Terms & Conditions for Accommodation Providers
These general delivery terms (the “Terms”) form an integral part of the Accommodation Agreement (the "Accommodation Agreement" and together with the Terms, "Agreement") entered into between the Accommodation and Excurcion, Inc. (each a "Party" and collectively the "Parties").
In addition to terms defined elsewhere in this Agreement, the following definitions apply throughout this Agreement, unless a contrary indication appears:
"Best Price Guarantee" means the guarantee issued by Excurcion, Inc. (under this or any similar name) stating that Excurcion, Inc. offers the best rate for a room and that no lower rate can be found online for the equivalent room with the same check-in and check-out dates and the same booking conditions.
"Excurcion.com Platform" means the website(s), apps, tools, platforms or other devices of Excurcion, Inc. on which the Service is made available.
"Customer Service" means the customer service desk of Excurcion.com which can be reached at email@example.com or such other address as set out in this Agreement.
"Customer Portal" means the online system which can be accessed by the Accommodation (after identification of the username and the password) through the website https://excurcion.com/<your-portal-name>/manage, for uploading, changing, verifying, updating and/or amending the Accommodation Information (including rates, availability, rooms) and reservations.
"Force Majeure Event" means any of the following events affecting multiple Guests and multiple accommodations: act-of-God, volcanic eruptions, (natural) disaster, fire, (acts of) war, hostilities or any local or national emergency, invasion, compliance with any order or request of any national, provincial, port or other public authority, government regulation or intervention, military action, civil war or terrorism, (biological, chemical or nuclear) explosion, rebellion, riots, insurrection strikes, civil disorder (or the material or substantial threat or justified apprehension of any of the foregoing events), curtailment of transportation facilities, closing of airports or any other exceptional and catastrophic event, circumstance or emergency, making it impossible, illegal or preventing Guests from traveling 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. .com, 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.
"Platforms" means the website(s), apps, tools, platforms and/or other devices of Excurcion, Inc. and its affiliated companies and business partners on which the Service is (made) available.
"Service" means the online hotel reservation system of Excurcion.com through which accommodation providers can make their rooms available for reservation, and through which Guests can make reservations at such accommodation providers.
2. ACCOMMODATION OBLIGATIONS
2.1 Accommodation Information
2.1.1 Information provided by the Accommodation for inclusion on the Platforms shall include information relating to the Accommodation (including pictures, photos and descriptions), its amenities and services and the rooms available for reservation, details of the rates (including all applicable taxes, levies, surcharges and fees) and availability, cancellation and no-show policies and other policies and restrictions (the "Accommodation Information") and shall comply with formats and standards provided by Excurcion.com. The Accommodation Information shall not contain any telephone or fax numbers or e-mail (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. Excurcion, Inc. 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 Customer Portal (i) the rate of its available rooms bookable, and (ii) the number or type of available rooms, subject to the Minimum Allocation (as
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 Excurcion, Inc. and subsequently be translated into other languages, whereas the translations remain the exclusive property of Excurcion, Inc. The edited and translated content shall be for the exclusive use by Excurcion, Inc. 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 Excurcion, Inc.
2.1.4 Unless Excurcion, Inc. agrees otherwise, all changes, updates and/or amendments of the Accommodation Information (including rates, taxes, availability, rooms) shall be made by the Accommodation directly and online through the Customer Portal or such other ways as Excurcion, Inc. may reasonably indicate. Updates and changes in respect to pictures, photos and descriptions will be as soon as reasonably possible processed by Excurcion, Inc.
2.2 Parity and room restrictions
2.2.1 The Accommodation shall give Excurcion, Inc. rate and availability parity ("Parity").
Rate Parity means the same or better rates for the same accommodation, same room type, same dates, same bed type, same number of guests, same or better restrictions and policies such as breakfast, reservation changes and cancellation policy as are available on the Accommodation’s websites, apps or call centers (including the customer reservation system), or directly at the Accommodation, with any competitor of Excurcion, Inc. (which includes any online or offline reservation or booking agency or intermediary) and/or with any other (online or offline) third party that is a business partner of or in any other way related with or connected to the Accommodation. Rate parity does not apply in respect to rates intended for a closed user group ("closed user group" means a group with defined limitations where membership is not automatic and where: (i) consumers actively opt in to become a member, (ii) any online or mobile interface used by closed user group members is password protected, (iii) closed user group members have completed a customer profile, and (iv) the consumer to which the rate is offered or made available has already made at least one prior booking as a member of the closed user group) provided that such rates are not (directly or indirectly) publicly (made) available. In the event that a closed user group rate is (directly or indirectly) publicly (made) available by the Accommodation, a (direct/indirect) competitor of Excurcion, Inc. or on any third party (platform) (including any (meta-) search engine or price comparison website), Excurcion, Inc. is entitled to rate parity for such rate.
Availability Parity means that the Accommodation shall provide Excurcion, Inc. with such availability (i.e. rooms available for booking at the Platform) that are at least as favorable as (i) are made available on the relevant Accommodation website(s) and app(s), and (ii) those provided to any competitor of Excurcion, Inc. (which includes any online or offline reservation or booking agency or intermediary) and/or with any other (online or offline) third party that is a business partner of or in any other way related with or connected to the Accommodation.
2.2.2 The restrictions and conditions (including the room price) for rooms made available for reservation on the Excurcion.com Platform shall at all times be in accordance with Clause 2.2.1 and make sense for all parties involved (including consumers).
2.2.3 Excurcion, Inc. shall be entitled to give a discount on the room price – at its own costs up to the level of the Commission – to its closed user group members.
2.3.1 For each reservation or for any other purchase that is made on the Platforms by a Guest, Excurcion, Inc. will automatically calculate a commission (the "Commission") of 15% of the total amount charged to the Guest’s credit card and deduct this amount from the Accommodation’s available balance for any payouts. For the avoidance of doubt, Commission will also be deducted in the event of overbooking or a no-show (unless the Accommodation has notified Excurcion, Inc. of the relevant no-show within 2 business days after the scheduled date of arrival of the Guest) or a charged cancellation (cancellation in violation of the free cancellation policy of the Accommodation) and shall be calculated in accordance with the confirmed booking.
2.3.2 The Accommodation is responsible for entering the percentage of tax to be applied to each of their products via the Product Editor in the Customer Portal for any applicable taxes (national, governmental, provincial, state, municipal or local), fees, charges and levies.
2.3.3 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 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 Customer Portal 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 Excurcion, Inc.
2.3.4 The Customer Portal shows details of all reservations made at the Accommodation through the Platforms and the corresponding Commission. On the 1st day of each month, an online reservation statement (the "Online Reservation Statement") is available on the Customer Portal showing the reservations of all Guests whose date of departure fell in the previous month.
2.3.5 In the event of a dispute between Excurcion, Inc. 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 Payouts and available balance
2.4.1 All payouts of any available balance will be initiated electronically online by the Accommodation through the Financial section of the Customer Portal.
(a) All payout amounts will be electronically transferred to the bank account specified by the Accommodation.
(b) A payout of the available balance can be initiated by the Accommodation at any time.
(c) Depending on the type of electronic transfer, Excurcion, Inc. will deduct a transfer initiation fee from the available balance to cover the cost of initiating the electronic transfer by Excurcion, Inc.’s bank. Excurcion, Inc. will bear the cost of initiating the transfer of funds from its bank. The Accommodation shall bear all other costs as charged by other banks for the transfer of the funds. The amount Excurcion, Inc. will deduct for transfer initiation fee is clearly specified in the Financial section of the Customer Portal depending on what type of transfer the Accommodation selects. Currently the transfer initiation fee ranges from $1-$30 USD.
2.4.2 The available balance is determined by the amount of settled funds.
(a) Any funds charged/collected from the Guest for reservations or for any other purchase that is made on the Platforms by a Guest will become available for transfer to the Accommodation’s bank account 24 hours after the check-out time or when the transaction has settled with Excurcion, Inc.’s credit card processor, whichever is later.
(b) Any funds collected for reservations or for any other purchases that are involved in a cancellation or no-show will be calculated as follows in the Cancellation & Refund Policy on the website at https://excurcion.com/corp/cancellation.
2.5 Reservation, Guest Reservation, complaints and Best Price Guarantee
2.5.1 When a reservation is made by a Guest on the Platform, the Accommodation shall receive a confirmation for every reservation made via Excurcion.com, 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 credit card details (collectively "Customer Data") and such other specific request(s) made by the Guest. For the avoidance of doubt, the Accommodation shall on a regular basis (but at least on a daily basis) check and verify on the Customer Portal (the status of) the reservations made.
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 The Accommodation shall not charge the customer any additional fees, extras and (sur-)charges concerning the already paid for and confirmed booking by Excurcion, Inc.
2.5.5 The Accommodation may use the Reservation Manager in the Customer Portal to manage any of the Guest’s directly requested changes to their confirmed booking such as changes in length of stay, changes in type of room, adding additional rooms, cancellation of rooms, or adding room services. The Manage Invoice feature of the Reservation Manager will automatically calculate any new invoice balances or refunds due based on the changes that have been made. If there is an invoice balance due the Accommodation can enter the Guest’s provided credit card information to make a payment for any invoice balance. If there is a refund due the Manage Invoice system will automatically refund the amount due back to the original credit card that was charged.
2.5.6 Complaints or claims with respect to (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 Excurcion, Inc. Excurcion, Inc. is not responsible for and disclaims any liability with respect to such claims from the Guests. Excurcion, Inc. 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 accommodations of an equal or better standard in the event of an overbooking or other material irregularities or complaints with respect to the Accommodation, or (d) otherwise assist a Guest in its communication with or actions against the Accommodation.
2.5.7 In the event of a valid claim of a Guest under the Best Price Guarantee, Excurcion, Inc. shall promptly notify the Accommodation of such claim and provide the Accommodation with the relevant details of the claim. The Accommodation shall immediately adjust –to the extent applicable– the rate(s) made available at the Excurcion.com Platform such that the lower rate is available for further booking(s). Furthermore, the Accommodation shall immediately adjust the rate in the reservation made by the relevant Guest in its administration. Upon check-out of the Guest, the Accommodation shall offer the room for the lower rate and shall either (i) settle the difference between the booked rate and the lower rate by charging the Guest for the lower rate, or (ii) refund (in cash) to the Guest the difference between the two rates.
2.6 Overbooking and cancellation
2.6.1 The Accommodation shall provide the rooms booked and in the event that the Accommodation is not able to meet its obligations under this Agreement for any reason whatsoever, the Accommodation shall promptly inform Excurcion, Inc. via Customer Service (firstname.lastname@example.org; whereas the subject line of each e-mail shall state "overbooking"). Unless Excurcion, Inc. has arranged alternative accommodations (to be verified by the Accommodation with Excurcion, Inc.), the Accommodation will use its best endeavors to procure alternative arrangements of equal or superior quality at the expense of the Accommodation and in the event that no Room is available on arrival, the Accommodation will:
(a) find suitable alternative accommodations of an equal or better standard to the Accommodation holding the Guest’s guaranteed booking;
(b) provide free private transportation to the alternative accommodations for the Guest and other members of the Guest’s party who are listed in the Guest’s guaranteed booking, and
(c) reimburse and compensate Excurcion, Inc. and/or the Guest for all reasonable costs and expenses (e.g. costs of alternative accommodations, transportation, telephone costs) made, suffered, paid or incurred by the Guest and/or Excurcion, Inc. due to or caused by the overbooking. Any amount charged/collected by Excurcion, Inc. from the Guest will be refunded to the Guest and this amount will be removed from the Accommodation’s payout balance.
2.6.2 The Accommodation is not allowed to cancel any online reservation.
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 Security of Credit Card Data
2.7.1 The Accommodation acknowledges that it is responsible for the security of cardholder data it processes within the context of this Agreement and Excurcion, Inc. acknowledges that it is responsible for the security of cardholder data it processes within the context of this Agreement.
2.8 Direct marketing to Guests
The Accommodation agrees not to specifically target Guests that have been obtained via Excurcion, Inc. in either online or offline marketing promotions or solicited or unsolicited mail.
2.9 Customer Portal
Excurcion, Inc. will provide the Accommodation with a user ID and password which allows the Accommodation to access the Customer Portal. The Accommodation shall safeguard and keep the user ID and password confidential and safely stored and not disclose it to any person other than those who need to have access to the Customer Portal. The Accommodation shall immediately notify Excurcion, Inc. of any (suspected) security breach or improper use.
2.10 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 Excurcion, Inc., upon request, with a copy of such evidence). In order for Excurcion, Inc. to register any cancellation, no-show or amendment of the reservation due to a Force Majeure Event, the Accommodation shall inform Excurcion, Inc. within 2 business days after (a) the scheduled arrival date of the no-show or cancellation, or (b) check- out, the number of days actually stayed. Excurcion, Inc. will not charge any commission in the event of a registered no-show or cancellation or over that part of the booking which is not consumed due to the Force Majeure Event.
3.1 The Accommodation hereby grants Excurcion, Inc. 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 Excurcion, Inc. by the Accommodation pursuant to this Agreement and which are necessary for Excurcion, Inc. to exercise its rights and perform its obligations under this Agreement;
(b) to use, reproduce, have reproduced, process, distribute, sublicense, display and utilize (including without limitation to publicly perform, modify, adapt, communicate, reproduce, copy and make available to the public in any manner whatsoever) the Accommodation Information.
3.2 Excurcion, Inc. 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 Excurcion, Inc. be liable to the Accommodation for any acts or omissions on the part of any Third Party Platforms. The sole remedy for the Accommodation with respect to such Third Party Platforms is (i) to request Excurcion, Inc. (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 AND MARKETING
4.1.1 The order in which the Accommodation is listed on the Platforms (the "Ranking"), is determined automatically and unilaterally by Excurcion, Inc. Ranking is based on and influenced by various factors, including but not limited to the commission percentage (to be) paid by the Accommodation, the minimum availability stated by the Accommodation, the number of bookings related to the number of visits to the relevant Accommodation’s page on the Platform (the "Conversion"), the volume realized by the Accommodation, the ratio of cancellations, the guest review scores, the customer service history, the number and type of complaints from Guests and the on-time payment record of the Accommodation.
4.1.2 The Accommodation has the ability to influence its own ranking by changing the commission percentage and availability for certain periods, and continuously improving the other factors. The Accommodation shall not make any claim against Excurcion, Inc. regarding the Ranking of Accommodation; the Ranking system is automated.
4.2 Guest reviews
4.2.1 Guests who have stayed at the Accommodation will be asked by Excurcion, Inc. to comment on their stay at the Accommodation and to provide a score for certain aspects of their stay.
4.2.2 Excurcion, Inc. reserves the right to post these comments and scores on the Platforms. The Accommodation acknowledges that Excurcion, Inc. is a distributor (without any obligation to verify) and not a publisher of these comments.
4.2.3 Excurcion, Inc. gives its best effort to monitor and review Guest reviews with respect to obscenities or the mention of an individual’s name. Excurcion, Inc. reserves the right to refuse, edit or remove unfavorable reviews in the event that such reviews include obscenities or mention an individual’s name.
4.2.4 Excurcion, Inc. will not enter into any discussion, negotiation or correspondence with the Accommodation with respect to (the content of, or consequences of the publication or distribution of) the Guest reviews.
4.2.5 Excurcion, Inc. 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 Excurcion, Inc. and can be made available on such Platforms as from time to time made available by Excurcion, Inc. Excurcion, Inc. 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 Excurcion, Inc.
4.3 (Online) marketing and PPC advertising
4.3.1 Excurcion, Inc. is entitled to promote the Accommodation using the Accommodation’s name(s) in online marketing, including e-mail marketing and/or pay-per-click (PPC) advertising. Excurcion, Inc. 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. Excurcion, Inc. agrees that if
the Accommodation becomes aware of behavior by Third Party Platforms that breaches the Accommodation’s Intellectual Property Rights, then the Accommodation
will notify Excurcion, Inc. in writing with details of the conduct and Excurcion, Inc. will use its commercially reasonable endeavors to ensure that the
relevant third party takes steps to remedy the breach.
4.3.3 The Accommodation agrees not to specifically target the Excurcion, Inc. brand directly through keyword purchases that use Excurcion, Inc.’s Intellectual Property Rights.
5. REPRESENTATIONS AND WARRANTIES
5.1 The Accommodation represents and warrants to Excurcion, Inc. 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 Excurcion, Inc. make available on the Platforms (a) the relevant accommodations, and (b) the Intellectual Property Rights with respect to, 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 authorizations 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), and
(iii) the price for the rooms advertised on the Platforms correspond to the best available price for an equivalent stay with the Accommodation and a better price cannot be obtained by a Guest making a reservation with the Accommodation directly or via another (third) party or via another medium or channel.
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 authorize the execution and performance of this Agreement;
(iii) this Agreement constitutes legally valid and binding obligations of that Party in accordance with its terms, and
(iv) each Party shall comply with all applicable governmental laws, codes, regulations, ordinances and rules of the country, state or municipality 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 Excurcion, Inc. disclaims and excludes any and all liability with respect to 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 Customer Portal.
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 Excurcion, Inc. (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 Excurcion, Inc. (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 at the Accommodation, overbooking or (partly) canceled or wrong reservations or repayment, refund or recharge of the Room Price;
(iii) to the extent that any claims under or pursuant to the Best Price Guarantee are not settled between the Guest and the Accommodation upon check-out of the Guest (by payment of the lower rate), all claims made by Guests regarding or pursuant to the Best Price Guarantee;
(iv) all other claims from Guests which are wholly or partly attributable to or for the risk and account of the Accommodation (including its directors, employees, agents, representatives and the premises of the Accommodation) (including claims related to (lack of) services provided or product offered by the Accommodation) or which arise due to tort, fraud, willful misconduct, negligence or breach of contract (including the Guest Reservation) by or attributable to the Accommodation (including its directors, employees, agents, representatives and the premises of the Accommodation) with respect to a Guest or its property; and
(v) all claims against Excurcion, Inc. in relation to or as a result of the failure of the Accommodation to pay, (a) properly register with relevant tax authorities, or (b) pay, collect, remit or withhold any applicable Taxes, fees and (sur)charges levied or based on the services or other charges hereunder in the relevant jurisdiction (including room price and commission payments).
6.3 Except as otherwise provided for in this Agreement, the maximum liability of one Party to any other party in aggregate for all claims made against such party under or in connection with this Agreement in a year shall not exceed the aggregate commission received or paid by such Party in the preceding year or USD 10,000 (whichever is higher), unless in the event of tort, fraud, willful misconduct, gross negligence, deliberate non-disclosure or deliberate deception on the part of the liable Party (i.e. the Indemnifying Party), in which event the limitation of liability is not applicable for such liable party. Parties agree and acknowledge that none of the limitations of liability set out in Clause 6 shall apply to any of the indemnifications with respect to third-party claims (e.g. claims from Guests as described in 6.2) or third-party liabilities.
6.4 In the event of a third-party claim, Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defense and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defense (in consultation and agreement with the indemnified Party and with due observance of both Parties' interests), and neither Party shall make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
6.5 In no event shall any Party be liable to any other Party for any indirect, special, punitive, incidental or consequential damages or losses, including loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim, whether such damages are (alleged as) a result of a breach of contract, tort or otherwise (even if advised of the possibility of such damages or losses). All such damages and losses are hereby expressly waived and disclaimed.
6.6 Each Party acknowledges that remedies at law may be inadequate to protect the other Party against any breach of this Agreement and, without prejudice to any other rights and remedies otherwise available to the other Party, each Party will be entitled to injunctive relief and specific performance.
7. TERM, TERMINATION AND SUSPENSION
7.1 Unless agreed otherwise, this Agreement shall commence on the date hereof for indefinite period of time. Each Party may terminate this Agreement at any time and for any reason, by written notice to the other Party with due observance of a notice period of 14 days.
7.2 Each Party may terminate this Agreement (and close the Accommodation on the Platforms) or suspend this Agreement with respect to the other Party, with
immediate effect and without a notice of default being required in case of:
(a) a material breach by the other Party of any term of this Agreement (e.g. delay of payment, insolvency, breach of rate parity guarantee, the provision of wrong information or receipt of a significant number of Guest complaints); or
(b) (filing or submission of request for) bankruptcy or suspension of payment (or similar action or event) with respect to the other Party.
7.3 Any notice or communication by Excurcion, Inc. 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 honor 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.
7.4 The following events shall in any event be regarded as a material breach and entitle Excurcion, Inc. to immediately terminate (close) or suspend the
Agreement (without a notice of default):
(i) the Accommodation fails to pay Commission on or before the due date;
(ii) the Accommodation posts incorrect or misleading Accommodation Information on the Customer Portal;
(iii) the Accommodation fails to maintain Information on the Customer Portal resulting in overbookings at the Accommodation;
(iv) the Accommodation fails to accept a reservation at the price shown on a reservation;
(v) the Accommodation overcharges one or more guests;
(vi) the Accommodation charges a guest’s credit card prior to arrival of the guest without an express agreement from the guest (a guest provides express agreement if they select a non-refundable or an advance-purchase room type);
(vii) Excurcion, Inc. receives one or more legitimate and serious complaint(s) from one or more guest(s) who made reservations with the Accommodation;
(viii) misuse of the Guest review process through any behavior that results in a review appearing on the Platforms that is not an honest expression of a real stay by a real guest at the Accommodation;
(ix) inappropriate, unlawful or unprofessional behavior towards guests or Excurcion, Inc. staff; or
(x) any (alleged) safety, privacy or health issues or problems with respect to the Accommodation or its facilities (the Accommodation shall at its own costs and upon first request of Excurcion, Inc. deliver the relevant permits, licenses, certificates or such statements issued by an independent expert evidencing and supporting its compliance with applicable (privacy, safety and health) laws and legislation).
7.5 Upon termination and except as set out otherwise, this Agreement shall absolutely and entirely terminate with respect to the terminating Party and cease to have effect without prejudice to the other Party’s rights and remedies with respect to an indemnification or a breach by the other (terminating) Party of this Agreement. Clauses 6, 8, 9 and 10 shall survive termination.
8. BOOKS AND RECORDS
8.1 The systems, books and records of Excurcion, Inc. (including Customer Portal, the Online Reservation Statement, faxes and/or e-mails) 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 Excurcion, Inc. under this Agreement, unless the Accommodation can provide reasonable and credible counter-evidence.
8.2 The Accommodation shall upon first request of Excurcion, Inc. fully cooperate and assist Excurcion, Inc. with (and disclose all reasonably requested information with respect to) the identification of the (ultimate) owner, manager and/or controller of the Accommodation.
9.1 Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the "Confidential Information"). Confidential Information includes Customer Data, transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
9.2 Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement; (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the "Permitted Persons") to maintain, the confidentiality and secrecy of the Confidential Information; (c) it shall disclose Confidential Information only to those Permitted Persons who need to know such information in furtherance of this Agreement; (d) it shall not, and shall use prudent methods to ensure that the Permitted Persons do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and (e) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
9.3 Notwithstanding the foregoing, (a) Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was possessed by the receiving party prior to the date of this Agreement, (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, and (b) nothing in this Agreement shall prevent, limit or restrict a Party from disclosing this Agreement (including any technical, operational, performance and financial data (but excluding any Customer Data)) in confidence to an affiliated (group) company.
9.4 Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Customer Data and to protect it from unauthorized use or release. Each party agrees to comply with all applicable (data and privacy) laws, rules and regulations of the jurisdiction where such Party is incorporated (including (if applicable) Directives 95/46/EC and 2002/58/EC (as amended) on the processing of personal data and the protection of privacy).
10.1 Neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party, provided that Excurcion, Inc. 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. Any assignment or transfer by the Accommodation shall not relieve the assignor of its obligations under the Agreement.
10.2 All notices and communications must be in English, in writing, and sent by facsimile, e-mail or nationally recognized overnight air courier to the applicable facsimile number or address set out in the Agreement.
10.3 This Agreement (including the schedules, annexes and appendixes, which form an integral part of this Agreement) constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, ((non-) binding) offers, undertakings or statements regarding such subject matter (including vis-à-vis the Accommodation).
10.4 If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions hereof. In that event, the Parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
10.5 Except as set out otherwise in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of Belize. Except as set out otherwise in this Agreement, any disputes arising out of or in connection with this Agreement shall exclusively be submitted to and dealt with by the competent court in Belize City, Belize.
10.6 Parties agree and acknowledge that notwithstanding this Clause 10.5, nothing in this Agreement shall prevent or limit Excurcion, Inc. in its right to bring or initiate any action or proceeding or seek interim injunctive relief or (specific) performance before or in any competent courts where the Accommodation is established or registered under the laws of the relevant jurisdiction where the Accommodation is established or registered and for this purpose, the Accommodation waives its right to claim any other jurisdiction or applicable law to which it might have a right.
10.7 The original English version of these Terms may have been translated into other languages. The translated version of the English Terms is a courtesy and office translation only and the Accommodation cannot derive any rights from the translated version. In the event of a dispute about the contents or interpretation of these terms and conditions of this Agreement or in the event of a conflict, ambiguity, inconsistency or discrepancy between the English version and any other language version of these Terms, the English language version shall prevail, apply and be binding and conclusive. The English version shall be used in legal proceedings. The English version is available on the following website https://excurcion.com/corp/terms-and-conditions-accommodation-provider and shall be sent to you upon written request.
10.8 With respect to (or as an award for) the execution, delivery, sealing, registration, filing of, and/or the execution, performance or delivery under or pursuant to, the Agreement, the Accommodation (including its employees, directors, officers, agents or other representatives) shall (i) not directly or indirectly (a) offer, promise or give to any third party (including any governmental official or political party('s official, representative or candidate)), or (b) seek, accept or get promised for itself or for another party, any gift, payment, reward, consideration or benefit of any kind which would or could be construed as bribery or an illegal or corrupt practice, and (ii) comply with all applicable laws governing anti-bribery and corrupt gifts and practices (including the U.S. Foreign Corrupt Practices Act and the UK Anti-Bribery Act).
10.9 The Agreement may be entered into online or by way of executing a separate counterpart or by PDF or fax copy, each of which (copies) shall be deemed an original, valid and binding. The Agreement only enters into force and effect upon written confirmation of acceptance and approval of the Accommodation by Excurcion, Inc. By registering and signing up to the Excurcion, Inc. partner program as accommodation partner, the Accommodation agrees, acknowledges and accepts the terms and conditions of this Agreement. The Agreement does not need any stamp or seal to make it valid, binding and enforceable.