These License, Service and Product Usage Terms and Conditions (the “Agreement” or “Terms and Conditions”, which shall include any and all schedules, addendums, or attachments incorporated herein, as well as all amendments or supplements of such documents and the Agreement) is entered into and effective as of date set forth in an applicable order form (the “Order Form”) by and between FlashParking, Inc., a Delaware corporation (together with its subsidiaries and affiliates, , “Flash”) and the customer listed on the Order Form (“Customer”). Flash and Customer at times are each referred to herein as a “Party” and, collectively, as the “Parties.”
This Agreement sets forth the terms and conditions governing Customer’s purchase of any configuration of Equipment, Services, and Software (collectively “Flash Offerings”).
The Order Form will provide, where applicable, a description of the Flash Offerings to be provided by Flash and the consideration to be paid for by Customer for the same. The Order Form must be signed by the Parties to be valid and become governed by this Agreement, but nothing in any Order Form shall modify or change the terms contained in this Agreement unless expressly stated therein.
Supplemental terms and conditions necessary for certain Flash Offerings may be included in an addendum to this Agreement. In the event of a conflict between the terms of any Order Form, Addendum or Attachment, this Agreement shall supersede, govern and control to the extent of the inconsistency, unless expressly stated otherwise.
NOW THEREFORE, in consideration of the covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1 Description of the Flash OS System
1.1 Kiosks, gates, ticket dispensers, scanners, RFID readers, cameras and other hardware and accessories to be delivered to Customer as specified in the relevant Order Form and any additional Order Forms entered into by the Parties from time to time shall be referred to as “Equipment”.
1.2 Any programmed code contained within the Equipment or used by Flash in the delivery of any of the Services shall be referred to as “Software” and may be further described in the Order Form and additional terms may apply pursuant to Attachments.
1.3 Flash may provide the services set forth below (collectively, the “Services”) which shall be further described in an Order Form according to the Customer’s purchase. The Services may include:
1.3.1 installation, electrical, cabling, and related services required to place the Flash Offerings into service at Customer’s sites (“Installation Services”);
1.3.2 consulting, administrative, and technical services (“Professional Services”);
1.3.3 hosted subscription services provided by Flash through the Flash portal, FlashParking.com website, through any mobile application offered by Flash, or through any other means by which Flash chooses to deliver the Software in the future (“Subscription Services”);
1.3.4 merchant payment services for use with the Equipment and Services by means of a credit card, debit card, prepaid card, gift card, loyalty card, discount card or other means of payment, including crediting or debiting such cards (“Payment Gateway Services”). Payment Gateway Services will conform at all times to applicable laws pertaining to PCI compliance. Payment Gateway Services are rated as a DSS Level 1 for PCI Compliance.
1.3.5 Final inspection, configuration, start-up, testing and enrollment services required to bring the Equipment and Services into full operation, including confirming appropriate interface/communications with the Flash data center(s) (“Commissioning Services”).
1.4 Additional Flash Offerings may come available over time and a description and any necessary terms for those Flash Offerings will be captured by an Addendum to this Agreement.
1.5 Flash may subcontract any Service in whole or in part to subcontractors selected by Flash. Any subcontractors will be required to comply with this Agreement and Flash will be responsible for their performance. Customer shall cooperate and assist Flash and its subcontractors as reasonably requested by Flash as necessary to facilitate the provision of such Services as described in the applicable Order Form.
1.6 The Parties shall cooperate so Flash can provide Installation Services in an efficient and timely manner.
1.6.1 In the event any Installation Services are completed by a third-party not directly under Flash’s supervision: (a) Flash will not bear any risk associated with the Installation Services and (b) Customer warrants that the Installation Services will be and are consistent with Flash specifications and all documentation, requirements, and procedures made available to Customer.
1.6.2 Regardless of who provides the Installation Services, the cost of obtaining all required local electrical/site/construction licenses, permissions, and permits necessary to allow the installation to lawfully proceed shall be Customer’s responsibility.
1.7 Commissioning Services shall follow Flash’s standard procedures to confirm the Flash OS operates in conformance with the terms of this Agreement. Failures caused by Flash shall be rectified solely at Flash’s cost. Failures caused by the Customer may be rectified by Flash at Customer’s sole expense and Flash will bill Customer using Flash’s then-standard commercial time and materials rates. This includes travel and per diem expenses and shall be payable to Flash in accordance with the payment terms of the Agreement.
1.8 Either Party may request changes to the Professional, Installation and/or Commissioning Services to be provided by Flash (a “Change Order”). Once the Parties agree to a Change Order, Flash will prepare a written description of the agreed-upon changes, including additional fees to be charged, which must be signed by both Parties before it is binding on the Parties. While the Parties are discussing a Change Order request, Flash shall continue to work in accordance with the existing Order Form.
2 General Use; Use Restrictions
2.1 Subject to the terms and conditions set forth in any Order Form, Customer is hereby granted a restricted, limited, revocable, non-transferable, non-exclusive license to use the Equipment, Software and Services (collectively, the “Flash Offerings”). Customer access will be limited to the permitted users identified by Customer, each of whom is an employee or authorized agent or contractor of Customer. Customer’s rights are personal, non-transferable, non-sub licensable, and non-exclusive. Customer’s access to Flash OS may be terminated and this license revoked by Flash upon any breach by Customer of this Agreement or any additional terms and conditions that may be set forth in separate Order Forms, attachments, or other valid documents provided to Customer.
2.2 Except as expressly permitted herein or in any applicable Order Form, Customer will not alter, modify or adapt any Flash Offerings. This includes but is not limited to: (a) translating or creating derivative works of the Offerings or any data or content contained therein; or (b) distributing, reselling, permitting access to, publishing, commercially exploiting, disclosing or otherwise transferring or making the Flash Offerings available to any other person or organization. Customer agrees that any user identifications, passwords or other entitlement information related to Customer’s authorized users shall be maintained in confidence and used only by the user to which such information is assigned. Customer agrees to use the Flash Offerings only as expressly permitted by this Agreement and in accordance with all applicable laws, rules and regulations. Customer shall have no rights or license of any kind with respect to the Flash Offerings other than as set forth in this Agreement. Customer agrees that, upon reasonable notice during the term of this Agreement, Flash may, at its sole discretion, request documentation from Customer to confirm that Customer is compliant under the terms and conditions of this Agreement.
2.3 Flash shall be entitled to recover from the Customer, in addition to any other rights and remedies it may have, all reasonable costs and expenses, including without limitation all attorneys’ fees, if Flash is required to bring any action or suit to enforce Flash rights hereunder or to pursue any remedies as a result of Customer’s violation of the terms and conditions in the Agreement.
3 Confidential Information, Proprietary Information, and Intellectual Property Rights
3.1 All material, non-public, business-related information, written or oral, whether or not it is marked “Confidential”, that is disclosed or made available to Customer, directly or indirectly, through any means of communication or observation is “Confidential Information”.
3.2 Information owned by Flash to which Flash claims a protectable interest under law, which includes Confidential Information, shall be “Proprietary Information”. The following information, all as reasonably substantiated by documentation, however, is not Proprietary Information and Customer is not restricted as to its use or disclosure: (a) information already in the possession of, or already known to, the Customer as of the Effective Date, and not under any other obligations of confidentiality due to any other agreements between the Parties; (b) information that enters the public domain after the Effective Date, or which, after such disclosure, enters the public domain through no fault of the Customer; (c) information lawfully furnished or disclosed to the Customer by a non-party to this Agreement without any obligation of confidentiality; (d) information independently developed by any Party without use of any Proprietary or Confidential Information; or (e) information that is explicitly approved for release by Flash.
3.3 Customer agrees to hold in confidence all Proprietary Information that it receives from Flash. Customer will not disclose any of Flash’s Proprietary Information to any party or person whatsoever unless it is a Customer employee or agent that is on a need to know basis for such Proprietary Information consistent with the purpose for which it was disclosed. Customer will only use Flash’s Proprietary Information for the purpose for which it was originally disclosed. Customer is not permitted to directly or indirectly, under any circumstances, use any of Flash’s Proprietary Information for any purpose that is in any way detrimental to Flash. This includes, but is not limited to, contracting with Flash’s employees, consultants, contractors, vendors or partners to provide services to Customer similar to those provided to Customer by Flash. Customer shall take reasonable precautions to protect the confidentiality and value of Flash’s Proprietary Information, including measures to prevent loss, theft and misuse. Customer shall immediately give notice to Flash of any unauthorized use or disclosure of Flash’s Proprietary Information. Customer agrees to assist Flash in remedying any unauthorized use or disclosure of Proprietary Information caused by such Customer. Customer acknowledges expressly that each and every one of its employees and agents are bound to the terms and conditions of this Agreement and that Customer is solely responsible for any breach of this Agreement by any of its representatives including, without limitation, any improper use or disclosure by its representatives of Flash’s Proprietary Information.
3.4 Upon written request and as directed by Flash, the Customer will promptly return or destroy all Proprietary Information received from Flash, including all copies of the information thereof. Upon the request of Flash, the Customer shall furnish to Flash an affidavit providing assurances as to the return or destruction of Flash’s Proprietary Information.
3.5 A disclosure of Confidential or Proprietary Information in response to a valid request by a court of law or other governmental body or otherwise required by law is not considered to be a breach of this Agreement or a waiver of confidentiality for other purposes. Before any such disclosure, Customer shall provide prompt written notice to Flash and reasonably cooperate with Flash in seeking a protective order or preventing disclosure.
3.6 All materials transmitted from Flash to Customer which includes any Proprietary Information are to remain the sole and exclusive property of Flash. The Agreement and transmission or disclosure of any Proprietary Information from Flash to Customer does not grant the Customer a license or ownership of any kind. Flash retains all right, title and interest in all now known or hereafter known or developed tangible and intangible intellectual property, including without limitation, all: (a) rights associated with works of authorship throughout the universe, including, but not limited to, copyrights, moral rights and mask works; (b) trademarks, services marks, trade names and any other indicia of origin; (c) technical and non-technical information (regardless of whether such information is in tangible or intangible form) including source code, object code, computer code, data, ideas, concepts, formulae, methods, techniques, processes, financial business plans and business methods (including any derivatives of any of the foregoing) that derive economic value, actual or potential, from not being generally known to other persons who could obtain economic value from the disclosure or use thereof, and which are the subject of efforts that are reasonable under the circumstances to maintain their secrecy (“Trade Secrets”); (d) patents, pending patent applications, designs, algorithms and other industrial property rights; (e) other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated, including “rental” rights and rights to remuneration), whether arising by operation of law, contract, license or otherwise; and (f) registrations, initial applications, renewals, extensions, continuations, divisions or reissues now or hereafter in force including any rights in any of the foregoing, (collectively, “Intellectual Property”). Customer covenants not to prejudice or impair the interest of Flash in any of its Intellectual Property. At no time shall Customer challenge or assist others to challenge any of Flash’s Intellectual Property or the registration thereof.
3.7 All obligations and restrictions of confidentiality and ownership of Propriety Information under this Agreement shall survive the termination of this Agreement.
3.8 Customer authorizes and grants to Flash a right and license to use Customer’s name and logo on Flash marketing and promotional material. Customer grants Flash the right to make certain press releases available to the general public regarding the Flash Offerings provided by Flash to Customer. Customer acknowledges that Flash may collect, retain, access, use, combine and disclose personal information and other data derived from the performance of the Flash Offerings in accordance with all valid United States laws as well as the Policies.
3.9 Flash hereby authorizes Customer the right to seek use of any Flash trademarks and logos (the “Marks”) in its marketing and promotional materials solely for cross-promotional purposes to identify that Customer uses Flash Offerings (“Purpose”) and must be used according to any Flash guidelines (“Guidelines”). The Guidelines may be updated by Flash periodically. Customer shall not use the Marks for any other Purpose without Flash’s prior written authorization, which can be denied for any reason. Customer agrees that it shall not harm, misuse, or bring into disrepute the Marks. All uses of the Marks pursuant to this Agreement shall inure to the benefit of Flash. Customer may not use or register, or otherwise claim rights in the Marks, including as or as part of any trademark, service mark, Flash name, trade name, username, domain registration or copyright. Flash may revoke permission to use the Marks at any time.
4 Payment Terms
4.1 Customer shall pay the amounts listed on any Order form within thirty (30) days of the date of an invoice. Unless the Order Form references the HaaS Addendum, where Equipment is part of an Order Form, an initial deposit equal to 50% of the Order Form’s total value shall be required. This deposit will be invoiced upon or in no event later than 120 days after the execution of the Order Form. The remaining 50% of the Order Form amount will be invoiced upon or in no event later than 120 days after Flash’s successful Commissioning Services.
4.2 Flash shall invoice Customer for recurring software license fees that relate to the operation of Equipment upon successful Commissioning Services or in no event later than 120 days after the execution of the Order Form. Customer may elect to pay any recurring software license fees annually. The first invoice will be upon successful Commissioning Services but in no event will such invoice be later than 120 days after execution of an Order Form unless otherwise agreed to by the Parties. Subsequent annual fees will be invoiced annually in advance.
4.3 Customer acknowledges and agrees that certain Flash Offerings contain or require the payment of recurring Monthly Program Fees, which will be set forth in the applicable Order Form or addendum provided to Customer by Flash. Customer is responsible for the timely payment of any Monthly Program Fees regardless of actual usage in any particular month. Customer shall be invoiced monthly for any such Monthly Program Fees.
4.4 Customer shall be responsible for all taxes applicable to Customer and arising as a result of this Agreement, including any sales and use taxes, other than taxes based on Flash’s income. Additionally, Customer shall be responsible for any additional taxes incurred by Customer’s tax elections made following the invoice date. The prices provided to Customer from Flash may not include all applicable taxes due.
4.5 Certain Flash Offerings may require Customer to pay fees regarding lost or damaged Equipment. Customer acknowledges and agrees that it understands under this Agreement Flash reserves the right to charge Customer for any damaged, stolen, or lost Equipment.
4.6 To the extent Customer disputes amounts due and owing on any invoice provided to Customer, Customer shall dispute such amounts within 14 days of the invoice date. Customer shall provide reasonable detail and support for any dispute. If Customer fails to meet these requirements, Customer shall have waived all rights to contest such fees and charges.
4.7 Customer acknowledges and agrees that Flash shall have a right to the fees charged for each transaction processed by Flash, including for transactions that are denied, returned or charged back as a result of a third-party denying such payment or refusing to honor such payment to Customer. Additionally, Customer acknowledges and agrees that certain Flash Offerings may contain gateway, surcharges or convenience fees for any payments collected on behalf of Customer. All such gateway, surcharge or convenience fees shall be captured in Flash’s invoice to Customer for the applicable Flash Offering. Customer agrees that Flash has the right to collect all such fees and costs relating to each use of each Flash Offering, whether or not Customer ultimately receives payment. Flash shall have the right to offset bad charges or refunded charges against future amounts due and owing to Customer from Flash as part of using any Flash Offering.
4.8 All required travel and expenses incurred by Flash or Flash affiliates in delivering the Flash Offerings will be invoiced by Flash to Customer for payment upon successful Commissioning Services and payment is due 30 days from the date of the invoice. Current rates for Travel and Expenses can be found on our website.
5 Term and Termination
5.1 The term of this Agreement shall commence on the date Customer first signs an applicable Order Form or otherwise agrees to be bound by these terms (the “Commencement Date”) and shall continue for the period set forth in such Order Form, or if there is no term shall continue until terminated (the “Initial Term”). The Initial Term shall extend and this Agreement, together with any applicable Order Forms, shall renew automatically for successive one-year periods (“Subsequent Terms”), unless or until either party gives the other written notice no less than three (3) months prior to the expiry of the applicable Initial or Subsequent Term (the “Notice or Termination”) of its intention not to extend this Agreement for any Subsequent Term.
5.2 Flash may terminate this Agreement with respect to the Flash Offerings and its obligations hereunder and Customer’s rights thereto, upon written notice to the Customer of a material breach of this Agreement, including any Order Forms or other addendums or any Policy. Such termination shall become effective immediately, unless such material breach is capable of being cured in Flash’s sole discretion, in which case termination shall be effective if such breach is not cured within seven (7) days after receipt of such written notice. Upon termination where there is Equipment owned by Flash, Customer shall be required to keep such Equipment in good working order and condition until repossessed by Flash.
6 Delivery
Unless otherwise specified in an Order Form, Flash shall arrange, with Customer’s full cooperation at Customer’s cost, the delivery of Equipment to a Customer facility where it is to be installed. The method of shipment and carrier shall be selected by Flash. Upon delivery at the Customer-designated facility, the title to and the risk of loss for the Equipment shall pass to Customer and, thereafter, the risk of loss for the Equipment shall be borne solely by Customer.
7 Flash Policies
Customer agrees to abide by and accept all policies and terms of use posted on Flash’s website or as posted in any of Flash’s applications, including, without limitation, Flash’s (i) Privacy Policy, (ii) the general Terms of Use, and (iii) all policies regarding use of Flash Offerings (collectively, “Policies”, each a “Policy”). The Policies may change from time to time in Flash’s sole discretion and Flash will post such changes on its website or provide such updated Policies to Customer. In the case of a direct conflict between any provision of a Policy and the provisions of this Agreement, the provision of this Agreement shall prevail. It is Customer’s sole obligation to read all Policies and updates, amendments, and supplements thereto. Customer agrees that failure to comply with any Policy shall be a material breach of this Agreement. Customer’s continued access of the website and the Flash Offerings constitutes Customer’s assent to any changed terms of any of the Policies.
8 Customer Representations and Warranties and Covenants
8.1 Customer warrants that it is duly organized and validly existing under the laws of its state of incorporation or formation, has the necessary authority, licenses and other permissions to conduct the business in which it is currently engaged and is in compliance with all applicable laws.
8.2 Customer warrants that it has the legal capacity to agree to the terms of the Agreement, perform its obligations hereunder, has obtained and shall maintain all necessary authorizations or registrations from appropriate authorities to carry out the activities contemplated in the Agreement, and entering into the Agreement will not violate any applicable law or regulation.
8.3 Customer understands and agrees the associated use of any Flash Offerings shall not (i) violate any law, rule or regulation applicable to Customer or (ii) be in breach of, or constitute a default under, the provisions of any agreement, instrument or undertaking by which Customer is bound.
8.4 Customer will not, and will ensure its affiliates do not, disparage Flash or any of its directors, officers, agents or executives or otherwise take any action which could reasonably be expected to adversely affect the reputation of Flash or its products or the personal or professional reputation of any of its directors, officers, agents or employees.
8.5 Customer will provide Flash with all necessary cooperation in relation to the Agreement and all necessary access to such information as may be required by Flash to provide Flash Offerings as may be reasonably necessary.
8.6 Customer will carry out all of Customer’s responsibilities set out in the Agreement in a timely and efficient manner, and in the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, Flash may adjust any agreed level of Flash Offerings as may be reasonably necessary.
8.7 Customer shall maintain adequate insurance on the Equipment in Customer’s possession and control and to the extent requested by Flash, name Flash as an additional insured on all applicable insurance policies covering the Equipment.
9 Indemnity
Customer agrees to defend, indemnify, and hold harmless Flash and its affiliates, its employees, contractors, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Flash may sustain or incur as a result of any claim against Flash brought by Customer, its officers, agents, employees, successors or assigns, by Customer’s employees, by auxiliary personnel (such as freight handlers, etc.) or by other third parties (including members of the public), arising out of, or in any way related to, directly or indirectly, (i) the use or misuse of Flash Offerings, (ii) Customer’s failure to perform its obligations contained herein, or (iii) Customer’s negligence or intentional misconduct.
10 Limited Warranty; Disclaimers; Limitation of Liability; Remedies
10.1 Flash warrants to Customer, as the original purchaser (which warranty is not transferable), that Equipment shall be free from material defects in the material and workmanship under normal use, in accordance with Flash’s Policies and this Agreement, for a period of twelve (12) months from the date of original sale or transfer from Flash to Customer. This warranty shall not apply if Customer uses the Equipment in violation of this Agreement or any Policy or if the Equipment has been subject to accident, negligence, abuse, misuse, or criminal acts.
10.2 EXCEPT FOR THE SPECIFIC REPRESENTATIONS OF FLASH CONTAINED HEREIN, THE EQUIPMENT IS PROVIDED TO CUSTOMER “AS IS” AND NEITHER FLASH, NOR ITS AFFILIATES MAKE ANY REPRESENTATION OR WARRANTY OF ANY OTHER KIND EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, OR THE ACCURACY OR COMPLETENESS THEREOF, OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF OR ANY OTHER MATTER. FLASH EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, SECURITY, COMPATIBILITY, NON-INFRINGEMENT MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FLASH DOES NOT WARRANT THAT THE EQUIPMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE DELIVERABLES WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE OR APPLICATIONS.
10.3 FLASH DOES NOT GUARANTEE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY, THAT ANY FLASH OFFERING WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT FLASH WILL CORRECT ALL ERRORS. CUSTOMER ACKNOWLEDGES THAT FLASH DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE FLASH OFFERINGS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. FLASH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
10.4 IN NO EVENT SHALL FLASH OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR REVENUES OR OTHER ECONOMIC LOSS OF CUSTOMER OR ANY THIRD PARTY), WHETHER IN TORT, CONTRACT OR OTHERWISE, AND WHETHER OR NOT FLASH OR ANY OF ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.5 EXCEPT FOR ANY CLAIM OR ACTION ARISING OUT OF OR RELATING TO FLASH’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL FLASH’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED TWO TIMES (2X) THE TOTAL AMOUNT PAID OR PAYABLE UNDER THE APPLICABLE PO UNDER WHICH THE CLAIM ORIGINALLY AROSE. DAMAGES THAT CANNOT BE LIMITED UNDER APPLICABLE LAWS ARE NOT SUBJECT TO THE ABOVE CAP.
10.6 Customer acknowledges and agrees that a breach of this Agreement may cause other irreparable harm on Flash without an adequate remedy at law and hereby agrees that the Flash may seek equitable relief, including without limitation, temporary or permanent injunctions and other relief to limit the effect of any breach.
10.7 No action on this Agreement, except for payment owed by Customer to Flash, may be brought more than one (1) year after the incident occurs.
11 Assignment
This Agreement shall not be assigned or transferred by Customer without prior written consent of Flash, and any attempt by Customer to so assign or transfer this Agreement without such written consent shall be null and void. Flash may (with notice but without the prior consent of the other Party) assign this Agreement: (i) by operation of law, (ii) pursuant to a merger or acquisition of all or substantially all of its stock or assets, or (iii) to its Affiliates, and the Parties acknowledge and agree that, in the case of FlashParking, “Affiliate” includes a special purpose entity owned or controlled by FlashParking. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
12 Governing Law; Submission to Jurisdiction
All claims, actions, or proceedings of any nature or type, arising from or related to (i) this Agreement or any matter related to this Agreement, (ii) the use of any Flash Offerings hereunder, or (iii) any relationships (whether by written contractor otherwise) relating to the Flash Offerings (whether such relationships are directly with Flash or through a third-party) shall be governed by, and construed in accordance with, the laws of the State of Texas without regard to its conflict or choice of laws principles and any such claims, actions, or proceedings shall be brought solely and exclusively in the Federal or State courts located in Texas and each Party consents to the personal jurisdiction and venue therein. The terms and conditions contained in this section shall inure to the benefit of, and be binding upon, the parents, subsidiaries, related entities, successors, assigns, heirs, survivors, and personal representatives of the Parties.
13 Notices
All notices for Flash given under this Agreement must be in writing and sent to:
FlashParking, Inc.
2500 Bee Caves Road
Building III, Suite 400
Austin, TX 78746
Attn: General Counsel
Via email to: legal@flashos.com
If to Customer, at the address in file or noted on any applicable Order Form or other addendum.
And to any such other address as a Party may designate in writing to the other Party, by certified mail (return receipt requested), overnight courier, personal delivery, or email to the other parties hereto.
14 Survival
Any provision of this Agreement which, by its nature, would survive termination of this Agreement shall survive any such termination of this Agreement, including, without limitation, Articles: 3 – Confidential Information, Proprietary Information, and Intellectual Property Rights, 4 – Fees, 9 – Indemnity, 10 – Limited Warranty; Disclaimers; Limitation of Liability; Remedies, and 14 – Survival.
15 Force Majeure
Flash shall not be responsible for any delay or failure in performance of its obligations under this Agreement resulting from acts beyond the reasonable commercial control of Flash, including but not limited to, supply chain issues, acts of God, acts of governmental authority, acts of public enemy, third-party systems failures, war, terrorism, riot, fire, flood, civil commotion, insurrection, pandemic, labor difficulty (including, without limitation any strike, or other work stoppage or slowdown).
16 Miscellaneous
This Agreement supersedes all prior agreements and understandings and constitutes the complete agreement and understanding between the Parties with respect to the subject matter hereof. No amendment or other modification to this Agreement shall be valid or binding with respect to Flash unless acknowledged and agreed to in writing and signed by a duly authorized officer of Flash. The Parties are independent contractors, and nothing in this Agreement will be construed to constitute or appoint any party as the agent, partner, joint venturer or representative of the other Party for any purpose whatsoever, or to grant to any party any right or authority to assume or create any obligation, express or implied, for or on behalf of any other, or to bind any other in any way or manner whatsoever. Any forbearance or delay on the part of a Party in enforcing any provision of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or of a right to enforce same for such occurrence or any future occurrence. No other party is intended, or shall be deemed, to be a beneficiary of any provision of this Agreement. This Agreement may be executed in counterparts, which counterparts, taken together, shall constitute one agreement and each Party hereto may execute this Agreement by signing such counterpart.