General terms and conditions

Updated 17/06/2019

1. Scope

tell Charlie offers a service for accommodations through which feedback from accommodation guests is acquired and combined with guest data resulting in improvement and performance ideas for accommodations. Scope of the contract is the cooperation between tell Charlie and the accommodation in regard to the abovementioned services. The accommodation orders tell Charlie to contact the accommodation's guest on behalf of the accommodation via email, text message and any and all appropriate means in order to gather and provide the accommodation with dedicated performance information.

2. Terms of Cooperation

The accommodation will provide tell Charlie with personal guest information such as (but without limitation to) name, address, email- address, phone number, birth date etc (hereinafter 'the data').

tell Charlie will accompany the accommodation in it's communication with the accommodation guest and will gather data and feedback from the guest on behalf of the accommodation.

tell Charlie will provide the accommodation with data and feedback from the guest before, during and after the guests stay in the accommodation within an appropriate time

3. Obligations of the accommodation

The accommodation shall provide tell Charlie with the data as laid out in 2. Whenever the accommodation provides tell Charlie with such data, this will incorporate the instruction to tell Charlie to actively communicate with the accommodation guest before, during and after their accommodation stay.

To be able to provide tell Charlie with the data, the accommodation will receive access to a web platform provided by tell Charlie. This access can be granted by a direct integration into the accommodation's Property Management System (PMS) or through a web interface. The accommodation ensures to keep all access credentials secret. In case of any security breach, i.e. third parties having access to the web platform, the accommodation will inform tell Charlie without undue delay of such security breach.

The accommodation shall ensure and guarantee that it has received explicit consent by the guest to be contacted by tell Charlie on behalf of the accommodation. The accommodation is aware of the fact that sending out unsolicited E-Mails may be subject to data protection and unfair competition laws leading to the requirement of an active consent by the guest. The accommodation is aware of the fact that an infringement can lead to fines by state authorities or legal procedures bycompetitors or competent authorities.

If the accommodation receives a revocation of their consent, the accommodation is obliged to either remove the guest information from the web platform provided by tell Charlie or inform tell Charlie that the guest in question shall not be contacted by tell Charlie anymore without undue delay.

4. Services rendered by tell Charlie

  • tell Charlie will provide the accommodation with access to a web platform where guest information can be stored. Access can be granted by a web-based user interface.
  • tell Charlie will undertake best efforts to maintain continuous access to the web platform, and warrants an availability of 95% on monthly average.
  • tell Charlie will contact all guests whose data are entered on the web platform or via an integration with the PMS by any means necessary, including E-Mail and Text Messages via telephone.
  • tell Charlie will lead the guest to the web platform where feedback can be given. tell Charlie will store the feedback and forward it to the accommodation.
  • tell Charlie will evaluate the feedback and will provide the accommodation with the result.
  • tell Charlie will provide the accommodation with the possibility to directly communicate with the accommodation guest through the web platform.
  • tell Charlie will store the information gathered trough the services for the accommodation and ensures to create backups on a regular basis.
  • tell Charlie will use aggregated data from the services rendered to the accommodation for tell Charlie'S own statistical and marketing purposes.

5. Data protection and privacy

tell Charlie will act as a data processor for the accommodation. In order to be able to render the services lined out in section 4, the parties agree upon a data processing agreement included in an attachment to this contract.

tell Charlie will not use the guest's personal data and the information gathered through services for tell Charlie's own purposes.

tell Charlie reserves the right to use aggregated data from surveys for tell Charlie'S own statistical and marketing purposes. tell Charlie will ensure that such aggregated data does not contain any personal data from accommodation guests. This aggregated data will contain, however, information on the accommodation and the accommodation's services.

6. Rights of use

For the time of this agreement, the accommodation grants tell Charlie the right to use the accommodation's name, logo and trademarks to communicate with accommodation guests on behalf of the accommodation. This license is granted non-exclusive, non-transferable, non-sub licensable.

Aforementioned license is also granted to promote tell Charlie's services by using the accommodation's name and logo as a reference.

Each Party owns and retains all rights, title and interest held by it prior to the Effective Date, in all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world ('Intellectual Property Rights') in its names, logos, trademarks, service marks, copyrights, patents, proprietary features, and proprietary technology. Neither Party shall copy, distribute, reproduce, or use the other Party's Intellectual Property Rights above proprietary items except as expressly permitted under this Agreement.

7. Liability

The accommodation shall be fully responsible for the compliant data processing and/ or transfer of its guest data. The accommodation can be held fully liable for any breach and or malperformance under EU privacy laws. It shall be the accommodation's sole responsibility to ensure that the transfer and processing of guest data is covered by the guest's explicit consent.

The accommodation shall hold tell Charlie harmless from (especially but without limitation to) any and all claims, disputes and/ or investigations deriving from an alleged breach of guest's privacy laws.

tell Charlie shall be liable only up to the amount of damages as typically foreseeable at the time of entering into this Agreement in respect of damages caused by negligent breach of a material contractual obligation (i.e. a contractual duty the fulfilment of which enables the proper implementation of this Agreement, the breach of which endangers the purpose of this Agreement and on the fulfilment of which the Hotel regularly relies).

tell Charlie shall not be liable for damages caused by slightly negligent breach of a non-material contractual obligation.

Neither Party shall have any liability to the other for loss of profits, revenue, data or any consequential, special, indirect, or incidental damages, based upon a claim of any type or nature, unless the other Party acted willfully or gross negligently even if advised of the possibility of such damages.

tell Charlie makes no express or implied warranties of merchantability or fitness for a particular purpose, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information provided by such Party. tell Charlie makes no representation that the operation of its software will be uninterrupted or error-free, and tell Charlie shall not be liable for the consequences of any interruptions or errors in the operation of its own service.

8. Payment terms

tell Charlie will charge for the services rendered based on the price list and the agreement between the parties.

tell Charlie will invoice for the services rendered on a recurring basis, as agreed upon between the parties.

Payments are due net (without deductions) 10 days from date of invoice and shall be made by direct bank transfer into the bank account specified on tell Charlie's invoice.

9. Term and termination

Either party may terminate the contract, subject to two (2) weeks prior written notice (email shall suffice).

Termination shall not affect accommodation's obligation to pay for all services generated up until the termination date (receipt of the written notice via -mail).

10. Confidentiality

Each of the Parties agrees that it shall keep any information designated as confidential or, which is otherwise confidential in nature received by it from the other before or during the term of this Agreement (including the provisions and existence of this Agreement) and which relates to the business, assets, affairs, financial results, plans, consumer and suppliers of the other Party or its Group Companies or of any third party ('Confidential Information') strictly confidential and that it shall not use any such confidential information for its own benefit (save as is necessary in order to perform its obligations and/or exercise its rights under this Agreement) or disclose any such Confidential Information to any third party and that it shall ensure that no third party shall have access to it.

The restrictions in this clause shall not apply to any Confidential Information which:

the recipient can prove is already known to it at the time of disclosure of the Confidential Information to it;

is public knowledge at the time of disclosure of the Confidential Information to the recipient or which subsequently becomes public knowledge through no fault of the recipient;

is subsequently disclosed to the recipient (other than subject to conditions of confidentiality and without any restriction on disclosure) by a third party which is itself not subject to any restriction on disclosure imposed by the disclosing Party hereunder; or

is required to be disclosed as a matter of law or by the rules of a recognised stock exchange provided the recipient notifies the disclosing Party as soon as possible following any relevant demand or request for disclosure.

Each Party shall, if so requested by the other Party following termination of this Agreement, deliver up to the other Party or destroy all documents and other material in its possession or control which include or incorporate any Confidential Information of the other Party.

The obligations in the preceding provisions of this Section shall survive the termination of this Agreement until, in respect of any particular item of Confidential Information, such time as that item of Confidential Information becomes public knowledge through no fault of the recipient.

Nothing in this Section shall prevent either Party or its employees from disclosing or using any general knowledge or skill gained in the performance by that Party of its obligations under this Agreement.

11. Final Provisions

This Agreement, in conjunction with the corresponding attachments (a) Non- disclosure agreement, b) data processing agreement), constitute and incorporate the Parties' entire agreement with respect to the subject matter hereof, and supersedes any and all prior oral and written agreements and understandings.

The failure of either Party at any time or times to perform any provision of this Agreement shall in no manner affect its right at a later time to enforce such provisions.

Neither Party shall have any liability or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances (force majeure events) beyond the control of the Party whose performance is being affected, including but not limited to natural disasters, governmental or regulatory actions or restrictions, sanctions, embargoes, hostilities of any kind, wars, civil wars, terrorist acts, riots, insurrections, nuclear incidents, EMP, essential utilities failure, etc.

A force majeure event shall not prevent the Parties from exercising their right to terminate this Agreement in accordance with the relevant provisions set out herein.

It is agreed that any dispute or controversy with merchants, or public law legal entities arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be exclusively governed by German law with the exception of the conflict of laws provisions.

The parties agree to submit to the non-exclusive jurisdiction of the courts of Düsseldorf (Germany) for any issue, dispute, controversy or litigation arising out of this agreement or of the commercial relationship between the parties.

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