Amendments to Uber's UK terms and conditions

Uber changed its UK customer terms and conditions on 16 June 2016.

At the time of writing, the amendments seem to have been made without announcement (in terms of email or pop-up message) to users of the Customer App. [Update: the change was mentioned en passant in an email concerning UberPOOL on 20 June 2016]

The changes appear to have been prompted by the introduction of UberEATS food delivery service in London - and it appears that Uber wishes to use the same small print for UberEATS as it does for “transportation services”.

The extent of the changes themselves is fairly minor (a tracked changes version is available here), but the document remains as before a fairly complex one which requires careful analysis. This is particularly because:

• the customer is dealing with several entities (so, for example, if using the App to summon a private hire vehicle, typically (1) Uber B.V. (2) the domestic Uber company and (3) the owner/driver of that vehicle);

• the document uses the same word to mean different things in different places (thankfully earlier amendments have at least removed the very confusing definition of all Uber entities referred to as “Uber”).

The terms and conditions remain split between Part 1, Booking Service Terms, and Part 2, Terms of Use.

The Uber entity concerned in Part 2 is Uber B.V., the Dutch company which licences (in the contractual rather than the regulatory sense) the Uber App to the customer.

The Uber entity concerned in Part 1 is one of the UK registered Uber companies that holds an operator’s licence granted by a regulatory authority.

Adding delivery and vendor services to the platform

The starting point is always (counter-intuitively) Part 2: the Uber B.V. terms of use. Wherever the Customer App has been downloaded, these terms (either from this document or another domestic document in identical format) apply to the use of the App in any country except the USA and mainland China.

Part 2 governs the use of the App (or Apps), websites, content product and services made available by Uber B.V., defined as “the Services”.

In clause 2 of Part 2, the Services were then further identified to be the provision of “a technology platform that enables users of [Uber B.V.’s] mobile applications or websites provided as part of the Services to pre-book and schedule transportation and/or logistics services with independent third party providers of such services….”

So, pausing there, the services provided by Uber B.V., denoted in the document as “the Services” (with a capital S) were the provision of Apps to enable the booking of transportation and/or logistics services (with a lower-case s) provided by third party providers. “Services” means a different thing depending on whether it is capitalised or not.

The upshot of this is that, as the document later makes very explicit in shouty capitals, Uber B.V. is a technology platform and not the provider of transportation services.

The change brought about to the document is to add to the lower-case services (i.e. the services that Uber B.V. does not provide, but merely permits others to provide via its technology platform) the services of delivery and vendor services. So, clause 2 of Part 2 now begins (new elements underlined):

The Services constitute a technology platform that enables users of Uber’s mobile applications or websites provided as part of the Services (each, an “Application”) to pre-book and schedule transportation, logistics, delivery, and/or vendor services with independent third party providers of such services, including independent third party transportation providers (including Transportation Providers as defined in Part 1), independent third party logistics and/or delivery providers under agreement with Uber or certain of Uber’s affiliates, and/or independent vendors such as restaurants (“Third Party Providers”)

This therefore brings UberEATS on to the platform with no difference between that and the manner in which Uber B.V. permits the driver of a private hire vehicle to be connected to a passenger. It is not possible to discern from the document whether, if food is ordered from UberEATS, the customer’s contract is only with the restaurant or whether there is also a contract with the delivery driver. No doubt this is something that can be discovered in due course from the invoicing. But, as before, the one person the customer is not contracting with is Uber B.V. So the shouty capitals now go on to say (clause 5 of Part 2):

UBER’S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS OR, LOGISTICS, DELIVERY OR VENDOR SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT UBER HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS ORGOOD, LOGISTICS, DELIVERY OR VENDOR SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

Scotland

The only other change is to add to the list of domestic Uber companies holding operator’s licences who fall under Part 1 the name of Uber Scot Limited, a company domiciled in Scotland with CRN SC531141 that was incorporated on 30 March of this year. Like all other domestic Uber companies this appears to be wholly owned by a Dutch entity, Uber International B.V.

In the past, Scottish operator’s licences (called booking office licences in that country’s legislation) have been held by the English company Uber Britannia Limited.

One can only speculate that Uber presumably intends to use Uber Scot Limited in place of Uber Britannia Limited to hold some Scottish licences in the future.

Part 1 of the terms remains the interesting concoction of fudge (or, in Scotland, tablet) that it was before, with the domestic Uber company (called “Uber UK”) asserting it “accepts PHV Bookings acting as disclosed agent for the Transportation Provider (as principal)”. How this actually happens in practice is a fertile area for debate and outside the scope of this brief note. Again, the document makes it very clear that there is no contract with the domestic Uber company: it is "not a party" to the transportation contract.

In-built flexibility

The terms have plainly been drafted with future flexibility in mind, and upon re-reading them for the purpose of considering these amendments, it appears that some recent developments are probably already dealt with in the document. These are out of town hackneys, and "scheduled rides".

Out of town hackneys

Uber’s recent move to allow the “on boarding” of out town hackneys onto the platform in provincial areas (it is lawful for an out of town hackney can satisfy a pre-booked hiring anywhere in England and Wales) appears to fall within the terms because the transportation services (small s here) that can be accessed on the technology platform provided under Part 2 include (and therefore do not wholly consist of) booking services of private hire vehicles in Part 1.

There is an interesting contractual analysis (again, out of the scope of this note) as to what the customer is asking for when she presses "Request UberX" on the App (or indeed when she phones a traditional operator and is provided with an out of town hackney).

Scheduled rides

Uber has announced (apparently in response to a similar announcement from its rival Lyft) that pre-scheduling will be made a feature of the App, so that vehicles can be requested in advance: what Uber is calling "scheduled rides". And we see that the terms in Part 2 already refer to “pre-booking and scheduling”.

More details are emerging, and it in fact looks like the pre-booking facility will in fact be a pre-scheduled on-demand request, rather than any contractual agreement with anyone to have a vehicle available to undertake a journey from a set place at a set point in the future. In view of Uber's model of being a peer-to-peer technology platform and not a transportation provider, this seems to be the only way advance "booking" could work.

The song remains the same

So. What these terms continue provide, in total and in summary, is that the customer is allowed access to a technology platform by Uber B.V. The customer uses the platform to obtain transport provided by a third party transportation provider (i.e. the driver). If that transportation provider is the driver of a private hire vehicle, then, according to the terms, the booking is accepted by the domestic Uber entity which holds the relevant operator’s licence as agent for the driver. The contract remains with the driver and not with Uber B.V. or with the domestic Uber entity. The amendments permit not just UberEATS but pretty much any delivery service to be operated on platform in the future.