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Terms and Conditions – Parking Operators

OTRA PARK MANAGER ™  SERVICE AGREEMENT

TERMS AND CONDITIONS FOR PARKING OPERATORS

 

I. GENERAL

a. OTRA Solutions BV (hereinafter referred to as “OTRA”, “we”, “us” or “our” as the context requires) provides online booking services allowing Parking Operators to list their Parking Spaces and other Parking Services (such as in relation to parking locations, gas stations and other facilities and services at truck rest stops in certain regions) to Customers and End-Users throughout Europe via our website, platform and/or other apps (the “Platform”). The Platform can be used to facilitate listing and booking as defined below.

b. OTRA is not a party to any agreements entered into between the Parking Operator and the Customer, nor is OTRA an agent, parking operator, fleet company, parking owner or a provider of parking spaces and/or related parking OTRA has no control over the quality or quantity of services supplied, the conduct of Parking Operator, Customer and other End-Users of the Platform and disclaims all liability in this regard to the maximum extent permitted by law.

c. Our Services and Platform are provided by OTRA Solution BV, Belgium, a limited liability company incorporated under the laws of Belgium, and having its registered address at Dorpstraat 122, 3470 Kortenaken, Belgium. Other entities that directly or indirectly control, are controlled by, or are under common control with OTRA are referred to in these terms as “OTRA Affiliates”.

 

II. THESE TERMS

a. These terms and conditions (“Terms”) govern the Parking Operator’s access to and use of the Services and Platform, together with the Service Agreement and our cookie policy and privacy statement.

b. OTRA hereby expressly rejects the applicability of terms and conditions that the Parking Operator seeks to impose to OTRA or incorporate.

c. OTRA reserves the right to amend these Terms at any time. Such amendments will take effect after OTRA makes these amendments known to the Parking Operator and the Parking Operator continues to access and use the Platform and Services after the amendments are notified.

d. By accessing or using the Services or Platforms, you are confirming that you have read, understood and agreed to these Terms and those of the privacy statement and cookie policy.

 

III. DEFINITIONS

a. Throughout these terms and conditions the following capitalized words have the following meaning (whether singular or plural):

Agreement” means the Service Agreement, these Terms and any other documents or material referenced herein which is incorporated into this agreement;

Available Period” means the period of time that the Parking Spaces will be accessible and the Parking Services available for Customers who booked such Parking Spaces and/or Parking Services, as indicated through the Platform;

Booking” means the booking or reservation by a Customer of (a) Parking Space(s) and/or (a) relevant Parking Service(s) listed by the Parking Operator on the Platform;

Customer” means any registered transport or trucking company, planners truckdriver, who books Parking Space and/or Parking Services via the Platform;

End-User” means any physical person, who physically uses the Parking Spaces and/or Parking Services;

Feasibility Study” means the technical assessment of the compatibility of a system or tool or platform or app or software or any other component. It is based on a number of predefined criteria and results in a comprehensive report. The goal is to determine and document the viability of a project.

Listing” means the display on the Platform of a list of Parking Spaces and Parking Services offered by the Parking Operator which based on a category or search query;

OTRA™ FLEX”  is a formula offered to the Customer by OTRA, in which case the Customer has – for a small additional fixed monthly fee – a financial advantage in case of cancellation of a Booking;

Parking” means the entire physical facility for truck parking, including all amenities and services that are present and offered to the Customers and End-users, which includes the Parking Spaces and the Parking Services;

Parking Information Form” means the form used in the pre- Agreement phase and in which the Parking Operator and OTRA together document all relevant data, features and services of the Parking;

Parking Location” means the geographical position of a Parking;

Parking Operator”: means the professional provider of Parking Spaces and Parking Services to Customer bookable via the Platform;

Parking Service” means the services delivered by a Parking Operator to Customers at one or more Parking Locations and which are listed/bookable via the Platform. Parking Services may include Transport of Dangerous Goods by Road (ADR) parking space, security services, shower, food and beverage facilities, etc;

Parking Space” means one or more parking spaces on the Parking that is part of the Parking Services.

Services” mean the services provided by OTRA which includes a parking management system through the Platform, the listing and displaying of Parking Spaces and Parking Services on the Platform, payment collection and administrating and confirming bookings;

Service Agreement” means every agreement entered into by OTRA and the Parking Operator regarding the provision of the Service and the Platform;

Terms and Conditions of Parking Operator” means the terms and conditions governing the relationship between the Parking Operator and Customer/End-User.

User Account” means any registered user of the Platform and/or the Service, including planners and drivers.

b. Different types of fees: throughout these terms and conditions the following capitalized words have the following meaning (whether singular or plural):

OTRA Fee” means the compensation due by the Parking Operator to OTRA for the accessing and using the Platform and Services, as further described in the Service Agreement.

OTRA FLEX™ Fee” the  additional fixed monthly fee for theOTRA Flex™ through which OTRA offers the possibility to cancel a booking for free or for a small fee (depending on how early the cancellation is made before the check-in time), provided that the Customer or End-User has notified the cancellation.

Parking Operator Fee” means the fee collected by OTRA from Customers/End-Users and transfered to the Parking Operator for each usage of the Parking Spaces and/or the Parking Services by the Customer and/or End-User and which is displayed on and paid via the Platform.

Parking Transaction Fee” means the fee that OTRA will charge to the Parking Operator for each Booking with a minimum amount of eighty five (85) Euro cents.

c. Definitions concerning the Access Control System: throughout these terms and conditions the following capitalized words have the following meaning (whether singular or plural):

Parking Access Control System (AC System)” means a parking software (including the access control unit) that controls the settings and management of parking systems and authorize/control an access or any connected device to the access control unit.

Certified AC System” means existing Parking Access Control system of the Parking Operator already technically enabled to integrate with the Platform.

Non-Certified AC System” means existing Parking Access Control system of the Parking Operator of which the technical integration potential with the Platform is still subject to analyses.

Integration Cost (Certified AC System)” means the cost to integrate and connect Certified AC System.

Integration Cost (non-certified AC system)” the cost to integrate and connect Non-Certified Access System.

 

IV. OUR SERVICES

We provide an online platform through which Parking Operators – in their professional conduct of business – can list, advertise, market, promote and/or offer (as applicable) their own Parking Spaces and Parking Services for order, purchase, book and/or hire by Customers and End-Users, and through which relevant visitors of the Platform, Customers can discover, search, compare, and (when registered) make an order, book, purchase and/or makes the payment with us (i.e. for the booking and/or use of the relevant Parking Spaces and Parking Services). Through the Platform we offer a parking management system to the Parking Operator.

 

V. DISCLAIMER

a. Parking Operator agrees that OTRA has no responsibility for the Parking Space and Parking Services other than to provide the Services under this Agreement which includes administering and confirming Bookings and collecting payments. OTRA is not liable for any obligations and/or financial damages relating to the Parking Space and the Parking Service as offered by the Parking Operator through the Platform.

b. Parking Operator agrees that OTRA is not responsible for the location or condition of Parking Space and Parking Services, its availability or the conduct of the Parking Operator.

c. In particular, OTRA accepts no liability for damages resulting from this Agreement or usage of the Platform neither for technical problems leading to omissions, delays or errors in the advertising of Parking Spaces and/or Parking Services, or that otherwise lead to disruptions in the management of the agreement. OTRA shall not be liable for any damage incurred by Customers, Parking Operators or third parties due to the behavior of other users, operators or third parties in connection with the use or misuse of the Platform and/or OTRA’s S

 

VI. PARKING OPERATOR RIGHTS AND OBLIGATIONS

The Parking Operator:

a. shall ensure that the Parking Space and Parking Service are properly and fully described in the Listing and all information provided in the Parking Information Form (including but not limited to Terms and Conditions of Parking Operators, description, location, pictures, on site commodities, number and type of parking slots, amenities and security features, opening times, etc.) is provided in Parking Operator’s national language and/or English at its own costs and expenses as well as kept up to date. Parking Operator will inform OTRA immediately and without prompting of any change concerning the Parking Spaces and Parking Services, its infrastructure or the security level, or the Terms and Conditions of Parking Operators. Terms and Conditions of Parking Operators or any other Parking Operator’s house rules may be published in the specific section of the Platform.

b. shall provide the Parking Space and Parking Services in accordance with the details and information set out in the Listing;

c. shall guarantee in case of Booking, that the Parking Space and/or Parking Services are available for the duration of the Available Period. In case of violation of this article, OTRA reserves the right to impose a penalty of 100 Euro including VAT per violation and per Parking Space, without prejudice to the right of OTRA to claim and prove higher damages  as well as terminate for breach;

d. shall only make the Parking Space and the Parking Services available for the Customer, who made the Booking or accessed/or used the Parking Spaces and/pr Parknwithin the Available Period;

e. shall ensure that the availability of booked Parking Spaces and Parking Services will not be affected by the extension of the Available Period from a Customer and/or End-User. The Parking Operator guarantees at all time the availability of booked Parking Space and Parking Services;

f. warrants that the Parking Space and the Parking Services, will be accessible and available to Customers via the Platform during the Available Period;

g. shall deal with all Customers and/or End-Users in a professional and courteous manner and in such a way as to not cause any harm or damage to OTRA’s reputation;

h. shall deal with all queries from Customers relating to a Parking Space and Parking Services or Booking in a prompt and satisfactory manner. The Parking Operator undertakes to reveal on a public space its contact details and its opening hours;

i. will provide meaningful pictures of the Parking area and it’s entrance and exit. The Parking Operator must ensure that it is entitled to provide the pictures for publication on the Platform and that no third party rights are breached as a result. Whenever the Parking Operator is not in the possession of the above mentioned pictures, the Parking Operator – by accepting these Terms- permits OTRA to shoot pictures or footage by drones, and to publish these images on any OTRA-device, platform or applications;

j. shall comply with all applicable laws, tax requirements and rules and regulations that may apply to the Parking Space and Parking Services;

k. warrants that it is authorized to make the Parking Services and the Parking Spaces available during the Available Period and shall indemnify OTRA for any loss suffered as a result of any breach of this warranty. In case of violation of this article, OTRA reserves the right to impose a penalty of 100 Euro including VAT per violation and per Parking Space, without prejudice to the right of OTRA to claim and prove higher damages  as well as terminate for breach;

l. shall use his best endeavours to settle any disputes that may arise during a Customer’s Available Period including taking such action as is necessary to bring the dispute to a satisfactory conclusion as soon as practicable so that the Customers and End-Users may still fulfil their Booking;

m. shall indemnify and hold harmless the Customer and/or End-Users against all loss, liability, damages, costs and expenses arising from the Parking Operator’s negligence in connection with the Parking Space and Parking Services, except to the extent that such loss, liability, damages, costs or expenses are caused by the negligent acts or omissions of the Customer; and/or End-Users;

n. undertakes to display the marketing material (including logo, link to website, advertising material, displays, signalization, etc.) made available by OTRA. The Parking Operator shall use with due care, the marketing material, made available by OTRA. In case of defect, harm or damage of the marketing material, made available by OTRA, the Parking Operator undertakes to inform OTRA by mail. All marketing material remains OTRA property.  Upon termination or expiry of the Agreement, the Parking Operator will return all marketing materials in good condition to OTRA;

o. undertakes to encode all data (availability, payment, credit collection of bookings declared as “paid on site”, etc.) in real time;

p. shall determine the Parking Operator Fee and communicate the Parking Operator Fee to OTRA.

q. If the Parking Operator needs to cancel the Customer’s booking, the Parking Operator informs OTRA immediately via OTRA Park and  can directly inform the Customer and/or End-User through the contact details provided on the Platform;

r. The Parking Operator accepts to apply the OTRA pricing conditions of the “OTRA FLEX” formula under which if:

  1. the Customer has a Flex subscription, the Customer will be 100% reimbursed if the Booking is cancelled more than 2hrs prior to booked arrival time, 50% will be reimbursed if the Booking has been cancelled less than 2hrs prior to booked arrival time, 0% will be reimbursed in case of no show.
  2. the Customer has No Flex subscription, the Customer will be 25% reimbursed if the Booking is cancelled more than 2hrs prior to booked arrival time, 0% reimbursed if the Booking is cancelled less than 2hrs prior to booked arrival time, 0% will be reimbursed in case of no show.

 

VII. OTRA RIGHTS AND OBLIGATIONS

a. OTRA shall list on the Platform the Parking Space and Parking Services information that is made available by the Parking Operator during the Available Period. OTRA reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason including Listings that OTRA, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Platform.

b. OTRA is entitled to disclose that the Parking Operator is OTRA’s client. During the term of the Agreement and unless otherwise agreed in writing, the Parking Operator grants OTRA the right to reference Parking Operator’s company and Parking name, along with relevant logo(‘s), in marketing materials and on OTRA’s public website, platforms and mobile applications.

c. OTRA shall collect Parking Operators Fees due on a best efforts basis. OTRA may suspend payment of the Parking Operator Fees, until the Customer has fully paid the Parking Operator

d. OTRA endeavors to ensure the availability and correct functionality of the Platform (including the OTRA website). The Platform or parts of it may be temporarily unavailable or availability might be limited for maintenance or other reasons, without any potential claims against OTRA.

e. OTRA serves as the limited authorized payment collection agent of the Parking Operator for the purpose of accepting, on behalf of the Parking Operator, payments from Customers of such amounts stipulated in the Service Agreement.

 

VIII. LIMITATION OF LIABILITY

a. To the maximum extent permitted by law, OTRA does not accept any liability for: a) errors, mistakes, or inaccuracies in the content displayed on or via the Platform or Service; or b) any accident, delay or any special, exemplary, punitive, indirect, incidental or consequential loss or damage of any kind (including, without limitation, lost profits or lost savings), whether based in contract, tort (including negligence), strict liability or otherwise, incurred arising out of or in connection with access to, use of, or inability to access or use, our Services or Platforms.

b. Subject to these Terms and to the extent permitted by law, our maximum aggregate liability to Parking Operator shall be limited to the total amounts paid by the Parking Operator to OTRA in the 12 months preceding the date of the event giving rise to the claim.

 

IX. SUSPENSIVE CONDITIONS

The Agreement is entered upon under the following suspensive conditions:

a. If the Parking Operator has a Certified AC Systemin place, the Agreement will take effect and be legally binding. The cost of integration is carried by the Parking Operator.

b. If the Parking Operator has a Non – Certified AC System in place, which after the Feasibility Study shows that integration of this system with the OTRA-system is not possible, the suspensive clause takes effect causing the Service Agreement to be ineffective and non-binding. All parties are entitled to reimbursement of all payments received. The cost of the Feasibility Study is carried by OTRA.

c. If the Parking Operator chooses to install a Certified AC System or if the Parking Operator adapts the existing Non-Certified AC System to be OTRA compatible, then the suspensive clause does not take effect and the Agreement will immediately be effective and binding.  The cost of integration is carried by the Parking Operator. OTRA will bear the cost of the Feasibility S

d. The purchase cost for the OTRA compatible “access control system”, the cost for making the existing “access control system” OTRA compatible is at the expense of the Parking Operator.

 

X. MISCONDUCT BY END-USERS

a. In case of unauthorized use of the Parking or misconduct by an End-User, the Parking Operator must inform OTRA.

b. In case of such misbehaviour, OTRA will be at liberty to decide when and how to deal with such an End-User at its sole discretion. OTRA shall inform the Parking Operator and End-User of final settlements resulting from OTRA’s decisions in that regard. OTRA reserves the right to refuse the End-user to use the S

c. The Parking Operator can decide to block an End-user from his location, only in the event that the Parking Operator is in the possession of the Terms and Conditions of Parking Operators, in which this situation is foreseen.

 

XI. EXCLUSIVITY (OPTIONAL SERVICE)

The Parking Operator can choose between exclusivity or non-exclusivity.

Exclusivity:

a. During the Exclusivity Period (as indicated in the Service Agreement), the Parking Operator will not enter into any agreement with (nor enter into consultations with or otherwise deal with) a third party providing similar services as OTRA where such agreement, consultation or dealing would be in competition with the service provided by OTRA, unless specifically agreed in writing by OTRA.

b. If OTRA declares the Parking Operator in default regarding exclusivity, then OTRA will notify the Parking Operator by registered letter. The Parking Operator will be held to pay to OTRA an indemnity of 12.000 Euro inclusive VAT increased by the possible hardware related investment costs made by OTRA.

c. The Parking Operator will not be bound by the exclusivity in the event of a demonstrated structural occupancy rate of less than 70% (of the bookable Parking Spaces) during a contiguous period of minimum six months, starting from the second year from the Effective Date.

 

XII. FEES AND PAYMENT

a. The manner in which the Parking Operator Fee and the OTRA Fee will be calculated will be provided in the Service Agreement.

b. OTRA will send an invoice to the Parking Operator, the first working day following the month concerning the invoice.

c. Within thirty (30) days following the end of each calendar month, OTRA will pay the Parking Operator Fees payable in that calendar month. Whenever legally allowed, OTRA will pay the Parking Operator Fees after deduction of any OTRA fees due to the Parking Operator upon receipt of an invoice.

d. Whenever legally allowed, OTRA reserves the right to set off any amounts owed by it to the Parking Operator against any payment owed by the Parking Operator to OTRA. All monthly payments under this Agreement shall be made to the bank accounts mentioned in each relevant statement.

e. Payments by Parking Operator must be made within 14 days following the invoice date.

f. In case of overdue payment, the Parking Operator owes OTRA an interest of 10% per annum., as well as compensation for extrajudicial collection costs.

 

XIII. TERM AND TERMINATION

A. NON-EXCLUSIVITY

a. The Agreement is fixed-term for the duration as defined in the Service Agreement (“Initial Term”) and shall commence on the date of signing (“Effective Date”). Upon expiration of the Initial Term, the Agreement will be tacitly renewed for for a period equal to the Initial Term(“Renewal Term”) at the pricing conditions in effect on the first calendar day of the Renewal Term, unless notice of cancellation is given by the Parking Operator at least three (3) months prior to the expiry of the then applicable Initial Term or Renewal Term.

b. The Parking Operator reserves the right to terminate the contract without any termination fee if the Parking Operator does not agree with the rates of the Renewal Term. The Parking Operator will notify OTRA by means of a registered letter sent no later than four (4) weeks after the notification of the Renewal Term’s rates of OTRA.

The Parking Operator may terminate the Agreement for convenience by providing at least three (3) months prior written notice. If the Parking Operator terminates the Agreement for convenience, the payment to be made by the Parking Operator to OTRA will be as set forth below:

  • If Parking Operator terminates the Agreement during the first 12 months period of the Initial Term or Renewal Term, OTRA will be entitled to be paid an amount equivalent to EUR 5000,00.
  • If Parking Operator terminates the Agreement during the second 12 months period of the Initial Term or Renewal Term, OTRA will be entitled to be paid an amount equivalent to EUR 4000,00.
  • If Parking Operator terminates the Agreement during the third 12 months period of the Initial Term or Renewal Term, OTRA will be entitled to be paid an amount equivalent to EUR 3000,00.

Any and every termination of the Agreement from Parking Operator shall be without prejudice to any other rights and remedies that OTRA may have.

c. Each party shall have the right to terminate the Agreement, by written notice, with immediate effect if:

  • the other party is declared bankrupt or has been granted suspension of payment or if a petition requesting bankruptcy or suspension of payment is filed by or on behalf of the latter;
  • a liquidator, receiver, trustee or administrator is appointed for the other party or its business;
  • the other party becomes insolvent or admits its inability to pay its debts as they fall due or commences negotiations with one or more of its creditors with the view to a general readjustment or rescheduling of all or part of its indebtedness; or
  • the other party is in material breach of any provision of this Agreement and fails to remedy such breach within thirty (30) days after notice of such breach and the request for the remedy thereof has been received by the breaching party.

d. Bookings for Parking Spaces and Parking Services existing at the date of termination shall remain unaffected by termination (however caused) of the Agreement.

e. OTRA shall pay any fees owed to the Parking Operator in accordance with ‘Fees and Payment’ section within 60 days from the invoice date.

 

B. EXCLUSIVITY OPTION

a. If Parties agree to exclusivity terms, the Agreement is fixed-term for the duration included Service Agreement (“Exclusivity Period”).

b. Upon expiration of the Exclusivity Period, the Agreement will be automatically renewed for a period equal to the Exclusivity Period, unless a notice of cancellation is given by the Parking Operator at least three (3) months prior to the expiry of the Exclusivity Period. In case of cancellation of the Exclusivity Period in accordance with the terms herein, Parties may agree to convert the Exclusivity Period to the non-exclusivity option (See section VIII.A).

c. The Parking Operator can terminate this fixed-term Agreement at any time by means of a registered letter in which a notice of at least three (3) is given. If the Parking Operator terminates the exclusivity for convenience, the payment to be made by the Parking Operator to OTRA will be as set forth below:

  • If Parking Operator terminates the Agreement during the first 12 months period of the Initial Term or Renewal Term, OTRA will be entitled to be paid an amount equivalent to EUR 5000,00.
  • If Parking Operator terminates the Agreement during the second 12 months period of the Initial Term or Renewal Term, OTRA will be entitled to be paid an amount equivalent to EUR 4000,00.
  • If Parking Operator terminates the Agreement during the third 12 months period of the Initial Term or Renewal Term, OTRA will be entitled to be paid an amount equivalent to EUR 3000,00.

d. Any and every termination of the Agreement from Parking Operator shall be without prejudice to any other rights and remedies that OTRA may have.

 

C. TERMINATION FOR CAUSE, CONSEQUENCES OF TERMINATION

a. OTRA may terminate a Parking Operator’s use and access to the Platform and the Services immediately: i) in the event of any material breach by the Parking Operator, or (ii) where the Parking Operator has failed to make any payment when due.

b. Termination of the contractual relationship by OTRA for any of the aforementioned reasons will not entitle the Parking Operator to claim any type of compensation as a result thereof.

c. Following the end of the contractual relationship, Parking Operator undertakes to stop accessing and using the Platform and the

d. All payments payable to OTRA shall become due and payable immediately upon the termination date.

 

XIV. INTELLECTUAL PROPERTY RIGHTS AND LICENSE

a. Except as set out elsewhere in these Terms, all intellectual property rights including copyright (including copyright in computer software), patents, trade marks or business names, design rights, database rights, know-how and trade secrets in our Services and Platforms (together, the “Intellectual Property Rights”) are owned by or licensed to OTRA. Parking Operator acknowledges that by using the Services or Platforms, he will not acquire any right, title or interest in or to them except for the limited licence to use them granted under these Terms.

b. By uploading and/or displaying text, photos/images or other content onto our Platform, the Parking Operator warrants that he owns the copyright of this content and expressly assigns all copyright and other rights to such content to OTRA (and Parking Operator agrees to waive all moral rights in relation to such content). For the avoidance of doubt, OTRA is allowed to use any user-generated content for any other business purposes, including (but not limited) for the purpose of providing and improving the Platform and Services and/or for internal usage, including data analytics so long as such data is anonymous and aggregated with other customer and end-users data.

c. If the Parking Operator makes or suggests improvements or changes to the OTRA’s Platform and Services (“Feedback”), Parking Operator agrees that any Intellectual Property in such suggestion and/or improvements is the property of OTRA and that OTRA may exploit such Intellectual Property as it sees fit.

 

XV. MISCELLANEOUS

a. Assignment: The Parking Operator shall not transfer its rights and obligations under the Agreement to a third party without express permission from OTRA.

b. Translation: We may translate the original English version of these Terms into other languages. The translated version is a courtesy translation only. This means that you cannot derive any rights from the translated version. In case of any dispute about the contents or interpretation of the translated version, the English language will prevail.

c. Severability: If any of the provisions in these Terms are held not to be valid the remaining provisions of these terms shall remain in full force and effect.

d. Force Majeure: Neither party will be liable to the other or be deemed to be in breach of these Terms by reason of any delay in performing, or any failure to perform, any of their obligations, if the delay or failure was due to any event of force majeure beyond their reasonable control such as severe weather, power or other utility cut-off, burglary, natural disaster, strikes, governmental action, cyberattack, terrorism, war or civil unrest.

 

XVI.       APPLICABLE LAW AND DISPUTES

The Agreement, these terms and conditions and the provision of our Services shall be governed by Belgium Law. The parties recognize this choice in application of Article 3 of Regulation (EC) N° 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law applicable to contractual obligations (Rome I).

Any disputes relating to this Agreement, or any further agreements, regardless in which country such agreements are fully or partially executed, falls within the exclusive jurisdiction of the competent courts of Leuven, Belgium.

The parties agree to keep the content of the contract confidential.