HomeAway PMSC Partner Program


Terms and Conditions EUROPE

 

Last updated: 2nd November 2017 [intro, sections 2(a), 3(a)&(b), 7(c)&(g), Annex A]

As a condition of your participation in the HomeAway PMSC Program, you (the “Partner”) agree to the following terms and conditions (the “PMSC Program Ts&Cs”), and the separate Schedule to the HomeAway PMSC Partner Program Ts&Cs (the “Schedule”, together with the PMSC Program Ts&Cs, the "Agreement") with HomeAway UK Limited, Level 25 Portland House, Bressenden Place, London SW1E 5BH ("HomeAway"). This Agreement is effective as of the “Effective Date” set forth in the Schedule executed between the parties.

 

HomeAway and Partner are hereafter also referred to as the “Parties”, and each a “Party”.

 

 

RECITALS

 

 

A.    Partner provides the software solution specified in the Schedule (the “Software”).

 

B.    HomeAway and its affiliates own, operate, and distribute property listings to the HomeAway family of sites, and also distribute properties to third-party sites participating in HomeAway’s expanded distribution network (collectively, “HomeAway Site”) for the purpose of advertising vacation and holiday home rental properties to travelers.  

 

C.    Partner agrees to abide by not only the terms of this Agreement, but also the terms and conditions of the HomeAway Site (collectively, the “Terms”).

 

D.     Partner and HomeAway desire to enter into this Agreement to provide for terms under which the Software can integrate with HomeAway to allow for vacation and holiday homes advertised by property managers, as well as other property management software companies which use Partner to distribute its listings to HomeAway, to appear on the HomeAway Site (each a “Customer”), and to perform such other business transactions as described in the Schedule.

 

In consideration of the foregoing recitals, the following covenants and promises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

 

AGREEMENT

 

 

1)    Services

 

a)    Integration Services.  

 

i)    Partner, with the cooperation of HomeAway, shall develop the capability for its Software to integrate with the HomeAway Site (the “Integration”) in order to enable a Customer to publish their vacation and holiday home advertisements on the HomeAway Site (each a “Represented Unit”), and such other content described in the most recent version of the HA-XML documentation including, but not limited to, property descriptions, photographs, rates and calendars as well as inquiry data (including but not limited to traveller information and requested dates) and booking data (including but not limited to rental agreements, rates, reservation dates and traveller information) (collectively the “Content”) on the terms and conditions set forth in this Agreement. As specified herein or anytime during the Term (as further defined hereafter in Section 5 (a)), HomeAway may require that the integration capability include the ability for data, such as inquiries or other communications between travellers and Customers, to be exchanged, which shall also be considered “Content” hereunder. Customers shall have five (5) Represented Units or more, unless otherwise approved by HomeAway.

 

ii)     If the Partner distributes traveller reviews on the HomeAway Site through the Integration (each an “Integrated Review”), Partner represents that it is integrating all reviews for a particular Represented Unit and that it has a review moderation policy that is at least as restrictive as HomeAway’s then current Content Guidelines posted on the site in the country in which the Company is incorporated in, and if there is no Site in the country of incorporation, then the Ts&Cs posted on https://www.homeaway.co.uk/info/about-us/legal/terms-conditions/content-guidelines, such that the Integrated Reviews would meet the Content Guidelines. Partner agrees and affirms that it is solely responsible for any and all Integrated Reviews just as it would be responsible for any Represented Unit or other contributed content as further outlined in the applicable terms of this Agreement. Integrated Reviews may be removed by HomeAway for any reason at any time in its sole discretion and may be designated differently than those reviews received through the HomeAway Site. 

 

iii)    To the extent that Partner has control, Partner will ensure that Represented Units must comply with the minimum content requirements and shall be displayed on the HomeAway Site in accordance with the Terms and Conditions posted on the site in the country in which the Company is incorporated in, and if there is no Site in the country of incorporation, then the Ts&Cs posted on https://www.homeaway.co.uk/info/about-us/legal/terms-conditions/content-guidelines.. 

 

iv)    In addition to the sharing of Content from Partner to HomeAway, Partner shall develop and set up an additional XML feed (the specifications for which shall be provided to Partner by HomeAway) to HomeAway within three (3) months of delivery of the relevant documentation which shall include the total number of Customers and the total number of Represented Units managed using the Software.  For the avoidance of any doubt, the total/aggregate numbers represent Customers both integrated with HomeAway already and not yet integrated with HomeAway.  The information in this XML feed is not required to include any Customer-specific information, such as Customer name and Customer contact info.  

 

 

b)    Responsibilities of the Parties.

 

i)    Joint Responsibilities.  The Parties will cooperate together to develop and implement a connection with the HomeAway API to facilitate the transfer of Content with HomeAway, to enable users of the HomeAway Site to enquire, request a quote or book a Represented Unit as described above, to allow the traveller and Customer to communicate (if such capability is required by HomeAway) and to perform such other responsibilities as described in this Agreement.

 

ii)    HomeAway Responsibilities.  HomeAway shall be responsible for maintaining the HomeAway API and maintaining and hosting the HomeAway Site.  

 

iii)    Partner Responsibilities.  Partner shall be responsible for maintaining their Software to work properly with the HomeAway API as described in this Agreement. In particular, Partner will update the integration in order to comply with the most recent version of HA-XML no later than eight (8) months after the release of the related documentation.

 

iv)    Partner Security Responsibilities.  Unless specified in the Schedule that credit card payment method will not be implemented as part of the Integration, with respect to the transmission, processing and storage of credit card information that Partner may receive from time to time from a Customer and travellers, Partner agrees to operate in compliance with PCI Data Security Standards, including, without limitation, those relating to privacy, data security, and the safeguarding, disclosure, and handling of payment information. PCI Data Security Standards means all rules, regulations, standards, or guidelines adopted or required by the payment brands, including but not limited to Visa, MasterCard, American Express, or the Payment Card Industry Security Standards Council. In the event Partner breaches or becomes aware of a breach of the PCI Data Security Standards relating to any Content, Partner shall notify HomeAway immediately and shall immediately take such actions as necessary to rectify the breach.  Partner understands that failure to comply with the PCI Data Security Standards may result in assessments, fines, and/or penalties by the payment brands, and Partner agrees to indemnify and to reimburse HomeAway immediately for any such assessment, fine, or penalty imposed on HomeAway by the payment brands (a) as a result of any breach of Partner relating to the PCI Data Security Standards or (b) otherwise relating to the Content provided by Partner through the Integration

 

v)    Cooperation and Support.

(1)    Each Party shall provide reasonable assistance to the other to assist the Party in the joint responsibilities outlined above as reasonably necessary.

 

(2)    Each Party shall provide technical contacts to ensure the responsibilities of the Parties are fulfilled and that the escalation process outlined in the Agreement will be adhered to. 

 

(3)    The Parties agree to meet periodically, upon request of either Party, to discuss how this Agreement is being fulfilled and to discuss any improvements.

 

(4)    The Parties will work together to optimize listing quality and booking conversion of all Represented Units. 

 

(5)    The Parties agree not to engage in any communications or behavior that would disparage the business or reputation of the other Party or any of its affiliates.  

 

 

2)    Customer Referrals, Marketing, And Other Cooperation 

 

a)    Customer Referrals.  Upon the Effective Date of this Agreement, Partner shall provide to HomeAway information about its Customers sufficient to enable HomeAway to (i) determine which of such Customers may have Represented Units suitable for display on the HomeAway Site, and (ii) at HomeAway’s discretion, to use such information to solicit the Customers to list on the HomeAway Site, at times with the assistance of the Partner (see Section 2(b)).  Partner hereby represents and warrants to HomeAway that, unless prohibited by applicable local law(s), it has the right to share such Customer information for the purpose of allowing HomeAway to solicit to those Customers and agrees to indemnify HomeAway against any claims made by such Customers concerning HomeAway’s use of their information as permitted under this Agreement.  HomeAway may request Partner for evidence of such right to share. Such information shall be provided to HomeAway at least twice per calendar year in a file format to be specified by HomeAway and shall include, but is not limited to, all of Partner’s Customers by company name, country, city, and website, the Customer contact’s name, phone number, and email and the current number of Represented Units under the Customer’s management. This list is due on or before March 31 and again on or before September 30 of each calendar year (unless such other date is requested by HomeAway), and must represent the most current and accurate Customer information reasonably attainable by Partner.  HomeAway shall have the right to determine whether to request a separate Listing Agreement from any Customer. 

 

b)    Marketing & Sales Cooperation.  Partner and HomeAway shall discuss means by which the Parties shall engage in co-marketing and sales efforts (“Marketing and Sales Cooperation”) to promote the Integration to Customers. The Marketing and Sales Cooperation shall include, at a minimum, one co-branded email sent by the Partner to its Customers per year promoting the HomeAway Site and the Integration. Partner further agrees to make introductions to Customers at HomeAway’s request; and assist in offering incentives from HomeAway to the Customers to list on the HomeAway Site.  Except as otherwise permitted under any governing documents between HomeAway and Partner, Partner shall not act in any way as a reseller of the HomeAway Site or HomeAway products. Notwithstanding the foregoing, neither Party shall use the other Party’s marks or logos without the other Party’s prior written approval, which may be by e-mail (see Section 3(b)). 

 

c)    Elite or Preferred Partner Status.  HomeAway may choose to include Partner as a “Preferred Partner” or “Elite Partner” (or similar designation). HomeAway may authorise and/or require Partner to include a “Preferred Partner” or “Elite Partner” badge, as applicable, (in a format to be provided by HomeAway) on their website or marketing materials, which shall be displayed in an appropriate manner at all times. All badging provided by HomeAway shall be (i) included no later than seven (7) days after requested by HomeAway, or (ii) removed from use or distribution upon request by HomeAway. Partner shall not display any other HomeAway trademarks or logos other than the ones provided by HomeAway under this Agreement. During the Term of this Agreement and in order to assist Partner with promoting the adoption of its Software, HomeAway may include the Partner’s name (and logo and website link if provided) as part of the HomeAway Partners Marketplace.  Elite and Preferred Partners may receive prominent placement. Such designation, or the benefits of such designation, including display in the HomeAway Partners Marketplace or elsewhere on HomeAway Sites or in HomeAway marketing materials may be made, changed or removed in HomeAway’s sole discretion.

 

d)    Restrictions on Partner.  Unless specified otherwise in an exhibit, Partner agrees that it will not: (i) act as a reseller of any Customer Content to HomeAway; (ii) act as a reseller of HomeAway’s products or services; nor (iii) charge any Customer to provide its Content to HomeAway, other than the normal charges for use of the Software which cannot differ depending on the distribution channel.  

 

e)    Payment & Reporting. Partner agrees to report to HomeAway all bookings generated from the HomeAway Site that result from a Represented Unit and are made using the Software. 

 

f)    Customer Performance Metrics. Partner represents that it has entered into an agreement with each of its Customers that allows Partner to receive performance metrics from HomeAway on Customer Represented Units including but not limited to the number of online and offline bookings, booking value and booking conversion rates (“Customer Performance Metrics”). If there is no such agreement in place between Partner and Customer, Partner must immediately notify HomeAway in writing of the lack of such an agreement, and HomeAway will only share the Customer Performance Metrics with Partner if the Customer has entered into a separate listing agreement (the “Listing Agreement”) directly with HomeAway, which allows the disclosure of Customer Performance Metrics to the Customer’s “Advertiser Software” (as defined in the Listing Agreement). 

 

 

3)    Ownership and Licenses

 

a)    Ownership.  Subject to the licenses provided herein:

 

i)       As between Partner and HomeAway, Partner owns all rights, including distribution rights, title and interest in and to, and as applicable all intellectual property rights in and to, all Partner Confidential Information, the Content, the Software and any Partner Trademarks. The parties understand and agree that all Content shall be owned by the Customer and licensed to HomeAway by means of the IPM Listing Agreement between HomeAway and Customer.

 

ii)    HomeAway owns all rights, title and interest in and to, including all intellectual property rights in and to, all HomeAway Confidential Information, the HomeAway Site, and the HomeAway Trademarks. Ownership and use of any data or information collected or obtained from the HomeAway Site in connection with this Agreement, including traveller data collected on any HomeAway branded pages, will be governed by the HomeAway Site’s Terms and Conditions and Privacy Policy.   

 

iii)    Neither Party will take any action inconsistent with such ownership by the other Party, nor attempt to register any such intellectual property of the other Party in any jurisdiction.

 

 

b)    Licenses

 

i)       Trademarks.  Each Party grants to the other, during the term of this Agreement, a non-exclusive, royalty-free license to use any trademarks or logos provided to the other party (the “HomeAway Marks” or “Partner Marks” as applicable), subject to the respective owner’s approval, for the express limited purposes of this Agreement, and subject to the conditions set forth herein. Neither Party, by virtue of this Agreement, will obtain or claim any right, title or interest in or to the other Party’s name, trademarks, service marks or logos except as specified in this Agreement. Provided, however, that Partner may only use HomeAway’s trademarks pursuant to HomeAway’s Trademark Usage Guidelines attached at Annex A and only in connection with indicating that Partner’s software integrates with HomeAway to enable Customers to upload and manage their information and accounts, and may not use the HomeAway Marks in any way as an endorsement of Partner’s goods or services without HomeAway’s express written permission.

 

ii)    Software.  Partner grants to HomeAway, during the term of this Agreement, a non-exclusive, royalty-free, limited, revocable license to access and use the Software solely for the express limited purposes of this Agreement.

 

 

4)    Confidentiality

 

a)    Definition.  “Confidential Information” consists of a Party's confidential, proprietary information or secret information that the receiving Party knows or based on the nature of the information or circumstances surrounding its disclosure a reasonable person should know is confidential or proprietary information of the disclosing party.  This includes, without limitation, business, financial and marketing information, third party confidential information, personally identifiable information about employees and end-users, and the terms of the Schedule. Confidential Information does not include any information that (a) is in or enters the public domain without breach of this Agreement through no fault of the receiving Party, (b) the receiving Party was lawfully and demonstrably in possession of prior to first receiving it from the disclosing Party, (c) the receiving Party can demonstrate was developed by the receiving Party independently and without use of or reference to the disclosing Party's Confidential Information, or (d) the receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.

 

b)    Duty of Confidentiality.  Each Party agrees to (a) hold in strict confidence all Confidential Information of the other Party, (b) use such Confidential Information solely to perform or to exercise its rights under this Agreement, and (c) not to transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any person or entity other than to the directors, officers, employees, agents, consultants, suppliers, accountants, auditors and legal and financial advisors of such Party as need to know such Confidential Information, who are under confidentiality obligations at least as restrictive as the terms in this Agreement. Neither Party shall use (except as expressly provided in this Agreement) or disclose Confidential Information of the other Party without the prior written consent of the disclosing Party. Each Party will use the same degree of care to protect the disclosing Party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than commercially reasonable care.

 

c)    Permitted Disclosure.  The receiving Party may disclose the Confidential Information of the other in response to a valid court order, law, rule, regulation (including any securities exchange regulation), or other governmental action provided that (a) the disclosing Party is notified in writing prior to disclosure of the information, and (b) the receiving Party assists the disclosing Party, at the disclosing Party’s expense, in any attempt by the other to limit or prevent the disclosure of the Confidential Information.

 

d)    Duties upon Termination or Request of Party.  Upon the termination or expiration of this Agreement or upon the earlier written request of either Party, both parties agree:(a) at its own expense, (i) each Party will promptly return all information that is in tangible form (and all copies thereof) that contains any Confidential Information of the disclosing Party, and/or (ii) upon written request from either Party, destroy such Confidential Information of the disclosing Party and (b) provide written certification of such destruction, and (c) cease all further use of any Confidential Information.

 

 

5)    Term & Termination

 

a)    Term.  This Agreement has a term of one (1) year following the Effective Date (the “Initial Term”).  Thereafter, the term shall automatically renew for successive one (1) year terms, unless earlier terminated in accordance with this Agreement. The Initial Term and any renewal term(s) are referred to collectively herein as the “Term”.

 

b)    Termination for Convenience.  Either Party may terminate this Agreement, without cause, by providing thirty (30) days prior written notice. During such 30-day period, the Parties will cooperate to wind down their obligations under this Agreement. 

 

c)    During the Term of this Agreement should HomeAway demand from Partner any additional enhancements, changes, or disclosures that Partner cannot or will not agree to, Partner shall have the opportunity to terminate this Agreement upon thirty (30) days’ prior written notice to HomeAway (whether or not the Initial Term has passed). 

 

d)    Termination for Breach.  Upon breach of a term in this Agreement, the non-breaching Party shall notify the breaching Party of the breach and the breaching Party shall have twenty (20) days to cure such breach. If the breach is not cured at the conclusion of the twenty (20)-day period, the Agreement shall immediately terminate and both Parties’ obligations shall cease, subject to any cooperation required to mutually wind down the Parties’ obligations, which the Parties agree to undertake.

 

e)    Following Termination.  Within 30 days following termination of this Agreement each Party will adhere to section 4(d) of this Agreement.

 

 

6)    Limitation of Liability; Indemnification; Representations and Warranties

 

a)    Limitation of Liability. EXCEPT FOR MATTERS INVOLVING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

 

b)    HomeAway Indemnification.  HomeAway shall defend, indemnify and hold harmless Partner and its affiliates, or licensees from and against any third-party damages, losses, liabilities, fines, costs, and expenses (including reasonable attorneys’ fees) (each a “Claim” or collectively the “Claims”) resulting in whole or in part from (a) a breach by HomeAway of its representations or warranties in this Agreement, (b) a Claim that any HomeAway material violates, infringes, misappropriates or otherwise wrongfully exploits any intellectual property right of any third party, and (c) claims relating to HomeAway’s operation of a HomeAway Site.

 

c)    Partner Indemnification.  Partner shall defend, indemnify and hold harmless HomeAway and its affiliates, licensees or customers of the HomeAway Site or any wholly-owned subsidiary of HomeAway, from and against any Claims resulting in whole or in part from (a) a breach by Partner of its representations or warranties in this Agreement, (b) a Claim that the Software or the Content  violates, infringes, misappropriates or otherwise wrongfully exploits any intellectual property right of any third party, and (c) claims relating to Partner’s operation of the Software. 

 

d)    Indemnification Procedure.  The Party seeking indemnification (the “Indemnitee”) must notify the Party with the indemnification obligation (the “Indemnitor”) in writing, with reasonable promptness, of any Claim. However, failure to satisfy this condition precedent relieves the Indemnitor of its obligations to indemnify for a Claim only to the extent that the Indemnitor has been actually prejudiced by the Indemnitee’s failure to give notice as required. The Indemnitee shall reasonably cooperate with the Indemnitor in the Indemnitor’s defense or settlement of any Claim. For purposes of this Section 6, the Indemnitee may participate in the defense of any Claim at its expense and through counsel of its own choosing. 

 

e)    Settlement Procedure.  Any consent to entry into any judgment or administrative order or entry into any settlement by the Indemnitor will require the prior written consent of the Indemnitee, such consent not to be unreasonably withheld or delayed; provided that the Indemnitor may, however, effect a settlement of an action without the Indemnitee’s consent if the following conditions are met: (a) there is no admission of guilt or liability by the Indemnitee; (b) the sole relief provided is monetary damages that are paid in full by the Indemnitor; (c) the settlement and all discussions surrounding the settlement are kept confidential in accordance with a written confidentiality agreement and no press releases or other public statements are made about the settlement without the prior written consent of the Indemnitee; and (d) the Indemnitee is made aware of the proposed settlement as reasonably early as practicable, and the proposed settlement includes the claimant’s or the plaintiff’s unconditional release of the Indemnitee from all liability in respect of the claim.

 

f)    Representations, Warranties and Covenants.  Each Party represents and warrants that:

 

i)    it has the full legal right and power to enter into and fully perform this Agreement and to make the commitments it makes herein, 

 

ii)    it will perform its obligations under this Agreement, including but not limited to the operation of the HomeAway Site by HomeAway and the operation of the Software by Partner, as applicable to each Party, in accordance with applicable laws, rules and regulations, and

 

iii)    there are no other agreements with any other Party in conflict herewith.

 

g)    Warranty Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, REPRESENTATIONS, COVENANTS OR GUARANTEES WITH REGARD TO, IN CASE OF THE PARTNER, THE SOFTWARE OR, IN CASE OF HOMEAWAY, THE HOMEAWAY SITE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. 

 

 

7)    Miscellaneous

 

a)    Notices.  All notices, requests, demands, claims and other communications hereunder shall be in writing or as otherwise specified herein. Any notice, request, demand, claim, or other communication hereunder shall be deemed given (a) if personally delivered, when so delivered, (b) if mailed, three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid and addressed to the intended recipient as set forth below, (c) if sent by e-mail, upon receipt of being sent by the sending party, or (d) if sent through an overnight delivery service in circumstances to which such service guarantees next day delivery, the day following being so sent to the addresses specified in the Schedule.

 

b)    Any Party may give any notice, request, demand, claim or other communication hereunder using any other means (including ordinary mail), but no such notice, request, demand, claim or other communication shall be deemed to have been duly given unless and until it actually is received by the individual for whom it is intended. Any Party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other Parties notice in the manner set forth above.

 

c)    Data protection and Privacy. Each Party confirms that it shall collect any personal data in compliance with the EU Privacy Directive 46/95 and any replacement thereof. If either Party receives stores or otherwise has access to, any personal data of any traveller, Customer or other person who submitted such data in connection with the integration services, then such Party agrees that it shall: (1) process the personal data in compliance with all applicable laws, enactments or regulations, (2) take appropriate technical and organizational measures against the unauthorized or unlawful processing of personal data and against loss, (3) process the personal data only to the extent, and in such a manner, as is necessary for the purposes of the integration services and shall not process for any other purpose, (4) ensure that access to the personal data is limited to those employees who need access to meet each Party’s obligations under this Agreement.

 

o   Company acknowledges and agrees that, in the course of its engagement by HomeAway, Company may receive or have access to information that identifies, authenticates or can be used to identify an individual (“Personal Information”). For the services provided under this Agreement, HomeAway shall be considered the data controller and Company the data processor. Company shall comply with the terms and conditions set forth in this Agreement in its collection, receipt, transmission, storage, disposal, use and disclosure of such Personal Information and shall be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use and disclosure of Personal Information under its control or in its possession.

 

o   Company agrees and covenants to keep and maintain all Personal Information in strict confidence, using such degree of care as is appropriate.  Company further agrees and covenants to use and disclose Personal Information solely and not, disclose Personal Information to any person other than qualified personnel for the purposes outlined in this Agreement without HomeAway’s prior written consent nor process the personal data in a manner inconsistent with or unnecessary for the purposes of this Agreement.

 

o   Company represents and warrants that its collection, access, use, storage, disposal and disclosure of Personal Information does and will comply with all applicable privacy and data protection laws, regulations and directives (including the EU Privacy Directives, as applicable) and Company shall implement administrative, physical and technical safeguards to protect Personal Information that are no less rigorous than accepted industry practices. 

 

o   Upon HomeAway’s request, Company shall promptly and accurately complete a written information security questionnaire provided by HomeAway regarding Company’s business practices and information technology environment in relation to all personal information being handled and/or services being provided pursuant to this Agreement. Company shall fully cooperate with such inquiries.  At least once per year, Company shall conduct site audits of the information technology and information security controls for all facilities used in complying with its obligations under this Agreement.  In addition, upon HomeAway’s written request, Company shall make available to HomeAway for review all of the following, as applicable:   Company’s latest Payment Card Industry (PCI) Compliance Report, WebTrust, Systrust, and Statement on Standards for Attestation Engagements (SSAE) No. 16 audit reports for Reporting on Controls at a Service Organization, any reports relating to its ISO/ICE 27001 certification.  HomeAway shall have the right to terminate this Agreement in the event that it determines Company’s security controls are insufficient.

 

o   At any time during the term of this Agreement at HomeAway’s request or upon the termination or expiration of this Agreement for any reason, Company shall promptly return to HomeAway, or securely dispose of, all copies, whether in written, electronic or other form or media, of Personal Information in its possession and certify the same in writing to HomeAway.

 

o   In the event of (i) any act or omission that compromises either (a) the security, confidentiality or integrity of Personal Information or (b) the physical, technical, administrative or organizational safeguards put in place by Company to prevent such compromise, (“Security Breach”) or (ii) any communication alleging a Security Breach, Company shall notify HomeAway as soon as practicable, but no later than twenty-four (24) hours after Company becomes aware.  Immediately following such notification, Company shall work with HomeAway to investigate the Security Breach (including, without limitation: (i) assisting with any investigation; (ii) providing HomeAway with physical access to the facilities and operations affected; (iii) facilitating interviews with Company’s employees and others involved in the matter; and (iv) making available all relevant records, logs, files, data reporting and other materials required to comply with applicable law, regulation, industry standards or as otherwise required by HomeAway.)  Company agrees to fully cooperate with HomeAway in HomeAway’s handling of the matter (including reimbursements for HomeAway’s reasonable related response costs) and further agrees to use best efforts to immediately remedy any Security Breach and prevent any further Security Breach at Company’s expense in accordance with applicable privacy rights, laws, regulations and standards.  Company agrees that it shall not inform any third party of any Security Breach reach without first obtaining HomeAway’s prior written consent.  

 

d)    Amendments; No Waivers.

 

i)       Amendments. Any provision of the Schedule may be amended or waived only if such amendment or waiver is in writing and signed, in the case of an amendment, by all Parties hereto, or in the case of a waiver, by the Party against whom the waiver is to be effective.

 

ii)       Waivers. No waiver by a Party of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent occurrence. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

 

e)    Expenses.  Unless otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and in closing and carrying out the transactions contemplated hereby shall be paid by the Party incurring such cost or expense.  

 

f)    Successors and AssignsThis Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Save as otherwise specifically set out in this Agreement, neither party may assign this Agreement in whole or in part, by merger, asset or share sale or transfer, or otherwise, without the prior written consent of the non-assigning party, except, in the case of HomeAway, (i) in connection with a merger, consolidation, reorganisation or sale of all or substantially all of its assets, or (ii) to a party controlling, controlled by or under common control with HomeAway.

 

g)    Governing Law; Jurisdiction.  This Agreement shall be construed in accordance with and governed by the internal laws (without reference to choice or conflict of laws) of the England and Wales. Any legal action, suit or proceeding arising out of or relating to this Agreement will be instituted exclusively the English courts. The Parties irrevocably consent to personal jurisdiction and venue in, and agree to service of process authorized by, such courts. 

 

h)    Counterparts; Effectiveness.  This Agreement may be signed in any number of counterparts and the signatures delivered by telecopy, each of which shall be an original, with the same effect as if the signatures were upon the same instrument and delivered in person. 

 

i)    Entire Agreement.  This Agreement (as may be amended from time to time) is the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter of this Agreement. Neither this Agreement nor any provision hereof is intended to confer upon any person other than the Parties any rights or remedies hereunder. 

 

j)    Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable or void, that provision will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect. 

 

k)    Independent Contractor Status.  HomeAway and Partner are independent contractors and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative or employment relationship between the Parties. 

 

l)    Survival.  Sections 2(d), 3(a), 4, 5, 6 and 7 of this Agreement shall survive the completion, expiration, termination or cancellation of this Agreement. In addition, any provision that expressly states that it shall survive or which, by its nature, must survive the completion, expiration, termination or cancellation of this Agreement, shall survive the completion, expiration, termination or cancellation of this Agreement. 

 

m)    Publicity.  Neither Party will issue any press release concerning the business relationship set forth in this Agreement without the prior written consent of the other Party.

 

n)    Force Majeure.  If a Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of that party, including any Act of God, fire, flood, war, terrorism, strike, lockout, riot, or insurrection, then its performance will be excused during the time of such inability to perform, and the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.

 

o)    Versioning: This version of the HomeAway PMSC Partner Program Terms and Conditions became effective on the Last Updated Date set forth above and this version amends any version effective prior to such date.  HomeAway reserves the right, in its sole discretion, to amend these HomeAway PMSC Partner Program Terms and Conditions, in whole or in part, by giving seven [7]-days written notice to Company of its intention to do so. If the Partner disagrees with any changes to the HomeAway PMSC Partner Program Terms and Conditions, then the Partner’s sole remedy is to terminate the Agreement as provided in Section 5(b) “Termination for Convenience”.