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These Parkade Customer Terms of Service (this “Agreement”) are entered into between Parkade, Inc. (“Parkade”) and Customer (as defined below).
By accepting this Agreement, either by clicking a box indicating your acceptance, executing a Service Order or other document that references this Agreement, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the organization, company, or other legal entity for which you act (“Customer”); and (2) represent that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not access or use the Parkade Platform, Professional Services, or other Parkade products or services.
Definitions
“Applicable Law” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable under or in connection with this Agreement.
“Authorized User” means an employee (or other user who is identified on the applicable Service Order) of Customer for whom Customer has paid all applicable Fees for access to and use of the Parkade Platform.
“Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Parkade’s Confidential Information includes the terms and conditions of this Agreement and any Service Order entered into between the parties; pricing and Fees information; non-public information regarding features, functionality, and performance of the Parkade Platform; the Documentation; and Usage Data.
“Customer Data” means all non-public data uploaded by Customer or Authorized Users to the Parkade Platform or otherwise shared with Parkade by Customer or Authorized Users through electronic means. Customer Data does not include Account Information.
“Documentation” means any Parkade-provided user documentation relating to the Parkade Platform (e.g., user manuals and online help files) as the same may be updated by Parkade from time to time.
“Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.
“Order Term” means the Service Order term length specified in the applicable Service Order.
“Customer Data” means all non-public data uploaded by Customer or Authorized Users to the Parkade Platform or otherwise shared with Parkade by Customer or Authorized Users through electronic means. Customer Data does not include Account Information.
“Parkade Data” means any information made available by or through the SaaS Solution, APIs, or Apps.
“Parkade Platform” means Parkade’s proprietary web-based software platform (“SaaS Solution”), application programming interfaces (“APIs”), and desktop or mobile applications (“Apps”); in each case, as identified in the applicable Service Order, including any updates, enhancements, or improvements thereof that are made available by Parkade.
“Professional Services” means any professional implementation, configuration, management, or other such services provided by Parkade to Customer stated in a Service Order or which Customer otherwise elects to receive from Parkade, including, as applicable, managing parking, tracking user vehicle data, assigning parking spots, collecting payments, and enforcing parking.
“Scope Limitations” means any limitations on Customer’s use of the Parkade Platform specified in this Agreement or in a Service Order.
“Service Order” means a sales contract or other ordering document that is signed by both Customer and Parkade, including any addenda and supplements, specifying (as applicable) the components of the Parkade Platform to be provided under this Agreement, applicable Scope Limitations, applicable Fees, and payment terms.
Use of the Parkade Platform.
Service Orders. Each Service Order is subject to and governed by this Agreement. If there is a conflict between this Agreement and a Service Order, this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order.
Licenses.
Subject to Customer’s and each Authorized User’s compliance with this Agreement, Parkade hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable license, during the Order Term, by and through its Authorized Users to: (i) access and use the SaaS Solution; and (ii) download, install, and use the Apps on compatible authorized devices that Customer or such Authorized User owns or controls; in each case, solely in connection with Customer’s internal business purposes in accordance with the Scope Limitations and the Documentation.
Subject to Customer’s and each Authorized User’s compliance with this Agreement, Parkade hereby grants to Customer a worldwide, non-exclusive, non-transferable non-sublicensable license during the Order Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the Parkade Platform.
Professional Services. Subject to Customer’s compliance with this Agreement, Parkade will take commercially reasonable steps to provide to Customer the Professional Services. Customer will provide to Parkade any assistance and cooperation requested by Parkade relating to the Professional Services. Parkade will not have any liability for any delays, failures, or liabilities related to the Professional Services caused by circumstances outside of Parkade’s reasonable control, including any delays, failures, or liabilities arising from or caused by Customer. If any delays in the Professional Services or failures or liabilities in connection with the Professional Services occur as a result of any incorrect information from Customer or failure of Customer to perform its obligations under this Agreement or any Service Order, Parkade will have no liability for any costs or expenses resulting from such delays. Customer will: (1) cooperate with and assist Parkade in the performance of Professional Services; (2) provide the resources and data specified in the Service Order or as reasonably requested by Parkade or otherwise reasonably necessary to perform the Professional Services; and (3) perform all obligations required by Customer under the terms of the Service Order. If Customer fails to comply with the previous sentence, Parkade’s ability to provide Professional Services, meet the performance obligations in the applicable Service Order, and keep fees reasonably in line with any estimates given in the Service Order may be adversely affected. If Customer requests Parkade to perform Professional Services on or with respect to any third-party products or services, Customer represents and warrants to Parkade that Customer has all necessary rights to allow Parkade to do so.
Work Product. This Agreement and any applicable Service Order is not a work-for-hire agreement, and Parkade retains ownership of all right, title, and interest in and to all Work Product. “Work Product” means any deliverables that are created by Parkade for Customer in the performance of Professional Services. “Work Product” does not include any derivatives or output of the Parkade Platform, Professional Services, or Parkade other products or services.
Consent for Communications and Performance. Customer authorizes Parkade to contact its residents and any other individuals for whom it provides personal or contact information in connection with Customer’s use of Parkade’s services, and otherwise take any and all actions in connection with its performance of its services, including, (as applicable under a Service Order) as the parking system of record, and Customer represents and warrants that it has obtained all rights and consents necessary to enable Parkade to do so.
Registration; Eligibility; Restrictions.
Authorized Users. Parkade might require Customer to complete a registration process to enable its Authorized Users to access certain parts of the Parkade Platform. Customer must complete the registration process by providing Parkade with current, complete, and accurate information, as prompted by the applicable registration form. Customer is responsible for ensuring that each of Customer’s Authorized Users complies with this Agreement and Customer is fully responsible and liable for the acts and omissions of each of Customer’s Authorized Users as if they were Customer’s own acts or omissions.
Eligibility. Customer represents and warrants that all Authorized Users are at least 18 years of age, have not been previously suspended or removed from the Parkade Platform, and have no engaged in illegal activity related to the Professional Services or functionality of the Parkade Platform.
Credentials and Account Information. As part of the registration process, Customer may be asked to select a username, password, or other login credentials, or may be given the option to use credentials from another service provider to login to the Parkade Platform (“SSO”) (collectively, “Credentials”). Parkade will also collect information that relates to Customer and/or its Authorized Users in connection with the use and administration of the Parkade Platform (together with Credentials, “Account Information”). Customer is responsible for maintaining the security and confidentiality of Customer’s and its Authorized Users’ Credentials (including SSO Credentials, if applicable). Customer agrees to notify Parkade immediately of any unauthorized use of Customer’s or its Authorized Users’ account(s) or any other breach of security. Customer is responsible for all use of the Parkade Platform occurring under Customer’s and its Authorized Users’ accounts and all content uploaded or provided by Customer and its Authorized Users’ account on the Parkade Platform.
Customer’s Responsibilities and License Restrictions. Customer and its Authorized Users may use the Parkade Platform solely for lawful internal business purposes, as intended through the provided functionality of the Parkade Platform. Customer and its Authorized Users may not use the Parkade Platform in any manner that could damage, disable, overburden, or impair Parkade’s servers or networks, or interfere with any other party’s use and enjoyment of the Parkade Platform, their property, or their rights under the law. Customer and its Authorized Users may not attempt to gain unauthorized access to the Parkade Platform, user accounts, or computer systems or networks, through hacking, password mining, or any other means. Without limiting any of the foregoing, Customer and its Authorized Users may not (nor allow or assist any third party to):
Customer Data.
Limited License Grant to Parkade. Customer hereby grants Parkade a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Customer Data, in whole or in part, in any and all media or distribution methods (now known or later developed) in accordance with the settings on Customer’s account and the features of the Parkade Platform that Customer and its Authorized Users elect to use. Customer Data may be used for any internal business purpose, including to improve the usability, functionality, and accuracy of the Parkade Platform. Customer acknowledges and agrees that, depending on the services provided by Parkade under a Service Order, the provision of accurate and complete Customer Data (e.g., resident contact information) is required for Parkade to provide such services, and Parkade will not have any liability resulting from inaccurate or incomplete Customer Data. Accordingly, Customer will provide all Customer Data reasonably requested by Parkade.
Restrictions; Data Retention. “Sensitive Personal Information” is personal information that may pose a risk of harm to an individual if improperly disclosed, including, without limitation, (1) government issued identifiers such as Social Security number, Individual Tax Identification Number, driver’s license number, or passport number; (2) financial information, including payment card information or other financial account numbers; (3) health or medical information, including health insurance information; (4) security information for third party accounts; and (5) sensitive or special categories of personal information as defined under applicable privacy laws. The parties acknowledge that certain Sensitive Personal Information may be required for the provision and/or operation of the Parkade Platform or Professional Services. Notwithstanding the foregoing, Customer shall upload or otherwise provide the minimum amount of Sensitive Personal Information to Parkade necessary in connection with the Parkade Platform, except where Parkade requests otherwise. Customer agrees that Parkade will have no responsibility or liability with respect to any such Sensitive Personal Information that is processed, transmitted, disclosed, or stored in connection with the Parkade Platform. Parkade is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Data provided, processed, or stored in or through the Parkade Platform. Parkade recommends that Customer perform regular exports and back-ups of Customer’s Customer Data. Upon deactivation of a Parkade account, all data associated with that account may be deleted.
Disclaimer. Parkade is under no obligation to edit or control data that other users of the Parkade Platform post or publish, including those related to Customer or its properties (“Community Resources”), and will not be in any way responsible or liable for Community Resources. Parkade may, however, at any time and without prior notice, screen, remove, edit, or block any Community Resources that in Parkade’s sole judgment violates this Agreement or is otherwise objectionable. Customer agrees to waive, and does hereby waive, any legal or equitable right or remedy Customer has or may have against Parkade with respect to Community Resources. Parkade expressly disclaims any and all liability in connection with Community Resources.
Usage Data. Parkade shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Parkade Platform, and related systems and technologies in a de-identified and/or aggregated form (“Usage Data”) and Parkade will be free (during and after the Term) to use such Usage Data for any business purpose, including to maintain, improve, and enhance the Parkade Platform and for other development, diagnostic, and corrective purposes in connection with the Parkade Platform and other Parkade offerings.
Confidentiality. Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 6, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information that is required to be disclosed by Applicable Law.
Ownership.
Payment Terms and Order Processing.
Term and Termination.
Termination and Other Remedies.
Either party may terminate this Agreement if there is no Service Order in effect between the parties by providing written notice thereof.
Either party may terminate this Agreement, effective upon written notice to the other party, if the other party materially breaches this Agreement and such breach is incapable of cure, or if such breach capable of cure, the breaching party does not cure such breach within 30 days of receiving notice of it. Parkade may terminate or suspend this Agreement or any part of it immediately upon written notice to Customer without a cure period if Customer breaches any of the terms of this Agreement relating to use restrictions, Parkade’s Intellectual Property Rights or Parkade’s Confidential Information. Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
Warranties and Disclaimer.
Customer Warranties. Customer represents and warrants to Parkade that: (1) the Customer Data, use of Customer Data as contemplated by this Agreement, Customer’s use of the Parkade Platform, and Parkade provision of the Professional Services in compliance with this Agreement, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Parkade to violate any Applicable Law; (2) Customer will use the Parkade Platform, Parkade Data, Work Product, and Professional Services in compliance with this Agreement and Applicable Law; and (3) Customer will ensure Customer Data is accurate, complete, and up to date at all times; (4) Customer owns or has sufficient and appropriate legal rights to control the applicable properties under each Service Order, and is the parking operator (or similar concept under any Applicable Law) of record; and (5) Customer is solely responsible for and will comply with the Americans with Disabilities Act and all other Applicable Laws related to accessibility or disability.
Indemnification.
IP Infringement. If the Parkade Platform is held to infringe (or if Parkade reasonably believes will be held to infringe) any third-party Intellectual Property Rights, Parkade may, at its option and expense: (i) modify the Parkade Platform to make it non-infringing; or (ii) obtain a license that permits Customer to continue using the Parkade Platform. If Parkade does not believe either option is commercially reasonable, Parkade may terminate this Agreement. Section 11.B states Parkade’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third-party Intellectual Property Rights arising from Customer’s use of the Parkade Platform.
Limitations of Liability.
Exclusion of Damages. Neither Parkade nor its suppliers, officers, affiliates, representatives, contractors, or employees will be liable to Customer for any consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including lost profits, loss of business, or loss of data, even if Parkade is apprised of the likelihood of such damages occurring.
Damages Cap. Parkade’s total aggregate liability of all kinds arising out of or related to this Agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will not exceed the Fees paid by Customer to Parkade during the twelve months immediately preceding the events giving rise to the claim.
Basis of the Bargain. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by Parkade to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 12 (Limitations of Liability) will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 12 (Limitations of Liability) will apply to Customer solely to the extent permitted by Applicable Law.
Force Majeure. Parkade will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond Parkade’s reasonable control (a “Force Majeure Event”), so long as Parkade uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Parkade to delay or fail to perform its obligations under this Agreement for 30 consecutive days, either party may terminate this Agreement. Customer acknowledges that the Parkade Platform may be unavailable during system maintenance or for security precautions.
Dispute Resolution. Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in the San Francisco, California. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party, but the arbitrator will not be authorized to and will not award punitive damages against either party. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.
Cooperation with Authorities. Parkade may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Parkade may disclose any information as Parkade deems necessary to cooperate with or satisfy any Applicable Law, regulation, legal process, or governmental request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, in Parkade’s sole discretion.
Governing Law. This Agreement is governed by California law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Subject to Section 14 (Dispute Resolution), all claims arising under this Agreement will be litigated exclusively in the federal or state courts located in San Francisco, California. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Parkade operates the Parkade Platform from Parkade offices in the United States, and Parkade makes no representation that the Parkade Platform is appropriate or available for use in other locations.
Feedback. If Customer provides any feedback to Parkade concerning the functionality and performance of the Parkade Platform (including identifying potential errors and improvements) or Professional Services, Customer hereby assign to Parkade all right, title, and interest in and to such feedback, and Parkade is free to use such feedback without payment or restriction.
Entire Agreement; Variation. This Agreement sets forth the entire agreement between Parkade and Customer with respect to the Parkade Platform. This Agreement supersedes and governs all previous oral and written communications regarding these matters, including any prior trial agreement non-disclosure agreement, or user agreement entered into between the parties, all of which are terminated and superseded by this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter this Agreement. Any additional provisions in any purchase order or other document provided by Customer will be void and have no binding effect on Parkade.
Compliance with Applicable Law; Export. Customer will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement, including applicable export laws.
Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable, such provisions will be modified, or if not possible, severed, to reflect the fullest valid, legal, and enforceable expression of the intent of the parties, and the remainder of this Agreement will not be affected thereby.
Relationship of Parties. Nothing in this Agreement will be deemed to create an employer-employee relationship between Parkade and Customer, nor any agency, joint venture, or partnership relationship between the parties. Neither party will have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
Waiver. No delay, omission, or failure to exercise any right or remedy provided under this Agreement will be deemed to be a waiver thereof or an acquiescence to the event giving rise to such right or remedy, or a waiver of or acquiescence to any other right, remedy, or event.
Assignment. Neither this Agreement nor any of the rights granted to Customer herein may be assigned or transferred by Customer, whether voluntarily or by operation of law, without the express prior written consent of Parkade and any attempt to do so will be null and void. Parkade may assign or transfer this Agreement at any time without Customer’s consent.
Amendment. Except as expressly provided in this Agreement, this Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.
Third-Party Beneficiaries. There are no intended third-party beneficiaries of this Agreement.
Notices. All notices under this Agreement must be in writing and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Notwithstanding the foregoing, notifications sent by Parkade to Customer by email will be deemed to be delivered upon receipt by Customer, one day after being sent by Parkade, whichever earlier. Either party may update its notice address by notice to the other party in accordance with this Section. All notices to Parkade will be sent to:
Interpretation. If Parkade provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only, and in no way defines or explains any section or provision. Any use of the term “including” or variations thereof in this Agreement should be construed as if followed by the phrase “without limitation.”
Publicity. If Customer is an entity or organization, Customer agrees that Parkade may list Customer as a customer of Parkade and use Customer’s name and logo for marketing or promotional purposes and in other communication with existing or potential Parkade customers, resellers, or investors.
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