GENERAL TERMS & CONDITIONS
These General Terms & Conditions (the “Terms”) form an integral part of the Accommodation Agreement (the "Accommodation Agreement") and together with the Terms, (collectively, the “Agreement”), entered between the hotel entity specified in the Accommodation Agreement (here in after “Accommodation”) and Luxos Select (here in after “hi.com”) (each a "Party" and collectively the "Parties").
In addition to terms defined elsewhere in this Terms, the following definitions apply throughout the Agreement, unless the contrary intention appears:
"hi.com Platform / Platform" means the website(s), apps, tools, platforms or other devices of hi.com on which the Service is made available.
“hi.com Collect” means the guest paying hi.com directly for the room night(s) and hi.com transferring the room(s) fee to the Accommodation minus commission in accordance with the terms herein.
“Accommodation Collect” means the guest paying the Accommodation for the room night(s) and the Accommodation transferring the commission to hi.com in accordance with the terms herein.
"Customer Service" means the customer service provided by hi.com to a Guest or to an Accommodation which can be reached at firstname.lastname@example.org or such other address as set out in this Agreement.
"Data Controller" means a natural or legal person which alone or jointly with others determines the purposes and means of the processing of Personal Data.
"Force Majeure Event" means any of the following events affecting multiple Guests and multiple accommodations: act-of-God, volcanic eruptions, (natural) disaster, fire, (acts of) war, hostilities or any local or national emergency, invasion, compliance with any order or request of any national, provincial, port or other public authority, government regulation or intervention, military action, civil war or terrorism, (biological, chemical or nuclear) explosion, rebellion, riots, insurrection strikes, civil disorder (or the material or substantial threat or justified apprehension of any of the foregoing events), curtailment of transportation facilities, close down of airports or any other exceptional and catastrophic event, circumstance or emergency, making it impossible, illegal or prevents Guests from travelling to or staying at the Accommodation.
“Group Companies” means any company affiliated directly or indirectly through common ownership with hi.com
"Guest" means a visitor of the Platforms or a customer or guest of the Accommodation who makes a reservation via the hi.com Platform.
"Intellectual Property Right" means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (under whatever extension, e.g. .com, .nl, .fr, .eu, etc.) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world.
"Marketed Online" means marketed to the general public online by any means, including on mobile applications. This definition excludes in particular email, SMS and instant messaging communications that are not aimed at the general public.
"Offline Channel" means a channel that does not involve the use of the internet, such as bookings made in person at an Accommodation’s reception, by telephoning an accommodation, or at a brick and mortar travel agency.
"OTA" means any online reservation service that is not controlled, directly or indirectly by the accommodation or the chain (whether integrated or not) to which this accommodation belongs.
"Personal Data" means any information relating to an identified or identifiable natural person (including Customer Data and credit card data).
“Published Online" means made available to the general public online by any means, including on mobile applications. In the case of rates, publication includes the display of the actual rates or sufficient detail for the consumer to calculate rates (e.g. xx% off, $yy discount).
"Service" means the online hotel reservation system of hi.com through which Accommodations can make their rooms available for reservation, and through which Guests can make reservations at such Accommodations, the Facilitated Payment, customer service and the Communication Service.
2. ACCOMMODATION OBLIGATIONS
2.1 Accommodation Information
2.1.1 Information provided by the Accommodation for inclusion on the Platforms shall include information relating to the Accommodation (including pictures, photos and descriptions), its amenities and services and the rooms available for reservation, details of the rates (including all applicable taxes, levies, surcharges and fees) and availability, cancellation and no-show policies and other policies and restrictions (the "Accommodation Information") and shall comply with formats and standards provided by hi.com. The Accommodation Information shall not contain any telephone or fax numbers or email (including skype) address or social media website/app/platform (including twitter and Facebook), with direct references to the Accommodation or its websites, apps, platform, tools or other devices, or to websites, apps, platform, tools or other devices of third parties. hi.com reserves the right to edit or exclude any information on becoming aware that it is incorrect or incomplete or in violation of the terms and conditions of this Agreement.
2.1.2 The Accommodation represents and covenants that the Accommodation Information shall at all times be true, accurate and not misleading. The Accommodation is at all times responsible for a correct and up-to-date statement of the Accommodation Information, including additional availability of rooms for certain periods or any extraordinary (material adverse) events or situations (e.g. renovation or construction at or near the facility). The Accommodation shall inform hi.com to update the Accommodation Information on a daily basis (or such more frequent basis as may be required).
2.1.3 The information provided by the Accommodation for the Platform shall remain the exclusive property of the Accommodation. Information provided by the Accommodation may be edited or modified by hi.com and subsequently be translated into other languages, whereas the translations remain the exclusive property of hi.com. The edited and translated content shall be for the exclusive use by hi.com on the Platform and shall not be used (in any way or form) by the Accommodation for any other distribution or sales channel or purposes. Changes to or updates of the descriptive information of the Accommodation are not allowed unless prior written approval has been obtained from hi.com.
2.2 Best Available Rate and Minimum Allocation
2.2.1 The Accommodation shall give hi.com Rate and Conditions the Best Available Rate (“BAR”). "BAR" means the same or better rates for the same accommodation, same room type, same dates, same bed type, same number of guests, same or better amenities and add-ons (e.g. free breakfast, Wi-Fi, early/late checkout), same or better restrictions and policies such as reservation changes and cancellation policy as made available by the Accommodation to other Online Travel Agencies and/or Online Channels/OTA and/or Offline Channels, provided that these room rates are not Published Online or Marketed Online; and /or that are Unpublished, provided that these room rates are not Marketed Online.
2.2.2 The Accommodation commits itself to make available a minimum number of rooms available for reservation via the Platforms, namely, at least one hotel room per every night during the term of the Accommodation Agreement (the "Minimum Allocation"). hi.com invites the Accommodation to provide additional availability for all room types for certain periods as may be available or requested from time to time.
2.2.3 hi.com shall be entitled to give a discount on the room price at its own costs for sales for closed or private user groups.
2.2.4 Within the spirit of this Agreement and subject at all times to Clause 2.2.1 and 2.2.2, the Accommodation agrees to give, for each calendar date, some availability for all rooms and room types included during the term of the Agreement (during periods of whenever low and high demand (including during fairs, congresses and special events)).
2.3.1 For each reservation made on the Platform by a Guest for a Room, the Accommodation shall pay hi.com a commission (the "Commission") calculated in accordance with Clause 2.3.2 and transferred in a way pursuant to Clause 4.4.1. Payment shall be made in accordance with Clause 2.4. Commission is payable in both hi.com Collect and Accommodation Collect.
2.3.2 The aggregate Commission per reservation is equal to the multiple of (i) the number of nights stayed at the Accommodation by the Guest, (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 where applicable (the "Taxes")) and such other extra's, fees and surcharges which are included in the offered rate at the time of booking of the room by a Guest on the Platform (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 Guest, and (iv) the fixed Commission percentage (plus VAT/taxes (if applicable)). For the avoidance of doubt, in the event of payment of the room price by the Guest to the Accommodation in accordance with Clause 4.4 (Facilitated Payment), hi.com shall calculate the Commission in the event of no-show or cancellation in accordance with Clause 4.4.8, in all other events Commission will be charged in the event of overbooking or a no-show 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.
2.3.3 Unless agreed otherwise in the Agreement, the rate shown to Guests on the Platform shall comply with local laws concerning the display of VAT, sales tax, charges and all such other (national, governmental, provincial, state, municipal or local) taxes, fees, charges or levies (to the extent that such other taxes, fees and levies can be reasonably calculated upfront without further information).
2.4 Payment Commission
2.4.1 Commission for bookings in a calendar month that contains the (scheduled) departure date of the Guest in such month will be invoiced (save for free cancellations made through hi.com and in accordance with the cancellation policy of the Accommodation) and paid in the subsequent month in accordance with the following terms:
(a) Invoices are processed on a monthly basis and shall be sent to the Accommodation online or by mail, fax or e-mail (at the discretion of hi.com).
(b) The Commission invoiced in respect of a month shall be paid by the Accommodation within 14 days from the invoice date.
(c) Payment shall be made by the Accommodation directly to hi.com 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 hi.com), cheques or credit card payment). hi.com may from time to time settle (the relevant part) of the invoice in accordance with Clause 4.4 for reservations of which the payment has been made in accordance with Clause 4.4. For the avoidance of doubt, other means of payment (such as via "payment agencies") cannot be processed by hi.com and therefore will not be accepted. The Accommodation shall bear all costs as charged by the banks for the transfer of the funds.
(d) All Commission payments to be made under this 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 hi.com such additional amounts as are necessary to ensure receipt by hi.com of the full (net) amount as set out in the invoice which hi.com 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) Commission payment due from the Accommodation to hi.com.
(e) The commission invoiced in respect of a month shall be paid by the Accommodation in the relevant currency (and if applicable at the exchange rate) as specified in the invoice. hi.com may at its sole discretion prepare invoices either in a major currency (e.g. EUR/USD) 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 hi.com.
2.4.2 The Accommodation is responsible for withholding and reporting relevant taxes (i.e. mentioned above in 2.4.1 under d) applicable to the Commission due to hi.com 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 Commission (payments) and the associated late payment interests and penalties imposed by the tax authority for failing to withhold and report any taxes applicable to the Commission. If required, the Accommodation shall be solely responsible to negotiate and agree with the relevant tax authorities on the tax treatments of the Commission (payments). The Accommodation shall upon first request of hi.com provide hi.com with (photo/scanned-) copies of tax payment certificates/tax exemption certificates upon each remittance of the Commission.
2.4.3 In the event of a dispute between hi.com and the Accommodation (e.g. on the amount of the Commission), any undisputed amount of the Commission will be paid in accordance with the terms of this Agreement, notwithstanding the status or nature of the dispute.
2.4.4 In the case of late payment, hi.com reserves the right to claim statutory interest, to suspend its service under the Agreement (e.g. by suspending the Accommodation from the Platforms), and/or to ask for a bank guarantee or other form of financial security from the Accommodation.
2.5 Reservation, Guest Reservation and complaints
2.5.1 When a reservation is made by a Guest on the Platform, a confirmation will be sent directly by hi.com to the Guest. The Accommodation shall either receive a confirmation for every reservation made via hi.com, where such confirmation shall include the date of arrival, the number of nights, the room type (including smoking preference (if available)), the room rate, the Guest's name, address and credit card details (collectively "Customer Data") and such other specific request(s) made by the Guest or an instant confirmation generated by integration and synchronization between the distribution system of hi.com and that of the Accommodation, subject to the applicability and feasibility of the above means. hi.com is not responsible for the correctness and completeness of the information (including credit card details) and dates provided by Guests and hi.com is not responsible for the payment obligations of the Guests relating to their (online) reservation.
2.5.2 By making a reservation through the Platform, a direct contract (and therefore legal relationship) is created solely between the Accommodation and the Guest (the "Guest Reservation").
2.5.3 The Accommodation is bound to accept a Guest as its contractual party, and to handle the online reservation in compliance with the Accommodation Information (including rate) contained on the Platform at the time the reservation was made and the reservation confirmation, including any supplementary information and/or wishes made known by the Guest and shall be jointly responsible with hi.com’s customer service team for providing customer service to the Guest who has made a reservation. While the customer service team of hi.com is responsible for providing customer service to the Guest prior to his/her check-in, the Customer Service Team of an Accommodation is responsible for providing customer service during and after the Guest’s stay.
2.5.4 Other than the fees, extra's and (sur-)charges as set out in the confirmed booking, the Accommodation shall not charge the customer any transaction/administration fee or charge for the use of any payment method (e.g. credit card charge).
2.5.5 Complaints or claims in respect of (the products or service offered, rendered or provided by) the Accommodation or specific requests made by Guests are to be dealt with by the Accommodation, without mediation by or interference of hi.com. hi.com is not responsible for and disclaims any liability in respect of such claims from the Guests. hi.com may at all times and at its sole discretion (a) offer Customer (support) Services to a Guest, (b) act as intermediate between the Accommodation and a Guest, (c) provide the costs and expenses of the Accommodation alternative accommodation of an equal or better standard in the event of an overbooking or other material irregularities or complaints in respect of the Accommodation, or (d) otherwise assist a Guest in its communication with or actions against the Accommodation.
2.6 Overbooking and cancellation
2.6.1 The Accommodation shall provide the rooms booked and in the event that the Accommodation is not able to meet its obligations under this Agreement for any reason whatsoever, the Accommodation shall promptly inform hi.com via Customer Service (email@example.com); whereas the subject line of each email shall state "overbooking"). Unless hi.com has arranged for alternative accommodation (to be verified by the Accommodation with hi.com), the Accommodation will use its best endeavors to procure alternative arrangements of equal or superior quality at the expense of the Accommodation and in the event that no Room is available on arrival, the Accommodation will:
(a) find suitable alternative accommodation of an equal or better standard of the Accommodation holding the Guest’s guaranteed booking;
(b) provide free private transportation to the alternative accommodation for the Guest and other members of the Guest’s party who are listed in the Guest’s guaranteed booking, and
(c) hi.com may deduct all reasonable costs and expenses (e.g. costs of alternative accommodation, transportation, telephone costs) made, suffered, paid or incurred by the Guest and/or hi.com due to or caused by the overbooking from the Fund Account at its sole discretion.
2.6.2 The Accommodation is not allowed to cancel any online reservation.
2.6.3 Cancellations made by the Guests before the time and date beyond which a cancellation fee applies will not attract commission. Cancellations made by the Guests after the time and date beyond which a cancellation fee applies will attract commission in accordance with the terms of this Agreement.
2.7 Credit Card guarantee
2.7.1 Save for reservations paid through Facilitated Payment, guarantee of the booking is based on the credit card details provided by the Guest or the person responsible for the booking. Both Parties shall at all times accept all major credit cards (including MasterCard, Visa and American Express) for guarantee of a booking. hi.com is responsible for the verification of the validity of these credit card details, the (pre) authorization of the credit card and the limit of credit on the date of the overnight stay(s) booked. If the Guest is unable or unwilling to provide alternative mean, hi.com may cancel the booking. Bookings which are cancelled by hi.com pursuant to this Clause 2.7.1 will not attract any Commission.
2.8 Personal Data
2.8.1 Both Parties are 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.
2.8.2 The Accommodation acknowledges that it is responsible for the security of Personal Data it processes within the context of this Agreement and hi.com acknowledges that it is responsible for the security of Personal Data it processes within the context of this Agreement.
2.8.3 The Accommodation acknowledges and accepts that hi.com may from time to time as part of its service to the Guest and the Accommodation and in order to protect the Guest against any (potential or threatening) data breach or other fraudulent activities (e.g. phishing) on the side of the Accommodation, facilitate the communication between the Guest and the Accommodation (the "Communication Service") through its system (including any required process, storage, receipt, access, insight and screening of such communication by hi.com). To the extent hi.com processes Personal Data related to the Accommodation, such Personal Data shall be processed by hi.com in accordance with the hi.com’s Privacy and Cookies Policy for Accommodation Providers. The Accommodation hereby irrevocably and unconditionally agrees and consents to the processing of Personal Data by hi.com and warrants that it has duly and diligently informed (and if required by applicable laws, obtained the written consent of) its employees, agents, representatives, staff members and other individuals of/for/when using the Communication Service for or on the Accommodation's behalf (including the process, receipt, insight, storage, screening and access to such communication by hi.com).
2.9 Force Majeure Event
In the event of a Force Majeure Event, the Accommodation shall not charge (and shall repay (if applicable)) the Guests affected by the Force Majeure Event any fee, costs, expenses or other amount (including the (non-refundable) rate or the no-show, (change of) reservation or cancellation fee) for (i) any cancellation or change of the reservation made by the Guests, or (ii) that part of the reservation that was not consumed, due to the Force Majeure Event. In the event of reasonable and justified doubt, the Accommodation may ask a Guest to provide reasonable evidence of the causality between the Force Majeure Event and cancellation, no-show or change of reservation (and provide hi.com upon request with a copy of such evidence). In order for hi.com to register any cancellation, no-show or amendment of the reservation due to a Force Majeure Event, the Accommodation shall inform hi.com within 2 business days after (a) the scheduled check out date of the no-show or cancellation, or (b) check out, the number of days actually stayed. hi.com will not charge any commission in the event of a registered no-show or cancellation or over that part of the booking which is not consumed due to the Force Majeure Event.
3.1 The Accommodation hereby grants hi.com a non-exclusive, royalty free and worldwide right and license (or sublicense as applicable):
(a) to use, reproduce, have reproduced, distribute, sublicense, communicate and make available in any method and display those agreed upon elements of the Intellectual Property Rights of the Accommodation as provided to hi.com by the Accommodation pursuant to this Agreement and which are necessary for hi.com to exercise its rights and perform its obligations under this Agreement;
(b) to use, reproduce, have reproduced, process, distribute, sublicense, display and utilize (including without limitation to publicly perform, modify, adapt, communicate, reproduce, copy and make available to the public in any manner whatsoever) the Accommodation Information.
3.2 hi.com may sublicense, make available, disclose and offer the Accommodation Information (including the relevant Intellectual Property Rights) of the Accommodation and special offers made available by the Accommodation on the Platform and all such further rights and licenses set out in this Agreement via or in collaboration with (the websites, apps, platform, tools or other devices of) affiliated companies and/or third parties (the "Third Party Platforms").
3.3 In no event shall hi.com be liable to the Accommodation for any acts or omissions on the part of any Third-Party Platforms. The sole remedy for the Accommodation in respect of such Third-Party Platforms is (i) to request hi.com (which has the right and not the obligation) to disable and disconnect with such Third-Party Platform, or (ii) termination of this Agreement, all in accordance with the terms of this Agreement.
4. RANKING, GUEST REVIEWS, MARKETING AND FACILITATED PAYMENT MODEL
4.1.1 The order in which the Accommodation is listed on the Platforms (the "Ranking"), is determined unilaterally by hi.com. Ranking is based on and influenced by various factors, including but not limited to the commission percentage (to be) paid by the Accommodation, the minimum availability stated by the Accommodation, the number of bookings related to the number of visits to the relevant accommodation page on the Platform (the "Conversion"), the volume realized by the Accommodation, the ratio of cancellations, the guest review scores, the customer service history, the number and type of complaints from Guests and the on-time payment record of the Accommodation.
4.1.2 The Accommodation has the possibility to influence its own ranking by changing the commission percentage and availability for certain periods, and continuously improving the other factors. The Accommodation shall not make any claim against hi.com regarding the Ranking of Accommodation; the Ranking system is automated. The automated Ranking (as defined hereafter) system uses on-time payment as a factor so failure to pay Commissions on-time will result in a reduced Ranking.
4.2 Guest reviews
4.2.1 Guests which have stayed at the Accommodation will be asked by hi.com to comment on their stay at the Accommodation and to provide a score for certain aspects of their stay.
4.2.2 hi.com reserves the right to post these comments and scores on the Platforms. The Accommodation acknowledges that hi.com is a distributor (without any obligation to verify) and not a publisher of these comments.
4.2.3 hi.com undertakes to use its best efforts to monitor and review Guest reviews in respect of obscenities or the mention of an individual’s name. hi.com reserves the right to refuse, edit or remove unfavourable reviews in the event that such reviews include obscenities or mention an individual’s name.
4.2.4 hi.com will not enter into any discussion, negotiation or correspondence with the Accommodation in respect of (the content of, or consequences of the publication or distribution of) the Guest reviews.
4.2.5 hi.com shall not have and disclaims any liability and responsibility for the content and consequences of (the publication or distribution of) any comments or reviews howsoever or whatsoever.
4.2.6 The Guest reviews are for exclusive use by hi.com and can be made available on such Platforms as from time to time made available to by hi.com. hi.com exclusively retains ownership of all rights, title and interest in and to (all intellectual property rights of) the Guest reviews and the Accommodation is not entitled to (directly or indirectly) publish, market, promote, copy, scrape, (hyper-/deep)link to, integrate, obtain, utilize, combine, share or otherwise use the Guest reviews without prior written approval of hi.com.
4.3 (Online) marketing and PPC advertising
4.3.1 hi.com is entitled to promote the Accommodation using the Accommodation’s name(s) in online marketing, including email marketing and/or pay-per-click (PPC) advertising. hi.com runs online marketing campaigns at its own costs and discretion.
4.3.2 The Accommodation is aware of the working methods of search engines, such as spidering of content and ranking of URLs. hi.com agrees that if the Accommodation becomes aware of behaviour by Third Party Platforms that breaches the Accommodation’s Intellectual Property Rights, then the Accommodation will notify hi.com in writing with details of the conduct and hi.com will use its commercially reasonable endeavours to ensure that the relevant third party takes steps to remedy the breach.
4.3.3 The Accommodation agrees not to use, display, benefit from, include, utilize, refer to or specifically target the hi.com brand/logo (including trade name, trade mark, service mark or other similar indicia of identity or source) whether directly through keyword purchases that use hi.com's Intellectual Property Rights, for price comparison purposes or any other purposes (whether on the Accommodation platform or any third party platform, system or engine or otherwise), unless approved in writing by hi.com..
4.4 Payment and Facilitated Payment – Commissionable rooms and post purchase.
4.4.1 In order to transfer the balance in the Fund Account (after deducting and set-off (if applicable) with the due and outstanding Commissions (if permitted), fees, costs and expenses and such other amounts due to hi.com) (the "Net Amount"), the hi.com shall provide the Accommodation with the relevant bank details to which the relevant amount shall be paid. For payment via bank transfer: hi.com or the Payment Processor shall transfer the Net Amount to the Accommodation within 14 days after the invoice date in respect of the calendar month in which the Guest is checked-out. 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 its banks for the receipt and conversion of the Room Price. The funds held by the Payment Processor or any other party for and on behalf of the Accommodation will not bear any interest.
4.4.2 The Accommodation agrees and acknowledges that hi.com may (at all times as agent) – from time to time and in certain jurisdictions and for certain properties facilitate certain payment methods for the (pre-/down) payment of the Room Price (as defined below) by Guests to the Accommodation pursuant to which (as available) bank transfer, credit card payments or other forms of online payment can be made and processed for and on behalf of the Accommodation (by means of full and final settlement of payment) (the "Facilitated Payment"). hi.com may from time to time engage a third party to facilitate and process the payment (the "Payment Processor"). The Facilitated Payment service is offered free of charge.
4.4.3 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 hi.com by the Accommodation (unless indicated otherwise by hi.com)) 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.
4.4.4 The Accommodation agrees and acknowledges that hi.com may from time to time use and utilize the Facilitated Payment (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 in final settlement of such payment, and (ii) settlement and payment of (a) the due and outstanding Commission by setting off the due and outstanding Commissions for reservations that have been paid in accordance with Clause 4.4, and (b) such other amounts due by the Accommodation to hi.com 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 hi.com, hi.com shall be entitled to collect the relevant deficit by means of Direct Debit (if available), or the Accommodation shall upon first request of hi.com pay the relevant deficit to such bank account as from time to time identified by hi.com. hi.com is entitled to use the Facilitated Payment to settle and set off with any Commission due to hi.com.
4.4.5 hi.com agrees and acknowledges that it is responsible for the collection 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 such amount shall be included in the Accommodation’s Fund Account. The Accommodation agrees and acknowledges that it is responsible for the reporting, 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).
hi.com shall be responsible for the remittance, withholding and payment (as applicable) of the Taxes over the Commission, to the relevant tax authorities.
4.4.6 In the event of (alleged) fraudulent activities by the Accommodation or if hi.com 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 (or insofar otherwise reasonable and fair), hi.com reserves the right to claim from the Accommodation repayment of such amount (re)paid to the Guest, but received by the Accommodation (which payment shall be made within 14 days after a request by hi.com).
4.4.7 Insofar the Accommodation agrees to a refund of a wholly or partly paid non-refundable Room Price (or part thereof), outside of their cancellation policy, hi.com shall be entitled to settle on behalf of the Accommodation the relevant amount paid to the Guest with other amounts collected by the Payment Processor or, if requested by the Accommodation and approved by hi.com, the relevant amount shall be paid and transferred to hi.com within 14 days upon approval by hi.com and hi.com shall transfer the relevant amount to the Guest as soon as possible from an organizational and technical point of view as of the moment that the entitlement comes into existence legally. As the refund is solely at the discretion of the Accommodation outside of their cancellation policy and in contrary to disclosed refund or cancellation policy, hi.com is entitled to charge the Accommodation commission for such refund.
4.4.8 In the event of a no-show or cancellation, hi.com shall be entitled to charge commission over the relevant amount of the room price collected and transferred to the Accommodation. In the event of an overbooking, the Commission shall be calculated in accordance with Clause 2.3.2.
4.5 Payment and Facilitated Payment – Pre Purchased Rooms
4.5.1 hi.com agrees to purchase a set number of rooms for a pre defined period from the hotel.
4.5.2 hi.com shall calculate the number of rooms pre purchased after discussions with the Accommodation.
4.5.3 Accommodation provider shall provide true and accurate information related to the Accommodation’s Average daily rate (ADR) in the preceding 12 month period net of any taxes.
4.5.4 hi.com shall calculate the rooms pre purchased on the basis of the ADR of the hotel.
4.5.5 hi.com will ensure payment is provided for the pre purchased rooms within 14 business days of the date of execution of the master contract via bank transfer inclusive of all relevant taxes
4.5.6 The Accommodation can select the dates on which hi.com can purchase the rooms. This will be provided as part of the master contract Appendix A
4.5.7 Any rooms purchased by hi.com cannot be further sold by the hotel unless expressly agreed in writing by a hi.com representative
4.5.8 In any pre defined period the Accommodation can change the date the rooms are purchased a maximum of two times. This must be done by informing a hi.com representative 14 days prior to the date change coming into effect
4.5.9 All rooms pre purchased by hi.com are subject to distribution on hi.com and affiliate networks.
4.5.10 All rooms pre purchased are subject to price parity norms unless distributed to a closed user group or packaged along with another offering from hi.com or its affiliates.
4.5.11 At the end of the pre defined period, hi.com shall re issue an appendix with the updated room purchase amounts as dictated by the prevailing ADR in the following defined period
4.5.12 All pre purchased rooms are not subject to payment of commissions from the Accommodation.
4.5.13 The Accommodation reserves the rights to specify the room types allocated to hi.com
5. REPRESENTATIONS AND WARRANTIES
5.1 The Accommodation represents and warrants to hi.com 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 hi.com make available on the Platforms (a) the relevant accommodation, and (b) the Intellectual Property Rights in respect of, as set out or referred to in the Accommodation Information made available on the Platforms;
(ii) the Accommodation holds and complies with all permits, licenses and other governmental authorisations, registrations and requirements necessary for conducting, carrying out and continuing its operations and business and making the Accommodation available on the Platform for reservation (including for short term stay)
(iii) the price for the rooms advertised on the Platform is the same or better than Booking.com or any other locally relevant Online agency for an equivalent stay as Marketed Online, Published Online or otherwise made available online by the Accommodation on its own website and a better price cannot be obtained by a Guest making a reservation with the Accommodation directly on its website/app, and
(iv) the Accommodation (which includes for the purpose of this warranty both the operator as well as the owner of the property) 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 immediately notify hi.com in writing in the event of a breach of this Clause 5.1 paragraph (iv).
5.2 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) each Party shall comply with all applicable governmental laws, codes, regulations, ordinances and rules of the country, state or municipal under which law the relevant Party is incorporated with respect to the products (to be) offered and/or services (to be) rendered by such Party.
5.3 Except as otherwise expressly provided in this Agreement, neither Party makes any representations or warranties, 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.
5.4 hi.com disclaims and excludes any and all liability in respect of the Accommodation which is related to any (temporary and/or partial) breakdown, outages, downtime, interruption or unavailability of the Platform, the Service. hi.com provides (and the Accommodation accepts) the Service, the Platform on an "as is" and "as available" basis.
6. INDEMNIFICATION AND LIABILITY
6.1 Each Party (the "Indemnifying Party") shall be liable towards, and compensate, indemnify and hold the other Party (or its directors, officers, employees, agents, affiliated companies and subcontractors) (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 The Accommodation shall fully indemnify, compensate and hold hi.com (or its directors, officers, employees, agents, affiliated companies and subcontractors) harmless for and against any liabilities, costs, expenses (including, without limitation, reasonable attorneys’ fees and expenses), damages, losses, obligations, claims of any kind, interest, penalties and legal proceedings paid, suffered or incurred by hi.com (or its directors, officers, agents, affiliated companies and subcontractors) in connection with:
(i) all claims made by Guests concerning inaccurate, erroneous or misleading information of the Accommodation on the Platform;
(ii) all claims made by Guests concerning or related to a stay in the Accommodation, overbooking or (partly) cancelled or wrong reservations or repayment, refund or charge back of the Room Price;
(iii) all other claims from Guests which are wholly or partly attributable to or for the risk and account of the Accommodation (including its directors, employees, agents, representatives and the premises of the Accommodation) (including claims related to (lack of) services provided or product offered by the Accommodation) or which arise due to tort, fraud, willful misconduct, negligence or breach of contract (including the Guest Reservation) by or attributable to the Accommodation (including its directors, employees, agents, representatives and the premises of the Accommodation) in respect of a Guest or its property; and
(iv) all claims against hi.com 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 Save as otherwise provided for in this Agreement, the maximum liability of one Party to any other party in aggregate for all claims made against such 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 USD 100,000 (whichever is higher), unless in the event of tort, fraud, willful misconduct, gross negligence, deliberate non-disclosure or deliberate deception on the part of the liable Party (i.e. the 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 (e.g. claims from Guests as described in 6.2) or third-party liabilities.
6.4 In the event of a third party claim, Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defense and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defense (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 In no event shall any Party be liable to any other Party for any indirect, special, punitive, incidental or consequential damages or losses, including loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim, whether such damages are (alleged as) a result of a breach of contract, tort or otherwise (even if advised of the possibility of such damages or losses). All such damages and losses are hereby expressly waived and disclaimed.
6.6 Each Party acknowledges that remedies at law may be inadequate to protect the other Party against any breach of this Agreement and without prejudice to any other rights and remedies otherwise available to the other Party, each Party will be entitled to injunctive relief and specific performance.
7. TERM, TERMINATION AND SUSPENSION
7.1 Unless agreed otherwise, this Agreement shall commence on the date hereof for indefinite period of time. Each Party may terminate this Agreement at any time and for any reason, by written notice to the other Party with due observance of a notice period of 90 days or at a time to be mutually agreed upon between the parties.
7.2 Each Party may terminate this Agreement (and close the Accommodation on the Platform) or suspend (all or part of its obligations, covenants and undertakings under) 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 (e.g. delay of payment, insolvency, breach of Rates and Conditions, the provision of wrong information or receipt of a significant number of Guest complaints); or
(b) (filing or submission of request for) bankruptcy, insolvency or suspension of payment (or similar action or event) in respect of the other Party.
(c) an Accommodation fails to provide rooms pursuant to the Minimum Allocation, hi.com is entitled to terminate this Agreement forthwith by written notice to the Accommodation.
7.3 The following events shall in any event be regarded as a material breach and entitle hi.com to immediately terminate (close) or suspend (all or part of its obligations, covenants and undertakings under) the Agreement (without a notice of default):
(i) the Accommodation fails to pay Commissions on or before the due date;
(ii) the Accommodation provides incorrect or misleading Accommodation Information;
(iii) the Accommodation fails to provide updated Information on the resulting in over-bookings at the Accommodation;
(iv) the Accommodation fails to accept a reservation at the price shown on a reservation;
(v) the Accommodation overcharges one or more guests;
(vi) the Accommodation charges a Guest’s credit card prior to arrival of the Guest without an express agreement from the Guest (a Guest provides express agreement if they select a non-refundable or an advance purchase room type);
(vii) hi.com receives one or more legitimate and serious complaint(s) from one or more Guest(s) who made reservations with the Accommodation;
(viii) misuse of the Guest review process by any behaviour that results in a review appearing on the Platform that is not an honest expression of a real stay by a real Guest at the Accommodation;
(ix) inappropriate, unlawful or unprofessional behaviour towards Guests or hi.com staff; or
(x) any (alleged) safety, privacy or health issues or problems in respect of the Accommodation or its facilities (the Accommodation shall at its own costs and upon first request of hi.com deliver the relevant permits, licenses, certificates or such statements issued by an independent expert evidencing and supporting its compliance with applicable (privacy, safety and health) laws and legislation).
7.4 Upon termination and save as set out otherwise, this Agreement shall absolutely and entirely terminate in respect of the terminating Party and cease to have effect without prejudice to other Party’s rights and remedies in respect of an indemnification or a breach by the other (terminating) Party of this Agreement. Clause 2.4, 6, 7.6, 8, 9 and 10 (and such other clauses that by nature survive termination) shall all survive termination.
7.5 In the event of a "change of ownership" in respect of the ownership or operation of the property (including any assignment, transfer, novation of this Agreement), the Accommodation agrees and acknowledges that the new owner/operator shall be entitled to use the Accommodation Information as made available by the Accommodation prior to the change of ownership (including the Guest reviews) and have access to the relevant (financial and operational) performance, management and (customer) data and the Accommodation shall in any event be and remain responsible and liable for all obligations, claims and liabilities related to the period, or accrued prior to the change of ownership.
7.6 hi.com shall be entitled to terminate this Agreement with immediate effect in the event of (termination due to) a breach of contract of (including act or event of default or failure to perform any obligation under) any other agreement between hi.com on the one hand and the Accommodation (or any Party that (directly/indirectly) owns or controls, is controlled by or under the common control with the Accommodation) on the other hand.
7.7 Each Party may terminate this Agreement (and close the Accommodation on the Platform) or suspend (all or part of its obligations, covenants and undertakings under) 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 agreements between the Accommodation and Group Companies of hi.com (e.g. delay of payment, insolvency, breach of Rates and Conditions, the provision of wrong information or receipt of a significant number of Guest complaints);
8. BOOKS AND RECORDS
8.1 The systems, books and records of hi.com (including the Online Reservation Statement, faxes and/or emails) shall be considered conclusive evidence of the existence and receipt by the Accommodation of the reservations made by the Guest and the amount of the commission of the Accommodation or damages or costs due to hi.com under this Agreement, unless the Accommodation can provide reasonable and credible counter-evidence.
8.2 The Accommodation shall upon first request of hi.com fully cooperate and assist hi.com with (and disclose all reasonably requested information in respect of) the identification of the (ultimate) owner, manager and/or controller of the Accommodation.
9.1 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 Customer Data, transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
9.2 Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement; (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the "Permitted Persons") to maintain, the confidentiality and secrecy of the Confidential Information; (c) it shall disclose Confidential Information only to those Permitted Persons who need to know such information in furtherance of this Agreement; (d) it shall not, and shall use prudent methods to ensure that the Permitted Persons do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and (e) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
9.3 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 the any technical, operational, performance and financial data (but excluding any Customer Data)) in confidence to an affiliated (group) company.
9.4 Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Customer Data and to protect it from unauthorized use or release. Each Party agrees to comply with all applicable (data and privacy) laws, rules and regulations of the jurisdiction where such Party is incorporated (including (if applicable) Directives 95/46/EC and 2002/58/EC (as amended) on the processing of personal data and the protection of privacy).
10.1 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, provided that hi.com may assign, transfer, encumber any of its rights and/or the obligations under this Agreement (in whole or in part or from time to time) to an affiliated company without the prior written consent of the Accommodation. Notwithstanding anything to the contrary, any assignment or transfer by the Accommodation shall not relieve the assignor/transferor of its obligations under the Agreement.
10.2 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 or address set out in the Agreement.
10.3 This Agreement (including the schedules, annexes and appendixes, which form an integral part of this Agreement) constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, ((non) binding) offers, undertakings or statements regarding such subject matter (including vis-à-vis the Accommodation).
10.4 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.
10.5 This Agreement shall be exclusively governed by and construed with the laws of Hong Kong. Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Hong Kong Law. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be three. The arbitration proceedings shall be conducted in English.
10.6 Parties agree and acknowledge that notwithstanding this Clause 10.5, nothing in this Agreement shall prevent or limit hi.com 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.
10.7 The original English version of these Terms 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.
10.8 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).
10.9 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 hi.com. By registering and signing up to the hi.com partner programme as accommodation partner, 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.
10.10 Due to applicable anti-money laundering, anti-corruption, anti-terrorists financing and anti-tax evasion laws and legislation, hi.com is restricted from making the Service available to and accepting payments from or making, processing or facilitating payments to a bank account (the "Bank Account") that is not related to the jurisdiction where the Accommodation is located and (but in any event) insofar any of the following warranties is untrue. The Accommodation hereby represents and warrants that (notwithstanding the jurisdiction of the Bank Account):
(i) it holds and complies with all permits, licenses and other governmental licenses, permits and authorizations necessary for conducting, carrying out and continuing its operations and business (including holding and using of the Bank Account);
(ii) it is the holder of the Bank Account;
(iii) the payment and transfer to/from the Bank Account is at arm's length and in accordance with all applicable laws, legislation, codes, regulations, ordinances and rules and not in violation of any applicable anti-money laundering, anti-corruption, anti-terrorists financing or anti-tax evasion (tax) law, treaty, regulation, code or legislation, and
(iv) the Bank Account is not (directly or indirectly) used for money laundering, terrorists financing, tax evasion, tax avoidance or other illegal activities.
The Accommodation hereby agrees to fully compensate and indemnify hi.com for all damages, losses, claims, penalties, fines, costs and expenses suffered, paid or incurred by hi.com (or any of its affiliated group companies (including any of its/their directors, officers, employees, agents or representatives)) for any (threatening or alleged) claim (including penalty) from any government, authority, organization, company, party or person that the payment to, through or from the Bank Account is illegal or a violation of any applicable (anti-corruption/ anti-money laundering/anti-tax evasion/anti-terrorists financing) laws, regulations, codes or legislation.