FLASHVALET FREE OPERATOR AGREEMENT
This Operator Agreement (this “Agreement”) is a legal agreement between the corporation, partnership, sole proprietor, or other business entity on whose behalf you are accepting this Agreement (“you” or “your”) and FlashParking, Inc., its affiliates, and each of their respective successors and assigns (collectively, “FlashParking”) governing your use of (i) FlashParking’s FlashValet Free service and/or any other similar services developed, operated, or provided to you by FlashParking, (ii) the Content (as defined below) contained therein, and (iii) any offline components provided by FlashParking for use in connection therewith (collectively, the “Service”).
BY CLICKING ON “I AGREE” AND/OR OTHERWISE USING THE SERVICE, YOU ARE AGREEING THAT YOU HAVE READ, AND AGREE TO COMPLY WITH AND BE BOUND BY, THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION, AS WELL AS ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO FOLLOW ALL APPLICABLE LAWS, YOU ARE NOT PERMITTED TO AND SHALL NOT USE THE SERVICE.
1. Your Use of the Services
a. FlashParking agrees to provide a limited version of the FlashValet service to you subject to your strict compliance with the terms and conditions of this Agreement. FlashParking will process parking transactions, collect payment, and pay all processing costs, including credit card merchant fees, for such transactions. All other features and functionality of the Service shall be determined from time-to-time by FlashParking in its sole discretion. The decision to utilize the Service is solely yours and you assume the responsibility and any assumption of risk associated with your use of the Service.
b. In the event that you have entered into a separate written agreement with FlashParking governing your use of the Service and such agreement includes terms or conditions that conflict with the terms and conditions in this Agreement, the terms and conditions of the separate written agreement shall govern.
a. FlashParking agrees to pay you the entire amount received by FlashParking in connection with each cash transaction processed by you through the Service. In addition, FlashParking agrees to pay you the entire amount received by FlashParking in connection with each credit card transaction processed by you through the Service MINUS the applicable Convenience Fee. Convenience Fees are charged by FlashParking in connection with each of your transactions in which a credit card is used for payment. The amount of the Convenience Fee is determined by FlashParking, and may be changed by FlashParking from time-to-time, in its sole discretion.
b. FlashParking will pay balances due to you via ACH credit on a weekly basis. You hereby authorize FlashParking to initiate payments directly to your bank account via ACH credit.
c. Each payment by FlashParking to you shall be accompanied by a report detailing the transaction amount, the transaction date and, for each credit card payment, the amount of the Convenience Fee charged by FlashParking in connection with such transaction.
a. You shall be responsible for remitting to the applicable taxing authority all federal, state, and local taxes imposed on each of your transactions processed through the Service. You shall include any such applicable taxes in the transaction price you charge your customer through the Service. FlashParking shall collect such taxes and remit them to you as part of the payment made to you pursuant to Section 2 above. Additionally, you shall be responsible for remitting to the applicable taxing authority all federal, state, and local income taxes related to each of your transactions processed through the Service, and FlashParking shall have no obligation to collect or remit any income-related taxes to any authorities on your behalf. You agree to indemnify FlashParking from and against any costs, claims, and other liability incurred by FlashParking as a result of your failure to comply with your obligations under this paragraph
a. You hereby authorize us to withhold payment of any amount owed to FlashParking if: (i) a transaction is canceled for any reason; (ii) an adjustment is made to any transaction charge; (iii) FlashParking reasonably believes that your customer has committed fraud or other illegal acts or omissions during or in connection with any transaction, or (iv) you provide incorrect or misrepresented parking and/ or parking-related services for any transaction or portion thereof. You further agree that FlashParking shall have the right to offset any payment or reverse ACH debit your account for any and all past due payments, ACH and credit card chargebacks or reversals, NSF charges as well as all other fees, costs or expenses owed by you to FlashParking.
5. License Grant.
a. Subject to the terms and conditions of this Agreement, FlashParking hereby grants you a limited, non-exclusive, non-transferable, license to access and use the Service solely on a server controlled by FlashParking and solely for your own internal business purposes. All rights not expressly granted to you are reserved by FlashParking and its licensors. The license granted herein is conditioned on your continued compliance with the terms and conditions of this Agreement.
b. Your use of the Service is limited to the scope of the license granted in this Agreement and this Agreement does not permit you to use the Service other than as provided herein. You acknowledge that the Service includes and constitutes valuable trade secrets and/or the confidential information of FlashParking or its licensors. You acknowledge and agree that except as otherwise authorized under this Agreement or otherwise specified in writing between the parties:
i. You shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, grant a security interest in, or otherwise transfer any rights to, or commercially exploit except as expressly permitted in any ordering document to which FlashParking and you have agreed, the Service or any information, documents, software, products and services contained or made available to you in the course of using the Service (the “Content”) or use the Service to run or as part of a service bureau, outsourced, or managed services arrangement;
ii. You shall not copy, reproduce, republish, upload, post, transmit or distribute the Service or the Content in any way;
iii. You shall not modify, translate, alter, adapt, decompile, disassemble or reverse engineer (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display, or create derivative works, compilations or collective works, based on the Service or the Content;
iv. You shall not knowingly or negligently permit other individuals or entities to use or copy the Service, or create Internet “links” to the Service or “frame” or “mirror” the Service on any other server or wireless or Internet-based device; and
v. You shall not access the Service in order to (a) build or improve a competitive product or service, (b) build or improve a product using similar ideas, features, functions or graphics of the Service, (c) copy any ideas, features, functions or graphics of the Service, or (d) monitor its availability, performance, or functionality, or (e) for any other benchmarking or competitive purposes.
a. Authorized User Accounts. You may establish accounts for your employees or independent contractors to use the Service on your behalf. Once such person has agreed to these Terms and Conditions, and FlashParking has authorized his or her access, such person is defined as an “Authorized User”. Authorized Users must each agree to this Agreement and shall at all times abide by the terms set forth in this Agreement and any such additional terms. You shall immediately notify FlashParking in the event that you become aware of any violation of the terms of this Agreement. You shall be liable for any breach of this Agreement by an Authorized User. In the event that an Authorized User becomes aware that the security of such party’s login information has been breached, you shall immediately notify FlashParking and you shall immediately de-activate such Account or change the Account’s login information. Any person accessing the Services by or through you with your knowledge or permission (or through your negligent actions or omissions) who has not agreed to these Terms and Conditions is doing so in express breach of these Terms and Conditions; you remain fully responsible for the acts and omissions of such unauthorized person (“Unauthorized User”).
7. PROPRIETARY RIGHTS.
a. Service Ownership. All right, title and interest in the Service, including technology and trade secrets embodied therein and any Content or developments created or provided in connection with or related to the Service and the Site, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to FlashParking or its licensors, and you shall have no rights whatsoever in any of the foregoing. You acknowledge that the Service constitutes a valuable trade secret and/or is the confidential information of FlashParking or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Service, in whole or in part. All Content and materials included as part of the Service, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Works”) are the property of FlashParking or its content suppliers and are protected by copyrights, trademarks, trade secrets, or other proprietary rights and these rights are asserted and protected in all forms, media and technologies existing now or hereinafter developed. Works are or may be copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and FlashParking owns a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify,
remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptation, translation, republication, display, or performance, of the Works, except as specifically permitted herein, is strictly prohibited. You understand and acknowledge that unauthorized disclosure, use or copying of the Works, proprietary products, and/or Services provided pursuant to this Agreement may cause FlashParking and its licensors irreparable injury, which may not be adequately remedied at law, and you agree that FlashParking and its licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
b. Data. The parties agree that the data that is collected by FlashParking from you, any Authorized User, and/or any of your customers in connection with your use of the Service (“Data”) shall be available to FlashParking for the purpose of performing its obligations under this Agreement and for any other purpose to the extent permitted by applicable law. This Section shall survive the expiration or termination of this Agreement.
c. Confidentiality. You acknowledge that the Service, the terms of this Agreement or other agreements between the parties, the amount of the Convenience Fee, and any other proprietary or confidential information provided to you by FlashParking (“Confidential Information”) constitutes valuable proprietary information and trade secrets of FlashParking. You agree to preserve the confidential nature of the Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for your internal use in accordance with the licenses granted hereby, and by using the same degree of protection that you use to protect similar proprietary and confidential information, but in no event less than reasonable care. You shall not disclose any Confidential Information to any third party without FlashParking’s prior written approval, except in the event of Compelled Disclosure. In the event of Compelled Disclosure, you shall provide FlashParking with prompt prior notice of the disclosure requirement if permitted to do so, shall cooperate with FlashParking (at FlashParking’s expense and request) to limit or quash such disclosure, and shall in all cases disclose only the minimum amount of information necessary to comply with the Compelled Disclosure. “Compelled Disclosure” means disclosure that is required by applicable law or by the demand (e.g., a warrant or subpoena) of a government body having jurisdiction in the matter. FlashParking shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section. You agree to promptly report any breaches of this section to FlashParking.
8. LPR Data
a. You acknowledge and agree that if you use an automated license plate reader, including any system having a searchable computerized database resulting from the operation of one or more mobile or fixed cameras combined with computer algorithms to read and convert images of registration plates and the characters they contain into computer-readable data, to collect license plate information, then you shall be responsible for compliance with all laws regarding the collection, storage, use, management and deletion of all license plate recognition and other data or information (“LPR Data”) collected through the use of the Service.
9. DISCLAIMER OF WARRANTIES.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SERVICE IS PROVIDED “AS-IS” AND “WITH ALL FAULTS”, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLASHPARKING, INCLUDING ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUBCONTRACTORS, DISTRIBUTORS, SERVICES PARTNERS, AGENTS AND MARKETING PARTNERS AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE “FLASHPARKING PARTIES”) DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICE, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT AND ACCURACY AND NON-INTERFERENCE; (B) NEITHER FLASHPARKING NOR ANY FLASHPARKING PARTY WARRANTS THAT (i) THE SERVICE IS OR WILL BE SECURE, ACCURATE,
COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS, (ii) THE SERVICE WILL MEET YOUR REQUIREMENTS, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; (C) YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF FLASHPARKING’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) FLASHPARKING AND THE FLASHPARKING PARTIES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, USEFULNESS, OR EFFECTIVENESS OF THE FORMS, DATA, REPORTS, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY YOU FROM ACCESSING AND/OR USING THE SERVICE OR OTHERWISE RELATING TO THIS AGREEMENT, AND (E) USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK AND NEITHER FLASHPARKING NOR ANY OF THE FLASHPARKING PARTIES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY THEREFOR.
10. INTERRUPTION OF SERVICE.
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SERVICE AND/OR TO TRANSMIT INFORMATION TO AND FROM THE SERVICE, INCLUDING BUT NOT LIMITED TO THE PUBLIC TELEPHONE NETWORK, COMPUTER NETWORKS, WI-FI, BLUETOOTH, AND THE INTERNET, WHETHER OR NOT SUPPLIED BY YOU OR FLASHPARKING, CAN BE UNPREDICTABLE OR SUFFER FROM FAILURES AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT THE ACCESS TO AND/OR THE USE OR OPERATION OF THE SERVICE. NEITHER FLASHPARKING NOR ANY OF THE FLASHPARKING PARTIES SHALL BE LIABLE FOR ANY INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO AND/OR USE OF THE SERVICE.
11. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL FLASHPARKING BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOOD WILL, EVEN IF FLASHPARKING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. FLASHPARKING SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST YOU BY THIRD PARTIES. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF FLASHPARKING IN CONNECTION WITH THE SERVICE AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT OF THE PAYMENTS MADE TO FLASHPARKING FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM IN THE SIX (6) MONTHS PRIOR TO SUCH CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICE MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. YOU ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF THE REMEDIES FAIL THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, YOU WOULD HAVE PAID A HIGHER FEE FOR THE SERVICE PROVIDED HEREUNDER. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
You shall indemnify, defend, and hold harmless FlashParking and its directors, employees, agents, and distributors from and against all damages and liabilities (including reasonable attorneys’ fees) that arise from a third party’s claim resulting from (a) unauthorized use of the Service by an Unauthorized User, you or any Authorized User; (b) any act or omission of you or any Unauthorized User or Authorized User that violates this Agreement and/or that constitutes negligence, willful misconduct or a violation of applicable law; or (c) damage caused to any real or tangible personal property, including without limitation any motor vehicle, and damage related to any injury or death.
The term of this Agreement commences on your first use of the Service and continues through any subsequent use of the Service thereafter. Any unauthorized use of the Service will be deemed a material breach of this Agreement. FlashParking, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement or FlashParking’s then-current payment or chargeback policies. In addition, FlashParking may terminate a free account at any time in its sole discretion. If Service is suspended, whether for non-payment or any other reason, in order to reinstate service, FlashParking at its discretion may require you to re-subscribe to the Service, including the payment of any fees required to be paid by a new subscriber and/or to pay any applicable reinstatement fees.
a. Publicity. You agree that FlashParking may include venue name(s) (and logos) and location addresses of all locations using the Service in materials prepared for the purposes of location mapping. FlashParking may include your name and logo on its website and in customer lists and sales presentations. In addition, FlashParking, only with your prior written approval, may include your name, logo or other trademarks, and your success stories in press releases, white papers, promotional and sales literature, and advertising materials.
b. Independent Contractor. In performing under this Agreement, each party is acting as an independent contractor to the other, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect. Neither party has the right to bind the other party to any contract or agreement without that party’s prior written consent.
c. Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, lightning or wind, civil commotion, strikes, terrorism, war (declared or undeclared), failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.
d. Assignment. Either party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection shall be void.
e. Governing Law and Venue. This Agreement shall be governed by the Federal Arbitration Act, and to the extent not inconsistent therewith the laws of the State of Texas, U.S.A. (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). Further, the parties agree that any claim or cause of action under or relating to this Agreement shall be brought in the state or federal courts located in Austin, Texas, United States and the parties agree to submit to the exclusive personal jurisdiction of such courts, except to the extent that arbitration is required hereunder.
f. Arbitration. Except for any claims for temporary or permanent injunctive relief or actions enforcing the results of arbitration, any and all disputes, controversies or claims arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“Rules”) in effect on the date of this Agreement by a single arbitrator appointed in accordance with said Rules. The appointing authority shall be the American Arbitration Association. The place of arbitration shall be Austin, Texas, U.S.A. The arbitration shall be conducted in the English language. The determination of the arbitrator shall be final and binding upon the parties to the arbitration. Discovery shall be permitted, but only to the extent that the documents are directly relevant to and needed for fair resolution of one or more of the issues of importance and can be located and produced at a cost that is reasonable in the context of all surrounding facts and circumstances. When the cost and burden of discovery are disproportionate to the likely importance of the requested materials, the arbitrator may deny the requests or require that the requesting party advance the reasonable cost of production to the other side. The arbitrator may not award non-monetary or equitable relief of any sort, nor award damages inconsistent with this Agreement. All aspects of the arbitration shall be treated as confidential. Judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction. THE PARTIES SURRENDER AND WAIVE THE RIGHT TO SUBMIT ANY DISPUTE TO A COURT OR JURY, OR TO APPEAL TO A HIGHER COURT. THE PARTIES AGREE TO ARBITRATION ON AN INDIVIDUAL BASIS. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). Notwithstanding the foregoing, nothing in these Terms and Conditions shall prohibit either party from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm for which monetary damage would be insufficient. The proceedings shall be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws and the arbitrator shall otherwise follow the law and judicial precedents that a United States District Judge sitting in the Western District of Texas would apply to the dispute.
g. Miscellaneous. Except as otherwise set forth in Section 1.b., this Agreement including the exhibits attached hereto, constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. FlashParking reserves the right to update this Agreement from time to time by providing separate notice to you. Your continued use of the Service after any update is deemed your agreement to such changes. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original shall be substituted and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect its original intent, or if that is impossible while preserving the intent of the parties, the invalid provision shall be deemed stricken and in any case the other provisions hereof shall continue in full force and effect. This Agreement is in the English language only, and the English language version shall control in all respects. In the event that this Agreement is translated into another language, such translation is provided only as a courtesy and shall not be binding upon the parties. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof.