1. Scope, amendment of General Terms and Conditions
1. The General Terms and Conditions (GTC) below apply to the use of the platform www.holidayporch.com (also: “platform”). This is a service of HolidayPorch (“HolidayPorch” or “we”).
2. “Users” within the sense of these General Terms and Conditions are natural and legal persons who have registered and whose registration has been confirmed by HolidayPorch.
3. HolidayPorch offers the usage of its platform, in particular the use of the database, solely on the basis of these General Terms and Conditions.
4. By registering for or using our services, users consent to the validity of these General Terms and Conditions.
5. HolidayPorch reserves the right to amend its General Terms and Conditions effective for the future if an adjustment is necessitated by economic or legal grounds. The amendments will not become part of the agreement until the user consents to such amendments. It is sufficient for this purpose that HolidayPorch sends the new version of the General Terms and Conditions to the e-mail address that the user provided for information purposes. If the user does not contradict the amendments to the General Terms and Conditions within one week, consent will be considered to have been granted.
6. Conflicting terms and conditions of the user have no effect (point 2.5 notwithstanding), even if HolidayPorch does not contradict them.
2. Performance by HolidayPorch, performance by providers
1. The platform is an online market place on which users can offer and rent apartments, houses, rooms or other accommodation (“accommodation”).
2. On www.holidayporch.com, HolidayPorch provides a platform on which users can communicate with each other and conclude agreements. HolidayPorch itself does not offer any accommodation; it merely acts as an intermediary for the conclusion of agreements between users.
3. Leases are concluded exclusively between the user providing the accommodation (“provider”) and the user renting the accommodation (“tenant”). HolidayPorch itself is not a party to the leases concluded between the website’s users. However, HolidayPorch is entitled to act as a representative for the provider with the authority to conclude agreements and to conclude agreements on his behalf. However, the provider and the tenants are themselves responsible for satisfying their own contractual obligations. In the event of default, this must be negotiated between the users. HolidayPorch saves and will transmit the contact data of both parties for this purpose.
4. HolidayPorch does not examine the legality, accuracy or completeness of offers published on the platform or user content, and these do not represent the views of HolidayPorch. HolidayPorch is not responsible for third-party offerings or content.
5. Providers can apply their own terms and conditions to the accommodation they are renting that do not affect the General Terms and Conditions of HolidayPorch.
6. Providers and tenants are responsible for their adherence to the provisions governed by public law, including municipal codes regarding property rental.
3. Registration, realisation of the user agreement, contractual declarations
1. User registration is required for the use of HolidayPorch’s offering. Registration is free of charge and requires that users accept HolidayPorch’s General Terms and Conditions. The user agreement between HolidayPorch and the user arises on receipt of the registration confirmation e-mail at the e-mail address provided by the user. There is no claim to the conclusion of such a user agreement.
2. Registration is available only to natural persons, legal persons and partnerships that are fully legally competent. The registration of a legal person or partnership may be performed only by a natural person with power of representation who must be named. When registering, only individual persons may be given as the owner of the user account (i.e. no married couples or families).
3. When registering, the user undertakes to provide accurate, up-to-date and complete information as required by the registration form, in particular first and last name, current address (not a PO box), a valid e-mail address and, where appropriate, the name of the company and an authorised representative. The data must be up-to-date and correct at all times. Multiple registrations under different member names are prohibited. When registering, the user chooses a member name and a password. The member name cannot be an e-mail or Internet address, must not violate third-party rights – in particular naming or trademark rights – and must not transgress the bounds of common decency. During registration, the user can assign a password and a name for his user account.
4. The user can receive contractual declarations at his stated e-mail address.
5. By approving the general terms and conditions, the user agrees to receive newsletters and similar information via e-mail. The user can revoke their consent at any time without any costs.
4. User obligations, user account, system integrity
1. The user is solely responsible for all content that he places on the platform. In his relationship to HolidayPorch, he commits not to place illegal content on the platform and to refrain from actions that violate laws.
2. The provider is responsible for ensuring that the accommodation he offers is described correctly and completely. He must provide the information in HolidayPorch’s required fields at a minimum so that the accommodation and the offer are described with sufficient accuracy. In addition, the provider is free to stipulate further conditions such as the amount of any deposit, the cost of final cleaning, cancellation options, etc. The various cancellation policies that can be agreed are available under cancellation policies. The user undertakes to keep the information in his user account up-to-date and accurate at all times, i.e. to correct it immediately in the event of a change. A user account cannot be transferred. The user undertakes to use his user account himself only and to keep his password secret.
3. The user is liable to HolidayPorch for all actions performed using his user account, unless the user is not responsible for the misuse of his user account.
4. Once the user is aware that third parties have access to his user data or have otherwise gained access to his user account, he must notify HolidayPorch of this immediately. HolidayPorch is entitled to then block the user account until the situation has been clarified.
5. Each user must independently verify the identity of his respective contract partner. HolidayPorch accepts no liability for the accuracy of the user contact information entered on the platform.
6. The user undertakes to set up his systems and programmes in connection with the use of HolidayPorch offering in a way that ensures that the security, integrity and availability of systems set up by HolidayPorch to provide its services are not affected. Users must not block, rewrite, or modify content generated by HolidayPorch or interfere with the HolidayPorch offering in any other way that contravenes the purpose of the user agreement. HolidayPorch is entitled to set up the required measures in accordance with section 12 as are necessary to ensure the system integrity of HolidayPorch or third-party systems.
7. Users must not use addresses, contact data, or e-mail addresses that they obtain by using the website for any purpose other than for contractual communication. In particular, these data must not be forwarded to unauthorised persons or used to send advertising, unless the user in question has expressly granted his consent in advance.
8. The user absolutely must not send mass messages with the same content via the platform. Any spamming or similarly harassing action towards other users or third parties is prohibited.
9. Each user is himself responsible for archiving any information that can be viewed on the website and saved by HolidayPorch that is required for the purposes of preservation of evidence, accounting, etc. on a storage medium independent of HolidayPorch.
10. In the event of a violation of these General Terms and Conditions by a user, HolidayPorch is entitled to exercise its virtual householder rights. HolidayPorch can exclude the user in question from using its services, delete the content he uses, or take other measures within the meaning of section 12. HolidayPorch will take legal action to exercise its legitimate rights to forbearance and compensation.
5. Handling of content and rights
1. Within the framework of the platform’s functionality, providers can present to potential tenants using a variety of media. Certain rules must be complied with to ensure that the various media are utilised legally so that neither the user nor HolidayPorch can be made liable. These rules derive, for example, from laws protecting copyrights and brands in addition to these General Terms and Conditions.
2. HolidayPorch saves for the user the multimedia content uploaded by him (images, text, etc.) or merely arranges the necessary memory space and access to it. Users themselves are therefore solely responsible for the multimedia content they upload to HolidayPorch and indemnify HolidayPorch against all third-party claims resulting from this. In particular, this indemnification also includes the costs of appropriate prosecution and legal defence.
3. Users will therefore ensure that the uploaded content does not violate applicable law or legal provisions, common decency, or in particular third-party rights (naming rights, personality rights, copyright, data protection rights, etc.). The user also undertakes not to utilise content that is pornographic, glorifies violence, or is race baiting. This also applies to the sending of e-mails and other electronic communication media of the platform.
4. By uploading multimedia content, users transfer to HolidayPorch a free, revocable, unlimited, non-local right of use that can be sublicensed to the multimedia content uploaded to HolidayPorch by the user. In particular, the right of use comprises the right to process the multimedia content for the purposes of the platform and to make it available to the public offline, in printed or electronic form, by wired or wireless connection, in such a way that it is accessible to members of the public at places and times of their choosing, including playback on their chosen receiver terminal that allows online access, in particular stationary and portable computer and mobile handheld devices such as smartphones, tablets and similar equipment. The usage rights also include the right to integrate multimedia content, including advertising media, on websites from HolidayPorch’s contractual partners.
5. The content offered via HolidayPorch is protected by copyright. The platform is generally accessed and utilised individually by a natural person using a web browser. The use of technologies such as web spiders, crawlers, or similar programmes, the purpose of which is not just the indexing of content but also the mass accessing and saving of the platform’s content is prohibited. This also applies in particular to technologies that enable so-called screen scraping and other third-party services.
6. In the event of a violation of these prohibitions and the guidelines of these General Terms and Conditions, HolidayPorch is entitled to refuse acceptance of content, to delete and block content immediately and to delete the pages and links to them immediately. In such cases the user has no right to the restoration of his multimedia content on the internet platform or the release of his deleted user profile.
6. Availability and amendment of the website
1. The user has no legal claim to permanent use of the platform. In particular, HolidayPorch is not required to ensure that the platform is available or can be reached at all times. However, HolidayPorch endeavours to maintain operation of the platform with as few disruptions as possible and to continue to develop it in line with user requirements.
2. HolidayPorch can temporarily restrict use if this is necessary in terms of security, integrity, capacity limits, or the performance of technical measures (maintenance work). In particular, HolidayPorch will take users’ legitimate interests into account by notifying them in advance.
7. Liability for third-party sites
1. The platform’s pages also include links to websites on the Internet maintained by third parties, the content of which is not known to HolidayPorch. HolidayPorch merely provides access to the websites and accepts no responsibility for the content. The links to third-party Internet sites merely serve to facilitate navigation. HolidayPorch does not espouse the views expressed on the sites to which it links, and rather hereby expressly distances itself from all content on all websites that it links to on its platform.
2. The owners of the Internet sites to which the HolidayPorch platform hyperlinks are solely responsible for both their content and the goods or services offered for sale there.
8. Booking process, payment, invoicing
1. By listing an accommodation on the HolidayPorch website, the provider is issuing an invitation to submit offers. Another user can submit an offer to conclude a lease for this accommodation. The agreement arises if the provider accepts this offer within 24 hours in a manner intended by HolidayPorch. Otherwise, the other user is no longer bound to his offer.
2. Cancellations are considered to be withdrawals before the planned check-in. One of the options shown under Cancellation Policies can be agreed. Refunds required as a result will be paid by HolidayPorch to the user using the same channel chosen by him within the meaning of section 8.4.3.
3. The provider must ensure that: a. the description of the accommodation and the images used do not violate the law or third-party rights and that they relate only to the accommodation on offer.
b. successfully booked accommodation is indicated accordingly.
c. information uploaded does not constitute references to third-party content.
d. he complies with public law regulations, particularly those for payment, factoring and tax law obligations, which may also include any obligations under sales tax law or indirect tax obligations. The provider will be solely responsible of the obligations and duties of the offer content. HolidayPorch is entitled to verify the offer of the users and ask for the corresponding proofs.
4. The payment process shall take place under the following provisions: a. The agreement arises by way of a total price shown at the end of the booking. This consists of the rent and the processing fee, which comprises an administration component and a property-based component determined by the rent. After a booking has been made, HolidayPorch notifies users of its content and the total price.
b. HolidayPorch is entitled to change the amount of processing fees at any time. This does not apply to leases already concluded. The provider will be notified of the amount of the processing fee by e-mail in a timely manner together with the booking inquiry.
c. The tenant must pay the total price shown in the booking, possibly in several instalments, by way of the channel chosen in the booking process. HolidayPorch receives the money from the tenant on behalf of the provider and holds it for the provider in a non-interest-bearing trust account. If debt collection is unsuccessful, the tenant must reimburse any additional costs incurred. This does not apply if the tenant is not responsible for the failure of debt collection.
d. On conclusion of the booking process, the tenant instructs HolidayPorch to transfer the rent to the provider 24 hours after the start of his stay in the rented accommodation. If use of the accommodation is not transferred to the tenant as per contractual arrangement, the tenant has the right to revoke this instruction to HolidayPorch. Instructions to HolidayPorch must be revoked immediately stating grounds and using the contact form.
e. The provider shall satisfy his obligation to pay the processing fee to HolidayPorch by way of HolidayPorch transferring this from the trust account to his own, so that the provider does not have to make any further payments.
f. Users can offset HolidayPorch processing fees against receivables only if these are due and have been legally established or are undisputed. Receivables cannot be transferred to third parties.
5. On request, the provider must issue the tenant with an invoice for the total price. On request, HolidayPorch will issue the provider with an invoice for the processing fee, though this will be shown without sales tax or similar indirect taxes in accordance with tax law provisions, unless expressly stated otherwise in these regulations.
6. Unless HolidayPorch is notified otherwise, it is refutably assumed that the provider operates in a business capacity and is aware of his resulting (sales) tax obligations and satisfies these accordingly. HolidayPorch is entitled to demand corresponding evidence of the provider’s business capacity.
7. The provider reserves the right to additionally charge other on-site costs based on consumption and use (in particular: electricity, water, heating). The provider must advise the tenant that he has a basic right to charge these costs before concluding the agreement. Such costs are not taken into account in the calculation of the processing fee. This also applies to any security deposit.
8. Booking vouchers issued by HolidayPorch can be used by tenants to make bookings within set periods. Tenants do not receive any payment.
9. Users are prohibited from circumventing the above booking and payment processes, in particular the processing fees.
9. Security deposit
1. The provider is entitled to charge a security deposit in his offer. If a provider demands a security deposit from the tenant on the day of arrival, corresponding information on the amount of the security deposit and the payment method must have already been mentioned in the offer. The amount of the security deposit must be stipulated prior to the booking. It must also be clarified in advance when the amount must be paid (e.g. three months before arrival, in cash on arrival).
2. If the provider did not mention the security deposit when advertising his accommodation, but demands a security deposit at a later time and the tenant does not agree, this constitutes a refusal to render performance by the provider under the agreed contract. In such cases, HolidayPorch reserves the right to cancel the booking and to charge the provider a cancellation fee.
3. HolidayPorch is not responsible for the administration of security deposits or for any claims asserted by the provider.
10. Review system
1. The website allows users to review each other after performance of the agreement. Reviews are intended to provide meaningful information on users’ trustworthiness. The reviews are not reviewed in advance by HolidayPorch.
2. Users undertake to make only truthful statements in the reviews they submit and to comply with the corresponding legal provisions. The reviews expressed by users must not violate third-party rights, in particular personality rights. They must be objective and must not contain defamatory criticism.
3. Any use of the review system contrary to the purpose of the review system is prohibited. In particular, users are prohibited from issuing reviews about themselves or arranging for third parties to let information be known in reviews that is unrelated to the settlement of the underlying agreement, and are prohibited from using reviews for any purpose other than presentation on the website.
4. HolidayPorch does not intervene in the review system without justifiable grounds. Reviews issued will be neither amended nor removed by HolidayPorch unless HolidayPorch is legally and specifically required to do so. Reviews cannot be altered after they have been posted. They are saved permanently in a user’s reviews profile and can be viewed by all users. HolidayPorch is entitled to add notes to a review if this is useful for clarification and a better understanding of the review in question. The only case where HolidayPorch will publish a review in place of a user is if the Host has cancelled a booking, in which case an automatic one-star review will be published on the offer.
5. If reviews are abused by a user, HolidayPorch shall have the right to remove the review as an exception and to take the measures stated in section 12. This applies in particular if: a. the review must be removed on account of an enforceable court ruling against those who issued the review;
b. the comment contains remarks that are vulgar, obscene, racist, not suitable for minors, or criminally offensive;
c. the review contains another member’s personal information, such as name, address, telephone number or e-mail address;
d. the review contains unauthorised links or scripts;
e. if a user has inadvertently posted a negative review for the wrong user, but has already corrected this error and assigned the same review to the correct user;
f. the review was issued by a person who was not authorised to make the booking;
g. the revuew comes from a user whose user account was blocked by HolidayPorch within 90 days of registration. This does not apply to user accounts that are blocked for non-payment of a processing fee or in situations where users are granted the opportunity to solve the problem and the user account is restored.
6. Both parties to the agreement can agree to withdraw a review that has already been issued. The review point will be removed and will no longer be included in the reviews profile.
11. Duration, termination
1. The user agreement is concluded for an indefinite period.
2. The user can terminate it at any time without notice. A declaration of termination to HolidayPorch in written form (e.g. letter, fax, e-mail) is sufficient. User’s leases with other users that have already been proven or arranged remain unaffected by the termination of the agreement. This applies accordingly to claims for the payment of processing fees already due.
3. HolidayPorch can terminate the user agreement at any time with two weeks’ notice.
4. This does not affect the right to block, the right to terminate for just cause or individually agreed rights of termination of the user. In particular, HolidayPorch has just cause if: a. The user does not comply with a not merely insignificant payment obligation in full or in part, despite having been sent a reminder with an appropriate deadline;
b. The user violates his obligations under these General Terms and Conditions and does not take remedial action despite having been sent a reminder with a timely deadline. A reminder is not needed if this is not expected to be successful or if the breach is sufficiently severe that it would be unreasonable for HolidayPorch to maintain the agreement. Furthermore, the severity of the offence can also result from the fact that the user has already been warned several times for similar violations;
c. Requirements of law, a court, or an official authority mean that the use of the platform can no longer be offered in this form;
d. HolidayPorch discontinues its platform or business activities;
e. Insolvency proceedings are initiated for the user’s assets owing to a lack of funds.
12. Measures in the event of illegal conduct and/or conduct in breach of contract by the user
1. If there are specific indications that a user is culpably violating legal provisions, thirdparty rights, or the General Terms and Conditions or if HolidayPorch otherwise has a legitimate interest, particularly with regard to protecting its users against fraudulent activities, HolidayPorch can take one or more of the following actions subject to termination without notice: a. Issue the user with a warning;
b. Delete the user’s offers or other content;
c. Restrict the user’s use of the website;
d. Temporarily or permanently exclude (block) the user from the website;
e. Contest and cancel existing leases in the name of the provider without taking into account the otherwise applicable cancellation policies, and reject the user’s offers for the conclusion of a lease in the name of the provider.
2. HolidayPorch also takes the legitimate interests of the user in question into consideration when choosing these measures.
3. Leases that have already been concluded between the user and other users are not affected by deletion of an offer. This applies accordingly to claims for the payment of processing fees already due. An effective lease does not arise if HolidayPorch deletes an offer before it is accepted by a user.
4. HolidayPorch reserves the right to block a user in any of the following cases, taking the legitimate interests of the user into account. HolidayPorch has the right to block a user when: a. the user has repeatedly received negative reviews in the review system as per section 10 and must be blocked to protect the interests of other market participants;
b. the user has provided incorrect contact information in his user account, in particular an incorrect or invalid email address;
c. a user account is transferred to another party;
d. the user significantly harms other users, in particular if their accommodations and/or furnishings are damaged, destroyed, stolen, etc.;
e. there is just cause due to similar risk and responsibility of the user.
f. a user shows a capture rate that is significantly lower than the average rate and an improvement cannot be predicted.
5. After a user has been permanently blocked by HolidayPorch, he is not entitled to have the blocked user account or the reviews profile restored. The user will also no longer be permitted to use the website with other user accounts or to re-register.
13. HolidayPorch’s liability
1. HolidayPorch is fully liable for damages caused with intent or through gross negligence by HolidayPorch, its employees or agents, for fraudulent concealment of defects, if a guarantee was expressly assumed and for damages arising from injury to life, body and health.
2. HolidayPorch is liable for other damages only if they arise from violation of a duty whose fulfillment makes the proper implementation of the agreement possible and compliance with which is regularly trusted by the parties to the agreement. Its duty to pay compensation is limited to such damages considered typical for the agreement and foreseeable.
3. As HolidayPorch does not participate in the contractual relationship between the tenant and the provider, HolidayPorch accepts no liability for contracts for accommodation.
14. Closing provisions
1. HolidayPorch is authorised to transfer its rights and obligations under this agreement in full or in part to third parties.
2. This agreement is subject solely to the substantive laws of the Federal Republic of India.
3. If individual provisions of these General Terms and Conditions are or become wholly or partially invalid, the other General Terms and Conditions are still valid. In the event of such a provision being invalid, it shall be replaced by a legal provision.
4. All declarations to be sent in connection with the user agreement to be concluded with HolidayPorch must be issued in writing or by email. The postal address and email address of a user are those that are stated as the current contact data in the user’s user account.
5. HolidayPorch has engaged PayPal to process its credit card transactions.