The Smart Marketing Assistant for Hotels

USERGUEST TERMS OF SERVICE

These Terms of Service are a legally binding agreement between Userguest and you. Userguest offers its users a solution to help them improve their online performance and to provide a dashboard with metrics and insights to understand their online. Please read these Terms of Service carefully to make sure that you understand each provision. By entering into an Agreement (defined below) with Userguest, you acknowledge that you have read, understood, and unconditionally accepted all of the Terms of Service contained herein.

  1. Definitions

1.1 In this Agreement, except to the extent expressly provided otherwise:

“Agreement” means the legally binding agreement which the Customer enters into with Userguest, which comes into force when the Customer contracts with Userguest for its Services and accepts the applicability of these Terms of Service.
“Charges” means the fee Userguest receives from the Customer for the use of the Services, which shall be charged according to a pre-agreed format. Charges may include the Subscription fee, the Userguest Bookings Commission, and the General Commission (all as defined in Section 6.1), depending on the payment plan chosen by Customer.
“Consent of Data Subject” means any freely given, specific, informed and unambiguous
indication of the data subject’s wishes by which he or she, by a statement
or by a clear affirmative action, signifies agreement to the processing of
personal data relating to him or her.

“Customer” means the party that contracts with Userguest for the use of Services under
these Terms of Service.
“Customer Confidential Information” means:
Any information disclosed by or on behalf of the Customer to the Service
Provider during the Term (whether disclosed in writing, orally or
otherwise) that at the time of disclosure:

  • was described as “confidential”; or
  • should have been reasonably understood by the Service Provider
    to be confidential.

“Customer Personal Data” means any Personal Data processed by a Data Processor on
behalf of Customer in pursuant to or in connection with this Service
Agreement, whereby generated by the Platform as a result of the use of
the Service by the Customer that is processed by the Service Provider on
behalf of the Customer in relation to this Agreement.
“Data Processor” means the Service Provider as the legal entity, which processes personal
data on behalf of the Data Controller.
“Data Controller” means, the Customer, as natural or legal person, which alone or jointly
with others, determines the purposes and means of the processing of
personal data, where the purposes and means of such processing are
determined by the controller.
“Data Protection Laws” means all applicable laws relating to the processing of Personal
Data including, while it is in force and applicable to Customer Personal
Data, the General Data Protection Regulation (GDPR Regulation (EU)
2016/679) and laws implementing or supplementing the GDPR.
“Data Subject” means any identified or identifiable natural person whose Personal Data
is being collected, held and/or processed.
“Data Transfer” means a transfer of Customer Personal Data from the Customer to the
Data Processor.
“Effective Date” means the date of execution of the Agreement;
“Gross Revenue” means the revenue corresponding to the sales price of the hotel bookings
sold by the Customer to its clients on its own website, as listed on the
invoice issued by the Customer to its clients, including all applicable
costs and similar taxes.
“Force Majeure Event” means neither party shall have any liability under or be deemed
to be in breach of the Agreement for any delays or failures in
performance of the Agreement which result from circumstances beyond
the reasonable control of the Party affected.
“Intellectual Property Rights” means all intellectual property rights wherever in the
world, whether registrable or unregistrable, registered or unregistered,
including any application or right of application for such rights (and these
“intellectual property rights” include copyright and related rights,
database rights, confidential information, trade secrets, know-how,
business names, trade names, trademarks, service marks, passing off
rights, unfair competition rights, patents, petty patents, utility models,
semi-conductor topography rights and rights in designs;
“Invoice” means an invoice issued by the Service Provider to the Customer with the
detailed information set out the term and the agreed Charges within this
Agreement.
“Personal Data” means any information relating the Data Subject, an identifiable natural
person is one who can be identified, directly or indirectly, in particular
by reference to an identifier such as a name, an identification number,
location data, an online identifier or to one or more factors specific to the
physical, physiological, genetic, mental, economic, cultural or social
identity of that natural person.
“Personal data breach” means a breach of security leading to the accidental or unlawful
destruction, loss, alteration, unauthorized disclosure of, or access to,
personal data transmitted, stored or otherwise processed.
“Processing” means any operation or set of operations which is performed on personal
data or on sets of personal data, whether or not by automated means, such
as collection, recording, organization, structuring, storage, adaptation or
alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination,
restriction, erasure or destruction.
“Service(s)” means the services of the installation and performance of USERGUEST
software to provide marketing tools to help the customers improve its
online performance and to provide a dashboard with metrics and insights
to better understand their online visibility with the aim to undertake
informed decisions.
“Security Breach” means a breach is considered to be a data breach if it involves the loss
of personal data, or if unlawful processing of personal data cannot
reasonably be excluded.
“Term” means the term of this Agreement, commencing in accordance with Clause 2.
“Userguest” means the private limited company registered in accordance with Dutch law
at 131-4 Frans Van Mierisstraat, 1071RR Amsterdam, The Netherlands
(hereinafter also referred to as “Service Provider” or “Data
Processor”).

  1. Acceptance and Term

2.1 These Terms of Service are accepted by selecting “I have read and accept the
subscription terms of service” in the Subscription form, (hereinafter referred to as the
“Subscription”). Customer’s acceptance of these Terms of Service will form a
legally binding Agreement with the Service Provider.
2.2 These Terms of Service shall apply to all Services offered by Service Provider, except
where expressly indicated to the contrary.
2.3 Customer may not enter into any Agreement with Service Provider if Customer does
not have the required capacity to form a binding contract with Service Provider.
2.4 All terms and conditions used by the Customer that are contrary to these Terms of
Service are hereby rejected and therefore do not apply to the relationship between the
Customer and Service Provider.
2.5 This is a business-to-business service only and there is no intention to create an
Agreement with any consumer.
2.6 This Agreement shall become effective as of the date of the Subscription acceptance
and shall continue in effect for a period of one year from the date of execution, unless
express acceptance by the Parties of a period of time which shall not be lesser than
six (6) months from the date of execution.
USERGUEST.COM BV – Chamber of commerce number – 71573682
Registration address – 131-4 Frans Van Mierisstraat, 1071 RR, Amsterdam, The Netherlands
Tax number – NL858767892B01
`2.7 In the event the Customer benefits from promotional or discounted prices, this
Agreement shall be valid for one year without the possibility for the Customer to
terminate this Agreement during the period of one year from the date of execution,
except for reasons detailed in Article 11 or 12.3. If the Customer terminates this
Agreement prior to this period of one year with outstanding payment obligations in
Article 7, this termination shall constitute a material breach of this Agreement by the
Customer.
2.8 This Agreement shall be automatically extended for one additional year, unless 90
(ninety) days prior to the end of the initial term of one year, either Party provides to
the other Party a written notification of its desire not to automatically renew this
Agreement in accordance with Article 12.1.

  1. The Supply of Services

3.1 The Service Provider hereby grants to the Customer a license to use USERGUEST
Services as agreed in this Agreement, which shall be installed on the Customer’s
website or websites.
3.2 The Customer shall duly inform the Service Provider of any fact and circumstance
that may be relevant in connection with the execution of the Services.
3.3 The Service Provider shall use reasonable endeavors to maintain the availability of
the Services to the Customer.
3.4 For the avoidance of doubt, downtime caused directly or indirectly by any of the
following shall not be considered a breach of this Agreement:

(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer’s computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.

3.5 The Customer must not use the Service in any way that causes, or may cause, damage
to the script or USERGUEST client facing platform.
3.6 If the Customer opts for a payment plan based on Userguest Bookings Commission
and/or the General Commission (as defined in Section 6.1), and except for otherwise
instructed by the Service Provider, the Customer must not un-install or disable the Service
Provider’s notifications during the validity period of this Agreement. Un-installing or
disabling the Service Provider’s notifications for a duration of more than 1 (one) month
during the validity of this Agreement will constitute a material breach of this Agreement.
3.7 Except otherwise instructed by the Service Provider, the Customer must not un-install
or disable the Service Provider’s notifications during the validity period of this
Agreement.
3.8 The Customer must not use the USERGUEST software Services
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or
activity.
3.9 For the avoidance of doubt, the Customer has no right to access the software code
(including object code, intermediate code and source code) of the Platform, either
during or after the Term.
3.10 Unless expressly agreed upon in writing by the Service Provider, the Customer
shall not share its USERGUEST dashboard logins with any third parties.
USERGUEST.COM BV – Chamber of commerce number – 71573682
Registration address – 131-4 Frans Van Mierisstraat, 1071 RR, Amsterdam, The Netherlands
Tax number – NL858767892B01
3.11 The Service Provider may suspend the access to USERGUEST if any amount
due to be paid by the Customer to the Service Provider under this Agreement is
overdue, and the Service Provider has given to the Customer at least 30 days’ written
notice, following the amount becoming overdue, of its intention to suspend the
service.
3.12 The Service Provider shall have the right to make changes to the Services to the
extent necessary to comply with applicable law or similar requirements, or which do
not materially affect the nature or the quality of the Services.

  1. Support Services

4.1 The Service Provider shall provide the Support Services to the Customer during the
Term.
4.2 The Service Provider shall make available to the Customer a helpdesk in accordance
with the provisions of this main body of this Agreement.
4.3 The Service Provider shall respond promptly to all requests for Support Services
made by the Customer through the helpdesk.
4.4 The Service Provider may suspend the provision of the Support Services if any
amount due to be paid by the Customer to the Service Provider under this Agreement
is overdue, and the Service Provider has given to the Customer at least 30 days’
written notice, following the amount becoming overdue, of its intention to suspend
the Support Services on this basis.

  1. Intellectual Property Rights

5.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property
Rights from the Service Provider to the Customer, or from the Customer to the
Service Provider.
5.2 The Services offered by the Service Provider and any content thereon are protected
by applicable intellectual property laws and Customer agrees to respect them. All
rights not expressly granted to the Customer are reserved by the Service Provider.
5.3 The Service Provider is entitled to use the Customer in its marketing activities as
reference with regard to the Services performed by the Service Provider, unless
otherwise agreed in writing.

  1. Charges

6.1 The Customer may opt to sign up for the Services under three different payment
plans:

6.1.1 Customer may sign up for a yearly Subscription, with a fixed fee of $249
payable per month. Parties may agree on a monthly, 6-monthly, or yearly
payment schedule in mutual consultation.
6.1.2 Customer may opt to choose for commission-based payments to the
Service Provider, whereby for every sale or booking through the
Customer’s website that can be directly attributable to the Service
Provider, the Service Provider will receive a fee of 7% of the Gross
Revenue of such sales and bookings (the “Userguest Bookings
Commission”).
6.1.3 Customer may opt to choose for commission-based payments to the
Service Provider, whereby for every sale or booking through the
Customer’s website for the duration of the Agreement, the Service
Provider will receive a fee of 1,9% of the Gross Revenue of any such sales
and bookings (the “General Commission”).

6.2 The payment plan selected by the Customer either through the Service Provider’s
Website or indicated in any other unambiguous way will be activated by the Service
Provider, and the Customer will be bound by this payment plan as per the terms that
may be applicable and set forth below. By selecting a payment plan and accepting
these Terms and Conditions, the Customer is entering a legally binding obligation to
pay the corresponding Charges.
6.3 The Userguest Bookings Commission and the General Commission are charged on
materialized bookings per calendar year, based on the check-in date.
6.4 For Userguest Bookings Commission and the General Commission, the Customer has
the ability to cancel the previous month’s bookings that did not materialize through
Userguest’s dashboard before the invoice is generated, the 7th of each calendar
month.
6.5 For Userguest Bookings Commission and the General Commission, the Service
Provider sets a minimum monthly fee of €30, this will apply in the event that the
Customer does not generate enough bookings.
6.6 Any Charges as set out here, whether it be the Subscription Charges, Userguest
Bookings Commission, and the General Commission, will be expressed in Euro’s and
will be increased by sales tax.
6.7 Any Charge paid hereunder shall be non-refundable, unless agreed otherwise in
writing. The offer of any refund shall be at the Service Provider’s sole and absolute
discretion.

  1. Payments

7.1 The Customer shall pay their subscription Charges after a 30-day free trial
completion.
7.2 The Customer shall pay the Charges by debit card, credit card or direct debit.
7.3 In case of a Subscription, the Customer may elect to pay the Charges upfront
annually, bi-annually, or monthly (hereinafter referred to as “Subscription Payment
Terms”). The Subscription Payment Terms must be elected upon the Subscription
and may not be amended during the Agreement Term except expressly agreed upon
by the Service Provider.
7.4 In the event the Customer does not pay the Charges upfront within the timeframe
agreed upon by Customer and Service Provider, the Service Provider may
temporarily suspend the Services until payment is received in full.
7.5 In the event the Customer’s account cannot be charged within a period of 30 days
following the payment due date, this default will constitute a material breach of this
Agreement.
7.6 The Service Provider is entitled to charge the statutory interest rate on the full amount
owed as of the date on which payment should have occurred up to the date on which
the amount owed is received by the Service Provider. The Customer will reimburse
all costs that the Service Provider incurs to collect the amount owed, including costs
of legal assistance, legal costs, and extra judicial costs.

  1. Service Provider’s confidentiality obligations

8.1 The Service Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) use the same degree of care to protect the confidentiality of the Customer
Confidential Information as the Service Provider uses to protect the Supplier’s own
confidential information of a similar nature, being at least a reasonable degree of
care;
(c) not use any of the Customer Confidential Information for any purpose other than to
improve the customer’s overall website performance.
8.2 The Service Provider may disclose the Customer Confidential Information to the
Service Provider’s officers, employees, professional advisers, insurers, agents and
subcontractors.
8.3 Each Party shall keep this Agreement and information it receives about the other
Party and its business in connection with this Agreement confidential and must not
use or disclose that Confidential Information without the prior written consent of the
other Party except to the extent that disclosure is required by the law or if the relevant
information is already in the public domain.

  1. Protection of Customer Personal Data and Security of Data

9.1 The Parties acknowledge that for the purposes of the Data Protection Legislation, the
Customer is the Controller, and the Service Provider is the Processor. The Customer
hereby agrees, under Annex A of this Agreement, the list of details the Processor is
authorized to process.
9.2 Each party, the Service Provider and the Customer, shall comply with the Data
Protection Laws with respect to the processing of the Customer Personal Data
whereby the controller and the processor shall implement appropriate technical and
organizational measures to ensure a level of security appropriate to the risk. In
assessing the appropriate level of security, the Processor shall take account in
particular of the risks that are presented by Processing, in particular from a Personal
Data Breach.
9.3 Each Party shall ensure that the Personal Data shall be processed lawfully, fairly and
in a transparent manner in relation to the Data Subject processed in a manner that
ensures security of the Personal Data, including protection against unauthorized or
unlawful processing against accidental loss, destruction or damage.
9.4 The Customer guarantees that the Consent of Data Subject has been obtained to the
processing of his or her personal data for specific purposes provided in Annex A.
9.5 The Customer warrants to the Service Provider that the Consent of Data Subject is
obtained in a concise, transparent, and easily accessible form, using clear and plain
language, and warrants that the Customer Personal Data is not in breach of security
that risks the rights and freedoms of the Data Subject.
9.6 The Customer warrants to the Service Provider that it has the legal right to disclose
all Personal Data that it does in fact disclose to the Service Provider under or in
connection with this Agreement.
9.7 The Customer agrees and warrants the Service Provider to fulfil the obligations to
process Company Personal Data as set out in this Agreement as per Annex A and
each Party shall ensure compliance with respect to the processing of the Customer
Personal Data.

9.8 The Customer shall only supply to the Service Provider, and the Service Provider
shall only process, in each case under or in relation to this Agreement.
9.9 The Controller guarantees that the Data Subjects are informed and may efficiently
exercise its rights in accordance with the GDPR, including the right of access, the
right to rectification and the right to object, the right to transfer data and the right to
be forgotten.
9.10 The Service Provider, in connection with its obligations under this Agreement,
shall process that Personal Data only in accordance with Annex A.
9.11 The Processor shall take reasonable steps to ensure the reliability of any
employee, agent or contractor of any Contracted Processor who may have access to
the Customer Personal Data, ensuring in each case that access is strictly limited to
those individuals who need to know/access the relevant Customer Personal Data, as
strictly necessary for the purposes of this Service Agreement, and to comply with the
applicable laws in the context of that individual’s duties ensuring that all such
individuals are subject to the duty of confidence, confidentiality undertakings and
professional or statutory obligations of confidentiality.
9.12 The Processor shall take appropriate measures to help the controller to respond
to requests from Data Subjects or individuals to exercise their rights in accordance
with 9.9 above.
9.13 The Processor shall notify the Controller without undue delay after becoming
aware of a Personal Data Beach and in the case of a Personal Data Breach which is
considered as a Security Breach, the Controller shall without undue delay and, where
feasible, not later than 72 hours after having become aware of it, notify the Personal
Data Breach to the Respective Authority.
9.14 The Processor shall delete or return all Personal Data to the Controller (at the
controller’s choice), not longer than 30 days after the end date of the Agreement, and
the Processor must also delete existing personal data unless the law requires its
storage.
9.15 The processor must also give the controller whatever information it needs to
ensure both Parties are compliant with Article 28 of the GDPR obligations.
9.16 The Service Provider shall only process the Customer Personal Data during the
Term and for not more than 30 days following the end of the Term.

  1. Limitations and exclusions of liability

10.1 Nothing in this Agreement will:


(a) limit or exclude any liability for fraud or fraudulent misrepresentation;
(b) limit any liabilities in any way that is not permitted under applicable law;
or
(c) exclude any liabilities that may not be excluded under applicable law.


10.2 The limitations and exclusions of liability set out in this Agreement: govern all
liabilities arising under this Agreement or relating to the subject matter of this
Agreement, including liabilities arising in contract, in tort (including negligence) and
for breach of statutory duty, except to the extent expressly provided otherwise in this
Agreement.
10.3 The Service Provider shall not be liable to the Customer in respect of any losses
arising out of a Force Majeure Event.

10.4 Neither Party shall have any liability under or be deemed to be in breach of the
Agreement for any delays or failures in performance of the Agreement which result
from circumstances beyond the reasonable control of the Party affected.
10.5 Each Party shall promptly notify the other Party in writing when such
circumstances cause a delay or failure in performance and when they cease to do so.
If such circumstances continue for a continuous period of more than two months,
either Party may terminate the Agreement by written notice to the other Party.
10.6 Neither party shall be liable to the other party in respect of any loss of profits or
anticipated savings.
10.7 Neither party shall be liable to the other party in respect of any loss of revenue
or income.
10.8 The Service Provider shall not be liable to the Customer in respect of any loss or
corruption of any data, database or software.
10.9 To the maximum extent permitted by applicable law, the Service Provider makes
no representations or warranties about the accuracy, correctness, quality, or
completeness of any information, files, or documents provided on or through the
Service Provider’s Services.
10.10 The Customer indemnifies the Service Provider against any and all claims from
third parties for compensation of damage, including reasonable attorneys’ fees and
costs. If the Service Provider is held liable by a third party in relation to these Terms
and Conditions and/or any Services, the Customer is obliged to pay the Service
Provider all costs related to thereto, and the Customer is obliged to take responsibility
for the liability directly (inter alia) by notifying the third party that Service Provider
is not liable, but that the Customer is. If the Customer fails to do so, this automatically
creates a right to claim from Service Provider against the Customer for the amount
for which Service Provider is held liable.

  1. Force Majeure

11.1 Neither Party shall have any liability under or be deemed to be in breach of the
Agreement for any delays or failures in performance of the Agreement which result
from circumstances beyond the reasonable control of the Party affected. Each Party
shall promptly notify the other Party in writing when such circumstances cause a
delay or failure in performance and when they cease to do so. If such circumstances
continue for a continuous period of more than two months, either Party may terminate
the Agreement by written notice to the other Party without incurring any liability.

  1. Termination

12.1 In accordance with Article 2.8, this Agreement shall be automatically extended
for one additional year, unless 90 (ninety) days prior to the expiration of the initial
term, a Party provides the written notification to the other Party of its desire not to
automatically renew the Agreement.
12.2 In the event the initial term of one year has expired and the automatic extension
occurs, either Party may terminate this Agreement with a 90 (ninety) days’ written
notification to the other Party.
12.3 Either party may terminate this Agreement immediately by giving written notice
of termination to the other party if the other party commits a material breach of this Agreement. The Termination of this Agreement shall be done by giving to the other
party a 30 (thirty) days’ written notice of termination.

  1. Effects of termination

13.1 Upon the termination of this Agreement, all of the provisions of this Agreement
shall cease to have effect.
13.2 Except to the extent that this Agreement expressly provides otherwise, the
termination of this Agreement shall not affect the accrued rights of either party.
13.3 In the event of termination due to a material breach of this Agreement in
accordance with Article 12.3 from the default of the Customer, the Service Provider
shall impose a termination fee of an amount of USD 1,800 (US Dollar, One Thousand
Eight Hundred).

  1. Notices

14.1 Any notice from one party to the other party in accordance with these Terms of
Service must be given by email communication.

  1. General

15.1 No breach of any provision of these Terms of Service shall be waived except
with the express written consent of the party not in breach.
15.2 If any provision of these Terms of Service is determined by any court or other
competent authority to be unlawful and/or unenforceable, the other provisions of
these Terms of Service will continue in full force and effect. If any unlawful and/or
unenforceable provision would be lawful or enforceable if part of it were deleted, that
part will be deemed to be deleted, and the rest of the provision will continue in effect
(unless that would contradict the clear intention of the parties, in which case the
entirety of the relevant provision will be deemed to be deleted).
15.3 The Agreement may not be varied except by a written approval by or on behalf
of each of the parties.
15.4 Neither party may without the prior written consent of the other party assign,
transfer, charge, license or otherwise deal in or dispose of any contractual rights or
obligations under the Agreement and/or these Terms of Service.
15.5 The Agreement is made for the benefit of the parties, and is not intended to
benefit any third party or be enforceable by any third party. The rights of the parties
to terminate, rescind, or agree any amendment, waiver, variation or settlement under
or relating to this Agreement are not subject to the consent of any third party.
15.6 The Agreement shall constitute the entire agreement between the parties in
relation to the subject matter thereof, and shall supersede all previous agreements,
arrangements and understandings between the parties in respect of that subject matter.
15.7 This Agreement shall be governed by and construed in accordance with Dutch
law.
15.8 The Parties shall attempt in good faith to negotiate an amicable settlement to any
dispute between them arising out of or in connection with the Agreement within one
month. If Parties fail to enter into a written agreement resolving the dispute within
one month, the courts of The Netherlands shall have exclusive jurisdiction to
adjudicate any dispute arising under or in connection with this Agreement.

ANNEX A – Processing, Personal Data and Data Subjects

In relation to executing the obligations in the Agreement between the Controller and the Processor, the Controller agrees in accordance with the Agreement for the processing of Personal Data of the Data Subjects as provided below:

 

Description

Details

 

Subject matter of the processing

The Processor collects and analyse the Controller’s data in order to improve its website marketing performance and profitability.

 

Duration of the processing

The Processing starts at the Effective Date (Subscription Date) and ends 30 days after the termination date of the Agreement between the Controller and the Processor.

 

Nature and purpose of the processing

The nature of the processing is collection, organisation, analyse and exploitation. The purpose is to customize and improve the User Experience on the website, as well as providing strategical data to the Customer about its website to take better marketing decisions.

 

Type of Personal Data

First name, location by Country, type of device used, IP address, booking details (rate, type of room, dates), pages visited on the website.

 

Categories of Data Subject

Website users, Guests, clients.

 

Plan for return and destruction of the data once the processing is completed UNLESS requirement under union or member state law to preserve that type of Data

As soon the Agreement is terminated, the data will be destroyed after 30 days maximum.

 

Person internal organization whom are involved in processing the Personal Data

The Processor’s technical team

 

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