Terms of Service | RateGain Smart Distribution

Welcome! By signing up or by providing any services as specified in the Agreement, you are agreeing to be bound by the following terms and conditions (the “Terms of Service”) along with RateGain’s Privacy Policy.

Acceptance of Terms

The individual signing the Agreement and/or accepting the Terms of Service on behalf of a company or other legal entity represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Service Provider” shall refer to such entity and its affiliates. If the individual accepting the Terms of Service does not have such authority, or does not agree with these terms and conditions, such individual must not accept the Terms of Service and shall not sign the Agreement. In the event such entity or its affiliates have utilized/benefitted from/paid for the Services, it shall be presumed that such entity or its affiliates have duly subscribed to the Services and are bound by these Terms of Service. Both, RateGain and Service Provider shall be individually referred to as “Party” and collectively as “Parties”.

Definitions

All capitalized terms not otherwise defined herein or elsewhere in the Agreement have the following meanings:

1. Accommodation refers to the hotel room(s), apartment(s), villa(s), and any other form of accommodation owned and/or managed by the Service Provider.
2. Affiliate means any entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with RateGain or the Service Provider.
3. Agreement means these Terms of Service in combination with all agreements, insertion orders, service schedules, order forms, pricing schedules, pricing forms, enrollment forms and any other forms that (i) reference these Terms of Service, and (ii) are executed by RateGain and the Service Provider.
4. Booking denotes the End User’s acceptance of a Booking in relation to Accommodation.
5. Booking Conditions signifies the Service Provider’s terms and conditions for RateGain as notified to RateGain via RateGain XML link.
6. Commission means the amount that RateGain can retain as incentive for selling the Accommodation.
7. Confidential Information means all information furnished by one Party to the other in connection with RateGain’s delivery of the Services that is designated or treated as confidential by the disclosing Party and all information concerning the design, functionality and operation of the RateGain systems used to provide the Services. Confidential Information does not include any information that (a) is already lawfully known by the receiving Party when received as a matter of record; (b) is independently developed by the receiving Party; (c) is now or hereafter becomes generally available to the public other than as a result of disclosure by the receiving Party; (d) is received by the receiving Party from a third party legally entitled to make such disclosure; or (e) is disclosed after the receiving Party obtains prior written approval from the disclosing Party for such disclosure.
8. Distributors mean the companies acting as distributors, retail agencies or travel agencies, who shall procure bookings for the Accommodation from End Users.
9. Effective Date means the date from which the Service delivery begins by the Service Provider, or the go live date, as applicable.
10. End User means an end user making a Booking for Accommodation.
11. Intellectual Property Rights means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship, including but not limited to copyrights and moral rights; (b) trademark, trade name and trade dress rights and similar rights; (c) trade secret rights; and (d) patents, designs, database rights, algorithms and other industrial property rights; all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated), whether arising by operation of law, contract, license or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.
12. Net Price refers to the amount of the Booking after having discounted the Commission to the Selling Price.
13. Term means the period beginning on the Effective Date and ending as per the applicable provisions of the Agreement.
14. Selling Price denotes the total amount (inclusive of GST/VAT) charged to an End User by the Distributors on behalf of the Service Provider for the use of the Accommodation.
15. Services means the services described in the Agreement pursuant to a mutually agreed plan and schedule of implementation.

Service Scope

The Service Provider designates RateGain as its global, non-exclusive agent for procuring Bookings related to the Accommodation through its Distributors. RateGain accepts this appointment, subject to the terms and conditions outlined in the Agreement.

RateGain and Service Provider will each use commercially reasonable efforts to implement the Services subject to the provisions of the Agreement and to the performance of all necessary actions by any third party.

Responsibilities

The Service Provider shall:

1. Honor all Bookings made through RateGain and coming from RateGain’s Distributors.
2. Comply with the Booking Conditions.
3. Ensure that all pricing, content, and information related to the Accommodation is accurate, up-to-date, and not misleading.
4. Pass all communications regarding rates and inventory to RateGain through the RateGain XML link or RateGain extranet, including stop-sale notifications or as mutually decided by the parties.
5. Treat End Users who have booked through RateGain or RateGain’s Distributors no differently than end users who have booked through the Service Provider’s own distribution channels. This includes handling overbookings, allocating room types, and providing customer services.
6. Maintain room availability & parity between RateGain & other travel agents, other sales channels of third parties, & the hotel itself. The Service Provider guarantees RateGain that the sell rate advertised on RateGain Smart Distribution platform corresponds to a best available price for an equivalent stay.
7. Warrant that it has the right and authority to enter into the Agreement and distribute the Accommodation to RateGain for onward distribution to end users. The Service Provider further warrants that there are no material or legal obstacles preventing the fulfilment of its obligations as Service Provider.
8. Collect payment for Bookings from RateGain, as per the terms of the Agreement.
9. During the Term of the Agreement and for a period of one (1) year following its termination, not directly contract with, solicit, or conduct business outside the Smart Distribution platform with any Distributor that has been acquired and onboarded by RateGain specifically for the Service Provider under the Agreement, without RateGain’s prior written consent. Such consent shall be considered by RateGain on a case-by-case basis and shall not be unreasonably withheld where the Service Provider can demonstrate that (i) it had an existing commercial relationship with the relevant Distributor prior to the execution of the Agreement, or (ii) there are legitimate business reasons for pursuing a direct commercial arrangement.

RateGain shall:

1. Facilitate End Users’ engagement in Bookings through its Distributors.
2. Ensure that End Users acknowledge and accept the Booking Conditions before finalizing a Booking, with clear reference to the Service Provider in all relevant documentation issued to End Users.

Changes to accommodation/bookings:

1. The Service Provider shall refrain from making significant alterations to the Accommodation within 30 days before the End User’s arrival, except in cases of Force Majeure. Any changes to the Accommodation must be formally communicated to RateGain in writing. RateGain may, at its discretion, notify the Distributor of such alterations.
2. If the Service Provider cancels or significantly alters a Booking for reasons other than Force Majeure (e.g., downgrading the accommodation category), the Service Provider shall promptly inform RateGain and make alternative arrangements for the End User, ensuring a similar or higher standard. End User shall have the option to cancel the Bookings for a full refund or accept the alternative arrangements. Importantly, any such cancellation or significant alteration shall not impact the Commission payable to RateGain by the Service Provider.
3. In cases where the Service Provider cancels a Booking due to Force Majeure, the Service Provider shall refund the full amount of the Booking to the End User via the RateGain’s Distributor.
4. The Service Provider may not charge RateGain for name changes or applying other changes to Bookings.
5. If the pricing information provided by the Service Provider is inaccurate, the Service Provider shall bear the cost of any increased price of the Booking.
6. In situations involving operational or technical issues (including technical errors, duplicate or test bookings), RateGain and its Distributors retain the right to cancel free of charge any Booking within 24 hours.

Complaints:

1. The Service Provider hereby grants Distributors the authority to engage directly with End Users regarding any complaints.
2. RateGain shall promptly notify the Service Provider of any complaints received from End Users, and the Service Provider shall collaborate in good faith with RateGain to address and respond to the End Users within a period of 21 days.

Fees and Payment

Fees and Costs: RateGain agrees to pay the fees and costs for the Services as set forth in the Agreement or any insertion order/schedule thereof.

Taxes:

1. RateGain will pay all sales, use, excise, value added and similar taxes and duties levied by any taxing authority in connection with Service Provider’s delivery of the Service other than taxes that are levied upon RateGain’s net income or payroll (collectively, ‘Taxes’). Except as expressly stated otherwise in the Agreement, all fees and costs are exclusive of Taxes.
2. The Service Provider bears the responsibility for calculating and remitting GST/VAT on the Selling Price to the relevant tax authorities within the Service Provider’s tax jurisdiction. Additionally, the Service Provider shall issue GST/VAT invoices to End Users as required by applicable law.
3. Any deductions (including GST/VAT, withholding taxes, duties, or other charges) mandated by law or regulation shall not impact the Commission payable to RateGain.

Payment of Fees and Costs:

1. Except as expressly stated otherwise in the Agreement, all amounts payable under the Agreement are due within thirty (30) days of the date of receipt of each invoice by the Service Provider.
2. RateGain will notify Service Provider in writing, within thirty (30) business days of receipt of a billing statement, of any good faith dispute concerning such statement.
3. Service Provider will deliver all written communications regarding billing statements to RateGain, to email designated at the time of onboarding.
4. Despite the payment of Accommodation by RateGain, the Service Provider acknowledges that RateGain and Distributor act solely as intermediaries and will not assume any hotelier obligations.

Bank Charges: All bank charges and costs of transmitting payment shall be borne by respective Party, including intermediary bank charges, where applied. Service Provider shall only cover charges made by its own bank. RateGain shall pay all invoices in the same currency specified in the relevant invoice. Only foreign exchange loss arising from RateGain setting invoices in currency other than invoice currency, shall be fully borne by RateGain.

Termination

Termination Upon Breach: If a Party to the Agreement materially breaches the Agreement, the non-breaching Party may give written notice to the breaching Party specifying the breach or breaches that have occurred. Except as expressly stated otherwise in the Agreement, the breaching Party will be entitled to ten (10) days after receipt of such notice within which to cure any payment breach and thirty (30) days after receipt of such notice within which to cure any other breach. If the breaching Party fails to cure such breach within the applicable cure period after receipt of written notice, the non-breaching Party may terminate the Agreement by giving written notice to the breaching Party within sixty (60) days of the expiration of the cure period.

Termination Upon Change in Financial Position: Either Party may terminate the Agreement by giving written notice to the other Party if the other Party ceases to do business as a going concern; becomes insolvent, bankrupt or the subject of a receivership or administration; has a trustee or liquidator appointed for it; or has any substantial part of its property subjected to any levy, seizure, assignment or sale for or by any third party.

Force Majeure: A Party’s failure to comply with the terms of the Agreement, will not constitute a breach to the extent such failure results from events beyond the control of the non-compliant Party, including without limitation government regulation; acts of God; terrorist acts; fire; war; civil unrest. If such non-compliance continues for more than thirty (30) consecutive days, either Party may terminate the Agreement by giving written notice to the other Party.

Survival: Sections titled “CONFIDENTIALITY”, “INTELLECTUAL PROPERTY RIGHTS”, “INDEMNIFICATION”, “LIMITATION OF LIABILITY”, “GOVERNING LAW, JURISDICTION & DISPUTE RESOLUTION” including any other sections which are intended by their nature to survive the Agreement and any rights of RateGain or Service Provider that may have accrued as of the termination of the Agreement or any element thereof, will survive such termination.

Confidentiality

Neither Party will use the other Party’s Confidential Information for any purpose other than to fulfill its obligations arising under the Agreement. Each Party will use reasonable efforts to keep confidential the other Party’s Confidential Information and the terms and pricing contained in the Agreement and will not disclose such information to any person or entity other than its employees, agents, and affiliates who agree to comply with this section or other than as required to fulfill its obligations arising under the Agreement. Each Party will be responsible for the breach of this section by its employees, agents, and affiliates. A Party may disclose the other Party’s Confidential Information to the extent required by law, regulation, judicial process or order of a governmental authority, provided that the disclosing Party discloses only that Confidential Information necessary to comply with such requirement and that the disclosing Party gives the other Party prompt notice of such requirement following the disclosing Party’s receipt of notice, or determination of the existence, of such requirement. After the termination of the Agreement, each Party will promptly return to the other Party or destroy and/or delete all of the other Party’s Confidential Information furnished to it upon the written request of the other Party, provided that RateGain may retain in its physical and electronic records relating to the Service Provider’s Confidential Information that is incorporated into such records in the normal course of RateGain’s business. Each Party will confirm any such destruction and deletion in writing to the other Party within thirty (30) days of receipt of such written request. Notwithstanding any provision of the Agreement, RateGain may use and disclose data derived by RateGain for purposes of reporting and analysis, provided that neither Service Provider nor any Affiliate, nor any Service Provider or guest of Service Provider or any Affiliate, is identifiable from such reporting or analysis. RateGain represents that it will not disclose any personally identifiable information or personal financial information of any Service Provider or guest of Service Provider or its Affiliates in connection with any such reporting or analysis.

The receiving Party shall (1) keep the disclosing Party’s Confidential Information in strict confidence; (2) protect it with the same degree of care as the receiving Party treats its own confidential information; (3) not, without prior written consent of the disclosing Party, disclose it or permit it to be disclosed to anyone other than the receiving Party’s directors, officers, employees, agents or consultants who have a legitimate need to know the Confidential Information for the receiving Party to negotiate, participate in, or perform its obligations with respect to this Agreement; and (4) will not use and will not permit its directors, officers, employees, agents or consultants to use the disclosing Party’s Confidential Information for any reason other than to carry out its obligations under this Agreement.

Upon demand by the disclosing Party, the receiving Party shall return and deliver all Confidential Information that was disclosed to it, and the receiving Party shall destroy all copies, summaries, compilations or analyses thereof, in whatever form maintained or derived.

Intellectual Property Rights

Ownership: Each Party and their respective licensors will retain exclusive ownership of all right, title and interest, including without limitation, all Intellectual Property Rights, in and to their respective services and the systems and software used by each Party to provide their respective services; the design, functionality, operation and components of the same; all modifications, enhancements and upgrades to the same; and their respective business methods. No right, title or interest of any kind in the foregoing is granted to the other Party or any Affiliate pursuant to the Agreement.

Use of Marks: Service Provider represents and warrants that it has the right to grant, and does hereby grant, to RateGain a license to use, display, transmit, distribute and store on RateGain’s systems, the trademarks, service marks, trade names, trade dress, logos, names, images and other media (collectively, “Marks”) provided by Service Provider and each Affiliate and by any agent of Service Provider or an Affiliate (including the Marks of any third party that are so provided) to RateGain for use by the Service Provider in providing the Services. Service Provider will indemnify, defend and hold harmless RateGain and its affiliated entities from and against all suits, proceedings, claims, losses, liability, costs, damages, fines, and expenses (including reasonable attorneys’ fees) instituted against or incurred or suffered by them that arise out of or in connection with any asserted breach by Service Provider of the representation and warranty in the preceding sentence. Except as set forth in the first sentence of this section, RateGain will not obtain any right, title or interest in or to the Marks of Service Provider or any Affiliate pursuant to the Agreement.

Indemnification

Each Party and its affiliates, owners, officers, directors, employees contractors and subcontractors (the “Indemnifying Party”) hereby agrees to protect, defend, indemnify and hold harmless the other Party, and its affiliates, officers, directors, shareholders, members, agents and employees (the “Indemnified Party”) from and against any and all third party claims, demands, damages, losses or expenses, of any nature whatsoever, including court costs and reasonable attorneys’ fees (“Damages”), arising directly or indirectly from or out of (i) claims arising from the breach of the representations under the Agreement or applicable laws; (ii) claims arising from wrongful or gross negligent acts conducted by or on behalf of the Indemnifying Party; (iii) any claims of infringement of third party intellectual property rights; and (iv) any claims due to the Indemnifying Party’s use of, provision of, or failure to provide the services, deliverables, or obligations under this Agreement.

The Indemnified Party shall give the Indemnifying Party prompt written notice of any claim; provided, however, that the failure to notify the Indemnifying Party shall not affect the indemnity obligations of the Indemnifying Party except to the extent that it is prejudiced by the failure of Indemnified Party to give such notice.

Limitation of Liability

Limitation of Liability: Nothing in this or the following section excludes or limits the liability of either Party for death or personal injury caused by its negligence or for its fraudulent misrepresentation. Subject to the preceding sentence, RateGain, its subsidiaries and affiliated entities will have no liability arising from or relating to (a) data provided or entered by Service Provider or any Affiliate, or by any third party (other than any error or omission in data caused by RateGain’s entry of that data). In no event will either Party’s liability hereunder exceed the total fees and costs paid or payable for the Services during the six (6) months immediately preceding the date of the cause of action or occurrence which is the basis of any claim against a Party.

No Consequential Damages: Subject to the first sentence of the preceding section, neither Party will be liable to the other for any indirect, special, incidental, punitive or consequential damages, including lost profits, income or goodwill, regardless of whether or not such Party has been advised of the possibility of such damages, caused by or resulting from any breach of the Agreement, and each Party hereby expressly waives such damages.

Governing Law, Jurisdiction and Dispute Resolution

All references to ‘RateGain,’ ‘we,’ or ‘us’ under the Terms of Service, what law will apply in any dispute or lawsuit arising out of or in connection with the Agreement, and which courts have jurisdiction over any such dispute or lawsuit, shall be as follows:

The Agreement, and any disputes arising out of or related to the Terms of Service hereto, will be governed exclusively by the applicable Governing Laws mentioned hereinabove, without regard to conflicts of laws principles.

Any dispute with respect to the provisions of the Agreement and/or arising therefrom shall be resolved mutually by the Parties within fifteen (15) days of notification of existence of such dispute by the aggrieved Party. If such dispute is not resolved within the aforementioned period, then Parties may refer such dispute for adjudication by arbitration in accordance with the Dispute Resolution provisions mentioned hereinabove. The Seat of the arbitration shall be the applicable Venue mentioned hereinabove, and the arbitration tribunal shall consist of a sole arbitrator appointed mutually by the Parties. The language of arbitration shall be English.

The courts located in the applicable Venue mentioned hereinabove shall have the sole jurisdiction for the purpose of the Terms of Service and any dispute(s) arising therefrom and/or in relation thereto, without regard to any conflict of laws principle. Each Party waives any defense that it may have that such court lacks jurisdiction over it or is an inconvenient or improper forum.

General Requirements

Cooperation and Infrastructure: Service Provider agrees (a) to reasonably cooperate with, and to cause each Affiliate to reasonably cooperate with, RateGain with respect to the implementation, maintenance, performance and modification or enhancement of the Services; (b) at Service Provider’s sole expense, to procure, operate, maintain and manage (or cause its Affiliates to procure, operate, maintain and manage) such hardware, software, equipment and communications services and lines as may be reasonably necessary for Service Provider and each Affiliate to access and receive the Services (and, to the extent that the parties agree that RateGain will provide such communications services and lines, to pay RateGain for the same as agreed); and (c) at Service Provider’s sole expense, to operate and maintain a Service Provider test system and make such system available to RateGain for its use upon RateGain’s request consistent with the testing plan communicated by RateGain.

Modifications and Enhancements: Service Provider reserves the right to modify or enhance the Services and related processes and procedures after consultation with RateGain, provided that no such modification or enhancement affects the functionality of the Services in a material adverse manner.

Accuracy of Data: Service Provider will cause all Service Provider and Affiliate information provided by Service Provider or Affiliates to RateGain to be complete, accurate, and current, and in the form and format reasonably required by RateGain.

Outsourced Providers: Service Provider will provide to RateGain a confidentiality agreement in a form reasonably satisfactory to RateGain from each third-party engaged by Service Provider or an Affiliate to access the Services on its behalf (an “Outsourced Provider”) prior to RateGain consulting with, or providing specifications or other RateGain confidential information to, such Outsourced Provider as necessary for Service Provider or its Affiliates to receive the Services. Service Provider agrees to cause any Outsourced Provider to comply with the terms and provisions of the Agreement to the extent Service Provider’s performance pursuant to such terms and provisions requires such compliance. For the avoidance of doubt, Service Provider shall remain fully liable for (a) any breach of the terms and provisions of the Agreement resulting from an act or omission of an Outsourced Provider, and (b) any other act or omission of any Outsourced Provider as it relates to Service Provider’s access to the Services. In no event shall any Outsourced Provider have any right to receive the Services or any right of independent access to the Services pursuant to the Agreement.

Network Security: Each of RateGain and Service Provider will, and Service Provider will cause its Affiliates to, maintain commercially reasonable security policies and procedures that are directed at (a) detecting, preventing and containing the infection of their systems by harmful or malicious code; (b) deterring the use of Service Provider’s and Affiliates’ connections to the Services by unauthorized personnel or for unauthorized purposes; and (c) deterring improper access to or use of, or loss of, data residing on RateGain’s systems by means of Service Provider’s and Affiliates’ connections to the Services. In addition, RateGain will comply with the requirements of the Payment Card Industry Data Security Standard (as published by the Payment Card Industry Data Security Council from time to time) relating to the possession, storage, processing and transmission of cardholder data (as defined in the Payment Card Industry Data Security Standard) to the extent such requirements are applicable. Service Provider will, upon RateGain’s request, (i) identify the individuals given access by Service Provider and Affiliates to RateGain’s networks and systems and notify RateGain of any changes to such group; and (ii) complete a RateGain provided network security survey. RateGain will have the right to deny access by Service Provider, an Affiliate or any individual to RateGain’s networks and systems due to reasonable security concerns. Service Provider will cause each Outsourced Provider to comply with this section, and RateGain will be entitled to exercise any of its rights under this section with respect to an Outsourced Provider.

Reservations Data Transmission: The transmission of Service Provider and Affiliate data between Service Provider’s and its Affiliates’ systems and RateGain’s systems will occur by such means as are mutually agreed by Service Provider and RateGain.

Miscellaneous

Status of Parties: The Agreement does not constitute a partnership, joint venture, or similar arrangement between the Parties. Neither Party, nor any of their respective directors, officers, employees or agents, is authorized to bind the other Party or otherwise act in the name of or on behalf of the other. Nothing herein shall be construed to give any person or entity other than RateGain and Service Provider any legal or equitable right, remedy or claim in connection with or arising from either Party’s performance hereunder.

Assignment: The Agreement is not assignable by RateGain or Service Provider without the prior written consent of the other Party, and such consent may not be unreasonably conditioned, withheld or delayed. Notwithstanding the foregoing, either Party may assign the Agreement without consent to a Party engaged in a merger with, an acquisition of, or the purchase of all or substantially all of the assets of, the assigning Party, provided the assignee unconditionally assumes the same in writing. RateGain may assign the Agreement or any element thereof to any of its subsidiaries or Affiliates without Service Provider’s consent. Any assignment in violation of this section is void and unenforceable.

Entire Agreement; Controlling Language: The Agreement including these Terms of Service constitute the entire agreement between RateGain and Service Provider with respect to the subject matter thereof and supersedes and replaces any and all other agreements and representations, verbal or written, with respect thereto. There are no representations, warranties or agreements made or relied upon by either Party with respect to the subject matter of the Agreement that are not set forth therein. The Agreement may not be amended or modified other than by a written agreement executed by Service Provider and RateGain. English is the controlling language with respect to the Agreement. Any translation of the Agreement into another language is for convenience only and no such translation will be binding against the Parties hereto. Any inconsistency in the provisions of the Agreement will be resolved by giving precedence in the following order: (1) the Insertion Order, (2) these Terms of Service, and (3) Exhibits or any other document incorporated by express reference as part of the Agreement; such that the provision in the higher ranked document, to the extent of the inconsistency, will prevail.

Successors and Assigns: The Agreement is binding upon and inures to the benefit of the legal representatives, successors and duly authorized assigns of each Party.

Independent Parties: The Terms of Service do not in any way create a relationship of principal–agent, employer–employee, agency, etc. between Parties. Parties are independent of each other and each Party undertakes not to act, attempt, or represent itself of being an agent, representative of the other Party.

Publicity: Customer authorizes RateGain to disclose its name as part of RateGain’s Customer lists in its public relation and marketing activity and this disclosure will not be considered as a violation of the Confidentiality Clause of the Terms of Service.

Severability: If any provision of the Terms of Service are found by a court to be void, invalid or unenforceable, the same shall either be reformed to comply with applicable law or stricken if not so comfortable, so as to not affect the validity or enforceability of all of the rest of the provisions of these Terms of Service.

Waiver: Except as otherwise provided in the Agreement, the failure of a Party to exercise any of its rights or to enforce any of the provisions of the Agreement on any occasion will not be a waiver of such right or provision, nor affect the right of such Party thereafter to enforce such right or provision.

Promotional Campaigns: The Parties acknowledge that RateGain, at its sole discretion, may reach out to the Service Provider for participation in promotional campaigns, including but not limited to member-exclusive discounts, opaque rate promotions, and other targeted marketing initiatives. Participation in such campaigns shall be subject to mutual consent and may be governed by separate commercial terms as agreed between the Parties from time to time.

Modification: RateGain reserves the right to modify or update these Terms of Service from time to time. Any material changes shall be notified to the Service Provider through reasonable means, including by posting the updated Terms of Service on our website. Unless otherwise specified, such changes shall become effective upon the date specified in the notice or upon publication of the updated Terms of Service.

Notice: Any notice required to be sent under the Terms of Service shall be given through email to: help@rategain.com.