Accommodation Fee Collection Agreement

 

Last Updated: October 25, 2016

 

 

This Accommodation Fee Collection Agreement (this "Agreement") is made and entered into between HomeAway Sàrl, 70 sir John Rogerson's Quay, Dublin 2, Ireland  ("HomeAway Payments," “we”, “us” or “our”) and You (“You” or "Client") and is effective as of the date that You click through this Agreement (the "Effective Date"). You should read through all of the terms carefully. The terms constitute a legally binding agreement between You and HomeAway Payments.  Any obligations owed to HomeAway Payments under this Agreement are in addition to, and do not limit, any separate contractual obligations to HomeAway Payments or our affiliates.  You are not authorized to use these Services (as defined below) unless You are at least 18 years of age and able to enter into legally binding contracts. 

 

BY CLICKING "I AGREE", YOU AGREE TO BE BOUND BY THIS AGREEMENT.

 

Background:

  • HomeAway Payments provides a service that facilitates the collection of Accommodation Fees (as defined below) from the individuals who desire to book the property through the websites of affiliated HomeAway companies and stay as guests (the "Guests");
  • You own and/or manage the properties set forth on the online registration form ("Property" or "Properties"); and
  • You are owed Accommodation Fees by a Guest as a result of a contract entered into between You and the Guest, and You would like HomeAway Payments to collect the Accommodation Fees owed subject to the terms and conditions set forth in this Agreement.

 

You and HomeAway Payments agree as follows:

 

1.PAYMENT SERVICES.

 

1.1 Payments of Accommodation Fees due. During the term of this Agreement, You authorize HomeAway Payments to collect any Accommodation Fees via Credit Card, Debit Card, Electronic Funds Transfer payments, and any other payment forms that HomeAway Payments may accept from time to time (together "Payments") from Guests to pay to You (such Payments collected by HomeAway Payments extinguishing any corresponding debt the Guests might owe to You) (collectively “Services”) in exchange for the fees and charges due to HomeAway Payments as set forth in this Agreement (each a “Use Fee”). “Accommodation Fee(s)” are defined as amounts due and payable to You by a Guest in exchange for that Guest’s stay in a Property, including security deposits, fees, insurance, and all other amounts, agreed between You and the Guest and as reflected on the website the Property was booked through. 

In order to use the Services, You must be a member of one of our affiliate’s websites which allow homeowners and property managers to advertise vacation rental properties in accordance with the terms of such website. 

 .

1.2 Authorization for Debits and Credits. You hereby authorize HomeAway Payments or a third party service provider working on our behalf to access Your bank account designated on the online registration form (the "Registration Form") for the following purposes:

(a.) to deposit Payments due to You;

(b.) to debit any amounts owed to HomeAway Payments in accordance with this Agreement, including Use Fees or chargebacks or reversals; and

(c.) to debit any amounts owed to Guests in accordance with this Agreement.

 

1.3 Right of Off-set.  For any Use Fees owed to HomeAway Payments or its affiliates, or any amounts owed to Guests, You authorize HomeAway Payments to deduct (off-set) such amounts and any applicable charges and fees resulting from any debit failure from future Accommodation Fee payments. HomeAway Payments may offset any payment obligation that HomeAway Payments may have to You under this Agreement against (1) Use Fees owed by You, (2) amounts overpaid to You due to a later reversal, refund, chargeback or other adjustment to prior Payment transactions, and (3) any other amounts owed by You to HomeAway Payments under this Agreement or any other agreement.

Processing Errors. If there is a rejection or an error in the processing of any transaction, You authorize us or a third party service provider working on our behalf to debit or credit Your bank account designated on the Registration Form, as applicable, to correct such error. If we are unable to debit such bank account You select for any reason, You authorize us to resubmit the debit, plus any applicable fees, to any other bank account or payment instrument that You have on file with us.  If the non-payment issue is unresolved within a reasonable period, You will be required to make payment using another acceptable payment method.

 

1.4 Provision of Information. You agree to provide HomeAway Payments with all authorizations required by HomeAway Payments or a third party service provider working on our behalf to access Your bank account designated on the Registration Form as necessary hereunder.  You further agree to keep Your (i) bank account information current and up-to-date with HomeAway Payments and (ii) banking authorizations granted to HomeAway Payments current and up-to-date with Your bank. Failure to do so may result in Accommodation Fees being misdirected, held by HomeAway Payments pending confirmation, or returned to the Guests. HomeAway Payments disclaims all liability for misdirected or returned Payments if Your bank account information is not kept current. HomeAway Payments may suspend or terminate this Agreement without notice if You fail to keep this information current or block or otherwise inhibit HomeAway Payments’s ability to debit or credit Your bank account.

In addition to such bank account information obligations, You shall provide HomeAway Payments with such information as HomeAway Payments may lawfully require in order to promptly and accurately perform the Services. You shall promptly notify HomeAway Payments of any and all inaccuracies in, or changes to, the information provided by You on the Registration Form. HomeAway Payments shall in no event be liable for any damages directly or indirectly resulting from Your failure to comply with this Section 1.4. 

 

1.5 Fraud and Risk Reviews. You authorize HomeAway Payments from time to time to collect and verify the information provided by You on the Registration Form or otherwise. HomeAway Payments will use this information to perform customer due diligence, verify Your identity, verify Your ownership of the Property, verify You are not subject to trade sanctions, perform various fraud and risk reviews on You, and monitor the transactions through the Services to protect the integrity of its systems and business. You further authorize HomeAway Payments (or an affiliate) to request a report on You from a consumer reporting agency.  Any such consumer report will be requested and utilized in compliance with applicable law, including the Fair Credit Reporting Act.  Based upon these reviews, HomeAway Payments will determine whether it is able to offer You the Services, and the manner in which it will settle Payments of Accommodation Fees in its sole discretion. Upon successful completion of the required screening, You will be offered the following settlement timeline:

 

Subject to any fraud or risk holds imposed by HomeAway Payments, HomeAway Payments will initiate the transfer of the Accommodation Fees due to You (minus Use Fees) to Your bank account in most cases within 1-2 days after the scheduled check-in date for the Guest at Your Property, and for any deposit amounts due to You, in most cases within 1-2 days after authorization from the website the Property was booked through, in its sole discretion; provided however, in the event a Guest provides proper notice to the web site the Property was booked through within 24 hours of the scheduled check in that the Property is not as described, or there is some other issue with the property, You authorize HomeAway Payments to return the Accommodation Fees to the Guest. The time it takes to receive Payments after they have been initiated may vary. In addition, for risk reasons, Your initial disbursement may be delayed up to 30 days and for fraud reasons Your disbursement could be indefinitely delayed or cancelled.

 

You may not use the Services except as authorized by laws of the jurisdiction in which You reside, and any other applicable laws. In particular, but without limitation, the Services may not be used to send or receive funds (i) into (or to a resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the United States has embargoed goods, or (ii) anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders.  By using the Site, You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.

 

1.6 Privacy & Data Security. You agree to act in accordance with the practices set forth in the applicable HomeAway privacy policy for the website the Property was booked through (“Privacy Policy”) as may be updated by HomeAway from time to time and which is hereby incorporated by reference. You agree that You 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 Guest.  You agree that You will process, store, transmit, and access any guest information in compliance with applicable law.  You agree to only utilize Guest’s personal data for the purpose of processing such Guest’s booking and for no other purpose. HomeAway Payments will not be responsible for unauthorized use or access to Guest's personal data or financial data by You, Your employees, or any other party associated with You, except to the extent such use or access is due to HomeAway Payments's gross negligence. HomeAway Payments may use any and all information gathered in the performance of the Services in accordance with its Privacy Policy. In addition, You agree that HomeAway Payments may use such information for any lawful purpose including marketing and deriving statistics regarding its Services.

1.7 Proprietary Rights. As between You and HomeAway Payments, HomeAway Payments owns and retains all proprietary rights in and to the Services, the application interface (API), and any other materials that HomeAway Payments may use or provide in connection with implementation and operation of the Services. You do not acquire any right, title, or interest in the Services. You agree not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any HomeAway website, the API, or the Services.

1.8 Suggestions.  If You provide any suggested improvements to our Services ("Suggestions") to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if You have designated the Suggestions as confidential. We and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.

 

 

1.9 Chargebacks and Reversals. Any Payment by a Guest is subject to a right of chargeback if paid by credit or debit card or by any other payment forms with equivalent reversal features. These rights exist between the Guest and their respective bank or credit card issuer or bank. In the event of a chargeback or reversal of any Payment by a Guest, HomeAway Payments will automatically exercise its setoff rights outlined in section 1.3. Thereafter, contingent on receiving all requested information from You, HomeAway Payments will use commercially reasonable efforts to investigate the validity of the chargeback or reversal. You agree to cooperate with HomeAway Payments and to provide any information that may be reasonably requested by HomeAway Payments in its investigation. You are liable for all chargebacks or reversals of Payments processed by HomeAway Payments, including the Chargeback Fee listed below in the Fees Schedule.  You acknowledge that chargeback and reversal decisions are made by the applicable issuing bank or Card Networks and all judgments as to the validity of the chargeback or reversal is made at the sole discretion of the applicable issuing bank or Card Networks.

 

1.10 Modification of the Services. HomeAway Payments may from time to time without prior notice to You modify the Services and related websites; provided, however, that HomeAway Payments will not modify the Services in a manner that would, in its sole discretion, significantly adversely affect Your use thereof, without providing at least ten (10) days prior notice to You of any such modification. In addition, HomeAway Payments reserves the right to modify the Use Fees, in its sole discretion, but shall not do so without providing at least ten (10) days prior notice to You and any such modified Use Fees will apply to bookings which are accepted by You at any time immediately after such notice. Such notice may be made by means of email or a posting on, or update to, a HomeAway website.

 

1.11 Payment for Services. In consideration for the Services, You agree to pay HomeAway Payments the Use Fees and charges described in the relevant Fees Schedule set forth below which become due upon completion of payment processing and regardless of any subsequent cancellation:

 

 

Subscription Customers

 

Card Acceptance

HomeAway Payments Transaction Processing Rate

Visa/MasterCard/Discover/AMEX

3% of transaction amount

International Surcharge

1.5% of transaction amount

Chargeback Fee

$0 per chargeback

Pay Per Booking Customers

 

Card Acceptance

HomeAway Payments Transaction Processing Rate

Visa/MasterCard/Discover/AMEX

3% of transaction amount

Chargeback Fee

$0 per chargeback

 

 

 

You hereby authorize HomeAway Payments to automatically deduct all Use Fees due from the Payments collected by HomeAway Payments, as well as Use Fees related to Chargebacks and Non-Sufficient Funds (“NSF”) prior to settlement to Your bank account. In the event HomeAway Payments is unable to recover Use Fees for any reason, You agree to pay all reasonable costs of collection, including reasonable attorneys' fees, incurred by HomeAway Payments.  You are solely responsible for monitoring Your account and ensuring timely payment of all amounts You owe to HomeAway Payments.  HomeAway Payments has the right to impose upon You any penalties HomeAway Payments incurs due to collection requests which fail due to NSF or Your directive to block the request.  You authorize HomeAway Payments to collect such fee by debiting Your bank account designated on the Registration Form or exercising our setoff rights outlined in section 1.3.

 

Except as otherwise provided herein, fees related to HomeAway Payments services are non-refundable.

 

1.12 Taxes. You are responsible for any and all applicable taxes, including sales, use, personal property, value-added, excise, customs fees, tourist, hotel occupancy, import duties or stamp duties or other taxes and duties imposed by governmental entities of whatever kind and imposed with respect to the transactions under this Agreement, including penalties and interest, but specifically excluding taxes owed by or asserted against HomeAway Payments’s or any of its affiliates’ net income. HomeAway Payments may be required to report any Payments processed made to You to national, state, and/or local tax authorities, including the US Internal Revenue Service and other tax authorities. HomeAway Payments is not responsible for, and is not the entity collecting sales or income or other taxes with respect to the Payments. You will promptly provide HomeAway Payments with information and/or documentation as may be required by the applicable governmental entity in order for HomeAway Payments to process payments hereunder (including, without limitation, a valid certificate of Your exemption from obligation to pay taxes as authorized by the appropriate governmental entity), and HomeAway Payments may withhold any Payments, or portion thereof, until You have provided the required documentation. You are responsible for determining any and all taxes and duties assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with the sale or purchase of any products or services for a transaction, or otherwise in connection with any action, inaction, or omission by You or any affiliate of Yours, or any of Your or their respective employees, agents, contractors, or representatives ("Taxes"). You also are responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. If requested by HomeAway Payments, You will promptly provide valid Tax invoices in respect of any transactions entered into under this Agreement, where Taxes are chargeable under applicable law. We may provide You a means for You to determine and apply taxes to Your transactions, but we and our affiliates are not obligated to determine whether taxes apply and are not responsible for calculating, collecting, reporting, or remitting any taxes to any tax authority arising from any transaction.  Notwithstanding the foregoing, HomeAway Payments reserves the right, in its sole discretion, to collect and remit Taxes to appropriate government entities on Payments.  Should HomeAway Payments exercise this right, You agree to cooperate with HomeAway Payments in the provision of any information or assistance reasonably requested by HomeAway Payments for such collection and remittance including providing documentation to substantiate transactions with Guests and to substantiate registration with and/or remittance of Taxes to the relevant taxing authorities. 

 

1.13 Limitation on Use of Services/Website. You may only utilize the Services for the payment of Accommodation Fees as defined herein. You may not use, and represent and warrant that You will not use, the Services for any other purpose, including but not limited to the payment for any illegal activity, good, or service. You agree to comply with all HomeAway Payments policies, and any other limits concerning use of its websites and Services, as updated by HomeAway Payments from time to time, including without limitation: (i) HomeAway Payments requirements for data security; and (ii) any operating rules and/or policies of the card associations or networks that are used to process the Payments (as such may be updated from time to time). Notwithstanding any other terms of this Agreement, HomeAway Payments and its affiliates has the right (a) to change, suspend or discontinue the Services or its websites, in whole or in part and (b) to impose limits on certain features or restrict access to parts or all of the Services or its websites without notice and without liability when HomeAway Payments, in its sole discretion, determines necessary to protect the integrity of its websites and its operations, to avoid harm to others, or for any other reason. HomeAway Payments may decline to process any payment in connection with, among other reasons, fraud prevention activities, applicable law, or HomeAway Payments policies. Without limiting the foregoing, You may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Service on behalf of any third party, including without limitation the handling, processing or transmission of funds for third parties.

1.14 Card Networks; Acquirer. During the Term of this Agreement, the Services will be provided by HomeAway Payments in conjunction with a merchant acquirer (or PIN debit acquirer) and their respective designated member bank(s). You agree to comply with all HomeAway Payments policies with respect to the Services, and all applicable Visa U.S.A., Inc., Visa International, MasterCard International Incorporated, Discover Financial Services, Inc., American Express Travel Related Services Company Inc. (“American Express”), (collectively, “Card Networks”) and National Automated Clearing House Association (collectively, “NACHA”) operating regulations, and other rules (collectively, “Operating Regulations”) and all applicable federal, state, or local laws, rules, regulations, and regulatory guidance relating to the conduct of Your business. You agree and acknowledge that the Associations reserve the right to amend the Operating Regulations without notice to You. If You choose to accept only certain types of payment cards, it is Your responsibility to properly indicate which payment cards are accepted.

 

2.DISCLAIMER OF WARRANTIES.

 

2.1 No Warranties. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES AND WEBSITE IS SUBJECT TO THE FOLLOWING DISCLAIMER OF LIABILITY: EXCEPT FOR ANY EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, THE SERVICES AND WEBSITES (INCLUDING ALL CONTENT, SOFTWARE, DATA TRANSMISSION, FUNCTIONS, MATERIALS AND INFORMATION PROVIDED IN CONNECTION WITH OR ACCESSIBLE THROUGH THE SERVICE) ARE PROVIDED "AS IS" AND HOMEAWAY PAYMENTS, ITS AFFILIATES, AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE WEBSITES OR SERVICES PROVIDED HEREUNDER AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW.

 

2.2 World Wide Web Usage. HomeAway Payments and its suppliers make no warranties regarding the quality, reliability, timeliness or security of the world wide web, the internet and other globally linked computer networks, or the web sites established thereon including its websites, will be uninterrupted or error free.

 

2.3 Payments. You acknowledge and agree that: (i) Your Property bookings are transactions solely between You and the relevant Guest and not with HomeAway Payments or any of HomeAway Payments's affiliates; (ii) Payments collected by HomeAway Payments extinguishing any corresponding debt the Guests might owe to You; (iii) HomeAway Payments will not be responsible for, and does not control, if a Guest will make any Accommodation Fee payment; (iv) HomeAway Payments obligations to pay You is conditional upon successfully receiving associated Accommodation Fess from Guests; (v) HomeAway Payments is not a bank or other chartered depository institution; and (vi) funds processed by HomeAway Payments or its service providers (including any bank service providers) in connection with the collection of Accommodation Fees are not deposit obligations and are not insured for Your benefit by any governmental agency.

Our Role. Except for our limited role in processing payments that You authorize or initiate, we are not involved in any underlying transaction between You and Your Guests.  For the avoidance of doubt, we are not providing or reselling any accommodations or any accommodation related expenses or services.  HomeAway Payments assumes no liability for Your acts or omissions.

 

2.4 Unclaimed Property Laws. We are not responsible as Your third party payment processor for compliance with any jurisdiction’s unclaimed property or escheat laws.  You are responsible for determining whether You are holding property for a Guest or other party that is subject to such laws, in which case You acknowledge and agree that You bear full responsibility for compliance with such laws.

 

 

 

3.LIMITATION OF LIABILITY/INDEMNITIES.

 

3.1 HOMEAWAY PAYMENTS SHALL IN NO WAY BE LIABLE TO YOU DUE TO ANY DISRUPTION OR NON-AVAILABILITY OF THE SERVICES OR WEBSITES DURING WHICH GUESTS ARE UNABLE TO ACCESS OR USE THE SERVICES OR WEBSITES OR ANY FAILURES THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF A PAYMENT OR THE SERVICES.  HOMEAWAY PAYMENTS BEARS NO RESPONSIBILITY FOR ANY ERRONEOUS STATEMENT, ANY ERROR OR DELAY IN PAYMENT, ANY PAYMENT DECLINED BY YOUR BANK OR YOUR FAILURE TO PROVIDE ACCURATE AND/OR VALID INFORMATION.

 

3.2 IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES OR ITS SUPPLIERS, BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HOMEAWAY PAYMENTS'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES THAT HOMEAWAY PAYMENTS HAS RECEIVED AND RETAINED UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ARISES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated in this paragraph and that these limitations are an essential basis of the bargain between the parties.

 

3.3 Indemnification

 
  1. You will indemnify, defend and hold HomeAway Payments and its affiliates their respective directors, officers, employees, and agents (HomeAway Payments Indemnified Parties) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees) brought against any of the HomeAway Payments Indemnified Parties, arising out of or related to (i) Your use of the Services or its websites; and/or (ii) any breach of or non-compliance with this Agreement by You. HomeAway Payments may join in defense with counsel of its choice at its own expense. The indemnity obligations set forth in this section will not apply to the extent any claim, loss, liability, demand or expense is the result of the gross negligence or willful misconduct of any indemnified party. The indemnity obligations set forth in this section are contingent upon (1) HomeAway Payments providing prompt written notice to You of any such claim(s), loss(es), liability(ies), action(s), demand(s) or expense(s) (except that Your obligation to indemnify hereunder shall only be relieved to the extent it is prejudiced by HomeAway Payments's failure to provide such notice); and (2) Your having sole control of the defense or settlement of such claim(s), loss(es), liability(ies), action(s), demand(s) or expense(s); provided that any settlement requiring other than the payment of monetary amounts shall be subject to HomeAway Payments's consent, not to be unreasonably withheld. At Your request and expense, HomeAway Payments shall cooperate in the investigation, defense and settlement of such claim(s), loss(es), liability(ies), action(s), demand(s) or expense(s).

 

 

4.TERM AND TERMINATION.

 

4.1 Term. This Agreement will begin on the Effective Date and shall continue until terminated by either party in accordance with Section 4.2 below.

 

4.2 Termination. Either party may terminate this Agreement at any time for convenience upon written notice, which may be via mail to the address set forth below.  For the avoidance of doubt, no such termination of this Agreement by itself will terminate any other agreements between You and HomeAway Payments or any of its affiliates. 

 

4.3 Effect of Termination. Termination of this Agreement will not relieve either party of any obligation to pay the other party any amounts, Fees or other compensation due and owing to the other party under this Agreement prior to such termination. HomeAway Payments will complete any Payments in process at the time of termination and will deduct any Fees owed to it at that time. However, You will remain liable for chargebacks, reversals, charges and any other obligations incurred by You and managed by HomeAway Payments after the expiration or termination of this Agreement and You authorize HomeAway Payments to automatically, without prior notice to You, deduct such amounts from Your bank account. Upon termination, HomeAway Payments will disable Your access to the Services.

 

4.4 Survival. Sections 1.6, 1.7, 1.9, 1.12, 2, 3, 4 and 5 shall survive termination or expiration of this Agreement, except where otherwise provided.

 

5.Miscellaneous

 

5.1 Binding Upon Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Neither this Agreement nor any right, license, privilege or obligation provided herein may be assigned or transferred by You without HomeAway Payments's prior written consent and any attempted assignment or transfer without such consent is void. HomeAway Payments may assign this Agreement at anytime but will not do so in such a way as to reduce any guarantees given to You under this Agreement.  

 

5.2 Force Majeure. HomeAway Payments will not be responsible for any delays, errors, failures to perform, interruptions or disruptions in the Services or its websites caused by or resulting from any act, omission or condition beyond HomeAway Payments's reasonable control, whether or not foreseeable or identified, including without limitation acts of God, strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disasters or the failure of Your, Guest's or any third party's hardware, software or communications equipment or facilities.

 

5.3 Entire Agreement. This Agreement, including any Schedules, contains the entire understanding and agreement between the parties with respect to its subject matter, superseding all prior or contemporaneous representations, understandings, and any other oral or written agreements between the parties with respect to such subject matter.  For the avoidance of doubt the foregoing does not limit any separate obligations to the Card Networks or other third party service providers.

 

5.4 Severability. If any provision of this Agreement, or the application thereof, is found invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will remain in full force.

 

5.5 Amendment and Changes. You may not change, amend, supplement, discharge, terminate or otherwise alter this Agreement except by a statement in writing signed by HomeAway Payments. HomeAway Payments will have the right, at its sole and absolute discretion, to change, modify, or amend any portion of this Agreement in accordance with the terms set forth above, including but not limited to payment terms in section 1.5.

 

5.6 Waiver. The waiver by either party of any right under this Agreement or the failure to perform or of a breach of any provision of this Agreement will not operate or be construed as a waiver of any other right thereunder or of any other breach or failure whether of a similar nature or otherwise.

 

5.7 Notices. All notices and other communications required or permitted under this Agreement will be in writing. Notices to You will be delivered to the email address provided on the Registration Form.  Notices to HomeAway Payments may be directed to HomeAway.com, Inc., Attn: Legal Department, 1011 W. Fifth Street, Suite 300, Austin, Texas 78703
 

5.8 Updating Your Information. It is Your responsibility to ensure that Your banking information, including Your legal name and Your address and country of residence, is accurate and remains current.  It is also Your responsibility to ensure that any information or documentation requested with respect to Taxes in Section 1.12 above is accurate and remains current.

 

5.9 Third Party Service Providers.  In connection with HomeAway Payments’s provision of Services, it will utilize third party service providers to facilitate and process Payments. You hereby extend any rights extended to HomeAway Payments under this Agreement to any such third party service providers authorized by HomeAway Payments to assist in the provision of its Services hereunder.  Any obligations owed to HomeAway Payments under this Agreement are in addition to, and do not limit, any separate contractual obligations to third party service providers that HomeAway uses in connection with the provision of Services including any obligation relating to additional fees which may be imposed by such third party service providers.  Please note that related third party providers may impose or deduct foreign currency processing costs on or from any payments or payouts involving currency conversion.

 

5.10 American Express Terms. You agree that if You accept American Express cards, You are bound by the American Express Merchant Operation Regulations (available at: www.americanexpress.com/merchantopguide) and the attached American Express Terms.

 

5.11 Governing Law and Venue.  If You reside in the United States, this Agreement is governed by the Federal Arbitration Act, federal arbitration law, and the laws of the state in which Your billing address is located, without regard to principles of conflicts of laws.

 

If You do not reside in the United States, then this Agreement and the performance of the Parties hereunder shall be governed and construed in accordance with the substantive laws of Ireland without regard to any law, statute, rule, or precedent that would apply the law of any other jurisdiction.  Additionally, if You do not reside in the United States, each Party irrevocably consents to the exclusive jurisdiction and venue of the courts of Ireland with respect to any claim, action or proceeding arising out of or in connection with this Agreement. 

 

5.12 Disputes; Arbitration.
 


 

If You reside in the United States, You agree to the following.

 

HomeAway is committed to customer satisfaction, so if You have a problem or dispute, we will try to resolve Your concerns. But if we are unsuccessful, You may pursue claims as explained in this section. You agree to give us an opportunity to resolve any disputes or claims relating in any way to the Services, any dealings with our customer experience agents, any services or products provided, any representations made by us, or our Privacy Policy (“Claims”) by contacting HomeAway Customer Support or 1-877-228-3145. If we are not able to resolve Your Claims within 60 days, You may seek relief through arbitration or in small claims court, as set forth below.

 

Any and all Claims will be resolved by binding arbitration, rather than in court, except You may assert Claims on an individual basis in small claims court if they qualify. This includes any Claims You assert against us, our subsidiaries, users or any companies offering products or services through us (which are beneficiaries of this arbitration agreement). This also includes any Claims that arose before You accepted this Agreement, regardless of whether prior versions of this Agreement required arbitration.

 

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including statutory damages, attorneys’ fees and costs), and must follow and enforce this Agreement as a court would.

 

Arbitrations will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA Consumer Rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, except as provided in this section. If Your total Claims seek less than $10,000, we will reimburse You for filing fees You pay to the AAA and will pay arbitrator’s fees. You may choose to have an arbitration conducted by telephone, based on written submissions, or in person in the state where You live or at another mutually agreed upon location.

 

To begin an arbitration proceeding, You must send a letter requesting arbitration and describing Your Claims to “HomeAway Legal: Arbitration Claim Manager,” at Expedia, Inc., 333 108th Ave N.E. Bellevue, WA 98004.If we request arbitration against You, we will give You notice at the email address or street address You have provided. The AAA's rules and filing instructions are available at www.adr.org or by calling 1-800-778-7879.

 

Any and all proceedings to resolve Claims will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a Claim proceeds in court rather than in arbitration we each waive any right to a jury trial. The Federal Arbitration Act and federal arbitration law apply to this Agreement. An arbitration decision may be confirmed by any court with competent jurisdiction.

 

If You reside in France, You agree to the following :

 

In case of a dispute between You and HomeAway Payments, You can consider the mediation or other alternative dispute resolution procedures as defined by the law, in particular by article 1528 from the French Civil Procedure Code.
The consumer Ombudsman for HomeAway Payments is the E-commerce Mediation Service of the Fédération des Entreprises de Vente à Distance (FEVAD) (http://www.fevad.com/mediation). After having entered Your written complaint to HomeAway Payments, in case HomeAway Payments fails to give You a satisfactory response within 60 days, You can refer Your dispute to the consumer Ombudsman under the terms and conditions provided on the website of the Ombudsman. You can contact the Ombudsman to the following address:
Service de Médiation du e-commerce

60 rue La Boétie – 75008 Paris

relationconso@fevad.com


Alternatively, You can also refer Your disputes with HomeAway Payments to the European Commission’s Online Dispute Resolution Platform which is available at the following address: http://ec.europa.eu/odr.

 

Notwithstanding the provisions of the "Amendment and Changes" section above concerning modifications to the Terms, if HomeAway Payments changes this "Disputes; Arbitration" section after the date You first accepted these Terms (or accepted any subsequent changes to these Terms), You may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above. By rejecting any change, You are agreeing that You will arbitrate any Dispute between You and HomeAway Payments in accordance with the provisions of this "Disputes; Arbitration" section as of the date You first accepted these Terms (or accepted any subsequent changes to these Terms).

 

 

American Express Terms

 

Client agrees to the American Express Merchant Operation Regulations (available at: www.americanexpress.com/merchantopguide) and the American Express terms and conditions contained herein (the “American Express Terms”). American Express shall be a third party beneficiary to the Agreement and may enforce the terms of the Agreement against Client. Client agrees and acknowledges that it is not a third party beneficiary under any agreement that HomeAway Payments or any of its third party service providers may have with American Express. Client agrees to only accept American Express cards in accordance with the terms of the Agreement and the American Express Terms. Except as expressly permitted by Applicable Law, Client must not process American Express card transactions or receive payments on behalf of, or (unless required by law) re-direct payments to any other party.

 

Limitation of Liability.

In no event shall Client, HomeAway Payments, American Express or its respective affiliate, successor, or permitted assigns (and in American Express’s case, its third party licensees) be liable to another party for any lost profits or incidental, indirect, speculative, consequential, special, punitive, or exemplary damages of any kind (whether based in contract, tort, including negligence, strict liability, fraud, or otherwise, or statutes, regulations, or any other theory) arising out of or in connect with the Agreement, even if advised of such potential damages. Neither Client, HomeAway Payments, nor American Express will be responsible to another party for damages arising from delays or problems caused by telecommunications carriers to the banking system, except that American Express’s rights to create reserves and exercise chargebacks will not be impaired by such events.

 

In no case will American Express be liable to Client for any claims, losses, liability, actions, demands or expenses arising as a result of (i) any breach of data security resulting from Client’s act or omission, or (ii) the claim by an employee of Client that American Express is liable as a an employer or joint employer of such employee.

 

High CV Sponsored Merchants.

If HomeAway Payments or American Express requests that Client do so, Client will be converted to a High CV Sponsored Merchant (as defined by American Express’s then effective Operating Regulations). Upon such conversion, Client will enter into a direct contractual relationship with American Express and be bound by its then standard card acceptance agreement and American Express may set different processing fees for Client. In that case, unless Client expressly informs HomeAway Payments otherwise, Client authorizes HomeAway Payments to continue to manage Client’s American Express account on its behalf and to cause funds settled from American Express transactions to be deposited either directly into a bank account designated by Client or to a bank account held by HomeAway Payments for Client’s benefit.