These hotel supplier terms (the “Agreement“) govern the relationship between The Sleepexchange Limited, whose registered office is 27 New Dover Road, Canterbury, CT1 3DN, United Kingdom, trading as Hoo (Us, we, Hoo) entered into between an Accommodation and Hoo (each a “Party” and collectively the “Parties“).
1. DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following definitions apply throughout this Agreement, unless the contrary intention appears:
“Accommodation” means (a) the legal entity (legal person or natural person) that is a signatory to this Agreement as well as, as the case may be, (b) the accommodation (‘property’) in relation to which the legal entity is contracting and on the basis of whose location this Agreement are provided and rendered applicable.
“Hoo Platform” means the website(s), apps, tools, platforms or other devices of Hoo on which the Service is made available.
“Customer Service” means the customer service desk of Hoo which can be reached at partners@justhooit.com 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.
“Direct Debit” means the instruction given by the Accommodation to its bank such that Hoo is authorised to collect the relevant amount under this Agreement directly from the bank account of the Accommodation.
“Extranet” means the online systems of Hoo which can be accessed by the Accommodation (after identification of the username and the password), for uploading, changes, verifying, updates and/or amendments of the Accommodation Information (including rates, availability, rooms) and reservations.
“Force Majeure Event” means any of the following events affecting Guests, travel or accommodations: act-of- God, volcanic eruptions, (natural) disaster, pandemic, 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.
“Guest” means a visitor of the Platforms or a customer or guest of the Accommodation.
“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. .co.uk, .uk, .com, .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.
“Personal Data” means any information relating to an identified or identifiable natural person (including Customer Data and payment card data).
“Platforms” means the website(s), apps, tools, platforms and/or other devices of Hoo and its affiliated companies and business partners on or through which the Service is (made) available.
“Service” means the online hotel reservation system of Hoo 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, the Communication Service and any other service that Hoo may agree to provide from time to time.
“System” means the system that Accommodations can access to use and utilize the services, functionalities and administration of the Accommodation on the Platform (including rates, booking policies, etc.).
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 (unless applicable mandatory law provides otherwise), 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 Hoo. 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. Hoo 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 update the Accommodation Information on a daily basis (or such more frequent basis as may be required) and may at any time change via the Extranet (i) the rate of its available rooms bookable, and (ii) the number or type of available rooms.
2.1.3 The information provided by the Accommodation for the Platforms shall remain the exclusive property of the Accommodation. Information provided by the Accommodation may be edited or modified by Hoo and subsequently be translated into other languages, whereas the translations remain the exclusive property of Hoo. The edited and translated content shall be for the exclusive use by Hoo on the Platforms 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 Hoo.
2.1.4 Unless Hoo agrees otherwise, all changes, updates and/or amendments of the Accommodation Information (including rates, availability, rooms) shall be made by the Accommodation directly and on-line through the Extranet or such other ways as Hoo may reasonably indicate. Updates and changes in respect of pictures, photos and descriptions will be as soon as reasonably practicable processed by Hoo.
2.1.5 The restrictions and conditions (including the room price) for rooms made available for reservation on the Platforms shall at all times be at arm’s length and make sense for all parties involved (including consumers) (i.e. the Accommodation shall not misuse the service and system of Hoo by uploading or using excessive or extortionate rates or conditions).
2.2 Room Rates and Price Options
2.2.1 The Accommodation shall give Hoo the best possible initial room rate to publish on the Platforms (the “Initial Rate”). In no event will the Initial Rate provided by the Accommodation be more than the rate offered/provided by the Accommodation to any third party or offered/provided on Accommodation’s own website. Should Hoo become aware that the Initial Rate is more than the room rate published on the Accommodations own website or that of a third party, Hoo will provide notice to the Accommodation who shall immediately amend the Initial Rate accordingly. Should the Accommodation fail to amend the Initial Rate after being notified to do so in line with this clause, Hoo will have the right to amend the Initial Rate to the lowest room rate Hoo has found online. If the parties are unable to come to an agreement under this clause, either party may terminate this contract in accordance with the termination provisions contained herein.
2.2.2 The Accommodation agrees that Guests booking rooms can either:
(a) book a room at the Initial Rate; or
(b) use the Hoo Platform to provide the Accommodation with a room rate offer which may be different to the Initial Rate (the “Negotiated Rate”).
2.2.3 Should the Accommodation choose to accept the Negotiated Rate offered by a Guest, The Accommodation may, through the Platform, indicate its willingness to accept a booking at the Negotiated Rate by sending a counter-offer. Once the Negotiated Rate is agreed between the Accommodation and the Guest, the Negotiated Rate for the room shall be secured and binding on the Accommodation and the Guest upon payment by the Guest for the room at the Negotiated Rate.
2.2.4 Following the agreement of a Negotiated Rate between the Accommodation and the Guest, the Accommodation shall give the Guest reasonable time to make payment and secure the booking at the Negotiated Rate before releasing the room for sale. For the avoidance of doubt, the Negotiated Rate is the room rate for that individual Guest and shall not be an ongoing new room rate nor shall the Accommodation be obliged to provide the Negotiated Rate to any other Guest.
2.3 Commission
2.3.1 For each reservation made through the Platforms by a Guest for a room, the Accommodation shall pay Hoo a commission (the “Commission“) calculated in accordance with clause 2.3.2. Payment shall be made in accordance with clause 2.4.
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 room price (as set or uploaded by the Accommodation or otherwise offered by the Accommodation to the Guest through the Platform) per room per night (including VAT, sales taxes and such other applicable national, governmental, provincial, state, municipal or local taxes or levies (the “Taxes“)) and such other extras, fees and surcharges (including taxes) which are included in, added or in addition to, or part of the offered rate or opted into or accepted through the Platform by the Guest prior to the Guest’s check-in (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 relevant Commission percentage set out in the Agreement (plus VAT/taxes (if applicable)).
For the avoidance of doubt, the Accommodation hereby agrees and acknowledges that in the event of payment of the room price by the Guest to the Accommodation in accordance with clause 4.4 (Facilitated Payment), Hoo shall calculate the Commission in the event of no-show or cancellation in accordance with paragraph 2.8 of the Facilitated Payment Terms (as set out in Annex 2).
In all other events Commission will be charged in the event of:
(a) overbooking: at all times, irrespective of ((un)successful/waiver of) charged room price, and/or
(b) a charged cancellation and/or charged no-show: Hoo charges Commission when a partner charges Guest room price and/or no show/cancellation fee for (chargeable) cancellations and/or no-shows.
The Commission shall at all times be calculated in accordance with the confirmed booking as provided to Accommodation and confirmed by Hoo to Guest.
Notice of any waiver of any room charge or (no-show/cancellation) fee in the event of no-show or charged cancellation, or notice of any invalid payment method for any no-show reservation or cancelled reservation, must at all times be made within 48 hours after midnight on the day following the scheduled date of check-out (example: checkout is 14:00 on March 1st, waiving must happen before 23:59 hrs on March 3rd in Accommodation time zone).
Upon receiving the notification of waiver, Hoo will inform the Guest accordingly and the Accommodation shall promptly process the refund (if applicable).
2.3.3 The Accommodation is responsible for informing Hoo about applicable taxes (unless applicable mandatory law provides otherwise), fees, charges and levies (and any changes thereof) which will be charged to the Guest by the Accommodation upon reservation for pre-paid or upon check-out for post-paid reservations. Unless agreed otherwise by Hoo or permitted otherwise by applicable law, the rate shown to Guests on the Platforms shall be inclusive of sales tax, charges and all such other (national, governmental, provincial, state, municipal or local) taxes, fees, charges or levies.
2.3.4 In the event that pursuant to (amendment or entering into force of) the applicable law, rules and legislation applicable to the Accommodation, the rates must be shown to Guests inclusive of VAT, sales tax and all such other (national, governmental, provincial, state, municipal or local) taxes, fees or levies, the Accommodation shall adjust the rates through the Extranet in accordance with the terms of clause 2.1.2 and 2.1.4 as soon as possible, but in any event within 5 business days after (i) amendment or entering into force of the relevant law, rules and legislation in this respect applicable to such Accommodation, or (ii) notification thereof by Hoo.
2.3.5 The Extranet shows details of all reservations made at the Accommodation through the Platforms and the corresponding Commission. Following the end of a month, Hoo shall use all reasonable endeavours to promptly make an online reservation statement (the “Online Reservation Statement“) available on the Extranet to the Accommodation showing the reservations of all Guests whose date of departure fell in the previous month.
2.3.6 The headline commission rate may be varied by hoo by giving 14 days notice.
2.3.7 The prevailing headline commission rate as at the date of these terms is 5% (five per cent).
2.4 Payment of 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 insofar the Accommodation has agreed to waive charging the room price in accordance with clause 2.3.2 or for free cancellations made through Hoo 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 fax, mail or e-mail.
(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 Hoo by means of Facilitated Payment (if applicable), Direct Debit or through a third party’s payment portal, or in case Direct Debit 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 Hoo). Hoo 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 by cheque or via “payment agencies”) cannot be processed by Hoo 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 Hoo such additional amounts as are necessary to ensure receipt by Hoo of the full (net) amount as set out in the invoice which Hoo 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 Hoo.
(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. Hoo may at its sole discretion prepare invoices either in a major currency (e.g. EUR/GBP/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 Hoo.
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 Hoo 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 Hoo provide Hoo 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 Hoo 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, Hoo reserves the right to claim statutory interest, to suspend its service under the Agreement (e.g. by suspending the Accommodation from the Platforms), require Facilitated Payments or Direct Debit, and/or to ask for a deposit, bank guarantee or other form of financial security from the Accommodation.
2.4.5 The Accommodation shall upon first request of Hoo pay a deposit which amount shall be equal to the sum of the 3 highest invoices of operations with Hoo or such other amount as determined by Hoo at its discretion (the “Deposit“). The Deposit will be held by Hoo 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 outstanding Commission, shortfall payments and other costs due to Hoo will be repaid to the Accommodation within 30 days after settlement in full of the outstanding obligations and liabilities (including the payment of the outstanding Commission). Upon first request of Hoo, the Accommodation shall pay as further Deposit such additional amount as requested by Hoo if the outstanding Commission exceeds the Deposit or if the Accommodation frequently fails to pay the Commission when due. At any point during the term of the Agreement, Hoo will monitor the (payment) performance of the Accommodation and may decide to repay the Deposit to the Accommodation after review (used criteria at Hoo 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.
2.5 Reservation, Guest Reservation and Complaints
2.5.1 When a reservation is made by a Guest through the Platform, the Accommodation shall receive a confirmation for every reservation made via Hoo, which 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 (if applicable) payment card details (collectively “Customer Data“) and such other specific request(s) made by the Guest. Hoo is not responsible for the correctness and completeness of the information (including payment card details) and dates provided by Guests and Hoo is not responsible for the payment obligations of the Guests relating to their (online) reservation. For the avoidance of doubt, the Accommodation shall on a regular basis (but at least on a daily basis) check and verify on the Extranet (the status of) the reservations made. The Accommodation acknowledges that tokenised (encrypted) payment card details are only kept by Hoo for a limited period of time.
2.5.2 By making a reservation through the Platforms 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 Platforms at the time the reservation was made and the reservation confirmation, including any supplementary information and/or wishes made known by the Guest.
2.5.4 Other than the fees, extras and (sur-)charges as set out in the confirmed booking sent by Hoo to the Guest, the Accommodation shall not charge the customer any transaction/administration fee or charge for the use of any payment method (e.g. payment 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 Hoo. Hoo is not responsible for and disclaims any liability in respect of such claims from the Guests. Hoo 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 at 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. 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 Hoo via Customer Service. Unless Hoo has arranged for alternative accommodation (to be verified by the Accommodation with Hoo), the Accommodation will use its best endeavours 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 to the Accommodation holding the Guest’s 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 booking, and
(c) reimburse and compensate Hoo and/or the Guest for all reasonable costs and expenses (e.g. costs alternative accommodation, transportation, telephone costs) made, suffered, paid or incurred by the Guest and/or Hoo due to or caused by the overbooking. Any amount charged by Hoo in this respect shall be paid within 14 days after receipt of the invoice.
2.6.2 The Accommodation is not allowed to cancel any online reservation. In the event of (alleged or suspected) fraudulent activities (e.g. in respect of reservations, payment card fraud, money laundering or room price), Hoo reserves the right to cancel the relevant reservation(s) and (in the event of any facilitated payment) withhold, suspend or cancel the transfer of any relevant funds to the Accommodation, or charge back the relevant funds from the Accommodation and shall inform the Accommodation accordingly.
2.6.3 Cancellations made by Guests before the time and date beyond which a cancellation fee applies will not attract commission. Cancellations made by 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 Payment card guarantee
2.7.1 Where payment card details have been provided to the Accommodation, and save for reservations paid through Facilitated Payment (in which event this clause 2.7 is not applicable), guarantee of the booking is based on the payment card details provided by the Guest or the person responsible for the booking. The Accommodation shall at all times accept all major payment cards (including MasterCard, Visa and American Express) for guarantee of a booking. The Accommodation is responsible for the verification of the validity of these payment card details, the (pre) authorisation of the payment card and the limit of credit on the date of the overnight stay(s) booked. The Accommodation shall upon receipt of a booking, promptly verify and pre-authorise the payment card. If the payment card offers no guarantee, the Accommodation will immediately notify Hoo, which subsequently invites the Guest to guarantee the booking in an alternative manner. If the Guest is unable or unwilling to do this, Hoo may cancel the booking upon request of the Accommodation. If the payment card (or any alternative guarantee made by the Guest) is not effective or valid for any reason, this shall always be at the risk and for the account of the Accommodation. Bookings which are cancelled by Hoo pursuant to this clause 2.7.1 will not attract any Commission.
2.7.2 The Accommodation which wishes to take payment from the payment card before the date of check-in must ensure that the up-front payment condition (including the (special) rate restrictions, terms and conditions for or connected with such pre-payment) are clearly explained to Guests in the information made available to the Guest prior to making a reservation and included in the Accommodation Information.
2.7.3 The Accommodation shall be responsible for charging the Guest for the consumed stay, no show fee or charged cancellation (including applicable Taxes for which the Accommodation shall be liable and remit to the relevant tax authorities). Payment cards shall be charged in the same currency as set out in the reservation of a Guest. To the extent that this is not possible, the Accommodation may charge the payment card of the Guest in a different currency with a reasonable and fair exchange rate.
2.8 Data Privacy, Messaging and Usage
The Accommodation understands and agrees that the Hoo Data Privacy and Messaging Guidelines apply and form an integral part of this Agreement. The Hoo Data Privacy and Messaging Guidelines are set out in Annex 1.
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 Hoo upon request with a copy of such evidence). In order for Hoo to register any cancellation, no-show or amendment of the reservation due to a Force Majeure Event, the Accommodation shall inform Hoo 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. Hoo 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. LICENSE & DATA
3.1 The Accommodation hereby grants Hoo 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 Hoo by the Accommodation pursuant to this Agreement and which are necessary for Hoo to exercise its rights and perform its obligations under this Agreement;
(b) to use, reproduce, have reproduced, process, distribute, sublicense, display and utilise (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 Hoo 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 Platforms 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 Hoo 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 Hoo (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
4.1 Ranking
4.1.1 Hoo aims at displaying search results that are relevant for each specific Guest, by providing a personalised default ranking of Accommodations on its Platform. Guests can scroll through this default ranking, use filters and sort by alternative ranking orders and thus have the ability to influence the presentation of search results to receive a ranking order based on other criteria.
4.1.2 The commission percentage paid by the Accommodation or other benefits to Hoo (e.g. through commercial arrangements with the Accommodation or strategic partners) may also impact the default ranking, as well as the Accommodation’s record on timely payment.
4.1.3. The Accommodation may also influence its ranking by participating in certain programs, that may be updated from time to time, such as deals, a preferred partner program and/or visibility boosters which may involve the Accommodation paying a higher Commission.
4.2 Guest reviews
4.2.1 Guests which have stayed at the Accommodation will be asked by Hoo to comment on their stay at the Accommodation and to provide a score for certain aspects of their stay.
4.2.2 Hoo reserves the right to post these comments and scores on the Platforms. The Accommodation acknowledges that Hoo is a distributor (without any obligation to verify) and not a publisher of these comments.
4.2.3 Hoo undertakes to use its reasonably endeavours to monitor and review Guest reviews in respect of obscenities or the mention of an individual’s name. Hoo 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 Hoo 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 Hoo 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 Hoo and can be made available on such Platforms as from time to time made available to by Hoo. Hoo 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 Hoo.
4.2.6 Hoo may use a third-party ratings and reviews service which will take reviews and ratings from several different sources and aggregate these for use on the Hoo Platforms. The Accommodation agrees and acknowledges that these ratings may be used either on their own or combined with ratings and reviews created by Guests directly on the Platforms. The use and publication of any ratings and reviews is entirely at the discretion of Hoo.
4.3 (Online) marketing and PPC advertising
4.3.1 Hoo 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. Hoo 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. Hoo 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 Hoo in writing with details of the conduct and Hoo 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 Hoo brand/logo (including trade name, trademark, service mark or other similar indicia of identity or source) 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 Hoo. The Accommodation shall not (directly or indirectly) use or create any (pay-per-click) advertisement on (meta)search sites which advertisement (re)directs and links to the relevant Accommodation landing page on the Platforms where the Accommodation is advertised, promoted and/or included (no double serving). The Accommodation shall be entitled to bid on or use the Hoo brand for its own webmarketing (PPC) advertising.
4.4 Facilitated Payment
The Accommodation hereby agrees, acknowledges and accepts (and hereby acknowledges the receipt of) the Facilitated Payment Terms (as set out in Annex 2 and as may be amended from time to time with 15 days prior written notice) for facilitation of payment of the room price by the Guest to the Accommodation and settlement of the Commission (all as applicable).
5. REPRESENTATIONS AND WARRANTIES
5.1 The Accommodation represents and warrants to Hoo 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 Hoo 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 Platforms for reservation (including for short term stay);
(iii) the Accommodation is duly registered with all relevant tax authorities (including applicable statutory (local) revenue collection authorities) as a hotel or other accommodation provider;
(iv) the Accommodation shall not, except with express prior written approval by Hoo, sell or offer for sale on the Platform any package as meant in (national laws implementing, relating to or similar in substance to) the Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements (the “PTD”) or any such law that is analogous thereto that may be implemented from time to time;
(v) 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 organisations;
(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, tax evasion, bribery, financial crime, fraud or corruption.
The Accommodation shall immediately notify Hoo in the event of a breach of this clause 5.1 paragraph (v).
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) it complies 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 Hoo 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 Platforms, the Service and/or the Extranet. Hoo provides (and the Accommodation accepts) the Service, the Platform and the Extranet 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 Hoo (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 Hoo (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 Platforms;
(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, wilful 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;
(iv) all claims (including costs, expenses, interest, fines and other liabilities) against or incurred by Hoo in relation to or as a result of (1) the failure or negligence of the Accommodation to timely, correctly and accurately (a) 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 other amounts collected or processed under this Agreement) and commission payments), or (2) tax claims and liabilities put on or assigned to Hoo for taxes for which the Accommodation is responsible or liable, or where the obligation to pay, collect, withhold and remit is by law put on Hoo for, on behalf or instead of the Accommodation;
(v) all (1) (alleged) monetary and non-monetary claims from Guests arising under, from or in connection with (national laws implementing, relating to or similar in substance to) the PTD, and (2) obligations that Hoo has, or reasonable deems to have, further to (national laws implementing, relating to or similar in substance to) the PTD; and
(vi) all (alleged) monetary and non-monetary claims from third parties in connection with the Accommodation’s representations, warranties and obligations ensuing from Annex 1.
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 GBP 100,000 (whichever is higher), unless in the event of fraud, wilful 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 clause 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 defence and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defence (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 business, 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 an indefinite period of time. Each Party may terminate this Agreement at any time and for any reason, by written notice to Hoo with due observance of a notice period of 14 days.
7.2 Each Party may terminate this Agreement with immediate effect in the event of (i) a legal or regulatory obligation, (ii) a compelling reason under applicable law, (iii) a repeated infringement of this Agreement or (iv) a material breach, including but not limited to instances of illicit or inappropriate conduct, fraud or data breaches.
7.3 Without prejudice to clauses 7.1 and 7.2, by a notice in writing which includes a statement of reasons Hoo may (i) restrict or suspend (all or parts of its obligations, covenants and undertakings under) this Agreement with immediate effect and/or (ii) terminate this Agreement (and Hoo may close its Platform for the Accommodation) with immediate effect, in case of:
(a) a (reasonably anticipated or suspected) breach by the Accommodation of any term of this Agreement;
(b) (a filing or submission of a request for) bankruptcy, insolvency or suspension of payment (or a similar action or event) in respect of the Accommodation; or
(c) any of the following (reasonably anticipated or suspected) events or circumstances:
(i) failure to pay any of Hoo’s invoices, debit notes or charges before or on the due date having been given a reasonable time in order to make payment;
(ii) a bad faith attempt to avoid payment of Commission and/or decrease Commission;
(iii) the provision of inaccurate, outdated, incomplete, incorrect, misleading or fraudulent information by the Accommodation, including posting Accommodation Information of any of such nature on the Extranet;
(iv) failure to accept a reservation at the price and/or conditions shown on a reservation or non-adherence to the agreed price and/or conditions of a reservation;
(v) the Accommodation overcharges a Guest;
(vi) the Accommodation misuses a Guest’s (payment card) data in any way (e.g. by charging a Guest’s payment card prior to check-in without the Guest’s prior consent) or a data breach occurs;
(vii) a serious complaint from one or more Guest(s) or a third party;
(viii) repeated poor ratings or reviews;
(ix) the Accommodation (directly or indirectly) manipulates or attempts to manipulate a reservation or the functioning of the Platform (e.g. by manipulating Guest reviews);
(x) any safety, security, 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 Hoo 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);
(xi) the Accommodation (including a party that (directly or indirectly) holds or controls the Accommodation or is (directly or indirectly) held or controlled by the Accommodation) terminates a contract with any of Hoo’s affiliated group companies (a) without proving cause and/or (b) for convenience;
(xii) any of Hoo’s affiliated group companies is legally entitled to terminate a contract for cause with the same Accommodation (including a party that (directly or indirectly) holds or controls the Accommodation or is (directly or indirectly) held or controlled by the Accommodation);
(xiii) breach of contract of (including act or event of default or failure to perform any obligation under) any other agreement between Hoo 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;
(xiv) conduct by the Accommodation which is not compatible with Hoo’s global business model, technology, policies, values or ethical standards; or
(xv) Hoo reasonably believes that action is necessary to protect the personal safety or property of Hoo, Guests or third parties and to prevent inappropriate, unlawful or unprofessional (physical and/or non-physical) behaviour and/or acting in bad faith, fraud or any other unacceptable activity.
7.4 Any notice or communication by Hoo of “closure” (“close”, “closed”) of the Accommodation on the website (or similar wording) shall mean “termination” of the Agreement. After termination, suspension or closure, the Accommodation shall honour outstanding reservations for Guests and shall pay all Commissions (plus costs, expenses, interest if applicable) due on those reservations in accordance with the terms of this Agreement. Upon termination or suspension of the Agreement and notwithstanding Hoo’s right to (permanently) remove the Accommodation from the Platform, Hoo shall be entitled to keep and maintain the Accommodation page available on the Platform, but close availability pending full and final payment of any due and outstanding amounts (including (future) commission).
7.5 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.
7.6 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 or used 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.
8. RECORDS AND RELIANCE ON INFORMATION
8.1 The systems, books and records of Hoo (including Extranet, the Reservation Statement, financial 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 Hoo under this Agreement, unless the Accommodation can provide reasonable and credible counter-evidence.
8.2 The Accommodation shall upon first request of Hoo fully cooperate and assist Hoo with (and disclose all reasonably requested information in respect of) the identification of the (ultimate) owner, manager and/or controller of the Accommodation.
9. CONFIDENTIALITY
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 any technical, operational, performance and financial data) in confidence to an affiliated (group) company.
10. DISPUTE RESOLUTION
10.1 Applicable law and forum
Save as set out otherwise in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of the England. Save as set out otherwise in this Agreement, any disputes arising out or in connection with this Agreement shall exclusively be submitted to and dealt with by the competent court in England.
10.2 Internal complaint mechanism
Hoo has an internal complaint handling system in place. Accommodations may, depending on the type of complaint, access such internal complaint handling system through (a) the Extranet, (b) Hoo’s Customer Service support, or (c), if applicable, their dedicated account representative. Accommodations may find more detailed information, including how to submit complaints, on the Extranet.
10.3 Mediation
10.3.1 Hoo prefers to resolve disagreements and disputes with the Accommodation through its internal complaint handling system set out in clause 10.2, since this offers the most expedient and cost-effective solution to both parties. Without prejudice to clauses 10.1 and 10.2, Hoo is willing to engage to attempt to resolve disputes with Accommodations, including disputes that could not be resolved via the internal complaint handling system, through mediation on the basis that:
10.3.2 The mediation shall take place in English (in accordance with clause 11.7).
10.3.3 The mediation may be conducted remotely with the use of communication technologies.
10.3.4 Hoo shall bear a reasonable proportion of the total cost of the mediation. Such reasonable proportion shall be 50% of the total costs of mediation. Parties may agree on a different cost allocation, which may be based on a suggestion by the mediator.
10.3.5 Hoo and Accommodation shall sign a mediation agreement at the start of the mediation. The mediator shall propose the wording of the mediation agreement.
10.3.6 Notwithstanding the voluntary nature of the mediation, Hoo and the Accommodation shall engage in good faith throughout the mediation.
11. MISCELLANEOUS
11.1 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 Hoo 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, novation or transfer by the Accommodation shall not relieve the assignor/transferor of its obligations under the Agreement.
11.2 All notices and communications must be in English, in writing or online, and sent by facsimile, email or nationally recognised overnight air courier to the applicable facsimile number or address set out in the Agreement or as otherwise notified to the parties or through the Extranet Inbox (Notes/Actions) as available to the Accommodation.
11.3 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). Parties cannot derive any rights or obligations from any explanatory notes included in this Agreement.
11.4 In case of conflict between these terms and the applicable Annex, the applicable Annex shall prevail. 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.
11.5 Parties agree and acknowledge that notwithstanding this clause 10.6, nothing in this Agreement shall prevent or limit Hoo 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.
11.6 The original English version of this Agreement may have been translated into other languages. The translated version of the English Agreement 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 this Agreement, the English language version shall prevail, apply and be binding and conclusive. The English version shall be used in legal proceedings, including in the internal complaint mechanism and in mediation (clauses 10.2 and 10.3).
11.7 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, this Agreement, either Party (including its employees, directors, officers, agents, or other representatives) shall
i. not directly or indirectly, 1. offer, promise or give to any third party (including any governmental official or political party’s official, representative or candidate), or 2. 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 the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, and the Criminal Finances Act 2017 and such other applicable laws, statutes, regulations relating to anti-bribery, anti-tax evasion/ facilitation of tax evasion, anti-corruption and anti-financial crimes applying in the countries in which it has a place of business (“anti-bribery/anti-tax evasion/facilitation of tax evasion/anti-financial crimes requirements”), and
iii. put in place and maintain its own policies and procedures to ensure compliance with the relevant anti-bribery and anti-tax evasion/ facilitation of tax evasion/ anti-financial crimes requirements and will enforce them where appropriate.
11.8 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 Hoo. By registering and signing up to the Hoo 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.
11.9 Due to applicable anti-money laundering, anti-corruption, anti-terrorists financing, anti-tax evasion and any other anti-financial crime laws and legislation, Hoo 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 (meaning: ‘legal entity’) 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 authorisations 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, anti-tax evasion (tax) or any other anti-financial crime 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, financial crime or other illegal activities.
The Accommodation hereby agrees to fully compensate and indemnify Hoo for all damages, losses, claims, penalties, fines, costs and expenses suffered, paid or incurred by Hoo (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, organisation, 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.
11.10 Hoo may from time to time update and adjust this Agreement (including the Annexes), subject to prior communication (e.g. email or system notice) to the Accommodation with due observance of a notice period of 15 days (in which notice period the Accommodation may terminate the Agreement). Any updated or adjusted version shall replace and supersede the existing (current) version with such effect as set out in the notice of update/replacement.
Annex 1
DATA PRIVACY AND MESSAGING GUIDELINES
These Data Privacy and Messaging Guidelines (the “Guidelines“) set forth the terms and conditions under which Hoo provides its Service to and for the benefit of Accommodations. By using the Hoo Services, the Accommodation agrees to and accepts the following Guidelines.
1. SCOPE, DEFINITIONS AND INTERPRETATION
1.1 These Guidelines form an integral part of the Agreement between the Accommodation and Hoo and must be read in conjunction therewith. Except as otherwise provided for herein, the terms and conditions of the Agreement remain unchanged and in full force and effect. If there is conflict between these Guidelines and the Agreement, the terms of the Guidelines will prevail.
1.2 Unless defined otherwise in these Guidelines, capitalised terms have the same meaning as set out in the Agreement.
2. DATA PRIVACY
2.1 Each Party shall take reasonable steps to protect personal data (i.e., information that relates to an identified or identifiable natural person) processed in the context of the Agreement against loss and unauthorised access, use, deletion and disclosure; and, as required by applicable laws, process personal data in a manner that ensures appropriate confidentiality and security of the personal data.
2.2 The Accommodation acknowledges that it is responsible for the handling and security of the personal data it holds and processes within the context of the Agreement and Hoo acknowledges that it is responsible for the handling and security of the personal data it processes within the context of the Agreement. Accommodation shall provide personal data to Hoo only if such disclosure is permitted under applicable laws. Hoo shall be a data controller (i.e. determines the purposes and means of the data processing) for any personal data it processes. Accommodation shall become data controller upon receipt of the personal data either directly or indirectly through a connectivity partner. Unless agreed otherwise, connectivity partners handle personal data on behalf of an Accommodation. Each Party shall be solely responsible for the processing of personal data by itself or on its behalf in accordance with applicable data protection laws. The Parties shall, if required by applicable laws, cooperate in good faith and provide assistance in the event data subjects wish to exercise their rights of access, correction, erasure or portability, or in case of requests from competent authorities to demonstrate compliance with obligations applicable to the Party.
2.3 To the extent Hoo processes personal data that is not Guest data in association with the Agreement, such personal data shall be processed by Hoo in accordance with the Hoo Privacy Policy. The Accommodation warrants that it has, as required by applicable laws, duly and diligently informed (and as required by applicable laws, obtained consents from) its staff members, agents, representatives and other individuals about the processing of their personal data by Hoo and the cross-border transfer of their personal data to countries that do not provide for adequate protection of rights of personal data subjects.
2.4 Accommodation shall process personal data that Accommodation received from Hoo as part of the Services under the Agreement only so far as necessary to perform the requested reservation services, or as otherwise agreed to between the Parties in writing, in accordance with applicable law, including (if applicable) the UK Data Protection act 2018, the EU General Data Protection Regulation (EU) 2016/679 and/or Directive 2002/58/EC (each as amended or replaced or updated by subsequent legal acts or legislation) or if Accommodation has obtained explicit consent from the Guest to any other use of Guest’s personal data.
2.5 If the Accommodation will or intends to notify Guests or other parties (e.g., competent data protection and/or government authorities) of a data breach (any discovered or suspected incident resulting in accidental, unlawful, or unauthorised destruction of, loss of, alteration of, access to, disclosure of, or use of personal data) involving personal data received by the Accommodation from Hoo, and the notification will reference Hoo, Accommodation shall first, to the extent permitted by law, provide any draft notification and related correspondence to Hoo and reasonably cooperate with Hoo in finalising such notification and correspondence and other communication that may follow with the Guests or authorities. Accommodation acknowledges that Hoo retains the right to voluntarily inform its users about any such data breach. For the avoidance of doubt, Accommodation shall not notify Guests or other parties of a data breach involving personal data that Hoo hosts on the Extranet without prior written authorisation from Hoo.
2.6 The Accommodation may request that Hoo discloses personal data related to Guest reservations to other partners, service providers, or affiliates of the Accommodation (“Accommodation Partners”), or to systems where such personal data may be accessed by Accommodation Partners, in order to manage or facilitate the reservation between the Guest and the Accommodation. Any such disclosure is made solely on behalf of and at the instruction of the Accommodation, which instruction the Accommodation may modify at any time, and shall not be construed to be a disclosure made by Hoo. The Accommodation represents and warrants that it has all necessary rights, authorisations and permissions to disclose such personal data to these Accommodation Partners.
2.7 In case the party contracting with Hoo is not (only) directly processing personal data of Guests under its own control (e.g. as may be applicable in case of chains, property management companies etc.), this paragraph 2 shall be read to apply to the Accommodation or Accommodation Partners, as applicable, ultimately processing the personal data of Guests. In such case, the contracting party and/or Accommodation and/or Accommodation Partner may be considered the (sole) data controller of any Guest data processed in the context of the Agreement as determined by the Accommodation (signing entity and/or property) and/or Accommodation Partners.
3. MESSAGING TOOLS
Hoo may from time to time as part of its service to the Guest and Accommodation facilitate the communication between the Guest and the Accommodation (the “Messaging Service“) using tools provided by Hoo. Hoo will process communications sent via the Messaging Service (the “Communication“) in accordance with the Hoo Privacy and Cookies Statement applicable to Accommodations. The Accommodation hereby irrevocably and unconditionally agrees and consents to the processing of Communications by Hoo (including any processing, storage, receipt, access, insight and screening of Communications by Hoo) and states that it has duly and diligently informed (and as required by applicable laws, obtained consent from) the Accommodation’s employees, agents, representatives, staff members and other individuals of/for/when using the Communication Service for or on the Accommodation’s behalf (including the processing, receipt, insight, storage, screening and access of such communications by Hoo).
4. USE OF HOO’S ONLINE SERVICES
4.1 Notwithstanding anything to the contrary in the Agreement, Accommodation agrees to comply and have individuals acting on its behalf, comply with the terms of the Agreement.
4.2 The Accommodation shall safeguard and keep the Extranet user ID and password confidential and secure, and shall not disclose the user ID and password to any person other than those who need to have access to the Extranet to fulfil their job responsibilities. The Accommodation shall notify Hoo promptly and no later than within 24 hours of any actual or suspected breach of security or confidentiality involving the user ID and password used to access the Extranet.
4.3 The Accommodation agrees not to use the Messaging Service to send unsolicited electronic communications to any individual. Accommodation will fully indemnify Hoo for any claims of third parties or fines resulting from unlawful or unauthorised use of the Messaging Service by Accommodation for its own purposes.
5. PAYMENT CARD SECURITY
To the extent the Accommodation processes payment card information obtained by the Accommodation through the Hoo reservation services, 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 set forth in the current Payment Card Industry (PCI) Data Security Standard issued by the major payment card companies or any other standards or laws analogous to them.
Annex 2
FACILITATED PAYMENTS
1. SCOPE, DEFINITIONS AND INTERPRETATION
1.1 This Annex 2 forms an integral part of the Agreement and must be read in conjunction with the Agreement. Except as otherwise provided for in this Annex 2 the terms and conditions of the Agreement remain unchanged and in full force and effect.
1.2 Unless defined otherwise in this Annex 2, capitalised terms have the same meaning as set out in the Agreement.
2. FACILITATED PAYMENT
2.1 The Accommodation agrees and acknowledges that Hoo may from time to time and in certain jurisdictions 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, payment card payments or other forms of online payment can be made and processed for and on behalf of the Accommodation (the “Facilitated Payment“). Hoo may from time to time engage a third party to facilitate and process the payment (the “Payment Processor“). Facilitated Payment under this Annex 2 involves Hoo acting as agent for the Accommodation in respect of the receipt of payments from Guests and the transfer of such payments to the Accommodation. Any payment made by a Guest to Hoo as agent for the Accommodation shall satisfy and discharge a corresponding amount of the Guest’s debt to the Accommodation. To the extent permitted by law, Parties agree that for each payment transaction processed to or for the benefit of the Accommodation, Hoo may (cross) charge to or require compensation from the Accommodation (for) its costs and expenses (including the fees, costs and other amounts as charged by its payment processors, banks or payment card companies for such transaction), plus taxes (if applicable), for and related to the Facilitated Payment service and the underlying payment transaction(s). Payment shall be due in accordance with the terms of the invoice.
2.2 The Accommodation agrees and acknowledges that for each reservation, the total amount of the reservation (including all applicable taxes, fees, extras and add-ons made or included prior to check-in (e.g. breakfast) to the extent disclosed to Hoo by the Accommodation (unless indicated otherwise by Hoo)) (the “Room Price“) will be collected and processed by the Payment Processor (and insofar as applicable, in accordance with the payment policy of the Accommodation for the relevant reservation and disclosed on the Platform).
2.3 The Accommodation agrees and acknowledges that Hoo may from time to time use and utilise the Facilitated Payment (including other (online) payment methods such as virtual payment 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 offsetting the due and outstanding Commissions, and (b) such other amounts due by the Accommodation to Hoo (including the relevant fees, costs and expenses (if applicable) as from time to time notified by Hoo in respect of the Facilitated Payment and/or charged by the Payment Processors, involved banks and/or payment card companies) (plus taxes) with the total amount of all the Room Prices processed at any time through the Payment Processor. Insofar as there are insufficient funds to settle and pay all amounts due to Hoo, Hoo shall be entitled to collect the relevant deficit by means of Direct Debit (if available), offset by the Deposit (if applicable) or the Accommodation shall upon first request of Hoo pay the relevant deficit to such bank account as from time to time identified and confirmed by Hoo.
2.4 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, extras and fees over the Room Price (including the relevant taxes, (sur)charges, extras, 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 Hoo has indicated that certain taxes, fees, charges, add-ons (e.g. breakfast) or other amounts are not included in the 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)).
2.5 The Room Price shall be transferred by Hoo to the Accommodation, subject to the rules set out in this paragraph 2.5. The transfer may happen (i) through a bank transfer, (ii) by providing the Accommodation with a virtual payment card (the “Virtual Card“), or (iii) through a third party channel manager or some other third party or system. In case of a bank transfer, only the balance of the Room Price minus due and outstanding Commissions, fees, costs and expenses and other amounts due to Hoo, or the equivalent thereof in another currency (the “Net Amount“) is transferred. In case of a transfer through a Virtual Card, only the balance of the Room Price minus amounts that Hoo is required to withhold under local laws or regulations, or the equivalent thereof in another currency (the “VC Amount“), is transferred. In the case of a channel manager or some other third party or system, payments shall be made and Commissions collected in accordance with the agreement between Hoo and the channel manager/third party who will have a direct agreement with the Accommodation.
General rules related to any transfer:
Payment of the VC Amount or of the Net Amount, as the case may be, may at all times without notice be suspended in the event of alleged or suspected payment card fraud or breach of contract. The Accommodation shall bear all currency exchange risks, including conversion of the Room Price. Any funds held by a bank, the Payment Processor or any other third party do not bear interest. The Accommodation agrees and acknowledges that due to fluctuating currency exchange rates and costs/fees charged by banks, payment card companies and other intermediaries for the collection, processing and payment of the relevant amounts, there may be differences between the Room Price (as uploaded by the Accommodation in the system), the collected amount and the amount received by the Accommodation.
For payment via Virtual Card:
The Accommodation may not authorise or charge the Virtual Card until the date on which the Guest’s reservation becomes non-refundable. The Virtual Card is only valid for the reservation to which it was assigned, and for the amount and currency specified on the confirmation of the reservation to which it was assigned. The Accommodation shall collect the VC Amount by charging the Virtual Card during the time period ending 12 months after the date of the Guest’s check out (the “Cut-Off Date“). Prior to the Cut-Off Date, Hoo shall use commercially reasonable efforts to inform the Accommodation of the VC Amount or any portion available for collection by the Accommodation. The parties agree that Hoo’s informing the Accommodation of the (portion of the) VC Amount that is available for collection by the Accommodation, shall satisfy any and all information obligations of Hoo under applicable law. If the Accommodation fails to collect the VC Amount, or any portion thereof, on or prior to the Cut-off Date, then, from and after the Cut-off Date (i) the Virtual Card shall be deactivated, (ii) the Accommodation’s rights and claims with respect to such amount shall automatically cease to exist (including for the avoidance of doubt any right of set-off), and (iii) Hoo shall have full right, title and interest in and to any such amount. From and after the Cut-off Date, the Accommodation, without further action, hereby releases and forever discharges Hoo from any and all claims whatsoever related to the VC Amount (for the avoidance of doubt: explicitly including claims related to (any portion of) the VC Amount insofar as that has not been collected by the Accommodation prior to the Cut-Off Date). The Parties expressly agree that the VC Amount (or any portion thereof) retained by Hoo after expiration of the Cut-Off Date does not constitute a Commission or other consideration paid by the Accommodation to Hoo for the provision of Services under this Agreement.
For payment via bank transfer:
The Accommodation should provide correct bank account details to Hoo. Hoo shall transfer the Net Amount to the bank account indicated by the Accommodation within 30 days of the end of the month in which the Guest has checked out. The Accommodation shall bear all losses arising from incorrect information provided to Hoo such as incorrect bank account details.
2.6 In the event of (alleged) fraudulent activities by the Accommodation or if Hoo 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 as otherwise reasonable and fair), Hoo reserves the right to claim from the Accommodation repayment of such amount (re)paid to Guest, but received by the Accommodation (which payment shall be made within 14 days of a request by Hoo).
2.7 Insofar as the Accommodation agrees to a refund of a fully or partially paid non-refundable Room Price (or part thereof), Hoo shall be entitled to settle on behalf of the Accommodation with the Guest the relevant amount. Insofar as the relevant amount has already been transferred to the Accommodation in accordance with paragraph 2.5 of this Annex 2, Hoo is entitled to claim repayment by the Accommodation of the relevant amount in any available manner. Insofar as the relevant amount has not been transferred to the Accommodation in accordance with paragraph 2.5 of this Annex 2, Hoo shall not transfer the relevant amount and/or is entitled to block the transfer of the relevant amount.
2.8 In the event of a no-show or cancellation, Hoo shall be entitled to charge Commission on 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 the terms of the Agreement.
2.9 Unless required otherwise by applicable law, 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) all applicable taxes, surcharges and fees). The Accommodation shall not invoice (or send an invoice to) Hoo for the reservation or stay. Nothing in this Agreement shall constitute or imply that Hoo acts or operates as a principal, merchant or (re)seller of the room.
3. ANTI-MONEY LAUNDERING AND ANTI-TERRORIST FUNDING
3.1 Due to applicable anti-money laundering, anti-corruption, anti-terrorist financing, anti-tax evasion any other anti-financial crime laws and legislation, Hoo 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 (meaning: ‘legal entity’) is located and (but in any event) insofar as any of the following warranties is untrue. The Accommodation hereby represents and warrants that for all its properties (notwithstanding the jurisdiction of the Bank Account):
(i) it holds and complies with all permits, licences and other governmental licences, permits and authorisations 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-terrorist financing, anti-tax evasion (tax) or any other anti-financial crime law, treaty, regulation, code or legislation; and
(iv) the Bank Account is not (directly or indirectly) used for money laundering, terrorist financing, tax evasion, tax avoidance, financial crime or other illegal activities.
3.2 The Accommodation hereby represents and warrants that for all its properties it (including its directors/officers and (direct, indirect and ultimate (beneficial)) owners (and their directors/officers)) are not in any way connected to, part of, involved in or related to or (wholly or partially) under the control, management or ownership of:
(a) terrorists or terrorist organisations;
(b) parties / persons (i) listed as (special) designated nationals/entities or blocked person/entities, or (ii) otherwise subject to any applicable trade embargo, or other (EU/US/UN/national) financial, economic and trade sanctions; and
(c) parties / persons guilty of money laundering, tax evasion, bribery, financial crime, fraud or corruption.
Version 30th Sept 20.