General conditions of business
1. Scope of Application and Definitions
These General Terms and Conditions (GTC) govern the legal relationship between the user of homegate.ch and/or myhomegate.ch (both portals are uniformly referred to hereinafter as the “Real Estate Platform“) and SMG Swiss Marketplace Group Ltd.
These GTC apply to any and all use made of the Real Estate Platform, particularly the submission and viewing/download of real estate advertisements and to all other products and services offered by SMG Swiss Marketplace Group Ltd on the Real Estate Platform, unless reference is made to specific provisions for these products and services (e.g. to the publication of online advertising or the conclusion of an online mortgage).
Users: Users means all the visitors and users of the Real Estate Platform, particularly the clients and inquirers.
Clients: Clients means, in addition to the advertisers who submit advertisements for real estate or properties, as applicable, all other advertisers offering services on the Real Estate Platform, e.g. the providers of financial services.
Corporate clients and private clients: Corporate clients means the clients who are companies and/or professional lettings and sales agents. Private clients means the private individuals who do not meet this criteria and submit real estate advertisements to the Real Estate Platform.
Inquirers: Inquirers means the persons interested in the clients' offers.
SMG Swiss Marketplace Group Ltd are referred to hereinafter in its corporate name and is not to be subsumed under the terms “user“, ”client“ ”corporate clients“ and ”inquirer”.
2. Offers on The Real Estate Platform
The Real Estate Platform can be used by clients to place offers and by inquirers to search for offers. Only letting or sales offers concerning real estate that meet the requirements in Section 8 below are allowed as real estate advertisements for the Real Estate Platform. SMG Swiss Marketplace Group Ltd, as Web Hosting Provider, stores these advertisements on its servers and keeps them ready for delivery on demand. The term ”real estate“ is given broad meaning such that it includes in particular land plots, construction land, parking spaces, houses, apartments and furnished apartments.
In addition, SMG Swiss Marketplace Group Ltd makes some of its own content and information (e.g. information on the real estate sector, furniture and financial services), whose contents and scope may vary in time, available on the Real Estate Platform. It is always clear whether such content and information originate from SMG Swiss Marketplace Group Ltd. All other content and offers on the Real Estate Platform originate from the clients and advertising clients and not from SMG Swiss Marketplace Group Ltd.
All rights in the software and other work products, services, procedures, equipment, designs, technologies, trademarks, companies, inventions, and in all materials which are in any way connected to the Real Estate Platform, and in particular in the content and information owned and made available by SMG Swiss Marketplace Group Ltd, remain with SMG Swiss Marketplace Group Ltd or its suppliers. By using images and texts on the Real Estate Platform, the user grants SMG Swiss Marketplace Group Ltd the right to make them accessible on the Real Estate Platform, as well as the right to permit other platforms to make these images and texts accessible.
The Real Estate Platform and the content and information owned and made available by SMG Swiss Marketplace Group Ltd is made available to the users for their own private use. Users are prohibited from making any further commercial use, particularly re-publishing or providing access on the internet, of the content and information owned and made available by SMG Swiss Marketplace Group Ltd. Likewise any commercial or other further utilisation or use of the offers and advertisements of clients published on the Real Estate Platform (including all texts, plans, diagrams, images, etc. published in this regard), is reserved solely for the clients, unless otherwise provided in these GTC. The client assigns to SMG Swiss Marketplace Group Ltd the right to take legal action against any use of the client’s real estate advertisements and/or offers that infringes the present provisions.
Business transactions relating to the clients' offers on the Real Estate Platform (particularly the offers and real estate advertisements published by clients on the Real Estate Platform) are concluded exclusively between the client and the inquirer. SMG Swiss Marketplace Group Ltd shall not be liable for the accuracy of the real estate advertisements published on the Real Estate Platform nor for ensuring that any information related to these advertisements is up to date.
3. Access to the Offers
Technical access to the Real Estate Platform is obtained through a network operator chosen by the user itself and by using software downloaded by the user from third parties via the internet, and does not fall within the responsibility of SMG Swiss Marketplace Group Ltd. Parts of the offered content are accessible only after prior registration and/or identification of the user. Users can register by choosing a user ID and a password with which to identify themselves every time they log in. The user must treat these details confidentially and properly safeguard them against misuse by third parties.
4. Changes, Interruptions and Down Time of the Real Estate Portal
SMG Swiss Marketplace Group Ltd reserves the right to adjust and alter the Real Estate Platform, including all features and content at any time in accordance with technological developments and normal market conditions. Such changes may be effected by SMG Swiss Marketplace Group Ltd at any time.
The Real Estate Platform is generally available 24 hours per day. SMG Swiss Marketplace Group Ltd, however, cannot ensure minimum availability. SMG Swiss Marketplace Group Ltd reserves the right to discontinue features and services of the Real Estate Platform in whole or in part.
Particularly if the client is suspected of using the Real Estate Platform in a contractually non-conforming, unlawful or immoral manner, SMG Swiss Marketplace Group Ltd may delete the content and accounts concerned without notice and without stating reasons.
In the event of changes, interruptions and down time of features and services of the Real Estate Platform or deletion of content, the client does not have the right to rescind a contract and/or to a reduction in price or refund or compensation.
5. Prices and Description of Services
The prices and terms specified in the current description of services shall apply to the placement of real estate advertisements of private clients. Unless otherwise specified, real estate advertisements remain published until they are cancelled by the client.
The prices and terms specified in the description of services or in the written contract confirmation issued by SMG Swiss Marketplace Group Ltd apply to corporate clients. For purposes hereof, corporate clients are given their own account that entitles them to submit and publish individual fee-based real estate advertisements, a particular number or an unlimited number of real estate advertisements, depending on the product or service selected. Any basic or flat fees applying in this regard must be paid in full for the period to which they apply even if the product or service is used for only part of that period. Any claim for reimbursement upon premature termination of a contract is excluded in these cases.
6. Payment terms
Invoice amounts are payable without deductions within a payment period of 30 days of the invoice date, provided no different payment period is agreed between the user and SMG Swiss Marketplace Group Ltd. Unless the customer raises a justified objection, an invoice will be deemed accepted and acknowledged on expiry of the payment period.
7. Payment default
If the user fails to pay the invoice amounts within the payment period, the user will automatically be in default. Additionally, SMG Swiss Marketplace Group Ltd may refuse to provide its services and terminate the contract with no reminder, and without notice or compensation. Additionally, SMG Swiss Marketplace Group Ltd reserves the right to block the customer’s access to their user account in the event of late payment of invoice amounts. Any block will be lifted on full payment of all open invoice amounts. In this case, the user has no right to an extension of the agreed contractual term for the duration of the block.
Statutory default interest is payable on open invoice amounts on expiry of the payment period. SMG Swiss Marketplace Group Ltd will charge a handling fee up to CHF 20.00 for any reminders issued. If such a reminder is unsuccessful, SMG Swiss Marketplace Group Ltd is entitled to assign the claims to an external collection company and to provide this company with all information and documents required for the collection process.
The collection company will assert claims for the open amounts in its own name and on its own account, and may charge additional handling fees. The fees can be viewed at www.fairpay.ch.
8. Submission of Real Estate Advertisements
The private clients and/or brokers instructed by them can submit the real estate advertisement electronically or by means of an advertisement form. Images, logos videos or the ground plans may be posted online as files or links.
The corporate client can submit the real estate advertisement via the specific online application at www.myhomegate.ch. To load large volumes of data it is also possible, by agreement with SMG Swiss Marketplace Group Ltd, for corporate clients to use an interface based on the homegate.ch format.
Ownership of the texts, work products and images supplied by clients (e.g. photographs, plans, videos etc.) remains with the client.
Client approval of the printing proof is given upon submitting the advertisement order.
SMG Swiss Marketplace Group Ltd reserves the right to request changes to the advertisement content at any time or to refuse and/or delete real estate advertisements without stating reasons. In particular, advertisements which do not meet the requirements specified in Section 8, and real estate advertisements that SMG Swiss Marketplace Group Ltd, at its sole discretion, deems unlawful or contrary to third-party rights will not be published and may be deleted.
By submitting real estate advertisements for inclusion on the Real Estate Platform, the client or broker permits SMG Swiss Marketplace Group Ltd to integrate its advertisements into the Real Estate Platform and into online and other services of SMG Swiss Marketplace Group Ltd or third parties, to use and analyse them for its own marketing and other purposes or to otherwise publish and make them available and disclose them to third parties, in particular to distribute and publish them, including via other channels (e.g. via social media channels or mobile portals).
9. Archival of Real Estate Advertisements
A private customer or an agent assigned by that customer can archive real estate advertisements for a fee. This service is invoiced per advertisement and archival. Archived real estate advertisements are stored in the account until their next use and for a maximum of 5 years. If the user account is deleted, the real estate advertisements archived with it are permanently removed and can no longer be reactivated. The archival fee is not refunded if the user account is deleted. Corporate customers can archive and reactivate as many real estate advertisements as they like during the term of the contract at www.myhomegate.ch or through the interface.
10. Responsibility of Users
The user is responsible vis-à-vis SMG Swiss Marketplace Group Ltd and any other third party for the content of its real estate advertisements and offers, and for any additional data it enters and submits. As a client, the user is responsible for ensuring that the advertisements, offers, information and other data entered and published are complete and true in law and in fact and that they do not infringe any legal provisions or third-party rights. In particular, the user must comply with the following requirements:
- Only real estate properties that are actually for rent or sale on the market may be offered and published as advertisements. Advertisements for properties no longer available (i.e. sold, leased or reserved properties) must be deactivated.
- The client must be legally and factually capable of transferring the real estate offered in the real estate advertisement, either as owner or by means of a marketing contract.
- The following activities in particular are not permitted and constitute misuse:
- any transfer of rights of use or joint use by third parties, whether for or without compensation, if such rights are connected with the user’s own account;
- multiple publication of real estate advertisements of the same offer or property, as applicable;
- publication of real estate advertisements in which the client improperly superimposes other advertising, whether of the client or any third party, on the presentation of the real estate;
- the use of fee-based Internet or telephone services, as well as the requirement of fee-based registration for contact by inquirers.
The user is liable to SMG Swiss Marketplace Group Ltd, its governing boards, directors and officers, staff and auxiliaries, for any damage caused in connection with use of this Real Estate Platform, whether or not by any fault of its own. If SMG Swiss Marketplace Group Ltd, its governing boards, directors and officers, staff and auxiliaries, are sued as a result of conduct and/or in connection with the real estate advertisements of the user by third parties or authorities, the user shall hold harmless and indemnify SMG Swiss Marketplace Group Ltd, its governing boards, directors and officers, and auxiliaries, from any third party claims and shall bear the court and out-of-court costs having arisen. The user is obliged to join in court proceedings after a third-party joining order is issued.
11. Disclaimer and Exclusion of Liability
SMG Swiss Marketplace Group Ltd shall not be liable for any damages resulting from misconduct by SMG Swiss Marketplace Group Ltd or its governing boards, employees or auxiliary persons except where such damages are caused through wrongful intent or gross negligence. its governing boards, directors and officers, staff and auxiliaries are excluded to the extent legally permissible. All warranties and liability for the availability, service quality, accuracy and completeness of the Real Estate Platform and its content, for damages arising in connection with use of the access by anyone other than the person named in the registration, as well as for unlawful and immoral conduct by users and third parties, are in particular excluded.
The liability of SMG Swiss Marketplace Group Ltd for damage to the user's equipment, to its data and software, is specifically excluded. The traffic is conducted over a public network, the internet. All warranties and liability of SMG Swiss Marketplace Group Ltd are excluded with regard to any software supplied by SMG Swiss Marketplace Group Ltd and any consequences arising from and during the transport of the software via the internet.
The liability of SMG Swiss Marketplace Group Ltd for indirect and consequential damages, such as lost earnings or third party claims, is wholly excluded.
As a result of the installed encryption device, it is generally not possible for unauthorized persons to view the confidential data. However, even the most advanced information technology security measures cannot guarantee absolute security for the Real Estate Platform and for the user. While the user's equipment or network interacts with the systems of the Real Estate Platform as a system part, it falls outside the control of SMG Swiss Marketplace Group Ltd and, in particular, the user’s equipment or network can become a weak spot of the system.
The user acknowledges in particular the following risks:
- Insufficient system knowledge and defective security measures can facilitate unauthorized access (e.g. insufficiently protected storage of data on the hard disk). A computer which is in contact with the outside world is exposed to the constant risk of infection by viruses which can spread, whether through computer networks (e.g. internet) or disks. The installation of anti-viral programs can lessen this risk and users are recommended to install such programs. It is the user's responsibility obtain precise information about the necessary security measures.
- It is important that the user only use software from trustworthy sources.
- It is possible for a third party to obtain access to the computer unnoticed when the user is on the internet.
- The functioning of the internet cannot be guaranteed. It is in particular possible for transmission errors, technical defects, disruptions, unlawful access to network features, network overload, wilful blockage of electronic accesses by third parties, interruptions or other inconveniences on the part of the network provider, to occur.
13. Data Protection
SMG Swiss Marketplace Group Ltd complies with the provisions of the Data Protection Act and its Privacy Statement but cannot fully guarantee the confidentiality, the integrity, the authenticity and the availability of the personal data. The client or user acknowledges and accepts that personal data can also be viewed in countries where there is no legislation granting adequate data protection.
When a user accesses and processes personal data (including from abroad) the user concerned is responsible for compliance with data protection. The storage of data on data carriers etc. should be handled restrictively, print-outs should be treated as confidential, personal data which is not needed should be immediately deleted, etc.
The clients acknowledge that all users have access to the published real estate advertisements and to the data transferred to them by the clients or other users.
Please also read our Privacy Statement and our Disclaimer, which provide you with information on the ways in which we handle information that you make available to us when using the Real Estate Platform.
SMG Swiss Marketplace Group Ltd reserves the right to adjust its prices, products and services, as well as the GTC (including the Disclaimer) and the Privacy Statement at any time. SMG Swiss Marketplace Group Ltd shall always announce such changes appropriately.
Except in the case of individual advertisements from private clients, changes to prices and conditions shall take effect at the same time for all clients and apply to current contracts and real estate advertisements as well.
The client has the right however, within two weeks of a price increase which affects it, to terminate the contract by written notification without observing a notice period. In that case, the compensation to be paid by the client until that time shall be calculated on the basis of the old price pro rata temporis at the time SMG Swiss Marketplace Group Ltd receives the notification of termination.
With ongoing contracts, if the GTC are amended and the respective amendments are disadvantageous to the client, the client likewise has the right to object to the amendment affecting it via written notification sent within two weeks of the amendment. Otherwise, the amendments shall be deemed to have been accepted on that date. Depending on the specific design of the product or service, the client’s objection shall result in the termination of the contract either at the time of (i) receipt of the notification by SMG Swiss Marketplace Group Ltd or (ii) expiry of the fixed term, as appropriate. Until that time, the existing GTC shall remain in effect without alteration.
15. Third Party General Terms and Conditions
Parts of the Real Estate Platform and certain services are provided by third parties, not by SMG Swiss Marketplace Group Ltd. Unless otherwise expressly agreed, the general terms and conditions of the relevant third-party provider apply to the use of these services. SMG Swiss Marketplace Group Ltd assumes no liability and makes no warranty for such utilised services.
SMG Swiss Marketplace Group Ltd acts in cooperation with third parties (such as e.g. banks and providersof mortgages). SMG Swiss Marketplace Group Ltd may receive a compensation if the user concludes a contract with such third party; also stating that SMG Swiss Marketplace Group Ltd has no duty to enable such contract / safeguard the interests of the user and does not have any influence on the decision by the third party.
16. Set-off and Assignment of Claims and Rights
The user is not entitled to use claims of SMG Swiss Marketplace Group Ltd to set off its own claims against SMG Swiss Marketplace Group Ltd. Furthermore, the assignment of rights and claims arising under the contractual relationship to third parties is not permitted except with the written consent of SMG Swiss Marketplace Group Ltd.
17. Severance Clause
If any provision of the GTC, the Disclaimers, or the Privacy Statement should be or become inoperative, the remaining provisions shall remain intact. In such cases, the contracting parties undertake to replace the inoperative provision with a provision which approximates as closely as possible the economic intent of the provision being replaced.
18. Applicable Law and Jurisdiction
The courts of Zurich 1 shall have jurisdiction in the event of any dispute. homegate.ch is, however, entitled to claim its rights at the place of domicile or of the registered office of the user or before any other competent authorities. The substantive laws of Switzerland are exclusively applicable.
These GTC were last amended on 23 July 2021.
In the event of inconsistency or discrepancy between the German version and any other linguistic versions of these GTC, the German language version shall prevail.
Copyright by SMG Swiss Marketplace Group Ltd. Any reproduction or distribution without prior written consent is prohibited. All rights reserved.
Disclaimer: the translation is offered by a "machine translation". The translation is not context-sensitive and may not fully convert text into its intended meaning. No liability and no responsibility are assumed by SMG Swiss Marketplace Group Ltd and/or its affiliates, for, including but not limited to, any errors, omissions, or ambiguities in the translations.
Under no event is SMG Swiss Marketplace Group Ltd and/or its affiliates liable for, including but not limited to, any damages (in particular direct, indirect, incidental, consequential, punitive or reputational damages), costs, expenses, loss of profits and other losses whatsoever arising out of or in connection with the free translation service offered by SMG Swiss Marketplace Group Ltd.