Software Licensing Agreement
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THIS SOFTWARE LICENSING AGREEMENT including the Sales Order referenced herein and incorporated by reference, is a binding agreement between Park Assist, LLC., a Delaware limited liability company whose principal place of business is located at 57 W 38th Street, 11th Floor, New York, NY 10018, USA (“Park Assist”) and the person or entity identified as the Customer (“Customer”). Each of Park Assist and Customer shall be referred to in this Agreement as a “Party,” and collectively as “the Parties.”
WHEREAS, Park Assist has developed the Perpetual Software and the Subscription Software and has agreed to license the Perpetual Software to the Customer and to make the Subscription Software available to the Customer with respect of the Site on the terms and subject to the conditions set out in this Agreement.
WHEREAS, the Customer has agreed to the terms and conditions set out in this Agreement governing the Customer’s use of the Perpetual Software and the Subscription Software with respect of the Site.
1 SCOPE AND DEFINITIONS
Unless otherwise defined in this Section 1, the capitalized terms used in this Agreement shall be defined in the context in which they are used.
1.1 “Administrator” means an Authorized User designated by the Customer who is authorized to (a) create Authorized User accounts; and (b) otherwise administer the Customer’s use of the Subscription Service.
1.2 “Authorized Users” are any individual employee, agent or contractor of Customer that pursuant to a Sales Order may exercise the rights under this Agreement on behalf of the Customer and for whom access to the Subscription Software has been purchased hereunder.
1.3 “Confidential Information” means all confidential data or information in any form disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) by any means that is designated as confidential. As a non-exhaustive list of examples, Confidential Information includes Data, information regarding a Party’s financial condition and financial projections, business and marketing plans, product plans, product and device prototypes, the results of product testing, research data, market intelligence, technical designs and specifications, secret methods, manufacturing processes, source code of proprietary software, the content of unpublished patent applications, customer lists, vendor lists, internal cost data, the terms of contracts with employees and third parties. Information may be Confidential Information regardless of the medium or manner by which it is disclosed, including disclosures orally or via printed or handwritten document, email or other electronic messaging, fax or telephone.
1.4 “Customer Data” means any electronic data, information or material provided or submitted by the Customer in the course of using a Service. For the avoidance of doubt, Customer Data does not include data and information related to Customer’s use of the Subscription Software that is used by Park Assist in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Subscription Software, or any other information reflecting the access or use of the Subscription Software by or on behalf of Customer or any Authorized User.
1.5 “Customer Infrastructure” means any information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or hosted through the use of third-party services, on which Software is installed or will be installed.
1.6 “Delivery Date” means the date the Perpetual Software was delivered or is to be delivered to the Customer pursuant to an applicable Sales Order.
1.7 “Documentation” means the standard manuals, tutorials, reference materials and similar materials, whether in print or electronic format, ordinarily provided by Park Assist to customers that describe the functionality of the Subscription Software and the Perpetual Software.
1.8 “EULA” means the applicable End User License Agreement that is entered into between Customer’s Authorized Users and Park Assist with respect to Customer’s license and use of the Installed Products, SaaS-Delivered Products and Subscription Software.
1.9 “Hosted Environment” means the facility and computer and other systems in which Park Assist holds its data and runs its programs to provide the Subscription Software to Customer.
1.10 “Installed Products” means the Perpetual Software and all other hardware and firmware purchased or to be purchased by Customer and installed at the Site by Park Assist, its subsidiary entities or agents of any of them.
1.11 “Intellectual Property Rights” are the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, public perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.
1.12 “License” has the meaning given such term in Section 3.
1.13 “Personal Information” shall mean any information or data that alone or together with any other information relates to an identified or identifiable natural person or data considered to be personal data as defined under applicable law, including Personally Identifiable Information as defined under applicable law.
1.14 “Perpetual Software” means the software described in a Sales Order, being Park Assist proprietary software application that is or shall be installed on the Customer Infrastructure.
1.15 “Purpose” means the core functionality of the Perpetual Software and/or the Subscription Software as set out in the Sales Order.
1.16 “SaaS-Delivered Products” means the Subscription Software and any software or support provided via a SaaS delivery model as identified in a Sales Order.
1.17 “Sales Order” means an order issued by Park Assist for the Perpetual Software and/or one or more Subscription Software that shall be in writing and agreed between the Parties, which shall then be deemed to become part of this Agreement.
1.18 “Service Level Agreement” means the Service Level Agreement relating to Subscription Software, as updated by Park Assist from time to time, located at inx.parkassist.com.
1.19 “Site” shall have the meaning given such term in a Sales Order.
1.20 “Software Catalogue” means the Park Assist Software Catalogue which is made available on inx.parkassist.com and outlines all of the Perpetual Software and the Subscription Software and the fees associated with each of them, which Park Assist may change from time to time.
1.21 “Subscription Fee” shall have the meaning given such term in a Sales Order, and shall be subject to the provisions of Section 9 herein.
1.22 “Subscription Software” means the services described in a Sales Order, operated and maintained by Park Assist, and made accessible via a web site or IP address designated by Park Assist from time to time, or ancillary online or offline software products provided to the Customer (and its Authorized Users) in respect of the Site.
1.23 “Subscription Term” has the meaning given such term in Section 14.1.
1.24 “Update” means any change to the Perpetual Software including improvements, bug fixes and patches that Park Assist generally makes available to all licensees of the Perpetual Software. This is typically referred to as a minor point release.
1.25 “Upgrade” means amendments or variations to the Perpetual Software provided by Park Assist from time to time to all licensees. This is typically referred to as a major point release.
2 EULA AND SALES ORDERS.
To implement the Customer’s license and use of the Installed Products, SaaS-Delivered Products and Subscription Software, the Customer hereby approves, and its Authorized Users shall execute, an applicable EULA. During the term of this Agreement, the Parties may enter into Sales Orders allowing Customer to procure the rights to license the Perpetual Software and/or access to and use of the Subscription Software. This Agreement may accommodate multiple Sales Orders, and each Sales Order shall be incorporated into and become a part of this Agreement once agreed by Park Assist and Customer. In the event of any conflict between the provisions of this Agreement and the terms of any Sales Order(s), the conflict shall be resolved in the following order of priority of interpretation: (a) the Sales Order(s); and (b) this Agreement.
3 PERPETUAL SOFTWARE LICENSE GRANT.
3.1 License Grant. Subject to the terms and conditions of this Agreement, and any applicable EULA and Customer’s and its Authorized Users’ compliance therewith, and in consideration for the payment of the license fee described in any Sales Order(s) under this Agreement, Park Assist hereby grants to Customer a perpetual, limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to: (a) install, use and execute the Perpetual Software (i) for Customer’s internal purposes only, (ii) on the maximum number of instances set forth in the applicable Sales Order, and (iii) on the Customer Infrastructure located at the Site; and (b) use and make a reasonable number of copies of the Documentation related to the Perpetual Software for internal use (collectively, the “License”).
3.2 License is Limited to Available Version as of Delivery Date, Revised as to Future Versions; Purpose. Customer expressly acknowledges and agrees that Park Assist shall be deemed to have fulfilled its obligations for delivery of Perpetual Software under this Agreement by delivering to Customer the version of the Perpetual Software that is the current version as of the Delivery Date. Furthermore, Customer acknowledges and agrees that Park Assist makes no representation or warranty about the Perpetual Software beyond that it will meet the Purpose. The Customer further acknowledges and agrees that the license granted herein does not entitle Customer to the delivery of any future functionality or features, except as otherwise expressly agreed between the Parties in writing. Park Assist will make all Updates, Upgrades and bug fixes to the Perpetual Software available for the Customer to install while the Customer has at least one active subscription in respect of a Subscription Software.
3.3 Direct Use. The Perpetual Software and/or Support Services that may be provided by Park Assist pursuant to this Agreement and/or any Sales Order shall be solely for Customer’s internal business purposes and not for the benefit of any third party. Customer shall not use or access the Base Software on an application service provider (“ASP”) basis or as a software-as-a-service offering or allow any third party to do the same.
3.4 Backup. The Customer may install one additional instance of the Base Software in a disaster recovery or testing environment, and such instance is not counted for the purposes of calculating whether the Customer has reached the maximum number of instances applicable to the Perpetual Software referred to in Section 3.1.
3.5 Customer Infrastructure. The Perpetual Software is licensed for use on the Customer Infrastructure only.
3.6 Additional Instances. If the Customer wishes to install additional instances of Perpetual Software in live production, the Customer may do so provided that the Customer obtains prior written consent from Park Assist.
4 SUBSCRIPTION SOFTWARE.
4.1 Access Rights. Pursuant to the terms of an applicable Sales Order, Customer may subscribe to and receive access to the Subscription Software. The Subscription Software shall be delivered pursuant to the terms of a Sales Order requiring Customer to pay any required upfront Subscription Fee(s) prior Park Assist providing the Subscription Software to Customer via Park Assist’s web site and/or other secure, Hosted Environment. Customer understands that this Section 4 grants certain rights of access only, and that nothing in this Section 4 may be interpreted to require delivery of any software to Customer or installation of any software on any Customer Infrastructure or any other computers or systems.
4.2 Procedures and Technical Protocols. Park Assist will specify to Customer in writing procedures according to which Customer and its Authorized Users may establish and obtain access to and use the features and functions of the Subscription Software, including, without limitation, provision of any access codes, passwords, technical specifications, penetration testing, connectivity standards or protocols, or any other relevant procedures, to the limited extent any of the foregoing may be necessary to enable Customer’s Authorized Users to obtain access to the Subscription Software via the Internet.
4.3 Service Level Agreement. During the term of this Agreement, Park Assist will ensure that it complies with the terms of the Service Level Agreement in respect of the Subscription Software.
5 LIMITATIONS ON LICENSE TO PERPETUAL SOFTWARE, AND USE OF SERVICES; RESERVATION OF RIGHTS AND CUSTOMER REPRESENTATIONS AND WARRANTIES.
5.1 Authorized Users.
(a) Customer shall not authorize access to or permit use of the Perpetual Software, the Subscription Software, or Documentation by persons other than Authorized Users employed or otherwise engaged by the Customer, and Customer shall be responsible for compliance with this Agreement by its Authorized Users, employees, consultants, or any unauthorized user to whom Customer has either directly or indirectly granted access to the Subscription Software.
(b) Authorized User licenses issued pursuant to a EULA are for designated Authorized Users only and each such license cannot be shared or used by anyone other than that Authorized User, but may be reassigned to new Authorized User replacing a former Authorized User who no longer requires ongoing use of the Perpetual Software or the Subscription Software.
(c) Authorized Users licenses shall be added by an Authorized User executing a EULA for each which on receipt by Park Assist, will be added to the License granted in respect of the Perpetual Software and/or the right of access in respect of the Subscription Software granted pursuant to Section 4.1. The term of an Authorized User license shall be coterminous with the expiration of the Subscription Term relevant to the Authorized User license and will terminate on the last day of the Subscription Term of that Subscription Service.
5.2 No Implied Licenses or Other Authorizations. Customer acknowledges that, except as expressly stated in this Agreement, Customer received no other right, authorization or licenses under this Agreement and all such rights are reserved to Park Assist. Customer acknowledges that, as between the Parties, Park Assist owns all Intellectual Property Rights and proprietary interests that are embodied in, or practiced by, the Perpetual Software, the Subscription Software or the Documentation. Customer expressly acknowledges and agrees that the rights granted under this Agreement are limited to the Perpetual Software and the Subscription Software and delivered pursuant to a Sales Order. The Customer further acknowledges and agrees that nothing in this Agreement entitles Customer to the delivery of any future functionality or features that may be available from Park Assist beyond that which was acquired under this Agreement, and that such other, future or additional functions and features may be subject to additional Sales Order(s) or separate agreements between the parties. Park Assist shall only be obligated to provide Perpetual Software and Subscription Software that meet the Purpose.
5.3 Restrictions and Representations Regarding Use of Perpetual Software and Subscription Software.
(a) Customer agrees not to act outside the scope of the rights that are expressly granted by Park Assist in this Agreement. Specifically, Customer represents that it shall not:
(1) use the Subscription Software, any Perpetual Software or Documentation in any manner that is inconsistent with this Agreement;
(2) authorize access to or permit use of the Subscription Software, the Perpetual Software or Documentation by persons other than Authorized Users;
(3) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under the licenses and authorizations granted in this Agreement;
(4) modify or create any works comprised of, consisting or based upon all or any portion of the Perpetual Software, any of the Subscription Software, or Documentation, except with the prior written consent of Park Assist;
(5) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Subscription Software or the Perpetual Software and any underlying software is compiled or interpreted, and Customer hereby acknowledges that nothing in this Agreement shall be construed to grant Customer any right to obtain or use such source code;
(6) access or use the Subscription Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any third party, or that violates any applicable law;
(7) copy, reproduce, display or publish the Perpetual Software or Documentation except as expressly agreed herein;
(8) allow any third party to use the Subscription Software or the Perpetual Software on an application service provider (“ASP”) basis for their own ASP or software-as-a-service offering;
(9) create Internet “links” to the Subscription Software or copy, “frame” or “mirror” the Subscription Software (or any part thereof) on any other server or wireless or Internet-based device;
(10) access the Perpetual Software or Subscription Software (or any part thereof) for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, or in order to build a competitive product or service;
(11) perform any security or penetration testing without complying with any Third Party Security Testing Policy available at inx.parkassist.com and obtaining prior written consent of Park Assist of Park Assist’s web site and/or other Hosted Environment or other web application to (i) identify security weaknesses or to find security vulnerabilities that may be subject to attack or other exploitation, including gathering information about the target before the test, identifying possible entry points, attempting to break in — either virtually or for real — and reporting back the findings, or (ii) test Park Assist’s security policy, its adherence to compliance requirements, its employees’ security awareness and its ability to identify and respond to security incidents; or
(12) use or allow any other person or entity to use the Perpetual Software, Subscription Software or the Hosted Environment to:
(A) send “spam” or unsolicited messages in violation of applicable laws;
(B) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights;
(C) send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs; or
(D) modify, interfere with or disrupt the integrity or performance of the Subscription Software (including the data contained therein); or
(E) attempt to gain or permit unauthorized access to the Hosted Environment or Subscription Software or Park Assist’s (or its agents’) systems or networks.
5.4 Additional Customer Representations: Without limiting the foregoing, Customer further represents and warrants that it will not and will not permit any other person to upload, post, store, view, transmit, distribute or otherwise publish through the Subscription Software any Customer content or third party content that (i) restricts or inhibits any other person from using and enjoying the Subscription Software or the Perpetual Software, (ii) is unlawful, threatening, harassing, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit, invasive of another’s privacy, hateful, tortuous or indecent; (iii) constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law; (iv) violates, plagiarizes, or infringes the rights of third parties, including, but not limited to, intellectual property rights, rights of privacy or publicity or any other proprietary rights; (v) contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, (vi) constitutes or contains false or misleading indications of origin or statements of fact; or (vii) would harm minors in any way.
5.5 License Control. Customer acknowledges and agrees that (i) the Perpetual Software and software that is delivered as part of the Subscription Software may contain code or require devices that detect or prevent unauthorized use of the Perpetual Software and/or that will disable the Perpetual Software if it so detects unauthorized use, and (ii) Customer will provide Park Assist reasonable access to the automated audit logs maintained by the Perpetual Software. Customer shall not avoid, circumvent, or disable any security device, procedure, protocol, or mechanism that Park Assist may include, require or establish with respect to the Perpetual Software or the Subscription Software.
5.6 Compliance with Applicable Laws. Customer agrees to use the Subscription Software, the Perpetual Software and the Hosted Environment only for lawful purposes in compliance with all applicable laws, rules and regulations relevant in its local jurisdiction. Customer acknowledges and agrees that its compliance with this Section 5 is an essential basis for Park Assist’s entering this Agreement. Customer agrees that Park Assist shall be permitted, from time to time upon reasonable advance notice and without obtaining further approval of Customer, to unilaterally change certain terms and conditions of this Agreement so as to maintain legal or regulatory compliance or to meet any other applicable standard, to the extent necessitated by or desired as a result of legal, governmental regulatory, administrative or other factors that affect or impair the ability of Park Assist to fulfill its obligations imposed hereunder, and Customer’s acceptance of such changes shall be deemed given by Customer’s continued use of the Perpetual Software or acceptance of Subscription Software thereafter.
5.7 Blocked Access; Suspension or Termination of Use of Perpetual Software or Subscription Software.Park Assist may, directly or indirectly, and by use of any lawful means, suspend, block, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Subscription Software, Perpetual Software or Documentation (any or all such acts to constitute “Blocked Access”), or Park Assist may cease providing Subscription Software (including collecting or using data derived from Installed Products; any or all such acts to constitute “Suspension of Services”) without incurring any resulting obligation or liability, if: (a) Park Assist receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Park Assist to do so; or (b) Park Assist believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Perpetual Software, Documentation or Subscription Software beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Purpose; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Perpetual Software or the Subscription Software; or (iii) this Agreement expires or is terminated. In addition to the foregoing, Park Assist shall be entitled to implement (a) Blocked Access in the event that (i) Customer fails to agree to any changed terms or updates imposed under this Agreement or (ii) Customer fails to pay any charge imposed hereunder, in each case within 30 days following notice thereof, and (b) Suspension of Services if such failure to agree or to pay continues for an additional 90 days thereafter. This Section 5.7 does not limit any of Park Assist’s other rights or remedies, whether at law, in equity, or under this Agreement.
6 UPDATES AND CHANGES.
6.1 Park Assist may provide non-customized updates to the Subscription Software from time to time during the Term.
6.2 Park Assist reserves the right to: (a) change the name of any Perpetual Software or Subscription Software; (b) change the functionality of any Perpetual Software or Subscription Software; and (c) cease providing a Subscription Software (and require the Customer to use an alternative available Subscription Software), in each case with at least 30 days prior notice to the Customer (Change). Park Assist will only be permitted to implement a Change if the Change will not result in a Customer ceasing being able to use the Perpetual Software and the Subscription Software to achieve the same Purpose prior to the Change.
7 CUSTOMER OBLIGATIONS.
7.1 Customer Systems and Cooperation. Customer shall at all times during the term of this Agreement: (a) set up, maintain, and operate in good repair and in accordance with the Purpose, all Customer Systems on or through which the Subscription Software are accessed or used; (b) provide Park Assist personnel with such access to Customer’s premises and Customer Systems as is necessary to perform the Subscription Software in accordance with the required availability and Purpose; and (c) provide all cooperation and assistance as Park Assist may reasonably request to enable exercise of its rights and perform its obligations under and in connection with this Agreement.
7.2 Effect of Customer Failure or Delay. Park Assist is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
7.3 Customer Control and Responsibility.Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Subscription Software; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services; (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Subscription Software and Documentation directly or indirectly by or through the Customer Infrastructure or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
7.4 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Subscription Software; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Subscription Software.
7.5 Customer Infrastructure. Customer is solely responsible for the acquisition, maintenance and support of Customer Infrastructure.
8 PRIVACY.
8.1 Both parties agree to comply with all applicable law governing privacy with respect to any act done or practice engaged in for the purposes of their respective performance of this Agreement, and to ensure that any of their subcontractors or agents who may have access to Customer Data also comply with all applicable law governing privacy. This Agreement shall be deemed to incorporate the privacy policies of Park Assist in place from time to time, as disclosed to Customer or as identified on the Park Assist website.
8.2 Park Assist must take all reasonable steps to protect Personal Information against unauthorized access, misuse or loss and must return all such information to Customer (or if requested by Customer, destroy such information) upon termination or expiry of this Agreement in accordance with the terms of this Agreement. Park Assist must promptly notify the Customer, in writing, when it becomes aware or reasonably ought to become aware of any breach of its obligations under this Agreement that results in an actual or reasonably suspected unauthorized disclosure of Personal Information, whether by itself or its officers, employees, agents or sub-contractors and of steps taken to remedy the breach.
8.3 Park Assist may occasionally notify all users of the Subscription Software of important announcements regarding the operation of the Subscription Software and other announcements related to the Service and the Customer accordingly agrees:
(a) to receive such notices; and
(b) that the Customer will not have the option of opting out of receiving such notices.
9 FEES & PAYMENT.
9.1 Fees Payable. In consideration for the rights granted and the promises made by Park Assist under this Agreement and the applicable EULA, Customer agrees to pay to Park Assist the amounts stated in the applicable Sales Order at such times as the Sales Order requires. Customer agrees to make all payments, without offsets or other deductions, no later than the date when they are due.
9.2 Fee Increases. Park Assist may change Subscription Fees in respect of a Subscription Software by Park Assist updating the Software Catalogue, any such change in Subscription Fees will only be effective 40 days after the Software Catalogue is amended.
9.3 Additional Charges for Late Payments. If Customer fails to make any undisputed payment when due, Park Assist will have the right, without prejudice to any other remedies it may have, to charge an additional fee equal to one-and-one-half percent (1.5%) of the overdue amount for each full or partial month that the amount remains unpaid. If Park Assist elects to charge these additional amounts, Customer agrees to pay the charges in full within thirty (30) days after Park Assist issues an invoice.
9.4 Suspension of Subscription Software. In the event that Customer’s account is more than thirty (30) days overdue, Park Assist shall have the right in its sole discretion, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s access to the Subscription Software, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due in accordance with Section 9.3.
9.5 Tax Responsibilities.Unless otherwise stated, Park Assist’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Park Assist has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Park Assist with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Park Assist is solely responsible for taxes assessable against it based on its income, property and employees.
9.6 Additional Bays. Customer agrees that the Subscription Fees are calculated by virtue of the number of parking bays at the Site (“Bays”) which are specified in the Sales Order. Park Assist may conduct a review from time to time to verify that the actual number of Bays equals the number specified in the Sales Order (“Bay Audit”). The Customer agrees to pay an adjusted Subscription Fee if Park Assist detects any additional Bays as a result of the Bay Audit. If the Bay Audit results in less Bays than the number contained in the Sales Order, there will be no adjustment to the Subscription Fee.
10 CONFIDENTIALITY AND DATA SECURITY.
10.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
10.2 Mutual Confidentiality Obligations.Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that Park Assist may collect aggregated statistical data regarding Customer’s use of the Subscription Software and provide such aggregated statistical data to third parties. In no event shall Park Assist provide to third parties specific data regarding Customer or Customer’s authorized users.
10.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 10.1 and 10.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
10.4 Limitation Period. The obligations set forth in this Section 10 shall survive the termination or expiration of this Agreement for a period of two (2) years. This Agreement shall be deemed to incorporate the data retention policies of Park Assist in place from time to time, as disclosed to Customer or as identified on the Park Assist website.
11 REPRESENTATIONS AND WARRANTIES.
11.1 Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
11.2 Park Assist hereby represents and warrants that on the Delivery Date, the Perpetual Software will comply with the Purpose.
11.3 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 11, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SOFTWARE, THE PERPETUAL SOFTWARE, THE DOCUMENTATION, AND ALL OTHER PRODUCTS AND SERVICES PERFORMED OR PROVIDED BY PARK ASSIST ARE PERFORMED AND PROVIDED “AS IS,” AND PARK ASSIST DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. PARK ASSIST DOES NOT WARRANT THAT THE SUBSCRIPTION SOFTWARE, THE PERPETUAL SOFTWARE, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY PARK ASSIST WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SUBSCRIPTION SOFTWARE, THE PERPETUAL SOFTWARE, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY PARK ASSIST WILL OPERATE IN CUSTOMER’S OR ANY COMPUTER ENVIRONMENT, BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
12 INDEMNIFICATION.
12.1 Indemnification of Customer. Park Assist agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs, expenses (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the authorized use of the Subscription Software, the Perpetual Software and/or the Documentation infringes such third party’s U.S. patents issued as of the date of this Agreement, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of the United States of America. If such a claim is made or appears possible, Customer agrees to permit Park Assist, at Park Assist’s sole discretion, to: (a) enable Customer to continue to use the Subscription Software, the Perpetual Software or the Documentation, as applicable; (b) to modify or replace any infringing material to make it non-infringing; or (c) require Customer to cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. This Section 12.1 shall not apply if the alleged infringement, violation or misappropriation arises, in whole or in part, from: (i) modification of the Subscription Software, the Perpetual Software or the Documentation by Customer; (ii) combination, operation or use of the Subscription Software or the Perpetual Software with other software, hardware or technology not provided by Park Assist; or (iii) the collection, use, storage, sharing, analysis or distribution of the Customer Content or any Third Party Content. This Section states Park Assist’s entire obligation and liability with respect to any claim of infringement, misappropriation or violation of any Intellectual Property Right.
12.2 Customer’s Indemnity Obligations. Customer agrees to indemnify, defend and hold harmless Park Assist from and against any and all losses, liabilities, costs, expenses (including reasonable attorneys’ fees) or damages resulting from any claim by any third party based upon or arising from (a) Customer’s gross negligence or willful misconduct; (b) Customer’s handling of any warranty claim from a customer of Customer; (c) claims of infringement, misappropriation or violation of any third-party proprietary right, including copyright, patent, trade secret, right of publicity, right of privacy, and trademark rights, arising from the use, storage, retransmission and analysis of any Customer Data or (iv) claims based upon a breach of Section 7 and Section 10.2.
12.3 Indemnification Procedures. With respect to any claim, demand or action for which an indemnity is provided under this section, the party to be indemnified (the “Indemnified Party”) shall: (i) give prompt written notice to the indemnifying party (the “Indemnifying Party”) of the claim, demand or action for which an indemnity is sought (provided, however, that failure of Indemnified Party to provide such notice will not release the Indemnifying Party from any of its indemnity obligations except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced thereby), (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action, at the expense of the Indemnifying Party; and (iii) give the Indemnifying Party sole control over the defense or settlement of any such claim; provided, however, the Indemnifying Party shall not enter into any settlement without the Indemnified Party’s express consent that (1) assigns, imparts or imputes fault or responsibility to the Indemnified Party or its affiliates, (2) includes a consent to an injunction or similar relief binding upon the Indemnified Party or its affiliates, (3) fails to contain reasonable confidentiality obligations protecting the confidentiality of the settlement, or (4) provides for relief other than monetary damages that the Indemnifying Party solely bears.
12.4 THE PROVISIONS OF THIS SECTION 12 SET FORTH EACH PARTY’S SOLE AND EXCLUSIVE OBLIGATIONS, AND EACH PARTY’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
13 EXCLUSIONS AND LIMITATIONS OF LIABILITY.
13.1 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, FOREGONE REVENUES, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR INDEMNIFICATION OF CLAIMS FROM, OR LIABILITIES TO, THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, AND FURTHER INCLUDING A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO PARK ASSIST BY THE CUSTOMER ATTRIBUTABLE TO CHARGES FOR THE SUBSCRIPTION SERVICE SOFTWARE DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
13.2 NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY ACTS OR OMISSIONS RELATING TO THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO YEARS AFTER THE OCCURRENCE OF SUCH ACT OR OMISSION.
13.3 Essential Basis of the Agreement. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 13 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
14 TERM AND TERMINATION.
14.1 Term of Agreement. The Parties intend for this Agreement to become legally enforceable starting on the date hereof. This Agreement will initially remain in effect for the period commencing the date hereof and end on the date following the date that the last Subscription Service terminates, unless either Party terminates it in one of the situations permitting termination as described below.
14.2 Term of Subscription Service. The Sales Order in respect of a Subscription Service will specify the commencement date for the Subscription Service and may specify the duration of the subscription term of that Subscription Service, failing which the subscription term in respect of Subscription Service will be deemed to be one (1) year (Subscription Term). If the Agreement or the Subscription Service has not been terminated prior to the end of the initial Subscription Term, the duration of the Subscription Term will be extended one (1) year at a time, successively, unless (i) either Party delivers a notice to the other Party at least thirty (30) days prior to commencement of the next extension, stating that it does not wish to extend the duration of the Subscription Term any longer, (2) Park Assist notifies the Customer at any time during the Subscription Term that it no longer wishes to continue providing that Subscription Service beyond that Subscription Term, or (3) unless during an extension period either Party terminates the Agreement in one of the situations permitting termination as described below.
14.3 Termination for Breach. Either Party may terminate this Agreement immediately by providing a notice to the other Party if the notified Party has failed to perform any material obligation and has not fully cured the failure within thirty (30) days after it has been given an initial notice specifying the breach.
14.4 Termination Upon Bankruptcy or Insolvency. Either Party may also have the right to terminate this Agreement in the event the other Party (i) becomes insolvent, (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty days of the filing of such petition, (iii) is placed under the control of a receiver, liquidator or committee of creditors, or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course.
14.5 General consequences of termination. Effective immediately upon expiration or termination of this Agreement, all access rights and licenses granted under this Agreement will become void, and neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any intellectual property rights having been licensed under this Agreement. As soon as can reasonably be accomplished after this Agreement expires or is terminated, each Party will discontinue its use and will return the Confidential Information and proprietary materials of the other Party. If a Party has payment obligations that have accrued but remain unpaid at the time of expiration or termination, the Party will make payment in full within ten (10) days after the expiration or termination. Notwithstanding this clause, the perpetual license in respect of the Perpetual Software will survive any termination of this Agreement.
14.6 Continuing Force of Certain Provisions. Even if this Agreement expires or is terminated, the Parties agree to remain bound by the provisions of Sections 1, 3, 5, 8, 10, 12, 13, 14 and 15.4. The rights and duties created by those provisions will not expire or terminate but will remain in effect for so long as the provisions themselves expressly state, or, if not stated, indefinitely. Each Party will retain any claims accrued prior to expiration or termination, such as accrued rights to receive payments from the other Party.
15 MISCELLANEOUS PROVISIONS.
15.1 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties at their respective addresses below, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision.
Customer:
Per INX user contact details
Park Assist:
Park Assist, LLC
57 W 38th Street 11th Floor
New York, NY 10018 Phone:
Email:
Facsimile:
Attn:
All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either Party delivers any notice by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
15.2 Limitations on Assignment and Delegation.The Parties agree that neither of them will have the right or ability to assign to any third party some or all of its rights under this Agreement, nor to delegate to any third party some or all of it its duties. Any document, instrument or act that claims to make such an assignment or delegation will be interpreted as wholly ineffective and will be disregarded. A Party may waive enforcement of this provision only by physically signing a paper document that expressly indicates its consent to the other Party’s assignment or delegation. As an exception to the provisions of this paragraph, Park Assist may, without needing to obtain consent, assign this Agreement to the surviving entity of a merger to which it is a party, or it may assign this Agreement as part of an assignment of substantially all of its business related to this Agreement. Park Assist may also assign its right to receive payments under this Agreement without requiring consent from Customer, but it must provide notice of that assignment to the Customer before the assignment will be considered effective.
15.3 Benefit of Agreement Parties Only. The Parties intend to make commitments only to each other under this Agreement, and only for their respective benefits. They do not intend to give any third party (including Authorized Users) any right to enforce this Agreement or any part of it.
15.4 Governing Law. This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with, and shall be governed by, the laws of the State of New York, without giving effect to its rules regarding conflict of laws. Customer expressly agrees with Park Assist that this Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods. Both parties irrevocably consent to the personal jurisdiction of the state and federal courts located in New York, New York for any suit or action arising from or related to this Agreement, and each waives any right they may have to object to the venue of such courts. Each Party agrees that the Uniform Computer Information Transaction Act or any version thereof, adopted by any state, in any form (“UCITA”), shall not apply to this Agreement. To the extent that UCITA is applicable, the Parties agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein. Each Party hereby waives its respective rights to a trial by jury in any legal action.
15.5 Entire Agreement.The Parties agree that the provisions of this Agreement and any applicable EULA and Sales Order that is put in place under this Agreement shall constitute the entire agreement between them regarding the matters that this Agreement addresses. The Parties also agree that, except as otherwise agreed in writing, all prior agreements about these same matters, whether written or oral, are superseded by this Agreement, and previous oral agreements between the Parties do not have any legally binding force.
15.6 Inclusive Interpretations. The Parties agree that the following rules should be applied when interpreting the words of this Agreement, unless the express words of the Agreement indicate otherwise: (i) all references to one gender apply equally to both genders; (ii) definitions of nouns in the singular also apply to the plural, and vice versa; and (iii) any use of the term “including,” if followed by a list, will be interpreted to mean “including, without limitation.”
15.7 Writings. If any provision in this Agreement requires a writing, the writing must be typed or hand-written on paper, and any provision requiring a signed writing will be interpreted to require a hand-written signature. For clarity, communications by email are not “writings” for purposes of satisfying any particular requirement in this Agreement unless the requirement expressly states that email communications are acceptable.
15.8 Section References. References to “sections,” “paragraphs,” “clauses” and “provisions” are references to portions of this document only, unless the reference expressly states otherwise.
15.9 Counting of Days. Whenever this Agreement makes reference to a certain number of days, it is referring to calendar days, unless it specifically references “business days,” in which case the counting of days will exclude Saturdays, Sundays, and all holidays when the offices of U.S. federal agencies are closed.
15.10 Background Information. If any background information or “recitals” are contained on the first page(s) of this document prior to the contractual provisions, the Parties intend that such information and recitals should have no legally binding effect whatsoever, nor be interpreted as representations or warranties. However, any terms that are defined in that information or those recitals will apply throughout the Agreement unless the Agreement contains an express statement to the contrary.
15.11 Participation in Drafting. The Parties intend that this Agreement should be interpreted in all instances as if they participated equally in the drafting of all its provisions, and that no provision in this Agreement should be interpreted in a manner unfavorable to a Party on the basis that it drafted the provision.
15.12 Enforceability. Even if the law will not enforce a provision of this Agreement in a particular instance, the Parties intend to remain bound by the other, enforceable provisions. If the unenforceable provision could be interpreted in a manner that would render it enforceable, while still reflecting the Parties’ mutual intent, they intend for that interpretation to apply. If permitted by law, the Parties also intend for the provision that cannot be enforced in that instance to remain applicable in any other instances when it can be enforced.
15.13 Agreement Amendments. The Parties acknowledge that they may desire to modify this Agreement in the future, but that no modifications will be legally binding unless the modifications are set out in a writing acknowledged by both parties in either an electronic or documentary format. The Parties agree that this Agreement cannot be modified by electronic writings, such as email, nor by affixing digital signatures of any nature to any digital file.
15.14 Waivers. Even if a Party fails to enforce its rights under this Agreement in a particular instance, the other Party must still perform its duties in that instance unless the non-enforcing Party physically signs a paper that expressly waives its rights in that instance, and any such waiver only applies to the particular instance and particular rights expressly waived.
15.15 No implications of section titles. The titles to each of the sections of this Agreement are intended only to facilitate convenient reference; the Parties agree that those titles are not part of the Agreement and should not be used to interpret any part of this Agreement.
15.16 Force Majeure. No Party hereto shall be liable nor deemed to be liable to the other party for failure or delay in meeting any obligation hereunder due to strikes and/or lockouts (whether of their own employees or those of others and whether or not the party against whom such action is taken could have avoided the same by acceding to the demands of the employees responsible for such action), Acts of God, war, fire, flood, embargo, litigation, acts of government or any agency instrumentality or any political subdivision thereof, pandemic or similar scope of spread of infectious disease, or any other cause beyond the control of the Party which had the duty to perform.
PARK ASSIST PROVIDES THE SERVICES AND PERPETUAL SOFTWARE IDENTIFIED IN THIS AGREEMENT SOLELY ON THE TERMS AND CONDITIONS SET FORTH HEREIN AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON THAT APPEARS BELOW YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, PARK ASSIST WILL NOT PROVIDE THE SERVICES DESCRIBED HEREIN NOR LICENSE THE PERPETUAL SOFTWARE TO CUSTOMER AND YOU MUST NOT ACCESS, DOWNLOAD OR INSTALL (AS APPLICABLE) THE SOFTWARE OR ACCESS THE SERVICES.
