Please read the terms and conditions carefully.
The Otely Terms and Conditions are a contract that governs the use of Otely services by Hotels and Conciergeries. This contract consists of the following elements:
Terms and Conditions : the main legal and commercial conditions that apply to the use of Otely's services by the Hotel / Concierge. Any reference to the Main Conditions is understood to be a reference to these General Conditions.
Commercial Proposal: proposal issued by Otely, dated and signed by the Hotel / Concierge. The Commercial Proposal contains the details of the purchase, such as the subscription conditions, the product(s) and service(s) purchased and the applicable fees.
These are legal documents and as such the texts contain some specialized terms, Otely has endeavored to make them affordable. By using the Otely Service, the Hotel / Concierge agrees to these Terms of Use.
These Terms are updated regularly. If the Hotel / Concierge has an active subscription to Otely, Otely will inform the Hotel / Concierge of these updates by sending an e-mail notification, if the Hotel / Concierge has subscribed to e-mail notifications.
General terms and conditions
1. DEFINITIONS
2. PURPOSE OF THE CONTRACT AND ENTRY INTO FORCE
3. ACCESS AND USE OF SERVICES
4. CONFIDENTIALITY
5. INTELLECTUAL PROPERTY RIGHTS
6. THIRD PARTY SERVICES AND THIRD PARTY DATA
7. invoicing and remuneration
8. DURATION, TERMINATION, SUSPENSION, AND PENALTIES FOR NON-PERFORMANCE OR IMPERFECT PERFORMANCE
9. LIMITATION OF LIABILITY
10. COMPENSATION
11. FINAL CLAUSES
Appendix A
Appendix 1
Appendix 2
Preamble
Otely has developed a platform enabling Hotels and Conciergeries to offer their customers a food delivery service directly to their room or hotel reception.
The purpose of the present contract is to define the conditions under which the Hotel / Conciergerie has access in "Software as a Service" mode to the platform, giving access to functionalities allowing in particular the placing of orders directly with Uber Eats, the facilitation of customer delivery, the monthly invoicing of all orders.
1.DEFINITIONS
The terms below have the following meanings when used in this Agreement with the first letter i capitalized:
1.1 "Affiliate" means any entity which, directly or indirectly, (i) controls one of the Parties (parent company), (ii) is controlled by it (subsidiary company) or (iii) is under common control with it (sister company). For the purposes of this definition, "control" means the direct or indirect ownership or control of more than 50% of voting rights.
1.2 Customer: refers to any individual or legal entity who is a customer of the Hotel / Conciergerie and who places a food order via the Platform for delivery within the Hotel or accommodation managed by the Conciergerie.
1.3 Hotel Account: refers to the Hotel / Concierge account, accessible from the Platform. A Hotel Account is defined by an identifier and a password (hereinafter referred to as "Login Information ").
1.4 Uber Account: means the Hotel / Concierge account created on the Uber Services for the purpose of benefiting from and directly paying the Uber Service Fee.
1.5 Contract: means this Contract, including all its Annexes and Appendices.
1.6 Documentation: means any written or electronic documentation relating to the Services, including documentation accessible online via the Platform. Documentation may include, for example, user guides or security documentation; Documentation may evolve during the Term of the Contract, in compliance with the present terms.
1.7 Hotel data: refers to all data that :
(i) are sent to the Platform by or for the Hotel / Concierge through the use of the Services,
(ii) hosted on the Platform.
Hotel Data includes, for example, data generated by the Customer as a result of the use of the Platform and hosted in the Platform, data entered directly by the Customer in the Platform and data transmitted in the Platform as part of the use of Uber Services. Hotel Data may include Third Party Data only where such Third Party Data is hosted on the Platform.
1.8 Personal Data : means any data forming part of the Hotel / Concierge Data and corresponding to personal data, as defined in the General Data Protection Regulation.
1.9 Third Party Data : means any data obtained from Third Party Services, and provided to the Hotel / Concierge as part of the Services.
1.10 Subscription Term means the entire period for which the Hotel / Concierge is subscribed to the Services.
1.11 Force majeure event: Any event of force majeure recognized as such by the French Civil Code and the French courts, including any circumstance beyond Otely's reasonable control, for example, natural disaster, action of governmental authorities, flood, fire, earthquake, civil disturbance, act of terrorism, strike or other labor-related social problem (not involving Otely's employees), failures or delays of internet providers, acts undertaken by third parties including and without limitation, a denial of service attack.
1.12 Installation Fee : means the price to be paid by the Hotel / Concierge at the time of Contract Signature to implement the Otely service within its establishment.
1.13 Subscription Fee: refers to the price to be paid each month to access the Platform and make it available to Customers. Subscription Fees are indicated in the Sales Proposal.
1.14 Uber Service Fee: means the price to be paid for all Uber Service orders generated by Customers.
1.15 Otely Service Fee : means the price to be paid by Customers to Otely for all orders placed on the Otely platform.
1.16 Hotel Service Fee : refers to the price to be paid by Customers to the Hotel/Concierge Service for all orders placed on the Otely platform when the Hotel/Concierge Service has a subscription formula providing for this.
1.17 Personal Data Protection Laws and Regulations: means the "European Regulation 2016/679, on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC" (" General Data Protection Regulation " or " GDPR ") and any laws and regulations relating to the protection of Personal Data applicable under the Contract.
1.18 Customer Page: refers to the interface on the Platform that allows Customers to place orders for Uber Services. The Customer Page can be accessed by scanning a QR Code provided in the Customer's room.
1.19 Platform: refers to the Internet site and WEB application allowing access to the Services. The Hotel / Conciergerie accesses the Platform to use the Services, through the Internet site accessible at the URL address (otely.com) or any successor Internet site. The Platform is also accessible by the Hotel / Conciergerie in the form of a WEB application, referred to as "Otely" or any successor name (hereinafter " Web Application ").
1.20 Commercial Proposal: means any commercial proposal issued by Otely, which has been dated and signed by the Hotel / Concierge. The Commercial Proposal must indicate the subscription taken out, the cost of the Subscription Fee, the number of rooms in the Hotel / Conciergerie, the percentage of Otely's Service Fee and the percentage of the Hotel's Service Fee when the Hotel / Conciergerie has a subscription formula providing for this.
1.21 Services: refers to access to the Platform (including the Web Application) and its functionalities. The Services are described in the Article "Description of Services". The Services do not include Third Party Services or Third Party Data.
1.22 Third Party Services: means (i) any software application or other functionality of a software application or any database or service or system, (ii) provided by the Hotel / Concierge or by a third party (iii) that interacts with the Services. Third Party Services include, but are not limited to, Uber Services.
1.23 Support Services or Support: means the technical support provided by Otely to the Hotel / Conciergerie from Monday to Friday from 9am to 6pm, excluding weekends and public holidays in France. Support Services do not include any training or software development services. Support requests from the Hotel / la Conciergerie must be made by sending an email to the following address: support@otely.com .. Support Services are reserved for Hotel / la Conciergerie and may not be used directly by the Customer.
1.24 Uber Service: means the food delivery services that are powered by the company incorporated under Dutch law, Uber B.V, having its registered office at Meester Treublaan 7, 1097DP, Amsterdam, The Netherlands, hereinafter " Uber ". The Uber Services interact with the Services to facilitate the delivery of food to Customers, without the creation of an account, nor direct payment and with management of the receipt of the delivery directly by the Hotel / Concierge or by the Customer himself.
1.25 User: means any natural person authorized by the Hotel / Concierge to use the Services, to whom the Hotel / Concierge has provided a user ID and password. Users may include, for example, employees and consultants. A User may have standard user rights or administrative rights, as the case may be.
2. PURPOSE OF THE CONTRACT AND ENTRY INTO FORCE
2.1 Purpose of the Agreement. The purpose of this Agreement is to define the conditions of use of the Services and the financial conditions associated with the provision of the Services.
2.2 Contractual hierarchy. In the event of any inconsistency between the terms of this Agreement and the terms of any Commercial Proposal, then the terms of this Agreement shall prevail. THIS AGREEMENT SHALL APPLY IN LIEU OF ANY CONTRACTUAL DOCUMENTS ISSUED BY THE HOTEL / CONCIERGE COMPANY SUCH AS A PURCHASE ORDER OR GENERAL TERMS AND CONDITIONS OF PURCHASE OF THE HOTEL / CONCIERGE COMPANY, ALL SUCH DOCUMENTS ISSUED BY THE HOTEL / CONCIERGE COMPANY NOT BEING APPLICABLE HERETO, WHICH THE HOTEL / CONCIERGE COMPANY ACKNOWLEDGES AND ACCEPTS.
2.3 Effective Date. This Agreement shall come into force on the date on which the commercial proposal is signed (including by electronic signature) by the Hotel / Concierge Company (the " Effective Date ").
2.4 Applicable Uber Terms. In connection with the use of the Services, Hotel / Concierge acknowledges and warrants that:
the Hotel / Concierge accepts the Terms and Conditions for Uber Business.
the Hotel / Concierge accepts the Uber Terms and Conditions and has read the Uber Privacy Policy.
3. ACCESS AND USE OF SERVICES
3.1 Prior information. In connection with the creation of its Uber Account, Hotel / Concierge agrees to allow Otely to manage Users' programs and access permissions and to make requests for Uber Services on behalf of Hotel / Concierge and its Users, and Hotel / Concierge agrees to allow Uber to share with Otely information about activity at Hotel / Concierge's Uber Account, including details about rides and deliveries.
3.2 Prerequisites. the Hotel / Conciergerie acknowledges and accepts that it is its responsibility to :
(1) ensure that they have the terminals and an Internet connection enabling them to use the Platform
(2) have an Uber Account that meets the following two conditions (i) be an Uber for Business (U4B) account and (ii) be linked to Otely's Uber account. To do so, the Hotel / Concierge can either delegate the Uber Account creation operation to Otely, or the Hotel / Concierge will have to manage the acceptance process to link its Uber Account to Otely's Uber account.
(3) verify that it is located in an Uber Eats delivery zone
(4) be a commercial establishment offering furnished rooms to itinerant customers for a daily fee
(5) make available to its Customers the QR Code and the connection information to the Platform allowing access to Uber Services.
the Hotel / Conciergerie is informed that failure to comply with these prerequisites will jeopardize the proper provision of the Services.
the Hotel / Conciergerie is informed that Otely will not verify compliance with these prerequisites: the Hotel / Conciergerie acknowledges and accepts that it is its responsibility to carry out such verification.
3.3 Purpose of the Services. The Services are intended to be used by the Hotel / Conciergerie for the purpose of providing a food delivery service to its Customers, directly in their room or at the reception desk of the Hotel / Conciergerie (hereinafter " Destination ").
3.4 Description of the Services. The Services enable the Hotel / Concierge to :
Access the Platform ;
Select your favorite restaurants from those offered for delivery on Uber Services ;
Enable its Customers to benefit from Uber Services via the provision of a Customer Page;
Have a Hotel Account that allows them to manage all of their Customers' orders via Uber Services;
Benefit from an Uber Account directly created by Otely, alternatively the Hotel / Concierge may choose to manually create an Uber Account for themselves;
Pay Uber Services invoice monthly;
Pay Otely monthly subscription fees;
Pay the Otely service fee invoice monthly;
Bill the cost of Uber Services directly to its Customers on their room;
Collect the Hotel Service Charge when the Hotel / Concierge Service has a subscription formula providing for it.
For all intents and purposes, it is specified that the Services are intended to allow Customers to use Uber Services without creating an account or making a direct payment. The Services do not include Uber Services.
3.5 Provision of Services. Subject to the Hotel / Concierge using the Services in accordance with this Agreement, the Documentation, the Destination and applicable laws and regulations, Otely agrees to:
(a) make available to Hotel / Concierge the Services, Hotel / Concierge Data, in accordance with this Agreement and the applicable Commercial Proposal(s);
(b) use its best efforts to make the Services available 24 hours a day, 7 days a week, except (i) unavailability resulting from corrective or evolutionary maintenance operations and (ii) unavailability caused by an Event of Force Majeure. Otely will endeavor to inform the Hotel / Conciergerie in advance of any unavailability defined in point (i) above, within a reasonable period of time, indicating the date, nature and expected duration of the maintenance operations;
(c) provide the Hotel / Concierge with Support Services in accordance with this Agreement.
3.6 Functionality. The Hotel / Concierge Service acknowledges and accepts that the Services, including their functionality, may evolve during the Subscription Term. The evolution of the Services may cause the Documentation to evolve during the Subscription Term, which the Hotel / Conciergerie acknowledges and accepts. Otely will inform the Hotel / Conciergerie of subsequent versions of the Documentation by email. Otely undertakes to maintain the general functionality described in the Section "Description of Services" throughout the Subscription Term.
3.7 Obligations of the Hotel / Conciergerie. the Hotel / Conciergerie :
(a) shall be responsible for compliance by its Users with this Agreement, the Documentation and the Commercial Proposals;
(b) ensure that the User creating the Uber Account for the Hotel / Concierge is legally authorized to create such account and have administrator rights.
(c) will only provide accurate and complete data for the creation of the Uber Account and for its connection to Otely's Uber Account, in particular with regard to the complete contact details of the Hotel / Concierge and a valid email address;
(d) will use its best efforts to prevent any unauthorized use of and access to the Services, Hotel / Concierge Data and Third Party Data and will promptly notify Otely in writing in the event of any unauthorized access or use;
(e) ensure compliance with its obligations regarding the use of Third-Party Services, as detailed in Section "Third-Party Services and Third-Party Data" ;
(f) use the Services, Hotel / Concierge Data and Third Party Data in accordance with this Agreement, the Documentation, the Commercial Proposals and applicable laws and regulations;
(g) shall be responsible for the accuracy, reliability, quality and legality of the Hotel / la Conciergerie Data and the means by which the Hotel / la Conciergerie has acquired the Hotel / la Conciergerie Data. In this regard, Hotel / la Conciergerie represents and warrants that it will comply with all of its obligations as set forth in the Laws and Regulations relating to the Protection of Personal Data, with a view to the performance of this Agreement; for example, the Hotel / Conciergerie warrants that it will ensure that all information required under the RGPD has been provided to the Data Subjects and will ensure that it obtains all prior consents from the Data Subjects, which are required under the RGPD in view of the performance of this Contract.
3.8 Restrictions on use. the Hotel / Conciergerie refrains from :
(a) charge any additional fees or costs to its Customers related to the use of the Uber Services beyond the Otely Service Fee and the Hotel Service Fee provided for in this Agreement when the Hotel / Concierge has a subscription formula providing for;
(b) license, sub-license, sell, assign, resell, rent, lend, lease, transfer, assign, distribute, share the Services, in particular on a time-sharing basis, or in any other way commercially exploit the Services or make them available to third parties other than Customers;
(c) modify, adapt or hack the Services or otherwise attempt to gain unauthorized access to the Services or the relevant systems or networks;
(d) use the Services to integrate them directly into its own platform or services for the purpose of making Uber Services available to its Customers directly through its own platform or services;
(e) use the Services in violation of applicable laws and regulations, including, but not limited to, laws and regulations relating to the Protection of Personal Data, or those applicable to the protection of privacy;
(f) use the Services to store or transmit files, documents, data, text, audio, video, images or any other content in violation of any applicable laws and regulations, including for example intellectual property laws, or laws and regulations relating to the protection of personal data;
(g) use the Services in any way that interferes with or disrupts the integrity or performance of the Services and their components;
(h) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software that makes up the Services, except as permitted by the French Intellectual Property Code; (i) use the Services to intentionally post, transmit, upload, link to, send or store any unlawful, racist, hateful, abusive, defamatory, obscene or discriminatory content, or any data in violation of the laws and regulations applicable to the Services, and in particular the Laws and Regulations relating to the Protection of Personal Data;
(j) use the Services for any purpose other than their Intended Use;
(k) store or transmit any sensitive data within the meaning of Article 9 of the RGPD ;
(l) use the Services to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs or similar harmful software (" Malware ");
(m) use or launch any automated system that accesses a Service (i.e. a bot) in such a way as to send more request messages to a Service server in a given time period than a human being can reasonably produce in that same time period, using a conventional Internet browser ;
or (n) attempt to use or use the Services in violation of this Section.
3.9 Confidentiality of login credentials. the Hotel / Conciergerie is responsible for ensuring that its Users comply with the provisions of this Agreement. the Hotel / Conciergerie is responsible for ensuring the confidentiality of all login credentials relating to its Hotel Account and Uber Account.
4. CONFIDENTIALITY
4.1 Definition of "Confidential Information". "Confidential Information" means any information that the Hotel / Concierge has communicated to Otely or that Otely has communicated to the Hotel / Concierge, in tangible form and marked "confidential" (or any other similar marking), or any information in whatever form that a reasonable person would understand to be confidential given the nature of the information and the circumstances of its disclosure, including but not limited to information relating to Otely's security policies and procedures. This Agreement and the Hotel / Concierge Data are deemed to be Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information which (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party, who to the knowledge of the receiving Party, was not subject to an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than in breach of this Agreement or another valid agreement between the Parties; or (d) has been or is being developed independently by the Receiving Party without using the Disclosing Party's Confidential Information.
4.2 Protection of Confidential Information. Subject to the express permissions of this Agreement, each Party will protect the other Party's Confidential Information from unauthorized use, access or disclosure in the same manner as it protects its own Confidential Information, but not to less than a reasonable level of protection. Unless expressly authorized otherwise under this Agreement, each Party may use the other Party's Confidential Information only to exercise its respective rights and perform its respective obligations under this Agreement and may disclose it (a) only to employees, non-employee service providers and/or subcontractors who require such Confidential Information and who are bound by contractual confidentiality obligations designed to prevent misuse of such Confidential Information; (b) if necessary to comply with a decision or request of any competent body or court; or (c) if reasonably necessary to comply with any applicable law or regulation. The provisions of this Section "Confidentiality, Security and Privacy" supersede any confidentiality agreement or "NDA" entered into by and between the Parties, and any such agreement shall cease to have any force or effect. The provisions of this Section "Confidentiality, Security and Privacy" shall remain in effect for a period of 5 years after the termination of this Agreement.
4.3 Personal Data. The performance of this Contract entails three categories of processing of Personal Data:
The conditions under which Otely processes Personal Data on behalf of the Hotel / Concierge, are detailed in the Personal Data Protection Agreement in Appendix A of this Agreement.
Otely processes Users' Personal Data as an independent data controller for the purpose of providing the Services.
Uber may also contact Users with administrator rights at the business email address provided, in particular to share recommendations and product updates. Hotel / Concierge and Users may at any time refuse promotional messages at any time.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 License to use the Services. During the Subscription Term and subject to proper compliance with this Agreement by the Hotel / Conciergerie, Otely grants the Hotel / Conciergerie a limited right to access and use the Services, in accordance with their Intended Use. This right is non-transferable and is granted on a non-exclusive basis, for the Subscription Term, worldwide.
5.2 License granted by Hotel / la Conciergerie to Otely on Hotel / la Conciergerie Data and Third Party Data. In order to enable Otely to provide the Services in accordance with this Agreement, Hotel / la Conciergerie grants Otely, its Affiliates and relevant subcontractors a worldwide license, for a period limited to the Subscription Term plus a period of three (3) months, to host, copy, transmit and display the Hotel / la Conciergerie Data and any Third Party Services as well as any program codes created by or for Hotel / la Conciergerie and using a Service.
5.3 License to suggestions, enhancement requests, recommendations or other comments. Otely shall have a royalty-free, worldwide, transferable, sub-licensable (tiered), assignable, irrevocable and for the statutory term of copyright protection license to implement, use, modify, commercially exploit and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback that Otely receives from the Hotel / Conciergerie or its Customers.
6. THIRD PARTY SERVICES AND THIRD PARTY DATA
6.1 Third Party Services. In the event that Hotel / Concierge activates Third Party Services or requests a Third Party Service to provide Third Party Data as part of the Services, any exchange of data between Hotel / Concierge and any provider other than Otely or relating to any service not provided by Otely, is solely between Hotel / Concierge and the provider in question. Otely does not warrant or provide any support or other services for Third Party Services. Otely is not responsible for any disclosure, modification or deletion of Hotel / Concierge Data that results from access to the Services and/or Hotel / Concierge Data by the Third Party Service in question or its provider.
6.2 Removal of Third Party Data and Third Party Services. If a third party holding intellectual property rights requires Otely to remove Third Party Data that is part of the Hotel / Concierge Data, or if Otely receives information that Third Party Data or Third Party Services may violate applicable law, the rights of third parties, or the Laws and Regulations relating to the Protection of Personal Data, then Otely may interrupt the functionalities of the Services that interact with the Third Party Services and the Third Party Data, and/or notify the Hotel / Concierge that it must cease all use of said Third Party Data. In the latter case and to the extent permitted by law, Hotel / Concierge shall comply and promptly delete the relevant Third Party Data from its systems.
6.3 Third Party Services and Hotel / Concierge Data. In the event that the Hotel / Concierge decides to have a Service interact with a Third Party Service, it accordingly authorizes Otely to allow the Third Party Service as well as its suppliers, if any, to access the Hotel / Concierge Data if this is necessary for the interaction of the relevant Third Party Service with the Service in question. Where the Hotel / Concierge is not itself a supplier of the Third Party Service, then the relationship between the Hotel / Concierge and the supplier of Third Party Services is governed by specific contractual stipulations, separate from those of this Agreement. It is the responsibility of the Hotel / Concierge Company to ensure that :
(a) Third Party Services guarantee an adequate level of protection and access to Hotel / Concierge Data and Third Party Data;
(b) and access to Third Party Data and its processing as Hotel / Concierge Data, as part of the Services complies with applicable Personal Data Protection Laws and Regulations.
It is hereby clarified for all purposes that no Third Party Service Provider shall be considered a Subcontractor or Subsequent Subcontractor (as defined in the Personal Data Protection Agreement in Appendix B hereto) of Otely. Otely shall not be held liable in the event of :
(1) violation of applicable Personal Data Protection Laws and Regulations resulting from access to Hotel / Concierge Data by the relevant Third Party Service or its provider;
(2) violation of the Laws and Regulations relating to the Protection of Personal Data resulting from access to Third Party Data and its processing as Hotel / Concierge Data in the context of the Services;
(3) any breach of security resulting in any destruction, loss, alteration, unauthorized disclosure of Hotel / Concierge Data, or unauthorized access to such data, whether accidental or unlawful, in connection with interaction with the Third Party Service requested by Hotel / Concierge.
6.4 Integration with Third Party Services. The Services may contain features designed to interact with Third Party Services. Otely cannot guarantee that said features of the Services will be available during the entire Subscription Term. Otely may therefore cease to provide them without this giving the Hotel / Concierge any right to reimbursement, or any other form of compensation or indemnification. In addition, it will be the responsibility of the Hotel / Concierge to ensure that the Third Party Services it wishes to use are compatible with the Services throughout the Subscription Term.
6.5 Additional services. In the event that there are no functionalities available in the Services allowing interaction between the Services and Third Party Services requested by the Hotel / Conciergerie, then the latter is informed that interaction between the Services and said Third Party Services will require Otely to provide additional services, for example parameterization or software development. These additional services will be subject to separate contractual stipulations and additional billing on the basis of a man-day rate, which the Hotel / Concierge recognizes and accepts.
7. invoicing and remuneration
7.1 Installation charges. Installation Charges are set forth in the Commercial Proposal. Installation Charges are invoiced at the time of Contract Signature.
Unless otherwise specified in a Commercial Proposal or invoice, Installation Costs are due in full within a maximum of thirty (30) days of the invoice date. Installation Charges are quoted exclusive of VAT and exclusive of any tax or duty.
The Installation Fee is paid by direct debit, which the Hotel / Conciergerie acknowledges and accepts.
The Otely solution will be commissioned once these installation costs have been paid.
7.2 Subscription Fees. Subscription Fees are indicated in the Sales Proposal. The Subscription Fee is invoiced monthly on D+10 of the contract signature date, based on the number of rooms available to the Hotel / Conciergerie. The Hotel / Conciergerie undertakes to declare any increase in the number of rooms as soon as possible. The Subscription Fees are indicated in the Sales Proposal. The Subscription Fees are paid by direct debit, which the Hotel / Conciergerie acknowledges and accepts.
7.3 Otely Service Fees. Otely Service Fees are indicated in the Commercial Proposal. The Otely Service Fee corresponds to a percentage of the amount (including VAT) of customer orders placed on the Otely platform, excluding Uber management fees and excluding Uber delivery fees.
The percentage varies according to the subscription chosen by the Hotel / Concierge.
Otely service fees are billed monthly at the beginning of the month.
Otely Service Fees are paid by direct debit, which Hotel / Concierge acknowledges and accepts.
7.4 Payment terms. Unless otherwise specified in a Commercial Proposal or invoice, the Installation Fee, Subscription Fee and Otely Service Fee are due in full within thirty (30) days of the invoice date. Installation Fees and Subscription Fees are quoted exclusive of VAT and exclusive of taxes.
7.5 Uber Service Fee. Uber Service Fees are payable directly via the Hotel / Concierge's Uber Account and are debited at the end of each month to the Hotel / Concierge's bank card registered in its Uber Account, in the amount of a single invoice issued by Uber instantly.
the Hotel / Conciergerie agrees to have sufficient funds to pay the Uber Service Fees each month and to pay them on time. the Hotel / Conciergerie agrees to re-invoice its Uber Service Fees directly to its Customers at the time of payment for the room by the Customer, as part of a single billing and without any surcharge with the exception of the Otely Service Fees and Hotel Service Fees when the Hotel / Conciergerie has a subscription formula providing for it.
7.6 Late payment. If the Hotel / Conciergerie does not pay the Subscription Fees, Otely Service Fees or Uber Service Fees by the due date of the invoice, these Fees may bear interest at 3 (three) times the French legal interest rate and an additional fixed amount of 40 (forty) euros shall automatically be due by the Hotel / Conciergerie as a fixed indemnity for collection costs payable by the creditor in the event of late payment. If said late payment is more than thirty (30) days after the due date, Otely may suspend access to and use of the Services by Hotel / la Conciergerie, without prejudice to its other remedies.
8. DURATION, TERMINATION, SUSPENSION, AND PENALTIES FOR NON-PERFORMANCE OR IMPERFECT PERFORMANCE
8.1 Duration and extension of the Agreement. This Agreement is entered into for a period of one month and is automatically extended for the same duration, unless (i) one of the Parties gives notice to the contrary in accordance with the conditions set out in the "Termination" Section.
8.2 Termination by either Party. Either Party may terminate the present Contract for convenience, subject to notifying the other Party by e-mail or by registered letter with acknowledgement of receipt to the postal address of the registered office indicated on the Commercial Proposal at least 15 (fifteen) days before the end of the current contractual term.
Termination then takes effect at the end of the month in progress on the date of notification of termination.
the Hotel / Concierge may decide to remove the link between its Uber Account and Otely's Uber account at any time subject to notifying Otely, which will automatically result in the termination of this Agreement at the end of the month in progress on the date of notification of the removal of the link.
8.4 Termination by Uber. In the event that Uber terminates its contractual relationship with Hotel / Concierge, then this Agreement shall be terminated within the same period as the contractual relationship with Uber. In particular, Hotel / Concierge agrees and acknowledges that the termination of its contractual relationship with Uber (i) may be notified to it by Otely or directly by Uber and (ii) shall occur within five (5) to ten (10) days of receipt of such notification.
8.5 Suspension of Services. Otely reserves the right at any time and without delay to limit the Services, or to suspend access in whole or in part, in the event of late payment of Subscription Fees or Service Fees, or if Otely detects or has objective evidence to believe that :
(a) the Hotel / Concierge Company has failed to comply with the obligations set forth in the "Hotel / Concierge Company Obligations" and "Restrictions on Use" Sections of this Agreement;
(b) the Hotel / Concierge has breached its contractual obligations under the Terms and Conditions for Uber Business.
(b) the use of the Services by the Hotel / Conciergerie experiences an unusual and substantial peak or increase and such traffic or use is of a fraudulent nature or has a significant and negative impact on the ability of the Services to operate;
(c) Malicious Software is connected to the Hotel Account or is related to the use of the Services by the Hotel / Concierge ;
(d) use of the Services by the Hotel / Concierge threatens the security, integrity or availability of the Services.
Depending on the circumstances, Otely may, at its discretion, notify the Hotel / Conciergerie in advance of such suspension of Services and give it the opportunity to remedy its causes, if any.
Non-performance or imperfect performance of the Agreement. The sole and exclusive remedies of Hotel / Concierge in the event of non-performance or imperfect performance by Otely of its obligations under this Agreement shall be exclusively those set forth in this Agreement, unless otherwise agreed in writing by the Parties in accordance with the conditions set forth in Section "Modification of the Agreement".
9. LIMITATION OF LIABILITY
9.1 Scope of reparable damages. Each Party shall be liable to the other Party for damages having the cumulative characteristics of being direct, personal, certain and foreseeable, suffered in connection with this Agreement.
9.2 Excluded damages. Neither Party shall be liable to the other Party for the categories of damages listed below, suffered in connection with this Agreement: consequential damages, damages that are not personal, uncertain damages, unforeseeable damages, or costs of replacing services, or damage to image or reputation.
Furthermore, Otely shall not be liable for any damages resulting directly or indirectly from a failure by the Hotel / Concierge to comply with the "Prerequisites" Section or for damages in connection with Third Party Data or Third Party Services.
9.3 Limitation of liability. THE TOTAL LIABILITY OF EACH PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED :
THE TOTAL AMOUNT OF THE UBER SERVICE REMUNERATION RECEIVED BY THE HOTEL / CONCIERGE DURING THE LAST TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY UNDER THIS CONTRACT.
OR THE SUM OF 100,000 EUROS,
WHICHEVER IS LOWER.
THE HOTEL / CONCIERGE ACKNOWLEDGES AND AGREES THAT THE PURPOSE OF THIS "LIABILITY CAP" SECTION IS TO ALLOCATE THE RISKS UNDER THIS CONTRACT BETWEEN THE PARTIES AND TO LIMIT POTENTIAL LIABILITY TAKING INTO CONSIDERATION THE AMOUNT OF THE SUBSCRIPTION FEE.
9.4 Exclusion of capping. The limitation of liability stipulated above does not apply in the event of death or personal injury.
10. COMPENSATION
10.1 Indemnification by Otely. Otely shall indemnify Hotel / la Conciergerie and hold Hotel / la Conciergerie harmless with respect to any claim brought by a third party against Hotel / la Conciergerie due to its use of a Service as authorized hereunder, alleging that such Service infringes the copyright belonging to a third party (an " Author's Rights Claim ") under the conditions hereinafter defined. Otely shall, at its own expense, defend Hotel / la Conciergerie against such an Author's Rights Claim and pay the damages and interest to which Hotel / la Conciergerie will, in this respect, be definitively condemned, as well as the reasonable fees and expenses of the lawyers engaged by Otely for this defense, and the amounts paid as a transaction within the meaning of the Civil Code, provided that :
(a) the Hotel / Conciergerie shall promptly inform Otely of the threat or notification of such Copyright Claim;
(b) Otely shall have the sole and exclusive control and authority to select defense counsel, conduct the defense and/or settle any Copyright Claim (however, Otely shall not settle any claim involving the liability of Hotel / la Conciergerie or the recognition of any liability of Hotel / la Conciergerie without the prior written consent of Hotel / la Conciergerie);
and (c) the Hotel / Conciergerie cooperates fully with Otely in this regard.
If the Hotel / Concierge's use of a Service has become, or is likely to become the subject of such an Author's Rights Claim from Otely's perspective, then Otely may, at its discretion and expense:
(a) give the Hotel / Concierge the right to continue to use the Service(s), as provided below;
(b) replace or modify a Service so that it is no longer infringing;
or (c) if options (a) or (b) are not commercially reasonable or practicable, as determined by Otely, Otely may rightfully terminate the Hotel / Concierge's subscription to the Service(s) and shall refund to the Hotel / Concierge on a pro rata basis the Subscription Fees previously paid to Otely for the corresponding unused Subscription Term for such Service(s).
Otely assumes no liability or obligation under this "Copyright Claim" Section if the Copyright Claim is related in whole or in part to :
(i) data or instructions that have been provided by the Hotel / Concierge;
(ii) modification of the Service(s) by any person other than Otely ;
(iii) the combination, exploitation or use of the Service(s) with other hardware or software in the event that a Service is not in itself infringing
or (iv) a breach by the Hotel / Concierge of this Agreement.
The provisions of this Section "Indemnification by Otely" define Otely's sole, exclusive and entire liability to the Hotel / Conciergerie and define the Hotel / Conciergerie's sole remedy against Otely in connection with any Claim of Copyright brought as a result of access to or use of a Service by the Hotel / Conciergerie or its Customers.
10.2 Indemnification by Hotel / Concierge. Hotel / Concierge shall indemnify and hold Otely harmless from any claim brought by a third party against Otely alleging that Hotel / Concierge Data or Hotel / Concierge's use of any Third Party Service or Third Party Data, infringes applicable third party rights, for example copyrights or rights of Data Subjects under Personal Data Protection Laws and Regulations (a " Third Party Rights Claim ") under the conditions hereinafter defined. Hotel / la Conciergerie shall, at its own expense, defend Otely against such a Claim of Third Party Rights and pay any damages to which Otely shall be definitively condemned in this respect, as well as reasonable fees and expenses of attorneys engaged by Hotel / la Conciergerie for such defense, and amounts paid as a settlement within the meaning of the Civil Code, provided that :
(a) Otely shall notify the Hotel / Conciergerie as soon as possible of the threat or notification of such Claim of third party rights ;
(b) the Hotel / Conciergerie shall have the sole and exclusive control and authority to select defense counsel, conduct the defense and/or settle any such Third Party Rights Claim (however, 'Hotel shall not settle any claim resulting in Otely's liability or recognition of any liability without Otely's prior written consent);
and (c) Otely cooperates fully with the Hotel / Conciergerie in this regard.
The provisions of this Section "Indemnification by the Hotel / Concierge" define the sole, exclusive and entire liability of the Hotel / Concierge to Otely and define Otely's sole remedy against the Hotel / Concierge with respect to Claims of third party rights as defined in this Section "Indemnification by the Hotel / Concierge".
11. FINAL CLAUSES
11.1 Legal capacity. Each Party declares that it has validly entered into this Agreement and has the legal authority to do so.
11.2 Assignment of Agreement. Each Party hereby expressly consents in advance that the other Party may assign or otherwise transfer this Agreement to (i) an Affiliate or (ii) a third party that is not a direct competitor of the other Party.
11.3 Entire Agreement. This Agreement, together with any Commercial Proposal, constitutes the entire agreement between the Parties and supersedes any previous agreement(s) between the Hotel / Concierge and Otely concerning the subject matter hereof.
11.4 Modification of the Agreement. Otely reserves the right to modify the Terms and Conditions of Service at any time. The customer will be notified by any means of updates to the General Terms of Service on the website otely.com.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, then to the maximum extent permitted by law, the remaining provisions of this Agreement shall remain in full force and effect.
11.6 Relationship between the Parties. The Parties are independent contracting parties.
11.7 Notification. The terms "notification" or "notifie" or "notifier" when used in this Agreement shall mean a notification made under the conditions hereinafter defined. All notifications made by the Parties pursuant to this Agreement shall be sent in writing (a) by registered letter with return receipt requested to the postal address of the registered office indicated on the first page of this Agreement, in the case of a notification made pursuant to the Sections "Duration, Termination" and "Indemnification", and shall be accompanied by an e-mail sent to Otely at the following address charles@otely.com, or to the Hotel / la Conciergerie at the e-mail address indicated in the Hotel / la Conciergerie's Hotel Account, ; or (b) for all notifications made outside of these Sections by email only.
11.8 Commercial reference. Otely reserves the right to mention, as a commercial reference, the existence and purpose of this Agreement by disclosing the corporate name of the Hotel / Conciergerie, for the entire Subscription Term, which the Hotel / Conciergerie accepts.
11.9 Applicable law. This Agreement is governed by French law. The Vienna Convention on the International Sale of Goods shall not apply to this Contract.
11.10 Survival. The following Sections shall survive termination of the Agreement: "Confidentiality", "Limitation of Liability", "Withdrawal of Third Party Data and Third Party Services" "Billing and Remuneration".
11.11 Jurisdiction. Any dispute arising under this Agreement shall be resolved by the courts of Paris.
11.12 Schedules. The Contract includes the following appendices:
Appendix A: Agreement on the processing of personal data.
Appendix 1: Treatment description.
Appendix 2: List of subcontractors
Appendix A
Agreement on the Processing of Personal Data
1.DEFINITIONS
Unless defined in the Agreement, the terms below have the following meanings when used in this Agreement with the first letter capitalized:
1.1 Agreement: means this Agreement on the Processing of Personal Data.
1.2 Data Controller, Subcontractor, Supervisory Authority, Data Breach: has the meaning defined in the General Data Protection Regulation.
1.3 Personal Data: has the meaning defined in the General Data Protection Regulation. For all intents and purposes, it is specified that Personal Data is by definition Hotel / Concierge Data.
1.4 Processing: has the meaning defined in the General Data Protection Regulation and is described in Appendix 1.
1.5 Subsequent Subcontractor: means any Subcontractor of Otely.
2. ROLE OF THE PARTIES AND PURPOSE
2.1 Hotel / Concierge is the Data Controller and Otely is the Data Processor for the processing described in this Agreement and in particular in Appendix 1.
2.2 The Sub-Contractor processes Personal Data on behalf of the Data Controller in order to provide the latter with the Services it has ordered under a Commercial Proposal and the Contract.
3. SUBCONTRACTOR'S OBLIGATIONS
3.1 The Parties agree that the purpose and duration of the Processing carried out by the Subcontractor pursuant to this Agreement, the nature and purpose of the Processing, the categories of Personal Data and the categories of Data Subjects, are as described in this Agreement, in Appendix 1 and in the Contract.
3.2 For all intents and purposes, it is specified that the obligations incumbent upon the Subcontractor under this Agreement are an obligation of means. In providing the Services to the Data Controller under the terms of the Agreement, the Subcontractor undertakes the following:
(i) The Subcontractor will only process Personal Data upon documented instructions from the Controller, in accordance with what is necessary in order to provide the Services and Support. Documented instructions include:
(a) the terms of the Contract, including those of this Agreement ;
(b) any requests or orders made by the Hotel / Concierge through the use of the Services and/or Support;
(c) any requests made by the Hotel / Concierge in any manner whatsoever, for example by email or telephone in connection with the use of the Services and/or Support.
The Data Controller is reminded that it is his responsibility to ensure that his instructions comply with the Purpose of the Services, the applicable Laws and Regulations relating to the Protection of Personal Data and the Contract.
(ii) The Subcontractor shall ensure that its personnel are committed to respecting the confidentiality of Personal Data and that Subsequent Subcontractors are subject to obligations regarding the confidentiality of Personal Data that are no less protective than those stipulated in the Contract;
(iii) Taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of the Processing, the Destination of the Services, as well as the risks, which vary in probability and severity, to the rights and freedoms of natural persons, the Subcontractor will implement and maintain appropriate technical and organizational measures to protect Personal Data against any Data Breach;
(iv) Taking into account the nature of the Processing, the Destination of the Services, the information available to the Subcontractor, the Subcontractor will provide reasonable assistance to the Controller in implementing and maintaining appropriate technical and organizational measures to protect Personal Data against any Data Breach ; these measures shall also take into account the state of the art, the costs of implementation, the nature, scope, context and purposes of the Processing, the Destination of the Services, as well as the risks, the degree of probability and seriousness of which varies for the rights and freedoms of natural persons;
(v) Given the nature of the Processing and the information available to the Subcontractor, the Subcontractor will notify the Data Controller as soon as possible and if possible within seventy-two (72) hours at the latest after becoming aware of a Data Breach; if necessary the Subcontractor will provide reasonable assistance to the Data Controller in order to mitigate or remedy the Data Breach. The Subcontractor shall not be subject to this obligation to notify the Data Controller if the Data Breach is not likely to result in a risk to the rights and freedoms of natural persons;
(vi) At the written request of the Controller, and taking into account the nature of the Processing and the information available to the Sub-Contractor, the Sub-Contractor will provide the Controller with reasonable assistance with respect to the Controller's compliance with its obligations to notify the Data Subject of a Data Breach, where required by the General Data Protection Regulation;
(vii) At the written request of the Data Controller, and taking into account the nature of the Processing and the information available to the Subcontractor, the Subcontractor will provide reasonable assistance to the Data Controller in carrying out a personal data protection impact assessment, where required by the General Data Protection Regulation;
(viii) At the written request of the Controller, and taking into account the nature of the Processing and the information available to the Subcontractor, the Subcontractor will provide reasonable assistance to the Controller in the event of prior consultation with a Supervisory Authority where required by the General Data Protection Regulation;
(ix) Given the nature of the Processing, the Subcontractor will provide reasonable technical and organizational assistance to the Data Processor to enable the latter to comply with its obligation to respond to requests from Data Subjects regarding the exercise of their rights pursuant to the Laws and Regulations applicable to the Protection of Personal Data (a " Data Subject Request "). In the event that the Sub-Contractor receives a Data Subject Request directly, it will first (unless prohibited by law) direct the Data Subject to the Data Controller. If the Data Controller is unable to respond to the Data Subject's Request and the Data Processor's request, the Subcontractor will respond in accordance with the Laws and Regulations relating to Data Protection
;
(x) In the event of termination of access to and use of the Services by the Data Controller, the Subcontractor shall comply with the requirements of Section "Restitution and Destruction of Personal Data" of this Agreement;
(xi) The Sub-Contractor shall comply with the requirements of the "Audit" Section of this Agreement to enable information to be made available to the Controller or a third party appointed by the Controller to demonstrate the Sub-Contractor's compliance with the obligations set out in this Agreement.
3.3 The Sub-Contractor shall immediately inform the Data Controller if, in its opinion, an instruction from the Data Controller relating to the Processing of Personal Data constitutes a breach of the Laws and Regulations applicable to the Protection of Personal Data. In such a case, the Sub-Contractor is entitled to refuse to implement the Processing of Personal Data which it considers to be in breach of the Laws and Regulations relating to the Protection of Personal Data.
3.4 The Data Controller alone shall bear the costs relating to the implementation by the Subcontractor of its obligations having as their object the provision of reasonable assistance under this Section "Subcontractor Obligations" including in relation to Audit (as more fully detailed in Section "Audit"). The Data Controller hereby agrees that the Subcontractor shall charge for the provision of such assistance, whenever requested by the Data Controller pursuant to this Section, on the basis of the man-day rate then applicable by the Subcontractor. The provision of such assistance is the subject of separate contractual stipulations herein.
4. USE OF SUBSEQUENT SUBCONTRACTORS
4.1 The Data Controller hereby grants prior and general permission to the Subcontractor to use Subsequent Subcontractors to assist it in the Processing of Personal Data carried out under the conditions defined in this Agreement.
4.2 The Sub-Contractor undertakes that the Subsequent Sub-Contractors :
(i) comply with obligations at least equivalent to those set forth in this Agreement with respect to the protection of Personal Data;
(ii) undertake, in particular, to provide Personal Data protection guarantees at least equivalent to those provided by the measures implemented by Otely.
The Sub-Contractor remains fully responsible to the Data Controller for the performance by the Subsequent Sub-Contractors of their contractual obligations towards the Sub-Contractor.
4.3 The Data Controller hereby authorizes the use of the Sub-Contractors listed in Appendix 2 of this Agreement. The Sub-Contractor shall notify the update of the list of Sub-Contractors to be used at least thirty (30) calendar days prior to the date on which the Sub-Contractor will start processing the Personal Data.
4.4 If the Controller objects to the Processing of its Personal Data by a newly appointed Subcontractor, as described in the Section "Use of Subcontractors" of this Agreement, it shall promptly notify the Subcontractor. In this case, the Controller may terminate this Agreement (and the Contract with the Sub-Processor) under the conditions set out in the "Termination" Section of the Contract.
In the absence of any objection from the Data Controller within ten (10) calendar days following notification of the updated list of Subcontractors, the Data Controller acknowledges and accepts that it is deemed to have accepted the new designated Subcontractor.
4.5 For all intents and purposes, it should be noted that providers of Third-Party Services or Third-Party Data are not Third-Party Subcontractors. The Controller is solely responsible for the use of Third-Party Services and Third-Party Data, as provided for in the Contract.
5. AUDIT
5.1 In the event that the Data Controller has objective doubts as to whether the Subcontractor is complying with its obligations under this Agreement, the Data Controller may request an audit no more than once (1) a year with a minimum of thirty (30) days' notice.
5.2 This audit may only be carried out if the Data Controller and the Subcontractor agree in advance in writing on the auditor, the scope of the audit and the conditions of the audit.
6. OBLIGATIONS OF THE DATA CONTROLLER
As a Processor using the Service(s) in accordance with the Agreement, the Processor agrees to the following:
(i) the Data Controller is solely responsible for the accuracy of the Personal Data, for the means by which such Personal Data is collected and for the Processing it implements;
(ii) the Data Controller is solely responsible for the instructions it gives to the Subcontractor concerning the Processing of Personal Data, which must comply with this Agreement, the Contract and the Laws and Regulations relating to the Protection of Personal Data;
(iii) the Processor is responsible for compliance with its obligations under the "Hotel / Concierge Obligations" and "Third Party Services and Third Party Data" Sections of the Agreement;
(iv) the Data Controller is and shall remain solely responsible for ensuring that the Processing of Personal Data complies with all applicable provisions of the Laws and Regulations relating to the Protection of Personal Data;
(v) the Data Controller is responsible for the payment of any additional services invoiced by the Subcontractor in respect of :
(a) the performance of its duty to provide reasonable assistance, as set forth in the "Subcontractor's Obligations" Section of this Agreement;
(b) the performance of its service of restitution of the Hotel / Concierge Data pursuant to the Section "Restitution and Destruction of Personal Data".
7. DESTRUCTION OF PERSONAL DATA
At the express request of the Data Controller, the Subcontractor may provide the latter with a copy of its Personal Data in a format that can be read by a computer after termination of the Contract.
At the end of a period of three (3) months following the termination of the Contract or its non-extension, the Subcontractor will delete all Hotel / Concierge Data processed on behalf of the Processor, in accordance with the Subcontractor's deletion policies and procedures.
The Data Processor acknowledges and accepts that it will not be possible to retrieve the Hotel / Concierge Data after the expiry of this three (3) month period following the termination of the Contract or its non-extension.
8. DURATION
This Agreement shall remain in force for as long as the Subcontractor processes Personal Data on behalf of the Controller pursuant to the Contract and this Agreement.
9. LIMITATION OF LIABILITY
The liability of each Party in the event of a breach of this Agreement is subject to the conditions set out in the "Limitation of Liability" section of the Agreement.
Appendix 1 to the Agreement
Treatment description
1. Treatment duration
The Processing of Personal Data will continue for the duration of the Subscription Term specified in the Contract, plus three (3) months.
2. Purpose of Processing
Otely will host, transmit, have access to and use the Hotel / Concierge's Personal Data as part of the Platform , which will enable Uber to deliver food to the Hotel / Concierge and the Hotel / Concierge to deliver food to its Customers.
3. Purpose of Processing
The purpose of Processing Personal Data is to provide the Services under the Contract, the Commercial Proposal and this Agreement.
4. Persons concerned
The Persons Concerned are the Customers of the Hotel / Conciergerie for the delivery of food and the Users of the Hotel / Conciergerie for the management of the Hotel Account.
5. Categories of Personal Data
The categories of Personal Data processed include :
Hotel / Concierge login and password ;
Hotel account usage data ;
Uber Account Usage Data;
Customer's IP address if he uses his terminal to access the Customer Page ;
Data for deliveries: contact details of the person responsible for collecting deliveries, delivery details;
Uber Services order data: room number, selected restaurant, dishes ordered ;
Data used to bill customers for the order: time and day of the order, price paid for the order;
Any other data communicated by the Hotel / Concierge or by Uber for the proper functioning of the Services.
Appendix 2 to the Agreement
List of subcontractors
Company name, corporate form
Head office