1. General

These Terms of Service, which may be amended unilaterally by Oaky from time to time, apply to all our services as defined under the Service Agreement. By concluding the Service Agreement with Oaky, you acknowledge and agree to have read, understood and agreed to the Terms of Service as set out below.

2. Definitions

2.1. Oaky: Oaky B.V., having its registered office in Amsterdam and registered at the Dutch Chamber of Commerce under registration number 59032936.

2.2. Accommodation Provider: Any hotel, hostel, serviced apartment or other similar business that is offering lodging services and ancillary services to their guests.

2.3. Client: An Accommodation Provider that concludes a Service Agreement with Oaky in order to use the Services.

2.4. Service Agreement: Any agreement that is concluded between Oaky and the Client under which Oaky will render Services to the Client and that is subject to these Terms of Service.

2.5. Services: Oaky helps the Client with selling upgrades, packages or deals to its guests, gathering guest experience information and creating business performance statistics by:

a) Creating and granting access to an Online Platform as defined in the Service Agreement;

b) Supplying ancillary services as defined in the Service Agreement

Oaky does not purchase or supply lodging services or any other services supplied by the Accommodation Provider.

2.6. Client Account: The Client’s personal account on the Online Platform.

2.7. Login Details: The details, such as Client name and password, which must be entered to gain access to the Client Account on the Online Platform.

2.8. Terms of Service: These terms of service.

2.9. Party: Each party to the Service Agreement, either Oaky or the Client.

2.10. Online Platform: the applications made available by Oaky to the Client via the internet.

2.11. Website: oaky.com.

2.12. Guest: A customer of the Client.

3. Applicability

3.1. These Terms of Service govern the use of the Services and form part of each agreement between Oaky and the Client.

3.2. Any terms and conditions or exceptions put forward by the Client do not form part of the Agreement, unless Oaky has explicitly accepted them in writing.

4. Conclusion

4.1. The Client accepts the offer on the Website or in writing made by Oaky (for one or more of the available packages) by filling in the appropriate electronic form and/or signing the Service Agreement.

4.2. The Service Agreement is concluded by that acceptance.

4.3. The offer made by Oaky is not available to natural persons who are not acting in the course of a profession or of a business. Consumers are therefore prohibited from concluding an Agreement with Oaky.

5. Duration and termination

5.1. Unless otherwise stated in the Service Agreement, Service Agreements with a duration of one year will automatically be renewed with one year periods, unless terminated in writing by either Party two months prior to the expiry date of the then current term.

5.2. Unless otherwise stated in the Service Agreement, Service Agreements with a duration of two years will automatically be renewed with periods of two years, unless terminated in writing by either Party three months prior to the expiry date of the then current term.

5.3. Oaky has the right to immediately terminate the Service Agreement, without prior written notice, in the event that the Client fails to pay any outstanding invoices within 30 days.

5.4 Either Party may terminate the Service Agreement with immediate effect, without prior written notice, if the other Party:

1. commits a breach under the Service Agreement which is not capable of remedy, or which is capable of remedy but which is not remedied within 15 days of notice from a Party to do so;
2. becomes insolvent, files for or is declared bankrupt, applies for moratorium, has an administrator or liquidator appointed, or is otherwise unable to pay its debts.
   

6. Authorized access

6.1. The authorized Client will receive his Login Details from Oaky, which he must enter to gain access to the Online Platform and his Client Account. The Client must keep the Login Details confidential at all times, and not disclose it to any third party. The Client may create, or ask Oaky to create, sub-accounts and authorize its employees and/or representatives to use these sub-accounts. The Client is responsible for administering their Oaky account and for keeping this information up to date, e.g. by revoking access to sub-accounts that should no longer have access. The Client will ensure that the authorized users comply with these Terms of Service and any additional terms that may apply. The Client is responsible for all activity that occurs under the Client Account, including any activity by authorized or unauthorized users. The Client will use all reasonable efforts to prevent any unauthorized access to, or use of, the Online Platform and Client Account. In case of any (suspected) unauthorized access or use of the Client Account, the Client will notify Oaky immediately using the intercom chat in the Oaky dashboard or via privacy@oaky.com

6.2. The Online Platform may only be used by the authorized Clients, on provision of the Login Details.

7. Third Party Services

7.1. The Client may decide to engage third party service providers to provide services to the Client (Third Party Services). On instruction of the Client, Oaky may transmit data from the Client's (reservation) system to providers of Third Party Services or Oaky may receive data from the Client's (reservation) system from providers of Third Party Services. The Client may also decide that the providers of Third Party Services send electronic communications to Guests on behalf of the Client.

7.2. The Client is solely responsible for the Third Party Services, also when these Third Party Services entail the sending of any electronic communications to Guests. Oaky does not warrant or support the Third Party Services. If the Third Party Services fail to perform or otherwise cause damage to the Client or to other parties, Oaky shall not be liable for any loss or damage suffered by the Client or other parties, unless caused by Oaky's intent or gross negligence. Oaky is not responsible for any disclosure, modification, loss or deletion of the Client's data resulting from the Third Party Services.

8. Terms of use

8.1. The Services may not be used by Client in a manner that is contrary to or infringing on the rights of third parties.

8.2. By using the Services, the Client is not permitted, without the express written consent of Oaky, to create the impression that the Client is a partner of Oaky.

8.3. If the Client acts in contravention of any provision of these Terms of Service, Oaky is entitled, with immediate effect and without stating reasons:
a) to refuse, block access to, modify or delete the Client Account;
b) to suspend the provision of the Services;
c) to terminate the Service Agreement;
d) to claim any damages.
In such an event, any Fees agreed under the Service Agreement remain payable by the Client to Oaky.

8.4. The Client grants Oaky a perpetual, non-exclusive, fully-paid and royalty-free licence to use all data, information, materials and other content provided by the Client while using the Services, in an aggregated and anonymized form for internal business purposes and commercial purposes.

9. Updates

9.1. Oaky is entitled to modify the software of the Online Platform as the occasion arises for the purposes of improvements to the functionality and the rectification of errors. Because the Services are offered to multiple Clients, it is not possible to omit a modification for a single Client. Oaky is not liable for any loss, damages or other costs incurred as a result of the modification of the Services.

10. Availability and maintenance

10.1. Oaky will make every reasonable effort to provide uninterrupted availability of the Services, but does not offer any guarantees thereof, unless otherwise agreed under the Service Agreement.

10.2. Oaky reserves the right to deactivate the Service temporarily for maintenance, modification or improvement of the Services and the web servers of Oaky. Oaky will attempt to ensure that deactivation of Service causes as little hindrance as possible to the Clients.

10.3. Oaky's total liability for any loss, damage or other costs sustained by the Client due to the Service temporarily being deactivated for maintenance, modification or improvement purposes, will be limited to the total amount of the applicable fees payable by the Client under the Service Agreement for the duration that the Service is deactivated.

11. Security

11.1. Oaky uses VPS certificates to transmit data and communications on the Online Platform.

12. Personal data

12.1. Parties agree that to the extent Oaky processes personal data on behalf of Customer in the performance of the Service, Oaky qualifies as a data processor of Customer and will process personal data on behalf of the Client in accordance with the Data Processing Agreement. The Data Processing Agreement can be found on the Website (oaky.com/dpa), and is hereby incorporated by reference and made part of this Service Agreement.

For general information regarding data privacy, please see our Privacy policy, which can be found on the Website: http://oaky.com/privacy-policy/. Notwithstanding anything to the contrary set out in the Service Agreement, Terms of Service and/or Data Processing Agreement, each party shall comply with EU’s General Data Protection Regulation as may be amended from time to time (“GDPR”).

12.2 The Client ensures that, to the extent that the Services entail that any electronic communications, including email, SMS, Whatsapp, QR code, booking engines and any other form of electronic communications, are sent to the data subjects by or on behalf of the Client, or by Third Party Service Providers, the content and sending of these electronic communications adhere to applicable laws. Client indemnifies Oaky for any claim of a data subject, authorities, and third parties in connection with applicable data protection laws or telecommunication laws, to the extent permitted by applicable law.

12.3 The Client shall comply with its obligations as data controller under the GDPR, including providing adequate information to the Guests and other data subjects how Oaky (and other similar services) are being used to process their personal data and for which purpose the processing takes place.

13. Helpdesk

13.1. The Client can report disruptions and ask questions in the manner indicated by Oaky on the Website or call an Oaky representative. Oaky will make every reasonable effort to respond to such questions properly and within a reasonable term.

14. Prices and payment

14.1. All prices stated by Oaky shall be exclusive of VAT/GST and other levies imposed by any government.

14.2 All prices stated by Oaky shall be exclusive of any withholding taxes imposed by any government.

14.3 Client is responsible to provide Oaky with all information requested for Oaky to comply with its legal and tax obligations, including but not limited to having a valid VAT/GST number.

14.4. All prices indicated on the Website and in brochures, offers and other materials are subject to typographical errors. No liability will be accepted for typographical errors.

14.5. In order to use the Services, the Client shall owe Oaky the applicable fee indicated on the written quotation of the Service Agreement (if applicable) or otherwise as indicated on the online quotation.

14.6. Unless expressly agreed otherwise, the Client shall pay in advance for the use of the Services via an (electronic) payment method made available on the Website or following an invoice on paper.

14.7. The Client consents to receiving electronic invoicing from Oaky.

14.8. Upon renewal of the Service Agreement, Oaky shall be entitled to increase the prices for the use of the Services by up to 5% above the applicable pricing in the prior term.

14.9. If the Client has not fulfilled its payment obligations within 30 days from the invoice date, Oaky is authorized to suspend all Services and Service Agreements concluded between the Client and Oaky (temporarily or otherwise). In such an event, any fees agreed under the Service Agreement remain payable by the Client to Oaky.

15. Liability

15.1. Oaky may assume that a Client logging onto the Online Platform using the Login Details actually is the Client. After access has been obtained to the Online Platform through Client’s Login Details, the Client bears the full responsibility and risk for all subsequent activities undertaken on the Online Platform (including the Client Account).

15.2. In the event of any misuse or suspicion of misuse of the Login Details, the Client must notify Oaky immediately, so that the latter can take the actions it deems appropriate.

15.3. The Client will keep any contact details in its Client Account up to date and warrants that they are correct. The Client will immediately notify Oaky electronically of any changes in other details (including personal data).

15.4. Oaky's total aggregate liability to the Client, on whatever ground (including failure to comply with a warranty obligation and tort), arising under or in connection with the Service Agreement shall be limited to 100% of all amounts paid by the Client under the Service Agreement, whereby a series of connected events shall be considered a single event.

15.5. Notwithstanding clause 15.4, and to the extent permitted by applicable law, Oaky excludes any and all liability for any indirect damage, including but not limited to consequential damage, loss of data, loss of profit or turnover, or damage as a result of their disclosure, or immaterial damage arising out of, or in connection with the Service Agreement.

15.6. The Client indemnifies Oaky against any and all claims brought by third parties on any ground whatsoever in respect of compensation of damage, costs or interest in connection with the Service Agreement and/or the Services as provided by Oaky to the Client.

15.7. Any limitations of Oaky's liability included in these Terms of Service do not apply if and insofar as the damage in question was caused by an intentional act or omission or willful recklessness on the part of Oaky.

15.8 Oaky is not liable for any (human or digital) errors or faults in two-way integrations systems used for the Services, unless such errors or faults are directly attributable to Oaky.

15.9 The Client is responsible and liable for the use of Third Party Services and the Client’s data by Oaky. The Client indemnifies Oaky from and against any and all claims brought by third parties on any ground whatsoever in respect of compensation of damage, costs or interest caused by (i) Third Party Services or (ii) data uploaded by the Client, provided by Client’s (reservation) system or otherwise produced by Client for the Services.

16. Force Majeure

16.1. The Parties will not be obliged to comply with any obligation towards the other Party if it is prevented from doing so as a result of circumstances beyond its control (Force Majeure).

16.2. In the event of such a situation involving Force Majeure – which in any event includes disruptions in the telecommunications infrastructure, internet, domestic disturbances, mobilization, war, traffic congestion, strikes, lockouts, import and export restrictions, business interruptions, supply delays, fire, flood and breaches by suppliers on whom Oaky is dependent in the performance of an Agreement – the performance of the Service Agreement may be suspended without that leading to any obligation to pay compensation.

16.3. If the Force Majeure extends beyond two months, either Party will be entitled to terminate the Service Agreement immediately without that giving rise to any obligation to pay compensation.

17. Intellectual property rights

17.1. Unless stated otherwise, the software required for the Services or available at or used by our website and the intellectual property rights (including the copyrights) of the contents and information of and material on our website are owned by Oaky B.V., its suppliers or providers.

17.2. All intellectual property rights in respect of all the Services software that is made available pursuant to the Services Agreement, including preparatory material, vests exclusively in Oaky or its licensors. Oaky hereby grants the Client a non-exclusive, limited and non-transferable right to use the Services under these Terms of Service as explicitly granted hereunder or otherwise solely for the duration of the Service Agreement. The Client is prohibited from multiplying the Services or other materials in any way, or make any copies thereof.

17.3. The Client is not permitted to remove or change any marks on the software with respect to copyrights, trademarks, trade names or any other intellectual property rights associated with the software or the Services.

17.4. Oaky is permitted to take technical measures to protect the Services. If Oaky has secured the software by technical means, the Client is not permitted to remove or circumvent such security measures.

17.5. The Client hereby grants Oaky a non-exclusive and non-transferable right to use Client's trademark(s) and/or tradename(s) for the duration of the Service Agreement in order to provide its Services. Oaky acknowledges it does not derive ownership of these trademark(s) and/or tradename(s).

18. Confidentiality

18.1. Parties undertake to maintain strict confidentiality with respect to all information received from the other Party. The Parties shall also impose this obligation on their employees and on third parties engaged in the performance of the Service Agreement.

18.2. Information shall in any event be considered confidential if it is designated by either of the Parties as such, including the (commercial details of the) Service Agreement between Oaky and the Client and all correspondence related thereto.

19. Amendments

19.1. Oaky reserves the right to unilaterally amend or supplement these Terms of Service.

19.2. Amendments will also apply in respect of Service Agreements that have already been concluded. An amendment will not enter into effect until one (1) month after notification of the amendment has been given by electronic notification. Minor amendments may be made at any time and enters into effect immediately.

19.3. If the Client does not wish to accept an amendment to these Terms of Service, it may terminate the Service Agreement (except in case of minor amendments). In such an event, any fees payable up to the date of termination of the Service Agreement remain payable by the Client to Oaky.

20. Final provisions

20.1. These Terms of Service and the Service Agreement are governed by the laws of the Netherlands.

20.2. Changes in management or legal form of either Party will not affect the Terms of Service or the Service Agreement.

20.3. All disputes that arise from the Service Agreement or the Terms of Service will be submitted to the competent court in Amsterdam, the Netherlands.

20.4. Partial nullity: in the event that one or more of the provisions of this Service Agreement and/or the Terms of Service should be nullified, the remaining provisions of this Service Agreement and/or the Terms of Service shall remain in full force. In this case, the Parties shall agree on (a) new provision(s) to replace the nullified provisions, having regard to the purpose and purport of the original Service Agreement and/or Terms of Service as far as possible.

21. About Oaky

Oaky B.V., is incorporated under the laws of the Netherlands and having its offices at Leidseplein 1, 1017PS, Amsterdam, the Netherlands and registered with the trade register of the Chamber of Commerce in Amsterdam under registration number 59032936.

Oaky has its headquarters in Amsterdam, the Netherlands.