General Terms and Conditions of the Digital Marketplaces of SMG Swiss Marketplace Group in the Real Estate Sector

1. Scope

These General Terms and Conditions (hereafter “GTC”) of SMG Swiss Marketplace Group Ltd, Thurgauerstrasse 36, 8050 Zurich and its subsidiary acheter-louer & Publimmo Sàrl, Chemin Adolphe-Burnat 7, 1814 La Tour-de-Peilz (hereafter collectively “SMG”), govern the use of SMG’s online marketplaces in the real estate sector, specifically Homegate, ImmoScout24, acheter-louer (hereafter collectively or individually the “Marketplaces”) and the products and services offered via the Marketplaces.

The GTC also apply to all contractual agreements with SMG in connection with the Marketplaces. Natural persons or legal entities that (1) use the Marketplaces and (2) have concluded an additional contractual agreement with SMG, if applicable, are referred to below as “Customers”. For ease of reading, masculine pronouns are used but should be interpreted as referring to persons of any gender identity.

In addition to the GTCs, the terms and conditions set forth in the product-specific service descriptions of the respective Marketplaces (hereinafter the “Product-Specific Service Descriptions”) and the Advertising Rules for SMG’s Digital Marketplaces in the Real Estate Sector (hereinafter the “Advertising Rules”), as amended from time to time, shall apply as integral parts of the contractual relationship between SMG and the Customer. In the event of discrepancies, individual agreements between SMG and the Customer as well as the Product-Specific Service Descriptions and Advertising Rules shall take precedence over these GTC.

With each use of the Marketplaces, products and services and by paying each invoice, the Customer confirms that he has read and accepted these GTC, the Product-Specific Service Descriptions and the Advertising Rules.

General terms and conditions of the Customer shall not apply even if the Customer makes reference to them (e.g. in order confirmations).

2. Use of the Marketplaces with or without a customer account

The Marketplaces may be used with or without a customer account. SMG may require the creation of a customer account in order to use certain services. The Customer is responsible for the proper handling of the user ID and password.

3. Inception and termination

The contractual agreement shall enter into force upon the Customer’s consent to an offer or contract submitted by SMG. Depending on the product, the Customer’s consent may be given, e.g. by email, digital signature of the offer or contract, online order or implied conduct (e.g. payment of the invoice, use of the product, purchase of services). The contractual provisions concerning the activation date, product term and notice periods can vary by product.

If there is no specific agreement between SMG and the Customer (for example, in the offer or the Product-Specific Service Description), (i) the product term shall commence upon publication of the ad and (ii) shall be concluded for a period of 30 days, which shall be automatically extended by the same term unless the product is terminated by either the Customer or SMG upon 14 days’ notice prior to expiry of the product term. 

SMG may terminate a product or service at any time for good cause without notice, e.g. in the event of delayed payment of the fee or in case of other breaches of the Customer’s contractual obligations as well as in the event of non-contractual, illegal or immoral use of the Marketplaces. In the event of termination without notice by SMG, SMG may immediately withdraw from the Agreement without any liability for compensation and discontinue the provision of services without prior notice to the Customer or deactivate the Customer’s user account. In both cases, any price already paid in advance for a specific term shall be forfeited as lump-sum damages for SMG and the Customer shall not be entitled to any claim for reimbursement. All further claims of SMG remain reserved. Further provisions in this regard are set out in the Product-Specific Service Descriptions and in the relevant Advertising Rules. 

Termination by either SMG or the Customer shall be valid if given by post or email. 

Termination shall not release the Customer from the obligation to pay the fee owed until the end of the Agreement. A waiver by the Customer of products and services shall not affect the fee owed by the Customer by the expiry of the Agreement or the effective date of termination.

The cessation or sale of his business operations by the Customer shall not entitle him to prematurely terminate any products. In such cases, the Customer shall owe the fee agreed until the end of the Agreement.

4. Prices and payment terms

The prices indicated on the Marketplaces, including those indicated during an order process or upon conclusion of a contract, shall apply. Unless otherwise announced on the Marketplaces, the prices are exclusive of value-added tax. Any contractual agreements to the contrary shall be unaffected.

SMG may request advance payments. When an invoice is issued, the invoice amount shall be payable in full within 30 days from the invoice date, subject to different payment periods specified in a separate agreement or different information on the invoice, as applicable. In the absence of a contractual provision, the fee shall be invoiced upon publication or provision of the service. In the absence of a substantiated written objection by the Customer, an invoice shall be deemed to have been accepted 14 days after receipt.

If the Customer fails to make the respective payment on time, the Customer is automatically in default. In such case, SMG may refuse to provide the service or block the Customer’s access to his user account until all outstanding amounts have been paid. In this case, the Customer is not entitled to an extension of the agreed contract term by the length of time the account was blocked. SMG is also entitled to terminate the Agreement without notice or compensation. The remaining portion of any amount paid in advance for a specific contract term shall go to SMG as lump-sum damages, which shall be payable immediately.  After expiry of the payment deadline, the statutory default interest shall be payable on the outstanding invoice amounts. SMG charges a processing fee of up to CHF 30.00 for reminders. After an unsuccessful payment reminder, SMG shall be entitled to assign the outstanding invoice amounts to an external debt collection company and to provide it with all information and documents required for debt collection.

The debt collection company may charge additional processing fees. 

5. Performance and terms of SMG's services

SMG is entitled to engage third parties (hereinafter “Partners”) in order to fulfil its service obligations. If the Customer enters into a direct legal relationship with the Partner by purchasing Partner services, he shall be informed in an appropriate manner of the Partner’s contractual terms and conditions, which the Customer must accept in order to obtain the Partner's service. The Customer shall also be made aware of the Partner’s data protection provisions.

SMG may rely on the cooperation of the Customer in order to provide its services in accordance with the Agreement (e.g. provision of content, activation actions). The Customer’s obligations are set forth in the Agreement or the Product-Specific Service Descriptions, as the case may be, or shall be notified to the Customer in any other appropriate manner (e.g. by email). The Customer undertakes to fulfil these cooperation obligations in a timely, complete and correct manner. If the Customer breaches his duties of cooperation, SMG shall not be liable for its inability to perform its services in full, in accordance with the Agreement or in a timely manner. In such a case, the Customer shall not be entitled to a reduction or refund of the fee agreed for the service.

If the Customer uses technical interfaces (hereinafter “Interfaces”) for use or connection to the Marketplaces, he is responsible for their operation and for any necessary adjustments to his interfaces. This applies even if technical changes caused by SMG necessitate adjustments to the Customer’s connections.

SMG is authorised but not obligated to monitor users' and Customers' behaviour and their content on the Marketplaces or to verify the lawfulness thereof.

If the Customer breaches the Agreement, SMG is entitled to block the Customer’s access to products and to discontinue his services. SMG shall also be entitled to block or discontinue products and services for reasons of safety or functionality until the risk has been rectified. The Customer is not entitled to a reduction or refund of the fee for this period.

For some products, the Customer has the option of integrating third-party services into a product or linking products to such third-party services (e.g. card services, payment systems or Customer reviews published on third-party platforms). Some products may also be used via an app, which the Customer must download from an app store operated by a third party. The Customer is obligated to conclude corresponding agreements with the third-party services or app store operators. The terms and conditions of use and privacy policies of the third-party services or app store operators shall apply.

6. Use of the “TenantPlus” offer

The "TenantPlus" offer is only available at private customers and only includes listings from private persons.

By choosing the "TenantPlus" offer, the inquirer is given the option to see the contact information of clients of exclusive real estate advertisements at least three days earlier than other inquirers who have not chosen this option. The exclusive real estate advertisements are marked with a "Plus".

By depositing and confirming his billing address or credit card details, the inquirer bindingly confirms the acceptance of a "TenantPlus" contract under the conditions stated on the relevant page. From this point in time, the free seven-day Trial Period begins. If the inquirer cancels his subscription during the Trial Period, he will not be charged any fees. The free Trial Period can only be used once by the inquirer. In the event of cancellation during the Trial Period, the services of "TenantPlus" can no longer be used after expiry of the trial period. If no notice of termination is given, the paid Subscription Period begins after expiry of the Trial Period and lasts either three, six or twelve months. The inquirer undertakes to pay the monthly fees in full during the selected contract period. After expiry, the Subscription Period is automatically extended by one month, unless the inquirer cancels his "TenantPlus" Subscription with a notice period of one day to the end of the Subscription Period. The inquirer will be informed of an extension of the Subscription Period by e-mail. If no timely notice of termination is given, the inquirer is obliged to pay the fees for the entire extended contract period.

The Cancellation of the "TenantPlus" subscription can be made via Account Settings and will be confirmed by E-Mail. 

During the Subscription Period, the inquirer is obliged to pay the current monthly price in Swiss francs (excl. VAT) at the time of the order. Discounts granted at the beginning of the contract are only valid during the first four months of the Subscription Period. If the Subscription Period is extended, the monthly price valid at the time of the extension will apply for the new contract period. SMG Swiss Marketplace Group Ltd. reserves the right to adjust contract terms that are shorter than 12 months if necessary.

7. Amendments to contractual terms and conditions

a. Prices, products and services

SMG reserves the right to adjust its prices, products and services at any time and to offer various products and services of SMG, including but not limited to its individual Marketplaces, in combination. 

SMG shall inform the Customer in a timely and appropriate manner concerning any material changes. In this case, the Customer shall have the right to terminate the existing contractual relationship, subject to a notice period of 30 days from the date of notification, effective as of the date on which the change takes effect. Absent timely notice of termination, the contractual amendment shall be deemed to have been validly accepted by the Customer.

SMG also reserves the right to make amendments attributable to statutory requirements (e.g. increase in value-added tax) or official or court orders. SMG may also adjust its prices once per calendar year in line with inflation. Inflation shall be calculated in accordance with the Swiss Consumer Price Index of the Federal Statistical Office (CPI basis: December 2020 = 100 points). The initial index shall be the level of the CPI on 1 January 2023. If SMG does not adjust a price in a calendar year, this right shall not expire for the following years. SMG shall inform the affected Customers in good time before any inflation-linked price adjustments. In the event of an inflation-linked price adjustment, the Customer shall not have the right to terminate the service prematurely.

b. General Terms & Conditions

The current version of the GTC will be published in an appropriate location on the Marketplaces.

SMG reserves the right to amend these GTC at any time. 

SMG shall inform the Customer in good time and in an appropriate manner in advance of the change. If the change results in further material obligations or in the limitation of the rights of the Customer, the Customer may terminate the Agreement with SMG for cause via written notice within a period of 30 days from notification as of the date on which the change takes effect. Otherwise, the change shall be deemed to have been accepted by the Customer on that date.

8. Prohibition on further use of information

The Customer acknowledges that the products, services and the ads, data, texts, videos, musical pieces, graphics and other content (hereinafter collectively referred to as “Content”) published by SMG, Customers and third parties on the Marketplaces are generally legally protected and that their use requires the consent of the respective copyright holder.

The Customer also expressly undertakes not to utilise the information and content made available on the Marketplaces in any manner or form outside the Marketplaces. In particular, it is prohibited to systematically select the Content available on the Marketplaces (e.g. by scraping), to copy, publish or otherwise reproduce it (e.g. on the Internet) in any form or to link it with other data.

9. Intellectual property rights

All rights (e.g. copyright and trademark rights) to the Content of the Marketplaces as well as to products and the software on which the products are based are the property of SMG or third parties who have granted SMG the corresponding rights of use (hereinafter “SMG IP”).

Insofar as the contractual use of the Marketplaces or products requires the granting of rights of use of SMG IP, these rights shall be granted to the Customer on a personal, non-exclusive and non-transferable basis for the duration and scope of the contractual agreement. The Customer is prohibited from using SMG IP for other purposes.  If the Customer and SMG agree to the use of a service provided by a partner (see Section 14), the present paragraph shall apply analogously for such services.

Content that the Customer transmits to SMG for publication on the Marketplaces (hereinafter collectively referred to as “Ad Data”) is the Customer’s property insofar as it is protected by copyright (“Customer IP”).

The Customer confirms that he is entitled to dispose of Customer IP and, in particular, that he shall not infringe any third-party rights by doing so. SMG is not obligated to verify the Customer’s entitlement to the Ad Data. SMG may, however, request proof of authorisation from the Customer. 

The Customer grants SMG (i) all rights of use to Customer IP that SMG requires in order to provide its services (e.g. the right to copy, store, adapt, translate, activate, publish and transfer; hereinafter the “Rights of Use’); (ii) all Rights of Use to Customer IP for marketing SMG Marketplaces, e.g. in the form of online, display, poster, trade fair and TV advertising during its use on the SMG Marketplaces and for one year thereafter and (iii) the right to use Customer IP during and beyond its use on the SMG Marketplaces for the purposes of analysis, further development of the platform and product development.

10. Use of Ad Data by SMG and Partners

By transmitting Ad Data to SMG or a partner of SMG, the Customer authorises SMG to integrate the corresponding ad into the Marketplaces as well as into other online and offline channels of SMG and its partners (e.g. in the context of trade fairs). The Customer only has the right to publish ads through channels that are part of the Agreement.

SMG may also use the Ad Data, insofar as it is not covered by Section 7, for further purposes of its own and for those of its partners, e.g. for generating statistics, or may otherwise publish and store and process it for this purpose.

11. Warranties by SMG

The Marketplaces contain information and Content owned by SMG and its advertisers and partners. SMG strives to ensure the accuracy of this information and Content but makes no warranties or representations in this respect. This relates, in particular, to the truthfulness, accuracy, completeness and currentness of the information and Content.

SMG strives to operate its Marketplaces as free from disruptions as possible and to minimise interruptions for correcting malfunctions and security risks, performing maintenance work, introducing new technologies and the like. Where possible, SMG shall perform maintenance work outside business hours. The Customer is not entitled to a reduction or refund of the fee for the duration of such interruptions.

Any warranty by SMG in connection with the provision of services by partners or other third parties is excluded. 

12. Warranties by the Customer

The Customer warrants that he will use the Marketplaces and the services of partners integrated into them in accordance with the law and the Agreement and will not use them in any way for unlawful purposes. The Customer specifically represents and warrants that:

  • the Ad Data does not infringe any statutory provisions or third-party rights (e.g. company, trademark, copyright or privacy rights);
  • it shall deliver all Ad Data transmitted to SMG or partners in the form and quality specified by SMG;
  • the Ad Data complies with the Advertising Rules and, in particular, is not unlawful, misleading, unfair, invasive of privacy or discriminatory;
  • the Ad Data transmitted to SMG or partners is complete and accurate and kept up-to-date by the Customer at all times;
  • he will use his user account on an exclusively personal basis and will not grant third parties any right to use it, nor will he place ads through his user account on behalf of third parties who act as agencies or brokers;
  • he will not use the contact options with advertisers on the Marketplaces to advertise his own or other products or services or for similar extraneous purposes.

SMG is at all times entitled but not obligated to reject, modify or completely delete the Ad Data transmitted by the Customer without prior notice for legal, technical or other objectively justified reasons. In such cases, the Customer shall not be entitled to a reduction or refund of the fee.

If legal action is taken against SMG by a partner or third party in connection with the use of the Marketplaces, an agreement with the Customer, Ad Data provided by Customers, or products or services offered for sale by Customers, as applicable, the Customer shall be responsible for fully indemnifying and holding SMG harmless, upon first request, from and against any claims and losses. Upon request by SMG, the Customer must also make available all documents deemed useful by SMG for defending against the action and must become a party to the proceedings. This obligation shall continue to apply beyond the duration of the contractual relationship for an unlimited period of time.

13. Liability

SMG shall only be liable in the event of wrongful intent or gross negligence and rejects any further liability for losses that may arise from the use of the Marketplaces (e.g. retrieval, access, use or exploitation of Ad Data). To the extent that SMG is liable, the amount of liability shall be limited to the proven loss, but at most to the annual remuneration owed by the Customer for the product.

The Customer is directly responsible for the products and services offered for sale by him via the Marketplaces as well as for the content transferred by him to SMG (particularly for Ad Data, ads and print orders). SMG assumes no responsibility for the products and services offered for sale by the Customer via the Marketplaces, or for any contracts potentially resulting therefrom, e.g. sale contracts made among Customers or with users and third parties.

SMG does not examine the content of websites linked to the Marketplaces and is not liable for the content of such linked websites.

Under no circumstances shall SMG be liable for indirect or consequential damages (including loss of use and lost profits). If SMG cannot fulfil its contractual obligations because of force majeure events, such as natural disasters, armed conflicts, strikes, unforeseen official restrictions, as well as technical faults that are the responsibility of third parties, the Customer has no right to demand performance of the agreement for the duration of the event.

The liability of SMG is excluded for acts and omissions of engaged third parties, partners and other third parties (e.g. unauthorised copying of content published on the Marketplaces).

SMG is not liable for any misuse of the Internet, unlawful ads or for associated damages caused to the Customer by third parties, for safety defects and interruptions of the telecommunications networks of third parties and the Internet, or for interruptions of operation and disruptions of the Marketplaces and third-party offerings.

14. Legal status of SMG

SMG is not a party to contracts between Customers, users or other third parties regarding products and services offered for sale by Customers via the Marketplaces. SMG is in no way responsible for the conclusion of the contract or any associated risks.

15. Set-off, assignment of claims and rights

SMG is entitled to transfer the contractual relationship to a third party or to assign individual rights and claims arising therefrom. 

The Customer may not transfer the contractual relationship with SMG to a third party without the written consent of SMG.

Likewise, the Customer may not assign any rights or claims under the contractual relationship to third parties without the written consent of SMG. The Customer is not authorised to offset his own claims against SMG against claims of SMG. 

16. Privacy

The privacy policies of the Marketplaces shall apply in their current version, which can be accessed via the footnote of the respective Marketplace website. 

SMG may provide the Customer with information concerning other products and services of SMG (e.g. via newsletter or push notifications on mobile devices). If the Customer no longer wishes to receive such notifications, he may unsubscribe at any time via the link in the newsletter footnote or in the push notifications settings of his mobile device.

The Customer shall comply with the applicable data protection law when processing personal data in connection with the use of the Marketplaces or the agreement and when transmitting such personal data to SMG. In particular, the Customer must ensure that any personal data transmitted to SMG has been collected lawfully and that he is entitled to transmit such personal data to SMG. 

SMG may transfer personal data (including but not limited to personal data included in the Content) to partners for the purpose of implementing the Agreement. Partners are obligated to comply with applicable data protection law and are directly responsible to the Customer for their own data processing. The Customer acknowledges that SMG cannot monitor the processing of such personal data by the partners.

If there are reasonable grounds to suspect that the Customer’s conduct on the Marketplaces is in breach of the applicable legal system, SMG reserves the right to transmit the related personal data to the competent authorities.

17. Severability clause

If any part of these provisions is invalid or unenforceable or contains a gap, the remaining provisions shall remain valid. Invalid parts shall be replaced by legally permissible provisions that correspond to what the Parties would have intended if they had taken this point into account. If the invalidity is based on a specific service or period of time, the lawful service or period of time closest to the original agreement shall be substituted.

18. Governing law and choice of forum

The contractual relationship between SMG and the Customer shall be governed exclusively by Swiss law, to the exclusion of international private law (IPLA). The exclusive place of jurisdiction and performance is at the registered office of SMG. SMG is also authorised to take legal action against the Customer at his registered office/domicile.

Version of: 01.12.2023 – SMG Swiss Marketplace Group Ltd