TERMS & CONDITIONS
WHEREAS, TEXT2PARK provides mobile payment services to customers for payment and efficiency optimization application; WHEREAS, Customer desires TEXT2PARK services for its surface lot, street parking and monthly parking for its location(s);
NOW THEREFORE, in consideration of the foregoing, and the mutual covenants and promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
I. TEXT2PARK SCOPE OF SERVICES
TEXT2PARK agrees to provide Customer Mobile payment services at Customer surface lot, street and monthly parking location(s) hereinafter “Services” the scope of which is provided herein below and or attached hereto and incorporated herein for all purposes as set forth in Exhibit B.
II. TEXT2PARK FEES
Customer agrees to pay TEXT2PARK for any all Fees, and applicable taxes, for online Services as provided herein below and or attached hereto and incorporated herein for all purposes as set forth. TEXT2PARK shall be permitted to change Fees in its sole discretion upon thirty (30) days written notice to Customer.
III. PAYMENT TERMS
TEXT2PARK will debit customer credit card or bank account in Exhibit A for the amount due at signing prior to shipping any signage or setting up online account. TEXT2PARK will invoice Customer on a monthly basis for the current month’s service as well as any overage from the previous month.
Due at signing will be any setup and/or training fees and/or equipment purchased from TEXT2PARK. If the contract start date listed in Exhibit B begins any time other than the 1st of the month, the current month will be charged a prorated amount, and will be due at time of signing. Proration will be charged based on start date of contract listed in Exhibit B and calculated based on number of days remaining in the month. Any usage of the account prior to the start date may be subject to an additional charge of the overage rate of customer’s plan.
Invoices shall be sent to Customer via email. Customer authorizes TEXT2PARK to initiate payment processing for TEXT2PARK Fees via Credit Card or ACH Debit on the 5th of the month. For Non-sufficient funds (NSF) payments or declined transactions, a $30 fee will be applied. Any past dues balances will be charged a 1.5% penalty on outstanding balance per 15 day period. TEXT2PARK may suspend the Services at any point if a balance is more than fifteen (15) days past due.
Where Customer agrees to pay TEXT2PARK Fees via credit card or automated clearing house “ACH” Debit in accordance with the fee schedule set forth in Exhibit B, Customer hereby agrees to and authorizes TEXT2PARK to initiate payment processing for TEXT2PARK Fees via credit card or ACH Debit on the 5th of the month for Services provided herein in advance and expenses incurred the month prior thereto.
TEXT2PARK reviews each invoice for accuracy and value before sending it to the Customer. Upon receipt of invoice it is important that the Customer promptly does the same and contacts TEXT2PARK immediately to discuss any problem. Further, Customer agrees that all of TEXT2PARK invoices are deemed to be approved 30 days after Customer’s receipt unless TEXT2PARK is notified in writing of Customer’s disapproval or dissatisfaction.
If Customer’s credit card or ACH payment is rejected, TEXT2PARK will notify Customer of the default in payment; and if not cured within 2 days, TEXT2PARK reserves the right to terminate Services, in its sole discretion, until Customer’s payment status is current. Customer agrees to pay any and all TEXT2PARK fees associated with a rejected payment including TEXT2PARK reasonable and actual attorneys’ fees for collection of Customer’s past due invoices.
Where TEXT2PARK Services include payment processing for Customer, TEXT2PARK will pay Customer for balances due Customer via ACH credit approximately two (2) days after receipt of payment by TEXT2PARK. Customer hereby authorizes TEXT2PARK to initiate payments directly to Customer’s bank account via ACH credit. Customer further agrees that TEXT2PARK shall have the right to offset any payment owed to Customer for any and all past due Fees, ACH and credit card chargebacks or reversals, as well as all other Fees, costs or expenses owed by Customer to TEXT2PARK.
IV. TERM; TERMINATION
The term of an agreement shall commence on the date stated in the signed agreement and shall remain in effect for terms in Exhibit B. Following year one, the agreement shall automatically renew for one year successive terms unless terminated by either TEXT2PARK or Customer upon thirty (30) days prior written notice of termination. However, Customer shall be responsible for all TEXT2PARK fees and expenses prior to termination.
In addition, either party may terminate the agreement if (a) a petition under any bankruptcy law is filed by or against the other party, (b) the other party executes an assignment for the benefit of creditors, (c) a receiver is appointed for the other party’s assets, or (d) the other party becomes insolvent or takes advantage of any insolvency or any similar statute.
Subject to the terms, conditions, use limitations and payment of fees as set forth herein, TEXT2PARK grants Customer the non-exclusive license(s) to use TEXT2PARK Services. The license granted by TEXT2PARK is for internal use by Customer only. Customer is permitted to grant access to the software and/or to data derived from the software (a) to its employees while in the performance of Services for Customer, (b) to Customer’s information technology contractors while in the performance of Services for you, and (c) to Customer’s trading partners provided such access is limited to that permitted by and for the performance of Services herein. Customer may not grant access to the software or to data derived from the software to any other entity.
TEXT2PARK will provide to Customer TEXT2PARK Services materials via internet download. These Services materials will be copy protected and will require software activation.
Customer agrees to reproduce TEXT2PARK copyright and other proprietary rights notices on all copies of the TEXT2PARK Services materials made by Customer. Customer agrees not to reverse engineer, interrogate or decode any TEXT2PARK Services materials or attempt to derive any source code or algorithms therefrom. Customer acknowledges that transfer by Customer of any copy of the Services materials to anyone other than Customer is a serious crime and is grounds for suit for damages, injunctive relief and attorney’s fees. Customer agrees to take all reasonable and prudent measures to safeguard the security of the TEXT2PARK Services materials and all copies and installs made by Customer. Customer agrees to take such measures no less than those taken by Customer to secure it’s own proprietary and confidential business information. Customer agrees to notify TEXT2PARK immediately if Customer becomes aware of the theft or unauthorized possession, use, transfer or sale of the TEXT2PARK Services materials, copies and installs licensed to Customer by TEXT2PARK.
TEXT2PARK reserves the right to change TEXT2PARK Services functionality from time to time. TEXT2PARK agrees to provide customer with updates as they become commercially available in its sole discretion. Customers agree to perform any and all required updates to its software within Ninety (90) days of its release.
VI. SOFTWARE USE AND OWNERSHIP
Where Software is provided to Customer by TEXT2PARK, Customer may use Software in the course and scope of its business to provide Services herein. TEXT2PARK shall retain all ownership rights, title and interest to Software by TEXT2PARK. Upon termination of Services, Customer shall forfeit the right to online access to any and all information within ten (10) days.
VII. LIMITATION ON WARRANTY AND LIABILITY
TEXT2PARK warrants that the TEXT2PARK Services will operate in substantial conformance with written performance-related materials provided by TEXT2PARK to Customer under normal use and service for the duration of the agreement. However, the sole obligation of TEXT2PARK and the sole remedy of Customer under this warranty is for TEXT2PARK to use commercially reasonable efforts to either correct the defect or provide a suitable “bug fix” or “work around”. Corrected TEXT2PARK Services, or any Software upgrades, will be warranted as provided above for any remaining term or until termination of the signed agreement.
TEXT2PARK warrants that the Software will be free from defects in material and workmanship under normal use and service for the duration of the signed agreement. The sole obligation of TEXT2PARK and the sole remedy of Customer under this warranty are for TEXT2PARK, at its election, to either repair the defect or update the software subject to availability. TEXT2PARK, prior to upgrading the software, must approve a defect claim in TEXT2PARK’s sole discretion. EXCEPT AS OTHERWISE STATED HEREIN, SERVICES AND SOFTWARE, ACCESS TO THE NETWORK, COMMUNICATION SERVICES ARE PROVIDED “AS IS” AND WHERE IS WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND. TEXT2PARK DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE SERVICES, LICENSED SOFTWARE AND ACCESS TO THE NETWORK, COMMUNICATION SERVICES OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT TEXT2PARK KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, TEXT2PARK EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE AS PROVIDED HEREIN WITH RESPECT TO THE SERVICES, LICENSED SOFTWARE, EQUIPMENT OR ANY PART THEREOF. FURTHER LIMITATIONS ON LIABILITY AND DAMAGES INCLUDE BUT ARE NOT LIMITED TO:
a IN NO EVENT WILL TEXT2PARK BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR COMMUNICATION OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b IN NO EVENT WILL TEXT2PARK LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT FEES PAID OR PAYABLE TO TEXT2PARK PURSUANT TO THIS AGREEMENT IN THE TWO MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
c IN NO EVENT WILL TEXT2PARK BE LIABILE TO CUSTOMER FOR ANY LOSS OR DAMAGE CAUSED BY ANY THIRD PARTY SERVICES OR EQUIPMENT THAT ARE PART OF, MAKE UP OR INCIDENTAL TO TEXT2PARK SERVICES.
TEXT2PARK and Customer agree to keep confidential and not to disclose or use for its own benefit or the benefit of any third party (except as may be required for the performance of Services or as may be required by law), any information, documents or materials which are identified by a party, at the time that they are made available, to be proprietary or confidential. The confidentiality obligations in the preceding sentence, however, shall not extend to any information, documents, or materials that (a) become publicly available without breach of this provision, (b) are received from a third party without restriction, or (c) are independently developed without reference to information received hereunder from the other party, and provided further that such obligations herein shall survive the termination of the signed contract.
Customer agrees that all personal information, including phone number, collected through the use of TEXT2PARK will not be used for any marketing or promotional activity beyond the scope of service of the TEXT2PARK. It is strictly confidential and not the right of the Customer to use outside of TEXT2PARK texting purposes. The information is strictly for transaction and reporting purposes with the use of TEXT2PARK and should never be included without proper notification and permission to any lists. TEXT2PARK will not use any collected information for such purposes either. If a customer uses such informational and found to be in violation, TEXT2PARK is not liable in any way for fines or regulations imposed on Customer as per this agreement.
IV. AGREEMENT DISCLOSURE
Upon written approval Customer hereby authorizes that TEXT2PARK may publicize TEXT2PARK and Customer relationship resulting from the signed agreement in the form of digital media including LinkedIn, Twitter, Facebook, etc., press releases and announcements and permit TEXT2PARK to include Customer’s name in TEXT2PARK Customer roster for the purpose of further business development efforts. Customer shall be given reasonable opportunity to review and approve all information pertaining to Customer prior to public disclosure. With Customers prior written consent, Customer may also be requested to participate in additional activities, such as success stories, references and marketing initiatives.
X. RELATIONSHIP OF PARTIES
Nothing contained in this or the signed Agreement shall create any partnership or joint venture between the parties. Further, TEXT2PARK, in furnishing Services and Software to Customer, is acting only as an independent contractor. Except where this Agreement expressly provides otherwise, TEXT2PARK does not undertake by this or the signed Agreement or otherwise to perform any obligation of Company, whether regulatory or contractual, or to assume any responsibility for Customer’s business or operations.
The signed agreement may not be assigned by either party without the prior written consent of the other, and any such purported assignment shall be void. The agreement can be assigned to affiliated entities.
XII. DISPUTE RESOLUTION
Any dispute or legal action arising under this or the signed agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this and the signed agreement will be governed by and construed and interpreted in accordance with the laws of the State of Texas. Venue for the arbitration, or any litigation or dispute, will be held in Dallas County, Dallas, Texas. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of these agreements. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
XIII. ATTORNEYS’ FEES
If any litigation or arbitration is necessary to enforce the terms of this or the signed agreement, the prevailing party will be entitled to reasonable and actual attorneys’ fees and costs.
If any term of the signed agreement, or attachment thereto, is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this and the signed agreement will remain in full force and effect.
XV. FORCE MAJEURE
Neither party will be held responsible for any delay or failure in performance of any part of this or the signed agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
XVI. WAIVER AND MODIFICATION
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This and the signed agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto. However, the parties may add TEXT2PARK Services and Software for additional Customer locations through the use of additional pages to the signed agreement.
XVII. ENTIRE AGREEMENT
The signed agreement, together with any attachments referred to, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into any agreement by any representations or promises not specifically stated herein.