Terms and conditions
Parku AG, Hopfenstrasse 20, 8045 Zurich, Switzerland, (Parku) uses its website www.parku.ch (Website) and programmes for mobile devices (Apps) to offer a platform for short-term lease of parking spaces in Switzerland for vehicles in certain cities and regions (the Platform). These General Business Conditions (GBC) govern both the relationship between the users (Users) registered on the Platform and the Parku company with respect to use of the Platform and Parku's services and the relationship between Users as lessors and lessees of the parking spaces brokered over the Platform. Users acknowledge these GBC as legally binding within this scope when they register
Parku may amend these GBC at any time without stating reasons, but shall announce this in advance in an appropriate manner (e.g. by email) with at least 20 days' notice. If the User does not object before the deadline and/or continues to use the Platform after the deadline, the amendments shall be considered accepted. Any other amendments to these GBC or agreements deviating from it must be in written form.
Only Users correctly registered on the Platform may use the Platform and its services. Commercial use of the Platform, especially by brokers of parking spaces, is prohibited. Registration on the Platform is free of charge, personal and non-transferable; a user account may not be made available to another person. If an account is not used for more than 180 days, Parku may delete it and dissolve the contractual relationship.
2. Registration requirements
Only natural persons resident in Switzerland, Germany or Austria who are over 18 years of age and possess full legal capacity and legal persons with registered headquarters or branch offices in Switzerland may register
Registration and a user account require disclosure of either first name and surname or company name in the Commercial Register, address of residence or company seat, a valid email address and information on the User's payment methods. Legal persons must also give the name of a contact person. Letting Users must state their VAT ID number if they are required to pay VAT. Leasing Users must state the number plate of the vehicle for which they are seeking a parking space. Natural persons must state their date of birth. Users vouch that the information they provide and save on the Platform is up-to-date, complete and truthful and must provide proof hereof if requested.
Users must select a personal user name and password. User names may not be misleading, obscene, denigrating or otherwise offensive or inappropriate. Registration is not a right. Parku may reject any registration without stating reasons.
3. Start of contract and of use
A User is registered once he has filled in and sent the registration application, agreed to the GBC and received a welcome email from Parku. Upon successful registration, a User concludes a contract with Parku for use of the Platform and the associated Parku services. These GBC and any other provisions the GBC make reference to are a component of the contract. Parku may require Users to sign a written agreement and may terminate the contract without notice if it is not signed and returned in time.
4. End of contract
Users may cancel their user account and thereby the contract with Parku - insofar as permitted by law - at any time and without stating reasons by using the corresponding function on the Platform or sending a written notice of termination. Parku may fully or partially block the user account and further use of the Platform immediately upon receipt of such a termination. However, the contract shall only be effectively ended once all the following conditions are met:
There is no dispute between the User and another User concerning the lease of a parking space (cf. Section VIII.4);
All outstanding accounts and liabilities owed to Parku are settled;
The User is no longer offering any parking spaces on the Platform.
Parku will confirm termination of the contract by email. Parku is entitled, but not obligated, to delete all information, content and transactional data of the User without notice once the contract has ended and to display the User as deleted.
Insofar as permitted by law, Parku may block a User from the Platform at any time without stating reasons and without notice, i.e. may end the user account and the contract with Parku without the User thereby acquiring against claims against Parku. Parku especially has a right to termination without notice at any time if the User violates these GBC. Parku is entitled, but not obligated, to temporarily or permanently block a User without owing compensation if there is evidence that this User lives in a household with another blocked User, would or will violate these GBC or otherwise engages in misconduct. Parku shall notify the User of the blocking or termination in writing, over the Platform and/or by email.
Closing a user account and dissolving the contract with Parku does not affect existing lease contracts for parking spaces. They may be terminated in accordance with statutory provisions, except where these GBC require otherwise.
III. DUTIES OF THE USER
1. User account
Users must keep their password secret at all times. If there is suspicion or certainty that a third party knows a User's password, the User must change the password immediately. Users are responsible for all actions carried out with their user names and passwords that affect Parku or other Users. The Parties recognise Parku's records as presumed to be correct, complete and conclusive in this respect .
2. Users of the Platform
The Platform may only be used manually and only as intended by these [sic]. Use of mechanisms, software or other scripts that may strain the Platform or run contrary to the obvious or stated interests of Parku is prohibited. In particular, crawlers, search robots and other automated processes for reading out data or Users of the Platform may not be used. Users may not take actions that could cause an unreasonable or inordinate strain on the Platform or have any other disruptive effect on the Platform. Users may not block, overwrite or modify content generated by the Platform.
Users may not use the Platform for any form of advertisement. In particular, the content published on the Platform may not contain any links or Internet addresses.
Parku may communicate with Users over the Platform and make announcements with legally binding effect by this means (cf. also Section VIII.4 below). Push notifications will be sent in the App for this purpose and supplemented or duplicated by informational emails. They shall be considered received as soon as the affected Users can access them on the Platform. This also applies if Parku notifies a User of receipt of new notifications by email or if this email report does not work. It is the User's responsibility to check the Platform regularly for new notifications.
3. Intellectual property, third party rights, compliance with governing law
Text, images and other content and information that a User has published on the Platform in any way or form (e.g. a photo of the parking spaces to be let) or otherwise communicated via the Platform may be used by Parku in connection with operating the Platform or performing the services and for advertisement and documentation (including using screenshots) without limitation in time or space and without compensation, including after the end of the contract.
The User vouches that these texts, images and other content and information do not infringe upon intellectual property rights, personal rights or other third party rights or other governing law or bonos mores and that he is empowered to permit Parku the abovementioned use. Texts, images and other content and information may not be offensive, denigrating, obscene, defamatory, harassing, libelous, disparaging, damaging to reputations, misleading, etc. or lead to mistaken identity. The User may only publish images on the Platform if he has created them himself or if the holder of rights has consented to the use provided by Parku; this also applies to content already published on the Internet.
The User further undertakes to adhere to governing law in all other respects.
Text, images and other content and information of the Platform may only be used insofar and as long as necessary for due use of the services obtained through the Platform. The contract does not transfer any rights to these texts, images and other content and information to Users. The use of logos and other distinguishing marks of Parku is only permitted with prior explicit approval and within the limits stipulated by Parku, unless stated otherwise in these GBC (cf. Section IX.2 below).
IV. SPECIAL DUTIES OF LETTING USERS
Areas may not be offered as parking spaces if they are not intended for this purpose or are located outside Switzerland. The User may only make plots available as parking spaces if he is entitled to do so and they are not encumbered by easements that would be harmed by use of the plot as a parking space. If the letting User is leasing the parking space himself, he vouches that he is authorised to sublet it over the Platform and possesses the necessary permission of the owner.
The parking spaces offered for lease must be vacant, in good condition and freely accessible to cars from the public streets (no barriers, locked gates, lowered bars, etc.) during the period when they are to be available for leasing to Users according to the registration. The letting User must maintain his parking spaces and must expect short-term, spontaneous letting at any time. He vouches that a parking space that a User has leased will actually be available to said User for due use for the duration of the lease (e.g. no occupancy by third parties or vehicles of the letting User).
The letting User shall ensure that the Platform-registered data about the offered parking spaces is always up-to-date, complete and correct and not misleading in any way.
V. SPECIAL DUTIES OF LEASING USERS
The leased parking spaces may only be used for the purpose for which they are intended, i.e. generally for temporary parking of personal cars. Vehicles must comply with applicable statutory provisions, especially the Swiss Road Traffic Act (Strassenverkehrsgesetz, including its regulations). The letting [sic] User must also follow such provisions on the parking space grounds in the absence of other provisions valid on-site or stipulated by the letting User.
Use of the parking space may not compromise the justified interests of third parties or the letting User. The parking space and its surrounding grounds must be treated with care and may not be damaged or dirtied beyond the normal degree for its stipulated use. Damages and other circumstances that may hinder intended use must be reported to the letting User immediately.
A leasing User may only use the parking spaces he has leased and only during the agreed time period. He may not sublet the parking space or make it available to third parties.
The leasing User owes the letting User the agreed fee for the parking space as well as additional parking fees and surcharges in case of abuse or overuse. Such fees are payable immediately
VI. SPECIAL RIGHTS AND DUTIES OF PARKU
Parku offers Users its services over the Platform to the extent permitted by its resources, business possibilities and strategic orientation. Parku is free to choose the means, ways and methods it uses. In particular, Parku may decide whether and how to offer a website and/or apps and for what end devices and operating systems. Parku may modify, expand, restrict and discontinue these at any time. Users are not entitled to provision or maintenance of access to the Platform over a particular system or in any other particular way or manner.
Use of Apps may require acceptance of additional licensing and user conditions of Parku or third parties. Acquiring Apps and using the Platform may be accompanied by additional costs (e.g. fees for mobile data links); the User has sole responsibility to pay for these.
Parku may process and modify text, images and other content and information of the User such that it can be displayed on Websites and Apps as necessary. Users are cognisant that the appearance of offers may be different on mobile end devices than on the Website. Nevertheless, Users are bound in the same manner and way by conclusion of a contract over a mobile end device as by conclusion of a contract over a Website.
Parku is not obligated to inspect the parking spaces offered for lease for suitability, availability or any other quality.
VII. VALUE-ADDED TAX
If the leasing User requires VAT-compliant receipts for his payments, he must notify Parku of this explicitly. Parku shall send the leasing User such collected receipts by post on a quarterly basis in the name of the letting User and, where applicable, in its own name as well.
In this connection, the letting User authorises Parku to send the leasing User such receipts in the letting User's name (and using his tax ID number) for VAT purposes. The letting User will always receive a copy of the collected receipts.
VIII. LEASING A PARKING SPACE
1. Legal relationship
The parking space lease contract shall be concluded between the letting and leasing Users in accordance with the provisions of these GBC; otherwise, the Swiss Code of Obligations applies. Parku is typically only a broker and not a party to these lease contracts and therefore not responsible for their correct performance. However, Parku may also act as a lessor of parking spaces it has leased outside the scope of the Platform; this fact will be disclosed on the Platform accordingly and in such a case, Parku shall be subject to the same conditions as other letting Users.
2. Lease contract
The letting User shall conclude an ordinary, fixed short-term lease contract for the agreed period with the leasing User for the use of the agreed parking space. The agreed period and parking space shall be determined by the corresponding leasing process of the Platform and shall be bindingly set forth therein. Both Parties shall confirm conclusion of the lease contract by email.
The letting User undertakes to hold the agreed parking space ready at the agreed point in time for the agreed fixed term in a condition suitable for the intended use by the leasing User.
The lease owed (parking space fees) varies by parking space and will be displayed on the Platform; it may change at any time, but shall be considered fixed and agreed at conclusion of the lease contract. The lease amount already includes any ancillary costs and the commission for Parku (cf. IX.3).
The leasing User cannot cancel a lease. However, if the lease period is more than 3 days in the future, Parku may execute the cancellation for a processing fee of 5 CHF, half of which shall be owed to the letting User, and refund already paid parking space fees to the leasing User's account after deducting the processing fee. In such a case, the lease contract is considered amicably dissolved and the parking space in question will be available again. The same applies in reverse to cancellation by the lessor; in this case, half of the processing fee (to be paid by the lessor) will be credited to the leasing User's account (but not paid out in cash) and any parking space fees paid will be refunded in full.
3. Payment methods
After conclusion of a lease contract, Parku will collect the parking space fee agreed upon over the Platform using the payment method chosen by the User. The User consents to collection of the fee by concluding the lease contract. Parku offers a number of payment methods; a User can also load up his user account with an amount of up to 100 CHF (interest-free) and use it to pay fees within the framework of these GBC.
Fees are initially paid to Parku, which then transfers them to the letting User after deducting its commission, any other portions to which it is entitled and any other amounts that may be owed to the letting User in accordance with these GBC (cf. Section IX.4 below). If the leasing User does not pay, the letting User is responsible for collection and may require that the leasing User compensate him for the costs thereof.
All fees are inclusive of 8% VAT, if applicable.
4. Misconduct, problems and disputes
Disputes arising from the lease contract shall be settled directly between the letting and leasing Users. Parku may neither mediate nor decide in such cases, unless stipulated otherwise by these GBC, but may carry out legally effective rulings by a court or binding settlements even if Parku itself is not a party to the proceedings or settlement. If there is a dispute, Parku shall disclose pertinent data and information it possesses to both partiesin the form in which it is available. The parties involved in a dispute will be jointly liable for any costs or expenses incurred by Parku in connection with the dispute, unless (and to the extent that) one of the parties has undertaken or been obliged to assume the costs of the dispute, in which case that party shall also (proportionally) pay Parku's costs.
If the leasing User did not obtain use of the leased parking space for the agreed period of time, he may submit a complaint over the Platform within three days of the end of the agreed lease period. Parku will inform the letting User hereof over the Platform and will retain the letting User's share of the parking space fees until proof of resolution of the dispute.
If the leasing User uses the parking space for a longer or different period of time than agreed or uses the wrong parking space, he shall owe the letting User additional parking space fees for the extra use (use of the wrong parking space is considered double use; the fee for the wrongly used parking space that is listed on the Platform at the time of use shall be charged as the additional fee). If the infringement is repeated, the leasing User shall also pay a surcharge as follows:
- At the first offence, the lessee shall receive a warning via App or after logging in to the Website notifying him of a surcharge of 30 CHF if the infringement is repeated. If he wishes to continue using the Parku service, he must confirm via App or the Website that he understands and accepts the warning.
- At the second offence, the lessee will be debited a surcharge of 30 CHF. The lessee will be informed hereof via App or after logging in to the Website with another warning notifying him of a surcharge of 50 CHF in case of a third infringement. If the lessee wishes to continue using the Parku service, he must pay the surcharge of 30 CHF and confirm via App or the Website that he understands and accepts the warning.
- If the lessee then commits a third offence, he will be debited a surcharge of 50 CHF. The lessee will be notified of this via App or after logging into the Website together with another warning notifying him that he will be banned from the Parku service in case of a fourth infringement. If the lessee wishes to continue using the Parku service, he must pay the surcharge of 50 CHF and confirm via App or the Website that he understands and accepts the warning.
The letting user is also entitled to have the leasing User's vehicle towed at the leasing User's expense and risk at any time if the leasing User exceeds the agreed time period by more than 15 minutes or parks his vehicle in a parking space other than the agreed one. The lease period and a countdown thereof are displayed to the leasing User on the Platform.
The letting User decides whether to bring a complaint about overuse as described above. If he wishes to bring a complaint about overuse, he must submit the complaint form provided for this purpose over the Platform within three days of the end of the agreed lease period. The leasing User will be notified hereof over the Platform. Parku will then provisionally collect the extra parking space fees and surcharges claimed by the letting User from the leasing User (the User hereby consents to such collection to the extent that his user account possesses a sufficient balance or the payment method he chooses for the lease permits). If the leasing User does not contest this within three days of Parku's notification that he must pay the additional fees, the fees will be considered owed and Parku will transfer them to the letting User after deducting its commission and any expenses. Otherwise, Parku will withhold the fees until proof of resolution of the dispute.
The lessee user has no right to tow a vehicle that commits a parking violation. In such a case, the parking fees will be refunded to the lessee user.
Parku does not owe interest on withheld amounts and may retain its commission no matter what. If a dispute is not resolved within three months of a complaint submission or court proceedings are pending and no agreement can be reached before this deadline, any sums withheld will be forfeited and belong to Parku; the Users' claims against each other will not be affected by this.
Other and more extensive claims the Users may have against each other due to breach of the lease contract, especially claims for damages, remain reserved. Users' reciprocal liability for indirect and consequential damages, including lost earnings, is however excluded.
IX. PROVISION OF PARKING SPACES
1. Legal relationship
Parku makes its Platform available to letting Users free of charge so that they can offer parking spaces to other Users for temporary lease and conclude corresponding lease contracts over the Platform and collect parking space fees via Parku, all in accordance with the provisions of these GBC. However, Parku may also act as lessor of parking spaces it has leased outside the scope of the Platform itself; this will be disclosed on the Platform and Parku will be subject to the same conditions as other letting Users.
2. Registration of parking spaces
Only parking spaces in Switzerland may be offered for lease. The letting User must register parking spaces to be leased as such on the Platform. This process requires the address of the parking space, its identification (e.g. unique parking space no.), a photo of the parking space, directions on driving to the parking space (incl. access codes for gates if necessary), the parking space fee being asked, the times when the parking space is available and, if applicable, a time limit for the registration. This information and content can be published together with information about the letting User. It must be complete and correct and may not be misleading. Parku may refuse, block or delete registration of parking spaces that does not meet Parku's standards at any time without compensation; such parking spaces can then no longer be leased. Parku will notify the letting User hereof accordingly. A letting User may have Parku register the User's parking spaces on the Platform on his behalf by special agreement; such registration is considered approved and legally binding if the letting User does not object to it within two days of display.
After a parking space is successfully registered and as long as the registration exists, other Users may lease it over the Platform during the available times as per the registration. The letting User may not lease out the parking spaces to someone else during these times or allow other use of them. The letting User may at any time delete a parking space's registration, suspend leasing or change the times when the parking space is available. A change in information, deletion of the registration or suspension of leasing only goes into effect when shown on the Platform and does not affectalready concluded lease contracts; these must still be performed. The letting User undertakes not to offer the same parking spaces on another system competing with Parku or to do so himself as long as he is also offering them over the Platform (this obligation expires five years after initial registration of the parking space).
Parku is not obligated to take any particular sales or advertisement measures with respect to the registered parking spaces. They will be offered on the Platform in accordance with the Platform's rules for Users. Parku may amend these rules at any time at its own discretion, especially those concerning display, functionality and sorting of parking spaces on the Platform. Parku may advertise using the parking spaces registered with it and may disclose letting Users as Parku customers and as references for third parties.
While the parking spaces available for lease are registered, the letting User may label them with the Parku logo at own cost in accordance with Parku's standards, but is not obligated to do so.
Registering parking spaces is free of charge. The letting User, however, owes Parku an acquisition commission equal to one third of the parking space fees owed under the lease contract (incl. VAT) for each lease contract Parku brokers; this still applies if the lease contract is to be concluded off the Platform, the contract with Parku has ended but the lease contract was concluded while the parking space was registered on the Platform, or the lease contract was amicably dissolved. The commission falls due for payment immediately upon conclusion of the lease contract (or at the same time as any additional parking space fee falls due, cf. Section IX.5), regardless of whether the contract was concluded properly and regardless of whether the fees owed were actually paid or were fully or partially reimbursed after payment. Parku may bill the letting User for any expenses for which Parku is not at fault that are incurred in connection with a parking space.
4. Payment methods
If the letting User is liable to pay VAT, the parking space fees owed under the lease contract are inclusive of VAT; in accordance with the provisions of these GBC, Parku will initially collect them in a Parku account and then pay them out to the letting User after deducting the commission and any costs and surcharges, subject to the regulations of these GBC (cf. especially Section VIII.4 above). This will be done no later than 8 days after the end of a month or another date agreed upon with the letting User, to the User's registered account, including a statement of the actually collected parking space fees, processing fees and surcharges, fees withheld, commissions, surcharges, any collection or other expenses for which the letting User is responsible and any owed but unpaid parking space fees and surcharges. The letting User shall bear the del credere risk for the parking space fees and surcharges.
All fees are understood to be inclusive of 8% VAT, if applicable.
5. Misconduct, problems and disputes
The provisions under Section VIII.4 above apply. If a letting User discovers that he cannot provide a parking space as agreed, he must immediately amend its registration. Already concluded lease contracts remain unaffected, but the letting User must immediately notify the affected leasing Users. At the letting User's instruction, Parku will refund already paid fees, provided that the commissions and other claims of Parku are covered.
X. DATA PROTECTION
Parku may use Users' personal data transferred to it through use of the Platform and collected by it in the service of the operation, analysis, use and further development of the Platform and of Parku's services for the conclusion and processing of contracts concluded with registered Users (including collection and review of creditworthiness), for its own marketing purposes and for other, either stated or legally permitted purposes. Parku may also have this data processed abroad.
The User will allow Parku to send him emails with offers of possible interest and new developments; he may revoke this permission at any time by notifying Parku or following the instructions at the bottom of such emails. The User will also allow Parku to call him in order to process contracts, for surveys and for business communication.
Parku may permit third party providers to set their own, non-Parku cookies for visitors to the Website. These are companies that help Parku monitor, analyse and understand the use of the Parku Website, companies that operate, display or manage advertisements on the Parku Website and can monitor and use them more effectively using cookies, as well as operators of social networks that are linked to certain functionalities of the Parku Website (e.g. "Like" button). These may be able to discern when and how which Users use the Parku Website; they may be able to link such information with data they have collected elsewhere, to identify certain Users using their data (e.g. because the User also has an account with them) and to use this data for their own purposes. Any data protection policies of such companies apply in this respect; Parku does not assume responsibility for data processing. The personal data in question may be sent to countries that do not possess commensurate data protection.
Users may only process personal data of other Users received in the course of or in connection with use of the Platform in connection with the Platform and the services offered over it, including lease of parking spaces, and that only to the extent necessary.
XI. WARRANTY, TECHNICAL MALFUNCTIONS, MAINTENANCE
Parku endeavours to keep the Platform available and functioning correctly (including the Parku Website), but does not warrant this or the correctness and completeness of the information contained therein, including the identity and other information of registered Users and parkingspaces (Parku does not review these). Parku does not warrant that the parking spaces offered are suitable for the intended use or are in accordance with contract or can be used. Parku does not warrant that the Platform is suitable for certain purposes and does not infringe third party rights.
The Platform is not suitable for persons who are strongly dependent on the availability of a parking space displayed as available or leased for the relevant time period, especially because it must be expected that unauthorised parties could potentially occupy it.
The Platform or parts thereof may become temporarily unavailable or only partially available due to maintenance work or other reasons. Users or members do not acquire any claims against Parku on these grounds.
XII. EXCLUSION OF LIABILITY
To the extent legally permitted, Parku's liability is limited to intent and gross negligence and excluded for agents. Parku is not liable for damages arising from the lease relationships concluded over the Platform or for technical problems causing parking spaces offered for lease to be displayed late or erroneously or causing other disruptions in contract processing. Parku is not liable for damages incurred by Users or third parties due to the conduct of other Users or third parties in connection with the use or abuse of the Platform.
If a User violates these provisions, statutory provisions or the contracts concluded with another User in connection with the Platform, or if such a violation is alleged, this User shall indemnify Parku and hold Parku harmless with respect to all related claims by another User or a third party. Parku will announce claims it has received with reasonable dispatch and permit the indemnifying User to defend against such claims. The User shall bear the costs, including of Parku's legal representation.
XIV. ASSIGNMENT OF RIGHTS AND DUTIES TO THIRD PARTIES, SUBCONTRACTORS
Parku reserves the right to transfer its contract with a User or individual or all rights and duties thereunder to a third party or to have third parties exercise or perform them. Users, however, require the prior written permission of Parku to do the same.
XV. SEVERABILITY CLAUSE
If individual provisions of these GBC should be fully or partially invalid and/or ineffective, the validity and/or effectiveness of the other provisions or parts of such provisions shall remain unaffected. The invalid and/or ineffective provisions shall be replaced by provisions that come economically closest to the intent and purpose of the invalid and/or ineffective provisions by legally valid means. The same applies to any gaps in the regulations
XVI. GOVERNING LAW AND JURISDICTION
The contractual relationships between Parku and Users and between Users themselves that are regulated by these GBC shall be governed by Swiss law. The courts of the city of Zurich have sole jurisdiction over all disputes arising from or in connection with these contractual relationships, unless statutory provisions mandate the jurisdiction of another court. Parku may also enforce claims against Users before the courts with jurisdiction over the User's place of residence.
Zurich, 3 December 2012