Affiliation general terms and conditions

1st march 2015

PREAMBLE

MagicStay, a simplified joint stock company under French law with capitalization at 2,097,806 euros, inscribed upon the Commercial and Trade Register in Grasse under no795 128 248, located at 7 Avenue Michel Chevalier, ZI les Bois de Grasse, 06130 GRASSE, France, operates the digital platform accessible at the address: www.magicstay.com (hereinafter referred to as the Site).

The Site offers a broker service allowing professionals to rent furnished property in order to have housing solutions for short-term stays during professional events (trade shows, symposiums, etc.).

The Partner publishes an Internet site as part of its professional activity and would like to subscribe to MagicStay’s affiliation program as described hereinafter.

IMPORTANT
Registering at the Site’s Affiliation Area necessarily implies acceptance, without reserve, by the Partner of the present Affiliation General Terms and Conditions.

 

1. DEFINITIONS

The terms listed below shall be understood as follows in the Contract:

  • Commission:” shall be understood as the compensation due to the Partner resulting from reservations made on the Site via the Link setup by the Partner on its site or its mobile app.
  • Account:” shall be understood as the account opened by the Partner at the Site’s Affiliation Area in order to register for the affiliation program offered by MagicStay. Through its Account, the Partner may identify the number of reservations made by Internet users coming to the Site via its Link and thereby calculate its Commission.
  • Contract:” shall be understood as the present Affiliation General Terms and Conditions validated by the Partner when registering at the Affiliation Area in order to create an Account.
  • Affiliation Area:” shall be understood as the area dedicated to Affiliation setup on the site at the address: https://www.magicstay.com/page_102-affiliations.html, which the Partner shall access using a unique username for registration, opening an Account, and managing Commission invoicing.
  • Event:” shall be understood as an Internet user, who came to the Site via the Link placed on the Partner’s site or its mobile app, validating a reservation.
  • Confidential Information:” shall be understood as all financial, legal, technical, commercial, and strategic information as well as any data, documents of all types, drawings, concepts, production secrets, know-how, information systems, or software transmitted to or brought to the attention of one Party hereto, regardless of form and/or the medium used.
  • Link:” shall be understood as the technical measures (icon, object, graphic, or text incorporated in an Internet page or e-mail) consisting of a hypertext link to the URL MagicStay on the Affiliate’s sites.
  • Activity Report:” shall be understood as the tally of reservations made by Internet users or mobile users who came to the Site via the Link during the previous month. The Activity Report may be accessed by the Partner on its Account and shall serve as the basis for calculating the Commission.
  • Service:” shall be understood as the services offered to the Partner by MagicStay as described in Article 3 hereinafter.
  • Site:” shall be understood as the www.magicstay.com digital platform published by MagicStay.
  • Tracker:” shall be understood as the cookie placed on the computer of an Internet user who clicked the Link allowing MagicStay to identify the reservations made on the Site from the Partner’s site.

2. SCOPE

The present Contract’s purpose is to define the legal, technical, and financial conditions according to which MagicStay shall make the Affiliation Area and associated Service available to the Partner in order to promote the Site in return for payment of a Commission.

 

3. CONTRACT TYPE

The present Contract shall not, under any circumstances, grant the Partner the status of employee, agency, agent, or representative of MagicStay. Moreover, the Parties hereby state that the present Contract shall not, under any circumstances, be deemed as constituting a legal person or entity of any kind, and that any form of “affectio societatis” is formally excluded from their relationship.

 

4. CONTRACT MODIFICATION

For any contractual modifications, including pricing, the new terms shall be submitted by electronic mail to the e-mail address provided by the Partner at registration, as well as via the Affiliate Area. Such new terms shall be deemed to have been accepted by the Partner simply continuing to use the Service one month after the date the modifications come into force.

Should the Partner not agree to the new terms, the Partner may terminate the Contract by reporting its decision by letter or electronic messaging addressed to: affiliates@magicstay.com, at least one month before the modifications come into force.

 

5. MagicStay AFFILIATION SERVICE

5.1. Service Description

The Service shall include MagicStay making available:

an Affiliation Area at the Site allowing the Partner to open an Account using its unique username and password and to download the Link to be placed on its site or its mobile app.

a back office allowing the Partner to download Activity Reports in order to produce its invoices for Commission payments.

 

5.2. Service Registration

It is hereby specified that MagicStay reserves the right to refuse opening an Account should the Partner’s activity and the site or mobile app where the Link is to be placed not concord with the Site’s image.

Upon validating its registration, the Partner shall receive, by electronic mail at the e-mail address indicated, a confirmation of such registration with a username and password, as well as a link providing for accessing its Account and changing its password.

5.3. Service Access Modalities

The Partner shall connect to the Affiliation Area using the username and password. The Partner is hereby reminded that such username and password are strictly personal and confidential. Consequently, they must not be communicated to or shared with anyone.

Should the Partner disseminate or use such username and password in a manner inconsistent with their intended purpose, MagicStay shall not be held liable for the use of the Affiliation Area and any resulting consequences.

The Partner shall be solely responsible for the use of its username and password by third parties and/or the actions or doings of third parties with regard to its Account, whether fraudulent or not. Therefore the Partner shall hold MagicStay harmless against any proceedings on these grounds.

MagicStay shall not be held liable should the Partner’s identity be stolen or Account pirated. Any actions made from the Partner’s Account shall be presumed performed by the Partner.

In case of doubt regarding fraudulent use of its username and password, the Partner shall inform MagicStay immediately by electronic messaging sent to the following address: affiliates@magicstay.com. MagicStay shall issue a new username and password within 24 hours.

 

6. FINANCIAL TERMS

In return for displaying the Link on its site or mobile app, the Partner shall receive a Commission calculated as follows:

Number of Monthly Reservations   Commission
  1-49 20%
50-199 25%
+200 30%

 

COMMISSION = % of Service Fees received by MagicStay for any reservation made during the previous month on the Site by an Internet user or mobile user coming to the Site from the Link installed by the Partner.

Service Fees shall be understood as the fees invoiced by MagicStay by the lessee of a property offered for lease by a professional or private lessor registered on the Site. Such Service Fees are from [8] to [18] % of the lease and are detailed on the schedule available at https://fr.magicstay.com/offers/localisation.

The Partner, through the Activity Report accessible on its Account, shall have the ability to calculate the Commissions due for the previous month, it being hereby stated that the Partner shall be free to invoice cumulative Commissions at any time it so desires based on the data included in said Activity Report.

The Partner is hereby informed and accepts that MagicStay uses an “auto-invoicing” system for all Commissions due hereunder. As such, MagicStay shall provide, upon simple request in the Partner’s Account, an invoice indicating the Commission payable for the previous months (the “Invoice”).

The Commission invoice settlement timeframe is 5 business days from reception of the invoice.

 

7. MagicStay’S OBLIGATIONS

Pursuant hereto, MagicStay shall:

  • provide the Partner and submit to it all information required for opening the Account and setting-up the Link in order to promote the Site.
  • make the Affiliate Area accessible as well as the Site with at least 90% availability. Nevertheless, it is hereby specified that MagicStay reserves the right to temporarily interrupt Site accessibility or suspend the Service in order to eliminate any breakdowns or perform maintenance or improvement operations. MagicStay shall make all due effort to minimize such interruption periods.
  • make all due effort to make any technical corrections concerning any operating and/or compliance anomalies affecting the Affiliate Area and the Service.
  • pay the Partner its Commissions under the terms set forth in the “Financial Terms” article hereinabove and based on the results which may be consulted in the Activity Report.

8. PARTNER’S OBLIGATIONS

Registering for the Service and displaying the Link on its site implies that the Partner shall respect all laws and regulations and act in good faith with regard to MagicStay and Internet users.

The Partner shall publish the Link on its site under its sole responsibility and shall, for the Contract’s entire duration, not take part in a similar affiliation program promoting a site competing with MagicStay’s activity as described in the preamble hereto.

With regard to its site, the Partner is an Internet site publisher as defined in French regulations and jurisprudence and is therefore solely responsible for the content (graphics, texts, videos, etc.) on its site as well as all information it includes there.

It is also hereby stated that the Partner shall be solely responsible for the sincerity and accuracy of any information submitted to MagicStay when opening its Account.

In any event, the Partner shall:

  • Respect the confidentiality of all dialogue with MagicStay in accordance with the “Confidentiality” article herein,
  • Not attempt to deviate Internet users towards another site or service competing with MagicStay,
  • Not seek to damage, as defined in Article 323-1 and following of the French Penal Code, the automatic data processing systems used by the Site,
  • Not violate or attempt to violate the Site’s security or integrity, communicate misleading information, or use the information collected via the Site for illicit purposes.

9. INTELLECTUAL PROPERTY

The trademarks, logos, slogans, graphics, photographs, animations, videos, and texts contained on the Site are MagicStay’s exclusive intellectual property and may not be reproduced, used, or represented without the latter’s express permission, on pain of prosecution.

MagicStay hereby expressly grants the Partner a right-of use:

  • for all elements constituting the Link (graphic elements, software tools, etc.), with such right-of-use being strictly limited to including the Link on the Partner’s site or mobile app.
  • for the Affiliation Area in order to allow the Partner to check the reservations made by Internet users from the Site through the Link in real time and invoice its Commissions as per the modalities provided for in the “Financial Terms” article herein.

Said right-of-use is non-transferrable and granted to the Partner for the entire world and solely for the Contract’s duration.

10. PERSONAL DATA

10.1. Mutual Obligations

Each Party shall comply with the provisions enacted by French Law no. 78-17 dated January 6th, 1978 as modified, referred to as the “ Personal Data Protection Law.”

As such, each of the Parties shall guarantee to the other Party its compliance with the legal and regulatory obligations incumbent upon it in relation to its role with regard to protecting personal data.

With regard to the Partner’s registration in the Affiliation Area, several different types of personal data may be collected by MagicStay in order to validate the Account opening. With regard to such data, and pursuant to Article 32 of the abovementioned French Personal Data Protection Law, the Partner shall have the right to access, rectify, oppose (for legitimate reasons), and delete its personal data. It may exercise this right by sending an e-mail to: affiliates@magicstay.com or a letter to MagicStay Affiliation – 60 avenue du général de Gaulle – 92200 Neuilly sur Seine - France. 

 

10.2. Specific Provisions / Tracker

In order to provide for establishing the Partner’s Commission, the Partner is hereby informed of the use of a Tracker providing for identifying Internet users who have clicked the Link before making a reservation on the Site.

Since the Tracker is a “tracking” cookie as defined in deliberation no. 2013-378 adopting a recommendation regarding cookies published on December 5 th, 2013 by the CNIL [French Personal Data Protection Authority], the Partner is hereby invited to comply in this regard with the provisions of Article 32II of the abovementioned Personal Data Protection Law and the CNIL’s recommendations.

 

11. DURATION - TERMINATION

The present Contract shall come into force on the date the confirmation e-mail is sent by MagicStay to the Affiliated Partner and shall continue indefinitely unless or until its termination.

Any early termination by the Partner before the Contract’s term shall extinguish, ipso jure, the payablility of any unpaid Commissions as of the early termination date, which the Partner hereby expressly accepts.

In any case, each Party may terminate the present Contract:

  • without prior notice in cases of serious breach by the other Party of any of its obligations.
  • fifteen (15) days after informing the other Party by electronic mail of its breach and requesting compliance herewith remaining fruitless.

The termination shall take place without prejudice to any damages that may be claimed as remedy for the prejudice suffered due to such breach.

Should the Contract be terminated for any reason whatsoever, the Partner shall remove the Link from its Site and substantiate such removal.

 

12. RESPONSIBILITY

MagicStay shall be subject to a simple best effort obligation excluding any obligation to achieve results. As such, MagicStay hereby declines any responsibility:

  • In cases of a temporary inability to access the Affiliation Area or the Site for technical maintenance operations;
  • In cases of virus attacks;
  • In cases of abnormal or illicit use of the Site or the Affiliation Area;
  • In cases of delay or non-performance of its obligations where the cause of such delay or non-performance is related to a case of force majeure as defined by French jurisprudence;
  • In cases of a foreign cause, not due to MagicStay;
  • For all indirect and intangible damages such as loss of opportunity, lost profit, lost contract, or loss of image.

MagicStay shall not guarantee the results of the promotional operations or any Commission levels, as it is directly dependent on the flow of Internet users to the Site generated by the Link and the transformation rate (in the form of effective reservations by said Internet users on the Site).

Moreover, MagicStay shall not be held liable for any consequences that may result during or following encounters or contacts between Internet users when using the services offered by the Site in accordance with the General Terms and Conditions for Use published at https://fr.magicstay.com/offers/localisation.

 

13. PROOF

It is hereby expressly agreed between the Parties that the Activity Reports, including the data, information, files, number of clicks, statistics, and site consultation and reservation dates and times, as well as sending e-mails and text messages and all other digital elements exchanged between the Parties shall constitute admissible, valid, and enforceable means of proof between the Parties and before the courts. Such elements shall be deemed to have the probative force of a private deed.

As such the Parties shall not contest the admissibility, validity, or enforceability of the abovementioned elements of an electronic nature or format on the basis of their electronic nature. Unless proven otherwise, such elements shall be valid and enforceable between the Parties under the same terms and with the same probative force as any document drafted, received, or retained in written form.

 

14. CONFIDENTIALITY

The Parties shall maintain the secrecy of any Confidential Information of which they may become aware in the performance hereof.

Each Party shall only use such Confidential Information, directly or indirectly, in whole or in part, for the strict performance hereof.

As such, each Party shall:

  • maintain the confidentiality of all information received from the other Party, demonstrating at least the same degree of vigilance as for protecting its own Confidential Information;
  • not divulge the other Party’s Confidential Information to any third party whatsoever other than employees or agents who need to know it;
  • and only use the other Party’s Confidential Information for the purpose of exercising its rights and fulfilling its obligations under the terms hereof.

Notwithstanding the foregoing, neither Party shall have any obligation whatsoever with regard to information that:

  • has fallen or falls into the public domain independently of a fault by the Party receiving it;
  • has been developed independently by the Party receiving it;
  • is known to the Party receiving it before being divulged by the other Party;
  • has been legitimately received from a third party not subject to a confidentiality requirement;
  • or must be divulged pursuant to the law or by order of a legal or administrative decision (in which case it must only be divulged in so far as required and after informing the supplying Party in writing).

The Parties’ obligations with regard to confidential information shall remain applicable throughout the Contract term and as long after its term as the relevant information remains confidential for the divulging Party and, in any case, for a period of two (2) years after the termination hereof.

Moreover, the Parties shall ensure compliance with these provisions by their staff and any agent or third party participating in any capacity whatsoever under the framework hereof.

 

15. TRANSFER

MagicStay is hereby authorized to transfer all or part hereof to any entity of its choice subject to informing the Partner beforehand. 

 

16. GENERAL PROVISIONS

The Contract constitutes the entire agreement between the Parties with respect to its purpose. It replaces and voids any previous statements, negotiations, commitments, oral or written communications, understandings, and agreements between the Parties, regarding the same purpose.

The fact that one of the Parties has not demanded application of a given clause herein, whether permanently or temporarily, shall not, under any circumstances, be deemed as renunciation of said clause.

The Contract shall not grant any exclusivity with respect to providing related or similar services or a guarantee of quantity or market share for each Party.

In case of interpretation difficulties between any of the clause titles and the clauses, the titles shall be deemed non-existent.

Should any of the stipulations herein be deemed null and void with regard to an applicable legal or regulatory provision and/or a definitive legal decision, it shall be deemed unwritten but shall not affect the validity of the other clauses which shall remain fully applicable.

 

17. APPLICABLE LAW – JURISDICTION

The Contract shall be governed by French law.

Should a dispute arise between the Parties regarding the interpretation, performance, or termination hereof, the Parties shall make all due effort to settle the matter amicably.

Failing an amicable settlement within two (2) months from the time of notification by one of the Parties, the dispute may be brought before the courts under the Paris Court of Appeals’ jurisdiction which are hereby expressly granted jurisdiction, notwithstanding multiple defendants or the introduction of third parties, including for urgent, preventive, summary, or on-petition proceedings.