the purpose of operating the Site, to ensure the Accommodation’s compliance with these Terms, to comply with applicable Laws, including the order or requirement of a court, administrative agency or other governmental body or as it otherwise deems necessary or appropriate. BookingSuite reserves the right, at any time and without prior notice, to remove or disable access to any Accommodation Content including, but not limited to, such Content that BookingSuite, at its sole discretion, considers to be in violation of these Terms, applicable Laws, or otherwise harmful to the Site.
2.3 License granted by BookingSuite
2.3.1. Subject to the Accommodation’s compliance with the terms and conditions of these Terms, BookingSuite grants the Accommodation a limited, revocable, non-exclusive, non-transferable and non-assignable right and license to view, download and print any BookingSuite Content solely for the personal and non-commercial purposes. The Accommodation has no right to sublicense the license rights granted in this section. The Accommodation will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site or BookingSuite Content, except as expressly permitted in these Terms. No licenses or rights are granted to the Accommodation by implication or otherwise under any intellectual property rights owned or controlled by BookingSuite or its licensors, except for the licenses and rights expressly granted in these Terms.
2.3.2. The Accommodation may use the BookingSuite Content under that license for its internal business purposes only and to the extent necessary for the Accommodation to access and use the applicable Property Website Services (i.e. those provided for free or those provided in connection with a Services Subscription).
2.4 License granted by Accommodation
2.4.1 By making available any Accommodation Content on or through the Site or Property Website Services, the Accommodation hereby grants to BookingSuite a worldwide, non-exclusive, non-revocable, perpetual, transferable and royalty-free right and license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, utilize and otherwise exploit such Accommodation Content to the extent necessary for BookingSuite to perform the Property Website Services. The Accommodation also grants BookingSuite the right and license to use, market, promote, display, include and utilize the Accommodation Content (including the Accommodation) (whether on the Site, through the Property Website Services or for online web-marketing (including pay-per click, banners and other online advertisements) and email marketing purposes) to and for the benefit of the Accommodation. BookingSuite runs the online and email marketing campaigns at its own costs and own discretion. BookingSuite does not claim any ownership rights in any Accommodation Content and nothing in these Terms will be deemed to restrict any rights that the Accommodation may have to use and exploit any Accommodation Content.
2.4.2. BookingSuite will not publish, publicly display or perform or otherwise make available to the general public any Accommodation Content outside the scope of the right and license set out in Clause 3.2.1 without the Accommodation’s prior permission, which Accommodation agrees will not be unreasonably withheld, delayed or conditioned. If the Accommodation approves such use, the Accommodation shall give the same right and license to such Accommodation Content as set out in Clause 3.2.1. If the Accommodation does not approve such uses of the Accommodation Content, BookingSuite will still charge the Accommodation the applicable Property Website Services Fees, as described below.
2.5 Ownership and all rights reserved
2.5.1 Without limiting any other language in these Terms, the Accommodation acknowledges and agrees that the Site, Property Website Services, and BookingSuite Content are protected by copyright, trademark, data base rights and other Laws and that the Site, Property Website Services and BookingSuite Content (including all associated intellectual property rights) are the sole and exclusive property of BookingSuite and its licensors. The Accommodation further acknowledges and agrees that all Trademarks appearing on the Site, the Property Website Services or in the BookingSuite Content are owned by BookingSuite or the third-parties who provide them. The Accommodation will not remove, alter or obscure or claim ownership of any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Property Website Services or BookingSuite Content. For the avoidance of doubt, as between the Accommodation and BookingSuite, the Accommodation owns any Accommodation Content provided by the Accommodation to BookingSuite (excluding any translations thereof made by BookingSuite which shall be exclusively owned by BookingSuite).
2.5.2. The Accommodation agrees and acknowledges that reproducing, copying, using, incorporating, imitating, publishing or distributing (a) (any part of) the BookingSuite Content on or of the BookingSuite Site or provided via the Property Website Services or (b) (any part of) the Site itself (including the look and feel/composition, certain features and elements unique to the Site) for any use or purpose not expressly permitted by these Terms is strictly prohibited without the express prior written permission of BookingSuite. Any rights not expressly granted herein are reserved by BookingSuite. The Accommodation shall promptly comply – at its own costs – with any reasonable requests from Booking.com to make changes, alterations or amendments to any aspect or element of the its website which is or can be regarded to be confusingly or significantly similar to any element of the Site.
2.5.3. The Accommodation agrees not to specifically target the BookingSuite brands (including Booking.com and Villas.com) through keyword purchases that use any intellectual property rights of BookingSuite or its affiliated group companies.
2.5.4. The Accommodation shall not (reverse /dis)assemble, do (reverse)engineering or (de)compile (or otherwise attempt to derive the source code from) the Property Website Services and the Site (including features such as the Booking Button and Review Widget (including the relevant XML feed or integration)) and the Accommodation shall not use the Property Website Services and the Site (including features such as the Booking Button and Review Widget (the relevant XML feed)) for any purpose other than in accordance with and in furtherance of this Agreement. This clause shall survive termination.
2.6. Accommodation responsibility
2.6.1. The Accommodation acknowledges and agrees that the Accommodation is solely responsible for all Content that the Accommodation make available through the Site or the Property Website Services. Accordingly, the Accommodation represents and warrants that: (1) the Accommodation is the sole and exclusive owner of all such Content or the Accommodation has all necessary rights, licenses, consents and releases that are necessary to grant to BookingSuite the rights and licenses set forth in these Terms, and (2) the Content, its posting, uploading, publication, submission or transmittal of the Content or BookingSuite’s use of the Content (or any portion thereof) as set forth in these Terms on, through, in connection with or by means of the Site or the Property Website Services does not and will not infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or violate or result in the violation of any applicable Laws.
2.6.2. The Accommodation acknowledges and agrees that the Accommodation is solely responsible for informing the End User and obtaining their consent if required under applicable data protection law with regard to the processing of End User Data in relation to the Property Website Services including the transfer of End User Data to BookingSuite, Booking.com B.V. and/or its affiliates, and the use of such data for analytical and marketing purposes.
2.7. Parties responsibilities
2.7.1. Insofar the Accommodation accepts credit cards for payment, the Accommodation is required to comply, and to have its service providers comply on an ongoing basis, with the requirements, compliance criteria and validation processes as set forth in the Payment Card Industry (“PCI”) Data Security Standard as promulgated from time to time by the major credit card companies.
2.7.2. The Accommodation acknowledges that it is responsible for the security of cardholder data it processes within the context of this Agreement and BookingSuite acknowledges that it is responsible for the security of cardholder data it processes within the context of this Agreement.
2.7.3.BookingSuite is not responsible for the validity, verification or authorization of credit cards.
3. RATEFAMILY SERVICES
3.1 RateFamily Services
3.1.1. The “RateFamily Services” include access to a calendar offering rate or demand information or other data deemed to be relevant to the Accommodation.
3.1.2. To be eligible to use the RateFamily Services, the Accommodation must meet the following criteria: (i) not being restricted from the RateFamily Services; (ii) not being a competitor of BookingSuite or using the RateFamily Services to compete with BookingSuite; (iii) not violating any other agreement binding the Accommodation; (iv) not violating any rights of BookingSuite; and (v) agreeing to provide at its own costs all equipment, software and internet access necessary to use the RateFamily Services.
3.1.3. BookingSuite undertakes to use commercially reasonable efforts to establish an efficient and optimal dynamic pricing grid. In this perspective, BookingSuite shall use commercially reasonable efforts to update, improve and expand the RateFamily Services (all at its sole and exclusive discretion).
3.1.4. BookingSuite may modify, replace, refuse access to, suspend or discontinue RateFamily Services, partially or entirely, or change or modify prices for all or part of the RateFamily Services in its sole discretion. All such changes shall be effective upon their being posted on the website(s) or by their direct communication to the Accommodation, unless otherwise noted. BookingSuite further reserves the right to withhold, remove and/or discard any content available as part of the Accommodation Account, with or without notice if deemed by BookingSuite to be contrary to this Agreement.
3.2 Use of the RateFamily Services
3.2.1. The User accesses the RateFamily Services with an account provided by BookingSuite when registering on the website (hereafter the “Accommodation Account”). The Accommodation is responsible for the accuracy and the transmission of all data entered into the Accommodation Account. The Accommodation is responsible for maintaining the confidentiality of the Accommodation Account information, in particular its password.
3.2.2. Only the Accommodation shall have access to and use the RateFamily Services through the Accommodation Account. These rights are non-assignable and non-transferable for the duration of the Contract and without geographical limitation. Disclosure by the Accommodation of the Accommodation Account details to a third party, without the prior consent of BookingSuite, shall entitle BookingSuite to terminate the Agreement without notice, without prejudice to any damages which it may seek.
3.2.3. The Accommodation accepts responsibility for all activities and changes to data occurring under its user name(s) and password(s) and agrees to indemnify BookingSuite, its affiliated companies, officers, employees and suppliers against any claims, or damages/losses arising from or cost incurred in connection with the use of the RateFamily Services under its Accommodation Account.
3.2.4. The Accommodation shall comply with all applicable (competition and consumer) laws when using the RateFamily Services and use the RateFamily Services in a professional manner and at its own risk and account.
3.3. Intellectual property rights
3.3.1. The Accommodation agrees and acknowledges that BookingSuite owns all rights, titles and interests in and to the RateFamily Services and the Property Website Services (including the Site(s), the URLs representing the RateFamily website(s) and the BookingSuite or “RateFamily” logo).
3.3.2. The Accommodation shall not (reverse/dis)assemble, do (reverse)engineering or (de)compile (or otherwise attempt to derive the source code from or algorithm of) the RateFamily Services (including the relevant XML feed or integration)) and the Accommodation shall not use the RateFamily Services for any purpose other than in accordance with and in furtherance of this Agreement. This clause shall survive termination.
4. CALCULATION FEES/COMMMISSION, DEPOSIT, INVOICES AND PAYMENT
4.1 Fees, Commission and Deposit
4.1.1. All fees as charged or due and payable under the Agreement (the “Fees”) shall be set out or calculated in accordance with Suite Agreement. All (offered) prices are exclusive of taxes. Payment shall be made in accordance with Clause 4.2. All Fees shall be non-refundable and non-cancellable. In respect of all Fees, the following applies:
(i) in the event of commencement of the services during a month, BookingSuite will charge a pro rata amount for that month; otherwise, there will be no pro rata charges, (pro rata) refunds or credits for partial months, or for Services upgrades or downgrades. In the event of a Service upgrade of the Services, the relevant Fee(s) shall be due and payable as of the month in which the Services are upgraded. In the event of a downgrade of the Services, the relevant Fee(s) shall not be adjusted;
(ii) (if applicable) the relevant Fee(s) for the relevant Services ordered by the Accommodation shall not be due for the term of the Trial Period (as set out in the BookingSuite Agreement);
(iii) unless agreed otherwise by Parties (but always at the discretion of BookingSuite), the Fee(s) shall be paid and invoiced either (a) as an advance payment for the entire relevant Term, (b) as a monthly advance payment for each month during the Term, or (c) in the subsequent month for the preceding month.
4.1.2. Commission payments shall be calculated as follows:
(a) For each reservation made on the Sites by an End User through the BookingSuite Web Engine (“BSWE”), the Accommodation shall pay BookingSuite a commission (the “Commission”) calculated in accordance with Clause 4.1.3. Payment shall be made in accordance with Clause 4.2.
4.1.3. The aggregate Commission per reservation is equal to the multiple of (i) the number of nights stayed at the Accommodation by the End User, (ii) the booked rate per room per night (including VAT, sales taxes and such other applicable national, governmental, provincial, state, municipal or local taxes or levies) and such other extra’s, fees and surcharges which are included in the offered rate at the time of booking of the room by an End User on the Sites (such as breakfasts, meals (half-board or full-board), bicycle rental, late check outs/early check in fees, extra person charges, resort fees, roll-away beds, theatre tickets, service fees, etc), (iii) the number of booked rooms by the End User, and (iv) the relevant Commission percentage set out in the Suite Agreement (plus VAT/taxes (if applicable)). Commission shall also be due and payable in the event of an overbooking, no-show or charged cancellation and shall be calculated in accordance with the confirmed booking. For the avoidance of doubt, Commission will be charged in the event of overbooking or a no-show (unless the Accommodation has notified Booking.com of the relevant no-show within 2 business days after the scheduled date of check out of the Guest) or a charged cancellation (cancellation in violation of the free cancellation policy of the Accommodation) and shall be calculated in accordance with the confirmed booking.
4.1.4. If the Accommodation becomes delinquent or is consistently delinquent with outstanding payments, the Accommodation shall upon first request of BookingSuite pay a deposit which amount shall be equal to minimum the sum of the 3 highest invoices in the last 12 months or such other amount as determined by BookingSuite at its discretion (the “Deposit”) to maintain ongoing services as provided by BookingSuite. The Deposit will be held by BookingSuite as a security for performance of the (payment) obligations of the Accommodation under the Agreement. Upon termination of this Agreement, the Deposit, or any balance thereof after deducting Fees and Commission, shortfall payments and other costs due to BookingSuite will be repaid to the Accommodation within 30 days after settlement in full of the outstanding obligations and liabilities (including the payment of the due and/or outstanding Fees and Commission). Upon first request of BookingSuite, the Accommodation shall pay as further Deposit such additional amount as requested by BookingSuite if the Fees or outstanding Commission exceeds the Deposit or if the Accommodation frequently fails to pay the Fees or Commission if and when due. At any point during the term of the Agreement, BookingSuite will monitor the (payment) performance of the Accommodation and may decide to repay the Deposit to the Accommodation after review (used criteria at BookingSuite discretion).The amount of the Deposit shall in no way limit or cap the liability of the Accommodation under this Agreement. The Deposit shall not bear any interest.
4.2. Invoices and (late) payment
4.2.1 BookingSuite shall invoice the Accommodation in accordance with the terms of the Suite Agreement and invoice shall be sent to the Accommodation by mail, (e)fax, online or e-mail.
4.2.2. Payment of any invoice is due within 14 days after receipt of the invoice. All payments shall be made by means of Direct Debit, or in case this is not available in the banking system of the bank where the payment is made from, by wire transfer (to such bank account as identified by BookingSuite) or (subject to prior approval by BookingSuite) credit card or insofar the Accommodation is using the BookingSuite Managed Payment Model by means of settlement pursuant to Clause 4.4. For the avoidance of doubt, other means of payment (such as by cheque or via “payment agencies”) cannot be processed by BookingSuite and therefore will not be accepted. The Accommodation shall bear all costs as charged by the banks for the transfer of the funds.
4.2.3. The amounts invoiced shall be paid by the Accommodation in the relevant currency (and if applicable at the exchange rate) as specified in the invoice. BookingSuite may at its sole discretion prepare invoices either in a major currency (e.g. EUR/USD/GBP) or the relevant local currency of the Accommodation and subsequently convert the relevant final amount in the local currency or a major currency on the basis of the exchange rate of the last day of the relevant month for which the invoice is issued (and not on the day of checkout). The exchange rate used shall be the interbank rate (closing rate as per 4PM EST) as used or promulgated by major international financial banks or service companies from time to time selected by BookingSuite.
4.2.4. In the event of late payment of the invoice, BookingSuite is entitled to (i) charge statutory interest as set by the Dutch authorities and reasonable debt recovery costs, and/or (ii) suspend the Services, without a notice of default being required.
4.2.5. In the event of a dispute between BookingSuite and the Accommodation in respect of an invoice, any undisputed amount of the relevant invoice will be paid in accordance with the terms of this Agreement, notwithstanding the status or nature of the dispute.
4.3 Gross up payment
4.3.1. All payments to be made under the Agreement shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority. If the Accommodation is compelled to make any such deduction or withholding, it will pay to BookingSuite such additional amounts as are necessary to ensure receipt by BookingSuite of the full (net) amount as set out in the invoice which BookingSuite would have received but for the deduction. The Accommodation is responsible and liable for the payment and remittance of any taxes, levies, imports, duties, charges, fees and withholdings over and above the full (net) payment due from the Accommodation to BookingSuite.
4.3.2. The Accommodation is responsible for withholding and reporting relevant taxes (i.e. mentioned above in 4.3.1) applicable to the payments to BookingSuite according to the relevant tax regulations and the practices and requests of the tax authorities. The Accommodation shall bear and be responsible for the payment and remittance of the taxes applicable to the payments under the Agreement and the associated late payment interests and penalties imposed by the tax authority for failing to withhold and report any taxes applicable to the payments under the Agreement. If required, the Accommodation shall be solely responsible to negotiate and agree with the relevant tax authorities on the tax treatments of the payments under the Agreement. The Accommodation shall upon first request of BookingSuite provide BookingSuite with (photo/scanned)copies of tax payment certificates/tax exemption certificates upon each remittance of the payments under the Agreement. The Accommodation represents and covenants that it is duly registered with all relevant tax authorities (including applicable statutory (local) revenue collection authorities) as a hotel or other accommodation provider.
4.4. BookingSuite Managed Payment Model
4.4.1. The Accommodation agrees and acknowledges that BookingSuite may – from time to time and in certain jurisdictions and for certain properties – offer and facilitate (alternative) payment methods (managed by BookingSuite or other third party) (each a “BookingSuite Managed Payment Model”) for the (pre-/down) payment of the Room Price (as defined below) by Guests through a third party payment processor (as from time to time engaged by BookingSuite; the relevant party processing the payment hereafter the “Payment Processor”) to the Accommodation pursuant to which (as available) bank transfer, credit card payments or other forms of online payment can be made and processed through the payment platform of the Payment Processor for and on behalf of the Accommodation.
4.4.2. The Accommodation agrees and acknowledges that for each reservation, the relevant total amount of the reservation (including all applicable Taxes, fees, extra’s and add-ons made or included during the reservation process (e.g. breakfast) to the extent disclosed to BookingSuite by the Accommodation (unless indicated otherwise by BookingSuite)) will be collected and processed by the Payment Processor (the relevant amount hereafter the “Room Price”) in accordance with the applicable payment policy of the Accommodation for the relevant reservation and disclosed on the Platform.
4.4.3. The Accommodation agrees and acknowledges that BookingSuite may from time to time use and utilize the BookingSuite Managed Payment Model (including other (online) payment methods such as virtual credit cards) for (i) (pre-/down) payment of the Room Price by the Guest to the Accommodation through the Payment Processor, and (ii) settlement and payment of the due and outstanding Commission by setting off the due and outstanding Commissions and such other amounts due by the Accommodation to BookingSuite (including the fee and costs for the collection, transfer, conversion and pay out of the relevant funds) with the total amount of all the Room Prices processed at any time through the Payment Processor. Insofar there are insufficient funds to settle and pay all amounts due to BookingSuite, BookingSuite shall be entitled to collect the relevant deficit by means of Direct Debit (if available), set off with the Deposit (if applicable) or the Accommodation shall upon first request of BookingSuite pay the relevant deficit to such bank account as from time to time identified by BookingSuite.
4.4.4. The Accommodation agrees and acknowledges that it is -at all times- responsible for the collection, remittance, withholding and payment to the relevant (tax) authorities (as applicable) of the relevant Taxes, (sur)charges, extra’s and fees over the Room Price (including the relevant Taxes, (sur)charges, extra’s, amounts and fees not included in the Room Price) and remittance, withholding and payment (as applicable) of the Taxes over the Commission, to the relevant tax authorities. Unless BookingSuite has indicated that certain Taxes, fees, charges add-ons (e.g. breakfast) or other amounts are not included Room Price (the “Excluded Elements“), the Accommodation shall not further charge, request payment of or collect any amount from the Guest that has not already been included in the Room Price (save for the Excluded Elements (if applicable)).
4.4.5. In order to transfer the relevant collected amount (after deducting and set-off with the due and outstanding Commissions and such other amounts due to BookingSuite), the Accommodation shall provide BookingSuite with the relevant bank details to which the relevant amount shall paid. Payment of the relevant collected Room Price shall be made approximately 2 weeks before the relevant check-in date to which the Room Price is related (the ” Payment Date“) or such later date insofar the Payment Processor has not collected the full amount of the Room Price, in which event payment shall be made within approximately 5 business days upon receipt of the full amount of the Room Price (unless indicated otherwise by BookingSuite). The Accommodation acknowledges that the first payment shall only be made upon materialization of the first reservation. BookingSuite may at all times without notice suspend payment in the event of (alleged or suspected) (credit card) fraud or breach of contract. The Accommodation accepts and acknowledges that due to fluctuating currency exchange rates and costs/fees charged by banks, credit card companies and other intermediaries (for the collection, processing and paying the relevant funds), there may be differences between Room Price (as uploaded by the Accommodation in the system), the collected amount and the amount paid to the Accommodation. The Accommodation shall bear the currency exchange risk and the costs and fees as charged by the credit card companies and banks for the collection, transfer, payment and conversion of the Room Price; whereas BookingSuite shall charge the Accommodation a fee as set out in the extranet for the BookingSuite Managed Payment Model services to cover the costs and fees. The funds held by the Payment Processor or any other party for and on behalf of the Accommodation will not bear any interest.
4.4.6. In the event of a charge back, or an unsuccessful charge or collection of (all or part of) the Room Price (which shall be at the Accommodation’s risk and account), BookingSuite shall use commercially reasonable efforts to ask the Guest to provide an alternative payment method. If the Guest is unable or unwilling to do this or in the event of a charge back, BookingSuite reserves the right to (a) cancel the reservation and promptly inform the Accommodation accordingly, or (b) inform the Accommodation and cancel the reservation upon the Accommodation’s request. In the event of a cancellation, the Commission shall be charged in accordance with Clause 4.4.8. The Accommodation agrees and acknowledges that BookingSuite shall use commercially reasonable efforts to procure that the Room Price shall be collected in accordance with the relevant payment policy of the reservation disclosed on the Platform, but BookingSuite shall be under no obligation whatsoever or howsoever to collect (in or outside court) or pay the Room Price (or any interest or collection fee) insofar the collection cannot be (in whole or in part) successfully made by the Payment Processor upon making the reservation or any subsequent due date for payment of the remaining amount under the offered (down) payment policy (if applicable). Any failure of collection, or any refund or charge back of (all or part of) the Room Price (each a “Payment Issue“) shall be for the risk and account of the Accommodation and in the event of a Payment Issue, the Accommodation waives its right to claim payment of (the remaining part of) the Room Price from BookingSuite or the Payment Processor. Insofar a Guest has made a charge back, or if BookingSuite is required by law, court order, (semi) governmental instruction or orders, arbitrational decision (or similar ruling), subpoena or cancellation policy to make a refund, of all or part of the Room Price, BookingSuite reserves the right to claim from the Accommodation repayment of such amount (re)paid to Guest (and received by the Accommodation).
4.4.7. Insofar the Accommodation agrees to a refund of a wholly or partly paid non-refundable Room Price (or part thereof), BookingSuite shall be entitled to settle the relevant amount paid to the Guest with other amounts collected by the Payment Processor or – if requested by the Accommodation and approved by BookingSuite – the relevant amount shall be paid and transferred to BookingSuite within 14 days upon approval by BookingSuite.
4.4.8. The Accommodation shall only issue an invoice to the Guest (and provide such Guest upon his/her first request with an invoice) for the full amount of the reservation (including or plus (as required by applicable laws) of all applicable Taxes, surcharges and fees). The Accommodation shall not invoice (or send an invoice to) BookingSuite for the reservation or stay.
5. WARRANTIES, DISCLAIMER AND LIMITATION OF LIABILITY
5.1.1. Each Party represents and warrants to the other Party that for the term of this Agreement:
(i) it has the full corporate power and authority to enter into and perform its obligations under this Agreement;
(ii) it has taken all corporate action required by it to authorise the execution and performance of this Agreement;
(iii) this Agreement constitutes legal valid and binding obligations of that Party in accordance with its terms, and
(iv) it shall comply with all applicable Laws of the jurisdiction where it is incorporated with respect to the products (to be) offered and/or services (to be) rendered by such Party.
5.1.2. The Accommodation represents and warrants to BookingSuite that for the term of this Agreement:
(i) the Accommodation has all necessary rights, power and authority to use, operate, own (as applicable), (sub)license and have BookingSuite make available on the Site (a) the Accommodation, and (b) the intellectual property rights in respect of, as set out or referred to in the information relating or regarding the Accommodation (whether used to, in or for the benefit of the Services or made available on the Site);
(ii) the execution and entering into of this Agreement and the performance of the relevant obligations under this Agreement (including the (sub)license granted under this Agreement and the supply and making available of the Accommodation Content) by the Accommodation to BookingSuite does not (i) result in a breach of any agreement with any third party, and (ii) infringe any third party intellectual property right (including copyright, trade mark, patent or data base right);
(iii) the Accommodation is owned or operated by or for the benefit of the Accommodation and the Accommodation holds and complies with all permits, licenses and other governmental authorisations and requirements necessary for conducting, carrying out and continuing its operations and business and making the Accommodation available on or through the Sites or Services (including for short term stay);
(iv) the Accommodation and its (their) directors and (direct, indirect and ultimate (beneficial)) owners (and their directors) are not in any way connected to, part of, involved in or related to or under the control, management or ownership of:
(a) terrorists or terrorist organizations;
(b) parties / persons (i) listed as (special) designated nationals/entities or blocked person/entities, or (ii) otherwise subject to any applicable trade embargo, or financial, economic and trade sanctions, and
(c) parties / persons guilty of money laundering, bribery, fraud or corruption.
The Accommodation shall upon first request of BookingSuite fully cooperate and assist BookingSuite with (and disclose all reasonably requested information in respect of) the identification of the (ultimate) owner, manager and/or controller of the Accommodation and/or the Accommodation and promptly inform BookingSuite of any breach of the warranties set out above.
5.2.1. Except as otherwise expressly provided in this Agreement, neither Party makes any representation or warranty, express or implied, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability or fitness for a particular purpose regarding such subject matter.
5.2.2. The Site, the Services and BookingSuite Content (including Legal Documents) are provided on an “as is” and “as available” basis, without warranty of any kind, either express, statutory or implied. Furthermore, BookingSuite explicitly disclaims any (express, implied or statutory) warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement, or any warranties arising out of course of dealing or usage of trade, product or service. BookingSuite makes no warranty that the Site, Services or BookingSuite content will (a) meet the Accommodation’s requirements, (b) comply with applicable laws, or (c) be available on an uninterrupted, secure or error-free basis. BookingSuite makes no warranty regarding the quality of any products, services or BookingSuite content purchased or obtained through the Site or Services or the accuracy, timeliness, truthfulness, completeness or reliability of any content, including end/other users’ content, obtained through the Site or Services. For clarity, no advice or information, whether oral or written, obtained from BookingSuite or through the Site, Services or BookingSuite Content will create any warranty not expressly made herein.
5.2.3. As part of its Services, BookingSuite may from time to time create, host, develop, manage, offer, make available, use or maintain legal documents that apply vis-à-vis end users/visitors of the Site or customers of the Accommodation (e.g. terms and conditions, privacy statement, (cancellation/no-show) policies, FAQs (collectively the “Legal Documents“)) to or for the benefit of the Accommodation or that the Accommodation can use for its own products and services and on the Site. BookingSuite does not give any comfort, guarantee or warranty (and disclaims any responsibility and liability) that these Legal Documents (i) comply with all applicable laws, and (ii) are valid, binding and enforceable. The use of the Legal Documents is at the Accommodation’s own risk and account and the Accommodation is strongly advised to seek (at its own costs) legal consultation and advice from its lawyer(s) in order to make sure that these legal documents comply with all applicable laws and are valid, binding and enforceable.
5.2.4. BookingSuite does not guarantee continuous, or uninterrupted access to the Services and (web)Site(s), which may be interfered with by numerous factors outside BookingSuite’s control. The Accommodation acknowledges and agrees that its access to and use of the Site and the Services is dependent upon access to telecommunications and Internet services. The Accommodation acknowledges the difficulties inherent to the use of the (mobile) Internet, communication and broadband, in particular, varying speeds and congestion in the (mobile) network, connections, systems and servers can cause interruptions, delays and difficulties in accessing, browsing, navigating or using the Site. Accommodation excludes any and all liability in respect of BookingSuite which is related to any (un-)planned or (un-)scheduled (wholly or partial) outage, downtime, interruption, breakdown or unavailability (whether for maintenance, upgrades, updates or otherwise) of the Site and/or the Services. Accommodation shall be solely and at its own costs responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Site and Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
5.2.5. The Accommodation acknowledges and agrees that, to the maximum extent permitted by applicable Laws, the Accommodation accepts and assumes all risk, whether known or unknown to the Accommodation, arising out of the Accommodation’s access to and use of the Site, Services and BookingSuite Content. Without limiting the foregoing and to the maximum extent permitted by applicable Laws, the Accommodation also acknowledges and agrees that BookingSuite will not be responsible or liable for, or incur any, claims, causes of action, suits, penalties, fines, losses, damages, costs or expenses (including reasonable attorney’s fees) (collectively, the “Claims“) arising out of or in connection with these Terms or from the Accommodation’s access or use of, or inability to access or use, the Site, Services or BookingSuite Content for or arising out of the following: (1) personal or bodily injury or death or emotional distress; (2) interactions or meetings with other customers or users of the Site or Services or other persons with whom Accommodation communicate or interact as a result of the Accommodation’s use of the Site or Services; (3) loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any telecommunications and Internet services (or the failure of such services) that Accommodation use to access or use the Site, Services or BookingSuite Content; (4) any failure, omission or delay by BookingSuite in performing its obligation under this Agreement due to circumstances beyond its reasonable control (including force majeure); (5) improper use or misuse of the Services; (6) implementation or use of software by the Accommodation that is not compatible with the software and systems as used by BookingSuite in respect of the Services or Site; and (7) any other Claims arising out of or relating to the Accommodation’s acts or omissions or the acts or omissions of any third-party, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not BookingSuite has been informed of the possibility of such Claims, even if a limited remedy set forth herein is found to have failed of its essential purpose.
5.2.6. Without limiting the foregoing, the Accommodation acknowledges and agrees that if BookingSuite is found liable for any Claims, or for any other Claims arising hereunder, including for its breach of these Terms, BookingSuite and any other person or entity involved in creating, producing, or delivering any of the foregoing will under no circumstances be liable for any incidental, special, exemplary, punitive, moral or consequential damages or losses, including, without limitation, loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or loss of data, or the cost of acquiring substitute products or services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not BookingSuite has been informed of the possibility of such Claims, even if a limited remedy set forth herein is found to have failed of its essential purpose.
5.2.7. BookingSuite disclaims and excludes any and all liability in respect of the Accommodation which is related to any (temporary and/or partial) breakdown, outages, downtime, delay, interruption or unavailability of the Site, the Services and/or the extranet.
6. INDEMNIFICATION AND LIABILITY
6.1 General indemnification
6.1.1. Each Party (the “Indemnifying Party“) shall be liable towards, and compensate, indemnify and hold the other Party (the ” Indemnified Party“) harmless for and against any direct damages, losses (excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any special, indirect or consequential losses and/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties, legal proceedings and expenses (including, without limitation, reasonable attorneys’ fees and expenses) actually paid, suffered or incurred by the Indemnified Party pursuant to:
(i) a breach of this Agreement by the Indemnifying Party, or
(ii) any claim from any third party based on any (alleged) infringement of the third party’s Intellectual Property Right by the Indemnifying Party.
6.2. Specific indemnity
6.2.1 The Accommodation agrees to fully defend, indemnify, and hold BookingSuite (including its affiliated companies), and any of their officers, directors, employees and agents (the “BookingSuite Indemnitees“), harmless from and against any Claims arising out of or in any way connected with:
(1) any agreements or understandings the Accommodation has with third-parties, including End Users, or the Accommodation’s failure to comply with and observe the terms of such agreements or understandings (including overbooking, double charges);
(2) all claims made by End Users concerning inaccurate, erroneous or misleading information on the Sites;
(3) all claims made by End Users concerning or related to a stay in the Accommodation, overbooking, relocation or (partly) cancelled or wrong reservations or repayment, refund or charge back of the room price;
(4) all other claims from End Users which are wholly or partly attributable to or for the risk and account of the Accommodation (including its directors, employees, agents, representatives) (including claims related to (lack of) services provided or goods/products offered by the Accommodation) or which arise due to tort, fraud, wilful misconduct, negligence or breach of contract by or attributable to the Accommodation (including its directors, employees, agents, representatives) in respect of an End User or its property; and
(5) all claims against BookingSuite Indemnitees in relation to or as a result of the failure of the Accommodation to (a) properly register with relevant tax authorities, or (b) pay, collect, remit or withhold any applicable taxes, fees and (sur)charges levied or based on the services or other charges hereunder in the relevant jurisdiction (including room price and commission payments).
6.3. Maximum liability
6.3.1. Save as otherwise provided for in this Agreement, the maximum liability of a Party for all claims made against such party by the other Party under or in connection with this Agreement in a year shall not exceed the aggregate commission received or paid by such Party in the preceding year or EUR 10,000 (whichever is higher), unless in the event of fraud or wilful misconduct of Indemnifying Party, in which event the limitation of liability is not applicable for such liable party. Parties agree and acknowledge that none of the limitations of liability set out in Clause 6 shall apply to any of the indemnifications in respect of third party claims or third party liabilities.
6.4. Third Party Claim
In the event of a third party claim, the indemnified Party shall promptly notify the other Party and Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defence and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defence and settlement (in consultation and agreement with the indemnified Party and with due observance of both Parties’ interests), and neither Party shall make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
6.5 Waiver of consequential damages etc.
In no event shall any Party be liable to the other Party for any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any indirect, special, punitive, incidental or consequential damages or losses whether such damages are (alleged as) a result of a breach of contract, tort or otherwise. All such damages and losses are hereby expressly waived and disclaimed.
7. TERM, TERMINATION AND SUSPENSION
7.1 This Agreement shall be effective upon acceptance of the Accommodation by BookingSuite and shall continue for the term as set out in the Suite Agreement (the “Initial Term“), unless earlier terminated or extended in accordance with the provisions of this Agreement. Upon expiration of the Initial Term or in the absence of an Initial Term, this Agreement shall be entered into for indefinite period of time. After the Initial Term (if applicable), each Party may terminate this Agreement at any time and for any reason with due observance of a notice period of 14 days, unless indicated otherwise in the Agreement. Unless agreed otherwise by Parties, in the event that Parties have agreed to a Trial Period, this Agreement shall automatically continue upon expiration of the Trial Period for additional terms of 12 months each or the Initial Term (if applicable) (each an ” Additional Term”), unless the Accommodation gives notice of termination at any time during the Trial Period or 14 days before expiration of the relevant Additional Terms, in which event the Agreement shall expire and terminate at the end of the Additional Term.
7.2 Each Party may terminate this Agreement or suspend this Agreement in respect of the other Party, with immediate effect and without a notice of default being required in case of:
(a) a material breach by the other Party of any term of this Agreement or any other agreement entered into between the Accommodation and any affiliated group company of BookingSuite, or
(b) (filing of a request for) bankruptcy or suspension of payment (or similar action) in respect of the other Party.
7.3 In the event of termination or expiration of this Agreement, the following clauses shall survive termination: 2.5, 5.2, 6, 8, 9.1 and 10 (and such other clauses that by nature survive termination).
8.1. Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the “Confidential Information“). Confidential Information includes end user data, transaction, traffic and usage volume, marketing, financial and business plans, technical, software and operational information and the terms of this Agreement. All Confidential Information shall be treated as private and confidential and not disclosed to or used to or for the benefit of any (third) party.
8.2. Each Party agrees that: (a) all Confidential Information shall remain the exclusive property and ownership of the disclosing party, and the receiving party shall not use it for any purpose, except in furtherance of this Agreement, (b) it shall use prudent methods to ensure its employees, officers and agents (the “Permitted Persons“) maintain the security of the Confidential Information, (c) it shall ensure that Permitted Persons do not (i) copy, publish, or divulge the Confidential Information to any third party, or (ii) use or store it in an unprotected retrieval system or data base (other than pursuant to the terms hereof), and (d) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
8.3. Notwithstanding the foregoing, (a) Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was possessed by the receiving party prior to the date of this Agreement, (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, and (b) nothing in this Agreement shall prevent, limit or restrict a Party from disclosing this Agreement (including any general information, or technical, operational, performance and financial data (but excluding any End User Data) unless otherwise agreed between the parties) in confidence to an affiliated (group) company. The Accommodation explicitly agrees and acknowledges that its (contact) details (including telephone and email address) may be shared with and disclosed to BookingSuite and to any entity or website affiliated to Booking.com B.V. and that they may use these contact details to contact, solicit or entice the custom of the Accommodation.
8.4. BookingSuite agrees and acknowledges that without the consent of the Accommodation it will not disclose, exploit or otherwise use individual Site performance data, property management system data (e.g. generated through the use of RateFamily or other services rendered by the Company) or internet booking engine performance data of the Accommodation with an affiliated (group) company or other third parties. This non-aggregated Site performance and property management system data includes for example: total Site visits, unique Site visitors, geolocation of the visitors of the Site, preferred language of the Site visitor, time spent on the Site by visitors, the images viewed by the visitor, checking of date availability, room type searches, rates comparisons, or individual reservation details
9.1. All notices and communications must be in English, in writing, and sent by facsimile, email or nationally recognized overnight air courier to the applicable facsimile number, email address, or address set out in the Agreement.
9.2. Each Party shall bear its own costs and expenses in connection with the entering into, execution and performance under this Agreement (including the integration and connection).
9.3 Save as set out otherwise in this Agreement, neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party. This Agreement is concluded for the benefit of the Parties and their respective successors and permitted assignees, and nothing herein is intended to or shall implicitly confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement, except to the extent explicitly stated otherwise in this Agreement. To the extent required, the Accommodation agrees and acknowledges that BookingSuite may at all times without prior approval or notice assign, transfer, novate, encumber and set over its claim under the invoices (including invoicing and debt collection) to an affiliated group company of BookingSuite (including Booking.com B.V.) or a debt collecting agency or request an affiliated group company of BookingSuite to invoice and collect the debt for and on behalf of BookingSuite.
9.4 If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions hereof. In that event, the Parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
9.5 The original English version of this Agreement may have been translated into other languages. The translated version of the English Terms is a courtesy and office translation only and the Accommodation cannot derive any rights from the translated version. In the event of a dispute about the contents or interpretation of these terms and conditions of this Agreement or in the event of a conflict, ambiguity, inconsistency or discrepancy between the English version and any other language version of these Terms, the English language version shall prevail, apply and be binding and conclusive. The English version shall be used in legal proceedings. The English version shall be sent to you upon written request.
9.6 In respect of (or as an award for) the execution, delivery, sealing, registration, filing of, and/or the execution, performance or delivery under or pursuant to, the Agreement, the Accommodation (including its employees, directors, officers, agents or other representatives) shall (i) not directly or indirectly (a) offer, promise or give to any third party (including any governmental official or political party(‘s official, representative or candidate)), or (b) seek, accept or get promised for itself or for another party, any gift, payment, reward, consideration or benefit of any kind which would or could be construed as bribery or an illegal or corrupt practice, and (ii) comply with all applicable laws governing anti-bribery and corrupt gifts and practices (including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act).
9.7 The Agreement may be entered into online or by way of executing a separate counterpart or by pdf or fax copy, each of which (copies) shall be deemed an original, valid and binding. The Agreement only enters into force and effect upon written confirmation of acceptance and approval of the Accommodation by BookingSuite. The Accommodation agrees, acknowledges and accepts the terms and conditions of this Agreement. The Agreement does not need any chop or seal to make it valid, binding and enforceable. Upon first request of the Accommodation, BookingSuite will prepare and forward to the Accommodation the Act of Acceptance once per month in relation to the services rendered during the previous month.
10. GOVERNING LAW AND JURISDICTION
10.1. This Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands. Any disputes arising out or in connection with this Agreement shall exclusively be submitted to and dealt with by the competent court in Amsterdam, the Netherlands.
10.2. Parties agree and acknowledge that notwithstanding this Clause 10.1, nothing in this Agreement shall prevent or limit BookingSuite in its right to bring or initiate any action or proceeding or seek interim injunctive relief or (specific) performance before or in any competent courts where the Accommodation is established or registered under the laws of the relevant jurisdiction where the Accommodation is established or registered and for this purpose, the Accommodation waives its right to claim any other jurisdiction or applicable law to which it might have a right.
“BookingSuite Content” means the Site, the Services, and any Content that BookingSuite makes available through the Site or Services, including any Content (sub)licensed by a third party, but excluding Customer Content. For clarity, Content includes any digital marketing Content BookingSuite provides to Customers hereunder, as well as the overall “look and feel” or compilation of any Customer Site that contains or is created using BookingSuite Content.
“Content” means text, graphics, images, music, software, audio, video, information or other works of authorship.
“End User” means any end user or customer of the Accommodation Site.
“End User Data” means information that we collect from End Users on the Accommodation’s behalf and may include Personal Information.
“Accommodation Content” means Content that an Accommodation posts, uploads, publishes, submits or transmits to be made available through the Site or Services (including pictures, descriptive information, rates and availability), excluding End User Data, as part of that Accommodation’s use of the Services.
“Accommodation Site” means one or more websites or other Accommodation on-line or mobile websites or apps that BookingSuite may design, host, develop or otherwise makes the Services (directly or indirectly) available on.
“Personal Information” means information that is capable of identifying, directly or indirectly, a natural individual (including, without limitation, first initial and last name, email address, social security number and payment card information).
“Services” means the services as from time to time rendered or made available by BookingSuite under or pursuant to this Agreement (including the Property Website Services and the RateFamily Services).
“Site” means any websites or on-line or mobile websites or apps launched, managed, maintained or operated by or on behalf of BookingSuite.
“Term” means the Initial Term, each 12 months period after the Initial Term or an Additional Term.
“Trademark” means any trademark, service mark, trade name, logo, tagline or similar designator of source, origin or affiliation of goods and services.