HomeAway PMSC Partner Program Terms and Conditions

 

 

Last Updated Date: December 12, 2019  


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 Program Ts&Cs (the “Schedules” and the PMSC Program T&Cs, collectively the "Agreement") with the HomeAway entity that is signatory to the Schedule ("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 offers a software solution that facilitates the booking of accommodations via third party websites (the “Software”).

 

B.    HomeAway, through its subsidiaries, operates, maintains, and provides a platform and associated services for the listing, advertisement, and booking of vacation- and short-term-rental

properties through a network of websites (collectively, the “HomeAway Site”).  

 

C.     Partner and HomeAway desire to enter into this Agreement to provide for terms under which the Software can integrate with the HomeAway Site to allow for the advertisement of accommodations by property managers or other property management software companies using the Software (each a “Customer”), to appear on the HomeAway Site, 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 shall develop the capability for its Software to integrate with the HomeAway Site (the “Integration”) via the HomeAway Application Programming Interface (“API”) to enable a Customer to publish listings on the HomeAway Site for their advertised accommodations (each a “Represented Unit”).  The Integration shall also facilitate the transfer of such other content requested by or enabled by HomeAway from time to time (the “Content”).  Such Content may include: property descriptions, photographs, rates, calendar data, traveller data, inquiry data (including requested stay dates) and booking data (including rental agreements, and reservation dates). As specified herein or anytime during the Term of the Agreement, HomeAway may require that the Integration support communications between travellers and Customers.

 

ii)         If the Partner distributes any traveller reviews for a particular Represented Unit through the Integration (each an “Integrated Review”), they must distribute all other reviews of that Represented Unit and may not selectively distribute positive reviews. Integrated Reviews may be removed by HomeAway for any reason at any time in its sole discretion, including for failure to comply with any HomeAway content guidelines, and may be designated differently than those reviews received through the HomeAway Site.  

 

iii)     Partner acknowledges that Customer’s use of the API and HomeAway Site will be conditioned upon Customer’s acceptance of the HomeAway Listing Agreement for Property Managers.  Partner acknowledges that HomeAway has no obligation to display Represented Units that do not comply with HomeAway’s minimum content requirements or otherwise violate the applicable HomeAway Site Terms and Conditions.

 

b)    Responsibilities of the Parties.

 

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

 

ii)    Partner Responsibilities.  Partner shall be responsible for maintaining their Software and the Integration to ensure that both work properly with the HomeAway API as described in this Agreement. In particular, Partner will update the Integration in order to comply with the latest version of the HomeAway API (and related documentation requirements) no later than six (6) months following the communication of any release of the API documentation.           

 

iii)    Partner Security Responsibilities.   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.  

 

iv)    Cooperation and Support.

 

(1)    Each Party shall provide reasonable assistance to the other to assist the Party as reasonably necessary.

 

(2)    The Parties agree to meet periodically. 

 

(3)    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)     Marketing, And Other Cooperation 

 

a)     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 to assist in offering incentives from HomeAway to the Customers to list on the HomeAway Site.   

 

b)    Elite or Preferred Partner Program.  HomeAway may offer Partner participation in its “Preferred Partner” or “Elite Partner” programs (or similar programs).  Participation in those programs will be subject to any additional terms and conditions communicated by HomeAway from time to time. 

 

c)    Restrictions on Partner.  Partner agrees that it will not: (i) act as a reseller of any Customer Content to HomeAway; nor (ii) act as a reseller of HomeAway’s products or services.  

 

d) All obligations under this Section 2 must be carried out in consistent with Sections 5 and 8(f)(ii).

 

 

3)    Ownership and Licenses

 

a)    Ownership.  Subject to the licenses provided herein:

 

i)       As between Partner and HomeAway, Partner owns all rights, title and interest in and to the Software and any Partner Marks. 

 

ii)    HomeAway owns all rights, title and interest in and to the HomeAway Site, API, and the HomeAway Marks.  

 

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, revocable license to use the other Party’s name, trademarks, service marks or logos (the “HomeAway Marks” or “Partner Marks” as applicable, and collectively the “Marks”) 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 Marks except as specified in this Agreement.  Partners use of HomeAway Marks is further conditioned on compliance with HomeAway’s Trademark Usage Guidelines available at https://integration-central.homeaway.com/t/docs/library (and as updated from time to time).  Such use does not suggest an endorsement of Partner’s goods or services.  Notwithstanding the foregoing, without prior written approval, Partner may not use HomeAway Marks prior to a fully operational and live Integration.

 

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.

 

iii) Should Partner fail to comply with any of the terms of the Agreement, HomeAway may (subject to prior written notice) suspend the license in HomeAway Marks granted under this Agreement until Partner remedies the non-compliance.

 

4)    Confidentiality

 

a)    Definition.  “Confidential Information” consists of a Party's confidential, proprietary or secret information that the receiving Party knows, or based on the nature of the information or circumstances surrounding its disclosure, 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.  Within thirty (30) days of 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)         Data Protection

a)         Definitions:

 

“Controller”, “Personal Data” “Personal Data Breach”, “process/processing”, “Supervisory Authority” and “appropriate technical and organisational measures” (or reasonably equivalent terms) shall have the meaning ascribed to them in the Applicable Data Protection Law(s); and:

“Applicable Data Protection Laws” means all privacy and data protection laws to which a Party is subject in any relevant jurisdiction or that is otherwise applicable to the Relevant Personal Data, including, where applicable, EU Data Protection Law;

“EU Data Protection Law” means all Applicable Data Protection Laws in the European Territories applicable to the Personal Data including, where applicable: (i) Regulation 2016/679 (the “GDPR”); (ii) national laws implementing the EU e-Privacy Directive 2002/58/EC; (iii) UK’s Data Protection Act 2018; (iv) any applicable national data protection laws made under or pursuant to (i) or (ii) in any European Territory; and (v) any amendments or supplementary or associated or successor legislation to the foregoing, each as updated, amended or replaced from time to time;

“European Territories” means collectively (i) the European Economic Area, namely the European Union Member States and Iceland, Lichtenstein and Norway, (ii) the United Kingdom, and (iii) Switzerland;

“Relevant Personal Data” means Personal Data of travellers or Customers shared between the Parties in connection with the Services.

 

  1. Data Processing. Relationship of the Parties. Each Party will collect and process Relevant Personal Data to fulfil its respective rights and obligations under this Agreement, as well as under all applicable laws. As such, Homeaway and Partner will each:

 

  1. process Relevant Personal Data as an independent and autonomous Controller;

 

ii)   comply with all Applicable Data Protection Laws applicable to controllers when processing Relevant Personal Data;

 

iii)  ensure that it has an appropriate lawful basis under Applicable Data Protection Laws for its processing of Relevant Personal Data, including for the transfer of Relevant Personal Data to the other Party for use by that Party as an independent controller in accordance with this Agreement;

 

iv)   implement and maintain all appropriate technical and organisational measures and safeguards to protect Relevant Personal Data they each process from and against a Personal Data Breach, taking into account the risks represented by the processing and the nature of the Personal Data;

 

v)   take necessary measures to ensure that Personal Data are transferred in accordance with Applicable Data Protection Laws, including, where GDPR is applicable and no alternative legal ground for the transfer is available under Chapter V of the GDPR applies, entering into unchanged standard contractual clauses for controller to controller transfers of Personal Data out of European Territories as approved by the European Commission from time to time, the current approved version of which can be found at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004D0915, where Homeaway is the Data Exporter and Partner is the Data Importer;

 

vi)   provide the other party will all reasonable and prompt assistance as may be required by the other party to comply with Applicable Data Protection Laws with respect to Relevant Personal Data; and

 

vii)   perform its obligations under this Section 5 at its sole cost and expense.

 

6)    Taxes

 

a)         Definitions:

 

“Tax” or “Taxes” means any and all federal, national, state, local, provincial and other taxes, imposts, duties, levies, assessments and other similar governmental charges and fees imposed by any Governmental Authority, of any nature whatsoever, together with all interest, penalties,

and additions imposed with respect to such amounts;

 

“Transaction Tax” means any and all value added (VAT), goods and services, sales, use, excise, gross receipts, consumption, services and any other similar tax, duty, imposition, fee or charge, however designated, that is not imposed on, measured by, or based on gross or net income; and

 

"Governmental Authority" means any federal, central, state, provincial, regional, municipal or local government or authority, or other political subdivision thereof, and any person, board, court, tribunal, commission or department, exercising executive, legislative, judicial, regulatory, or administrative functions of, or pertaining to, government or having jurisdiction in the relevant circumstances.

 

b)         Taxes:

 

Partner shall be solely responsible for any and all taxes and/or other obligations associated with Partner's receipt of services and/or Revenue Share (as defined in the Schedule) hereunder. In no event will either party be liable for the payment of taxes based on the net income or capital of the other party or related to the other party's employment of its employees, including but not limited to worker's compensation payments or similar taxes or assessments.

 

c)         Transaction Taxes:

 

All payments made to Partner under this Agreement pertaining to the Revenue Share are inclusive of Transaction Taxes (if any) related to the payments. Notwithstanding any other provision to the contrary herein, Partner will be responsible for any and all Taxes imposed on Partner resulting from this Agreement or the receipt of services or Revenue Share hereunder.

 

d)         Withholding Taxes:

 

Prior to receiving Revenue Share payments, Partner shall deliver to HomeAway a completed and signed copy of IRS Form W-9, IRS Form W-8BEN-E or IRS Form W-8ECI (or any successor thereto) to establish that Partner is not subject to withholding or is entitled to an exemption from, or reduction of, withholding tax, as applicable. Partner shall promptly notify HomeAway of any change in circumstances that impacts the validity of the information previously provided and provide updated tax documentation.  Partner shall provide HomeAway with an updated version of IRS Form W-9, IRS Form W-8BEN-E or IRS Form W-8ECI (or any successor thereto) every three years or promptly on request. If Partner fails to provide tax documentation or does not comply with its obligations under this paragraph, then HomeAway shall be entitled to deduct and withhold from any payment due to Partner under this Agreement such amounts as HomeAway is required to deduct and withhold under applicable law. All amounts withheld by HomeAway pursuant to this section shall be treated as paid to Partner for purposes of this agreement.

 

7)    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)    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.

 

8)    Limitation of Liability; Indemnification; Representations and Warranties

 

a)    Limitation of Liability. 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. EXCEPT FOR MATTERS INVOLVING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, HOMEAWAY’S LIABILITY WILL LIMITED TO THE AMOUNT OF FEES PAID UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.   NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS CONTRACT LIMITS A PARTY’S LIABILITY FOR LOSSES WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

 

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. The Indemnitee may participate in the defense of any Claim subject to indemnification obligations at its expense and through counsel of its own choosing. 

 

e)    Settlement Procedure.  Any consent to 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 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 OR API, 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. 

 

9)    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, to the contact identified in the Schedule upon transmission 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)   The Parties acknowledge that Partner operates solely as a service provider of the Customers and not of HomeAway.  As between HomeAway and Partner, Partner is responsible for complying with all applicable data protection laws and obligations as they relate to Partner’s storage, use and safeguarding of all personal data or other traveller information contemplated by this Agreement.  For the purpose of data protection obligations, Partner recognizes and acknowledges that to the extent it processes traveller information relating to this Agreement, it does so at the direction of each Customer and not at the direction of HomeAway. Further, in case of any kind of data security incident, data breach, or violation of data protection laws, regulations or other requirements regarding data, Partner shall, in its role as service provider to such Customer, promptly notify such Customers and work expeditiously with them to address all obligations, legal and otherwise, related to such incident, breach or violation. Each Party and Customers shall: (a) have in place and will maintain, or will establish and maintain, adequate security procedures and controls to prevent the unintended disclosure of, and the unauthorized access to or misappropriation of, any personal data or information of any traveller; and (b) process, store, transmit and access any traveller information in compliance with applicable law and, for traveller information that includes payment information (including, without limitation, credit card, debit card, or financial account information), will do so in compliance with the current Payment Card Information Data Security Standard.

 

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. 

 

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 Assigns.  This 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 jurisdiction indicated on the Schedule. Any legal action, suit or proceeding arising out of or relating to this Agreement will be instituted exclusively in the courts also indicated on the Schedule. 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(c), 3(a), 4, 5, 6, 7, 8 and 9 of this Agreement, and any other provision that expressly states it will survive, or by its nature must survive, 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 PMSC Program Ts&Cs 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 PMSC Program Ts&Cs, 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 6(b) “Termination for Convenience”.

 

 

 

 

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