THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY CLAUSES. CAREFULLY READ ALL TERMS AND CONDITIONS OF THIS LICENSE AND USER AGREEMENT PRIOR TO UTILIZING ANY OF THE SOFTWARE PRODUCTS OR SERVICES DESCRIBED HEREIN. BY CLICKING THE “I ACCEPT” BUTTON BELOW AND/OR USING ANY OF THE SOFTWARE PRODUCTS OR SERVICES DESCRIBED HEREIN, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT; THAT YOU HAVE THE FULL POWER AND LEGAL RIGHT, AND HAVE BEEN DULY AUTHORIZED, TO ENTER INTO THIS AGREEMENT AND TO ENGAGE IN THE TRANSACTIONS CONTEMPLATED HEREIN; AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. DEFINITIONS. As used in this Agreement, the following terms have the following meanings. Some terms are defined elsewhere in this Agreement.
1.1. “BOXX” means Parking BOXX Inc.
1.2. “You” means the individual who clicks the “I Accept” button below, or if the individual who clicks the “I Accept” button below is an employee or acting on behalf of or retained by another person or entity, then the person or entity which employs or on whose behalf the individual who clicks the “I Accept” button below is acting or retained and for whose benefit the Software is installed or any of the Software Products or Services are utilized. The word “you” also means any person or entity that uses the Software Products or Services.
1.3. “Software Products” means the Software, Online System, and the Online Documentation, as each of those terms is defined in this Agreement. BOXX may, in its sole and absolute discretion, add, delete, change or replace some or all of the Software Products from time to time, upon reasonable prior notice from BOXX to you, including but not limited to, posting notice of any such addition, deletion, change or replacement on BOXX’s website(s).
1.4. “Software” means the machine-readable object code version of BOXX Parking BOXX Management System and Access BOXX System, and Web Console whether embedded on Machine, CD-ROM or other media, downloaded from BOXX’s website, or otherwise, and all authorized corrections, bug fixes, enhancements, updates, revisions or other modifications, including, without limitation, custom modifications and replacements thereto, which BOXX, in its sole and absolute discretion, makes available from time to time.
1.5. “Software Documentation” means any user manuals, help files, tutorials and any other documentation that are made available from time to time for the Software, whether written or in electronic format, and all authorized corrections, updates, revisions or other modifications, and any replacements thereto, which BOXX, in its sole and absolute discretion, makes available from time to time.
1.6. “Online System” means the Software Products, including BOXX Parking BOXX Management System and Access BOXX System, and Web Console, which is an Internet-based Parking Access Revenue Control Systems (PARCS), including but not limited to the SSH connectors and XML protocol used to communicate directly with the BOXX processing servers, and all authorized corrections, bug fixes, enhancements, updates, revisions or other modifications, including, without limitation, custom modifications, and any replacements thereto, which BOXX, in its sole and absolute discretion, makes available from time to time.
1.7. “Online System Documentation” means any user manuals, help files, tutorials and any other documentation that are made available from time to time for the Online System, whether written or in electronic format, and all authorized corrections, updates, revisions or other modifications, and any replacements thereto, which BOXX, in its sole and absolute discretion, makes available from time to time.
1.8. “Machine” means each meter, pay station, ticket station, gate, handheld or other unit that has Software installed to control the hardware, including but not limited to LCD displays, touch screen displays, keypads, printers, card readers, coin acceptors, bill validators, scanners, coin escrows and sorters, sensors, and power management boards, for the purpose of PARCS. Optionally, each Machine may have the ability to be configured and interact with the Online System. Machine warranty is described herein.
1.9. “Services” means the Online System, related reports, events, email and text alerts, and any other services provided from time to time by BOXX and to which you have access through utilization of the Software Products and Online System. BOXX may, in its sole and absolute discretion, add, delete, change or replace some or all of the Services from time to time, upon reasonable prior notice from BOXX to you, including but not limited to, posting notice on BOXX’s website(s) of such addition to, deletion from, change to, or replacement of the Services.
1.10. “User Obligations” means your agreement with respect to all of the following so long as you continue to use the Software Products or the Services, or both:
1.10.1. prior to using any of the Software Products, to adequately and appropriately review, test and confirm that the hardware, software, networks, and other items that you are required to supply meet BOXX’s published minimum system requirements for the Software Products, and, after installation, to adequately and appropriately review, test and confirm that the Software Products are properly functioning and meet your needs and specifications;
1.10.2. not to use the Software or the Online System in a manner that: (a) is incompatible with, disables, overburdens, impairs, or interferes with the use, quiet enjoyment, or performance of the Online System by BOXX or other users; (b) does or attempts to disable, circumvent, or otherwise avoid or overcome the security, privacy, or other protections of the Software or Online System; (c) does or attempts to gain access to portions of the Software, Online System, or information of BOXX or others, or that uses them in a manner that is not authorized by the Software Documentation or the Online System Documentation; or (d) is for any illegal, misleading, or fraudulent manner or purpose;
1.10.3. provide maintenance to Machines as required to ensure that all Machine hardware functions properly.
1.10.4. if, at any time, you become aware of any defect in any of the Software Products of any kind, to stop using the defective Software Product immediately and give immediate notice of the defect to BOXX;
1.10.5. if, at any time, BOXX notifies you of any material defect in any of the Software Products that causes any document or instrument to be materially incomplete or inaccurate, or operate in any manner that poses a risk to the Software or the Online System, other users thereof, or the information related thereto, to stop using such defective Software Product immediately and implement such remedial or corrective measures as BOXX instructs. Such notice may be provided, among other ways, by posting a notice on BOXX’s website(s);
1.10.6. to comply with all applicable laws, rules, regulations or ordinances in those jurisdictions that require the collection of taxes or fees related the funds collected by you via Machines or Online System;
1.10.7. to read all emails sent to you by BOXX, update the Software Products and monitor BOXX’s website(s) on an ongoing basis, but not less frequently than once each Business Day, so that you may receive updates, notices or other information relating to the Software Products, Services, and this Agreement;
1.10.8. not to use the Software Products in any way that would infringe any third party intellectual property right or breach the terms of any agreement between you and any third party; and
1.10.9. to grant access to passwords, security devices, or access control devices, if any, necessary to access the Software Products and/or the Services only to your authorized personnel; and to instruct and require your authorized personnel to keep secret and secure these passwords, security devices, or access control devices, if any.
1.11. “Input Error” means the placement or omission, whether intentional, negligent, inadvertent, by default, or otherwise, of any Information, character or other information into any data entry field in the Software or the Online System, or into any other software product that exports Information, character or other information to, or from or other information is otherwise uploaded into the Software or the Online System.
1.12. “BOXX’s website” means BOXX’s Internet website at www.parkingboxx.com and any successor, additional or other Internet website or websites of which you are notified by notice posted at such website or, at BOXX’s sole and absolute discretion, by notice given in accordance with this Agreement.
2. LICENSE. Subject to the terms and conditions set forth in this Agreement, BOXX hereby grants to you, and you hereby accept from BOXX, a non-exclusive non-transferable, non-sublicensable, limited license to use during the term of this Agreement the Software Products in connection with BOXX’s provision of the Services.
3. TERMS AND CONDITIONS OF USE OF SOFTWARE PRODUCTS AND SERVICES. The license granted to you in this Agreement, and your use of the Software Products and Services, are subject to the following terms and conditions:
3.1. SYSTEM REQUIREMENTS. You may use the Software Products on any computer that meets BOXX’s published minimum system requirements. BOXX retains the right to amend its minimum system requirements, from time to time and in its sole and absolute discretion, upon reasonable prior notice from BOXX, including but not limited to, posting the amended minimum system requirements on BOXX’s website(s).
3.2. BUSINESS OPERATIONS. You only may use the Software Products for your own internal purposes and business operations relative to your parking and access software, systems and machines provided by BOXX. Under no circumstances shall you use, or permit any parent, subsidiaries, affiliated entities or third parties to use, the Software Products and/or the Services.
3.3. COPIES. You may make such additional copies of the Software Documentation and Online System Documentation you reasonably require exclusively for internal back-up purposes. You agree to reproduce and maintain all confidentiality and proprietary notes and markings with or on these copies. Copyright and other laws protect the Software Products in their entirety. The Software Products contain BOXX trade secrets. You agree not to decompile, reverse engineer, disassemble, or otherwise reduce the Software to human-perceivable form. You agree not to disable any functionality that limits the use of the Software or the Online System. Nothing in this Agreement will entitle you to receive the source code of the Software or the Online System, in whole or in part. Except as otherwise expressly provided in this Agreement, you may not modify, adapt, translate, rent, sublicense, assign, loan, resell for profit, publicly display or perform, grant access or use to any third party or entity, or distribute the Software Products or related materials or create derivative works based upon the Software Products or any part thereof except as you and BOXX shall mutually agree in writing. You hereby irrevocably and exclusively assign to BOXX all right, title and interest (whether now or hereafter known or devised) in and to any and all such derivative works.
3.4. PAYMENT OF FEES. You agree to pay BOXX’s then-current fees for the Software Products and Services in accordance with any published fee schedules; provided, however, that if you have a separate agreement with BOXX providing for pricing specific to your usage of the Software Products and Services, then you agree to pay for the Software Products and Services in accordance with that agreement. Subject to the terms of any separate agreement between you and BOXX, BOXX retains the right to add, delete, change or replace any of its fee schedules for any of the Software Products and Services, from time to time and in its sole and absolute discretion, upon reasonable prior notice from BOXX to you including, without limitation, by posting an amended fee schedule on BOXX’s website(s). You are responsible for paying all applicable sales, use, value added or other taxes, however designated, which are levied or imposed, and all hardware, software, service and other costs you incur, by reason of or in connection with this Agreement, any Parking and Access transactions, the Services, and the Software Products (including, without limitation, for the licensing, use, or discontinuation of use of any of the Software Products and Services).
3.5. USER OBLIGATIONS. So long as you continue to use the Software Products or the Services, you covenant and agree to perform the User Obligations. You are responsible for any and all activities or uses that occur in your account or due to use of passwords, security devices, or access control devices necessary to access the Software Products and/or the Services.
3.6. ACCESS TO DATA. So long as you continue to use the Software Products or the Services, you grant permission to BOXX, subject to BOXX’s obligations set forth herein, to access, read and use data that you collect as part of your Parking and Access processes and that you maintain, as is necessary for BOXX to provide its Services and to otherwise fulfill its obligations under this Agreement.
4. WARRANTIES AND DISCLAIMERS; LIMITATIONS OF LIABILITY.
4.1. WARRANTIES. BOXX hereby warrants that:
4.1.1. The media, if any, on which the Software Products licensed under the terms of this Agreement are recorded are, at the time they are provided to you, free from material defects;
4.1.2. BOXX has the right to license the Software Products, and the Software Products do not infringe upon any patent, copyright, trademark or trade secret of the United States; provided, however, that BOXX shall not be liable if a claim for patent, copyright, trademark or trade secret infringement arises from, relates to, or is in connection with, in whole or in part, your use of a superseded or altered version of the Software Products if such infringement could have been avoided by your use of the latest available unaltered version of the Software Products; your use of the Software Products beyond the scope of the license granted herein; activities of a parent, subsidiary, affiliated entity or any third party; matters within your control, or the act of entering or the content of the information you enter in the Software Products; or use of any Software Product in combination with any non-BOXX provided product or service;
4.1.3. The Software, when correctly installed, operated and updated in accordance with the Software Documentation, and the Online System, when configured, operated and updated in accordance with the Online System Documentation conform in all material respects with the then current specifications contained in the Software Documentation and the Online System Documentation, respectively.
4.2. REMEDIES. You must submit any claim alleging a material breach of any of BOXX’s warranties set forth herein in writing either (a) within 90 days from the date you first discover the alleged material breach if the material relates to one or more of the warranties set forth in Section 4.1.1 or 4.1.2. Upon BOXX’s receipt of a written notice from you during the term of this Agreement alleging a material breach of any of BOXX’s warranties set forth herein, BOXX shall promptly investigate the alleged breach. If BOXX determines, in the exercise of its commercially reasonable judgment, that a material breach has occurred, then BOXX shall, within a commercially reasonable amount of time, either (i) repair or replace the defective Software Products or Services so as to cure such breach in all material respects, or (ii) if in BOXX’s sole discretion it is infeasible to repair or replace the defective Software Products or Services so as to cure such breach in all material respects, refund the amounts paid by you to BOXX for the Software Products or Services. You agree that all or a portion of any refunds may, at BOXX’s option, be applied to any outstanding amounts you owe to BOXX. YOU UNDERSTAND AND AGREE THAT WITH RESPECT TO A MATERIAL BREACH OF ANY OF BOXX’S WARRANTIES SET FORTH HEREIN, BOXX’S OBLIGATIONS TO REPAIR OR REPLACE THE DEFECTIVE SOFTWARE PRODUCTS OR SERVICES OR TO REFUND THE AMOUNTS PAID BY YOU TO BOXX FOR THE DEFECTIVE SOFTWARE PRODUCTS OR SERVICES, AS SET FORTH ABOVE, CONSTITUTE YOUR SOLE REMEDIES HEREUNDER AND UNDER APPLICABLE LAWS AND REGULATIONS, AND THAT, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BOXX SHALL NOT BE RESPONSIBLE FOR ANY LEGAL LIABILITY TO WHICH YOU ARE DIRECTLY OR INDIRECTLY EXPOSED BY REASON OF YOUR USE OF THE SOFTWARE PRODUCTS AND/OR SERVICES.
4.3. DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BOXX DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SOFTWARE PRODUCTS AND THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS (INCLUDING, BUT NOT LIMITED TO, STATEMENTS MADE IN ADVERTISEMENTS OR PRESENTATIONS) BY BOXX OR ANY OF ITS AFFILIATES, OR BY ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BY WAY OF EXAMPLE AND NOT LIMITATION, BOXX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES THAT: (I) THE SOFTWARE PRODUCTS WILL OPERATE CONTINUOUSLY, UNINTERRUPTEDLY AND SECURELY, FREE FROM UNAUTHORIZED ACCESS OR USE DUE TO, AMONG OTHER THINGS, COMPUTER VIRUSES, HACKERS OR OTHER INTERNAL OR EXTERNAL SECURITY BREACHES OF YOUR COMPUTER SYSTEMS;
4.4. LIMITATIONS OF LIABILITY. EXCEPT WITH RESPECT TO GROSS NEGLIGENCE OR WILLFUL TORTIOUS MISCONDUCT, THE LIABILITY OF BOXX AND ITS AFFILIATES, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS OR ANY OTHER PERSON OR ENTITY, TO YOU OR ANY OF YOUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS OR ANY OTHER PERSON OR ENTITY, FOR ANY CLAIM OR CAUSE OF ACTION, WHETHER IN (TO THE EXTENT PERMITTED BY APPLICABLE LAW OR REGULATION) CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, STATUTORY LIABILITY, OR OTHERWISE, ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT SHALL BE LIMITED, WITH RESPECT TO EACH PARKING AND ACCESS FOR WHICH SOFTWARE PRODUCTS AND SERVICES WERE UTILIZED FOR SUCH PARKING AND ACCESS, TO THE AMOUNTS PAID OR PAYABLE FOR THE SOFTWARE PRODUCTS AND SERVICES IN CONNECTION WITH SUCH PARKING AND ACCESS; PROVIDED, HOWEVER, THAT THE MAXIMUM AGGREGATE LIABILITY FOR WHICH BOXX SHALL BE LIABLE TO YOU SHALL NOT EXCEED THE LESSER OF THE AMOUNTS PAID OR PAYABLE BY YOU HEREUNDER FOR THE THREE (3) MONTHS PRECEDING THE CLAIM OR CAUSE OF ACTION, OR $25,000.
4.5. DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT WITH RESPECT TO GROSS NEGLIGENCE OR WILLFUL TORTIOUS MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOXX AND ITS AFFILIATES, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS OR ANY OTHER PERSON OR ENTITY, SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INCREASED COST OF OPERATIONS, LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, LOSS OF OPPORTUNITY, LOSS OF SALES, OR THE LIKE, EVEN IF BOXX OR ANY OF ITS AFFILIATES, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS OR ANY OTHER PERSON OR ENTITY, HAVE BEEN ADVISED, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
4.6. INDEPENDENCE OF SECTIONS: THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTIONS 4.2, 4.3, 4.4 AND 4.5 ABOVE ARE INTENDED TO BE INDEPENDENT OF ONE ANOTHER. ACCORDINGLY, IF ANY PROVISION OF SECTION 4.2, 4.3, 4.4 OR 4.5 IS DETERMINED BY A MEDIATOR, ARBITRATOR OR COURT OF COMPETENT JURISDICTION TO FAIL OF ITS ESSENTIAL PURPOSE, SUCH A DETERMINATION SHALL NOT AFFECT THE ENFORCEABILITY OF ANY OF THE OTHER SECTIONS REFERENCED IN THIS SECTION 4.6.
4.7. REASONABLE ALLOCATION OF RISK. BOXX HAS ADVISED YOU THAT THE TERMS OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO BOXX’S FEES FOR THE SOFTWARE PRODUCTS AND SERVICES) ARE BASED UPON THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE, THAT SUCH DISCLAIMERS AND LIMITATIONS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BOXX AND YOU, AND THAT BOXX WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE PRODUCTS OR THE SERVICES UPON THE TERMS SET FORTH HEREIN WITHOUT SUCH DISCLAIMERS AND LIMITATIONS. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS AGREEMENT REPRESENT A FAIR AND REASONABLE ALLOCATION OF RISK BETWEEN YOU AND BOXX.
5. COPYRIGHT, PATENTS AND MARKS; FORMS AND DOCUMENTS.
5.1. COPYRIGHT, PATENTS AND MARKS. All trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights in or related to the Software Products are and will remain the exclusive property of BOXX or its licensors, whether or not specifically recognized or perfected under international, federal, state or local applicable law. All trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights that belong to you are and will remain your exclusive property, whether or not specifically recognized or perfected under international, federal, state or local applicable law. You and BOXX will not acquire any right to the trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights of the other except to the extent specified in this Agreement (as in, by way of example, Section 3.3 of this Agreement). You and BOXX further agree to take reasonable steps to protect the confidentiality of the confidential information of the other. Each party, during the term of this Agreement, grants to the other party a non-exclusive, non-transferable, non-sublicensable, limited right to use the other’s corporate name, trade names, trademarks, designs, copyrights, logos or other designations solely for the purpose of performing its obligations in accordance with the terms of this Agreement.
5.2. TEXT, FORMS AND REPORTS. If you provide any text, forms or reports of any kind (the “Subject Documents”) to BOXX for inclusion with or as part of BOXX’s provision of the Services as contemplated under this Agreement, by so doing, you acknowledge, agree, covenant, represent and warrant, as applicable, as follows: (i) you have the right and authority: (a) to use, reproduce, modify, distribute and/or disseminate the Subject Documents; (b) to provide the Subject Documents to BOXX; and (c) to request that BOXX use, reproduce, modify, distribute and/or disseminate them in connection with any software or service provided by BOXX; (ii) BOXX’s use, reproduction, modification, distribution and/or dissemination of the Subject Documents will not infringe any trademark, service mark, collective mark, certification mark, trade dress, copyright, intellectual property right, or any other entitlement, right or claim protected by law or regulation; (iii) if you need a license to use, reproduce, distribute, modify, and/or disseminate any of the Subject Documents, you possess the license required, alternatively, if BOXX must obtain a license to use, reproduce, modify, distribute, and/or disseminate any of the Subject Documents, you will so inform BOXX in advance in writing and you agree to pay the fees and costs for BOXX to obtain and maintain any such license; (iv) either (a) you independently created, and have the right to provide, the Subject Documents to BOXX without the consent of any person or entity, or (b) if the consent of another person or entity is required, you have obtained such consent in writing and upon request, will provide evidence of such consent satisfactory to BOXX in BOXX’s sole and absolute discretion; (v) as between you and BOXX, you are solely responsible for the content, accuracy, enforceability and selection criteria of the Subject Documents; (vi) you grant to BOXX the right to place a notice on any of the Subject Documents indicating that BOXX’s Software Products and/or Services have been utilized in connection with the selection and completion of the Subject Documents; and (vii) expressly authorize BOXX to utilize the Subject Documents as part of or in connection with BOXX’s provision of the Software Products and Services to you and your customers, all in accordance with your instructions. You agree to render full and timely payment in connection with all charges for the development of the Subject Documents in accordance with BOXX’s standard billing procedures.
6. INDEMNIFICATION. You agree to defend, indemnify and hold harmless BOXX and its affiliates, and their respective officers, directors, employees, agents, contractors and any other person or entity from and against any and all claims, losses and liability (including, without limitation, attorneys’ fees and other costs incurred) arising out of, related to, or connected with (i) a breach of any of the User Obligations, and (ii) BOXX’s utilization of any of the Subject Documents referred to in Section 5.2 hereof in accordance with your instructions. The provisions of this Section 6 are in addition to any liability which you may otherwise have. In case any proceeding is instituted involving any person in respect of which indemnity may be sought pursuant to this Section 6, such person (the “indemnified party”) shall promptly notify you in writing and you, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others you may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) you and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both you and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, in either of which event you shall also pay such fees and disbursements of such counsel. If the indemnified party has not requested you to retain counsel to represent the indemnified party and to pay the fees and disbursements of such counsel as provided above, you may, at your option, at any time upon written notice to the indemnified party, nevertheless assume the defense of any proceeding and may designate counsel satisfactory to you in connection therewith provided that the counsel so designated would have no actual or potential conflict of interest in connection with such representation. Unless you shall assume the defense of any proceeding, you shall not be liable for any settlement of any proceeding effected without your written consent. If you assume the defense of any proceeding, you shall be entitled to settle such proceeding with the consent of the indemnified party or, if such settlement provides for release of the indemnified party in connection with all matters relating to the proceeding which have been asserted against the indemnified party in such proceeding by the other parties to such settlement, without the consent of the indemnified party.
7. TERM AND TERMINATION; EFFECT OF TERMINATION.
7.1. IN GENERAL. The term of this Agreement commences upon your use of the Software Products or Services and will continue until terminated. Either party, in its sole and absolute discretion, may terminate this Agreement at any time, with or without cause, immediately upon the giving of a notice of termination to the other party.
7.2. EFFECT OF TERMINATION. Upon the termination of this Agreement, all rights granted by BOXX to you pursuant to this Agreement will cease immediately. Notwithstanding the termination of the Agreement, you agree to pay for any and all Software Products and Services you have obtained or utilized on or prior to the termination date of the Agreement.
8.1. TIME IS OF THE ESSENCE; RELATIONSHIP BETWEEN THE PARTIES. Time is of the essence in the performance of your obligations under this Agreement. The parties are independent contractors as to one another, and no agency, partnership, joint venture, employer-employee, or franchisor-franchisee relationship is intended or created by this Agreement. No party to this Agreement may legally bind the other party.
8.2. NOTICES. Except as otherwise provided in this Agreement, all notices and other communications hereunder shall be in writing and shall be personally delivered, or shall be sent by registered or certified mail, postage prepaid, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, return receipt requested. Notice given by personal delivery shall be deemed given upon actual delivery, and notice given by registered or certified mail or by nationally recognized overnight courier as described above shall be deemed given upon the signing of the return or other receipt (or upon a first refusal to sign the receipt) when such notices are delivered or sent to the parties at the addresses specified below:
8.2.1. if to BOXX: Parking BOXX Inc., Attention: Legal Department, PO Box 803338-93984, Chicago, IL 60680
8.2.2. if to you: to the person(s) and the address(es) then indicated in BOXX’s records
8.3. WAIVER. Any waiver by any party of any right, representation, warranty, covenant, or other term or condition in this Agreement will not be effective unless executed in writing and signed by both an authorized representative of you and BOXX.
8.4. ASSIGNMENTS. You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of your rights or obligations under this Agreement without the prior written consent of BOXX. Any purported assignment, sale, transfer, delegation or other disposition by you, except as permitted herein, shall be null and void. BOXX may assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement and any or all its rights or obligations hereunder to any person upon the giving of notice to you. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors-in-interest.
8.5. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement is to be construed in accordance with and governed by the laws of the State of Florida without giving effect to any choice of law rule that would cause the laws of any jurisdiction other than the laws of the State of Florida to apply to the rights and duties of the parties. Both you and BOXX submit to the jurisdiction, and waive any right to contest the venue (including forum non conveniens), of courts in Florida and further agree that any claim or cause of action, whether in contract, tort, warranty, negligence, strict liability, product liability, statutory liability, indemnity or otherwise, arising out of, related to or in connection with this Agreement shall be brought in a Federal or State court in Miami Dade County, Florida. The prevailing party(ies) in any such action or proceeding shall be entitled to attorney’s fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled and the court shall provide. If any provision of this Agreement is held to be unenforceable, in whole or in part, the unenforceable portion of such provision shall be struck and the remainder of such provision, the remaining provisions of this Agreement, and the applicability of the remaining provisions to other persons or entities shall not be affected.
8.6. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, whether displayed in an electronic format or printed out on paper, sets forth the entire understanding and agreement, and supersedes any prior or contemporaneous understanding or agreement, between you and BOXX with respect to the subject matter hereof. BOXX reserves the right to amend or modify this Agreement (including, without limitation, by adding new provisions of the same or a different nature as the existing provisions of this Agreement, or by deleting provisions of this Agreement) in its sole and absolute discretion at any time by posting the amended Agreement on BOXX’s website(s), and all amended terms shall automatically be effective immediately after they are initially posted. A printout of this Agreement, if and as amended, shall be acceptable as an original document to prove the contents hereof for all purposes relating to this Agreement.
8.7. NONPUBLIC PERSONAL INFORMATION. BOXX agrees that any and all “nonpublic personal information” of your “customers” or “consumers” that is collected by BOXX or disclosed to BOXX by you shall be used by BOXX and its employees and agents only as necessary to fulfill its obligations under this Agreement and shall not be disclosed to any other person, except as necessary to fulfill its obligations under this Agreement or as may be otherwise required by applicable law, unless authorized in writing by you. BOXX agrees to limit access to such nonpublic personal information to those of its employees or agents who reasonably need such information in order to allow BOXX to fulfill its obligations under this Agreement and to require such persons to maintain the confidentiality of such information.
8.8. FORCE MAJEURE. Except as otherwise provided by this Section 8.8, neither party will be responsible for any failure or delay in performance of its obligations under this Agreement (other than an obligation to pay fees in accordance with Section 3.4 or other obligation to make payments hereunder) due to acts of God, war, riot, embargoes, acts of civil or military authorities, terrorist attack, fire, floods, accidents, service outages resulting from equipment and/or software failure and/or telecommunications failures, power failures, network failures, failures of third party service providers (including, without limitation, providers of Internet services, mail or delivery services, and telecommunications), earthquakes, acts of the public enemy, labor disputes, strikes, or other events or circumstances beyond a party’s reasonable control. The party affected by any such event shall notify the other party within fifteen (15) days from its occurrence. The performance of this Agreement (other than the obligation to pay fees under Section 3.4 and the obligation to make other payments hereunder) shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Agreement, provided that the party seeking suspension of this Agreement takes reasonable steps to mitigate the effects of the event giving rise to such suspension.
8.9. NO THIRD PARTY BENEFICIARY. It is not the intention of the parties to confer, and this Agreement shall not be construed as to confer, any right or benefit upon any person other than the parties to this Agreement and their respective successors-in-interest; and no such other person shall have any rights or remedies against either of the parties under or by virtue of this Agreement.
8.10. FURTHER ASSURANCES. Each party agrees to do, or cause to be done, acts that are reasonably requested by the other party and that are necessary, proper or advisable under applicable laws, rules and regulations to perform the duties or protect its property as contemplated by this Agreement as expeditiously as practical including, without limitation, the performance of such further acts or the execution and delivery of any additional instruments or documents as either party may reasonably request in order to carry out the purposes of this Agreement and the performances of the parties contemplated hereby.
8.11. CONSTRUCTION. Any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived to the fullest extent allowed by law. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the purpose of the parties and this Agreement.
8.12. INTERPRETATION. Titles or captions contained herein are inserted as a matter of convenience for reference only, and in no way define, limit, extend or describe the scope of this Agreement or any provision herein. The definitions of the terms in this Agreement shall apply equally to the singular and plural forms of the terms defined and regardless of tense or part of speech. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine or neuter forms. The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any person shall also be construed to mean such person’s successors and permitted assigns, (c) the words “herein,” “hereof” and “hereunder,” and similar words, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement, and (d) all references herein to sections shall be construed to refer to sections of this Agreement.
8.13. EXPENSES. Each party shall pay all expenses incurred by it or on its behalf in connection with this Agreement and the transactions contemplated hereby, except as otherwise set forth in this Agreement.
8.14. SURVIVAL. The provisions of Sections 1, 3.3, 3.4, 4.2 through 4.7 (inclusive), 5 (except for the last sentence of Section 5.1), 6, 7.2 and 8 shall survive the termination of this Agreement for any reason.
8.15. U.S. GOVERNMENT RESTRICTED RIGHTS. Any use of the Software Products for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with Restricted Rights and Limited Rights; use, duplication, or disclosure of any data by the U.S. Government is subject to restrictions as set forth in DFARS Part 227 and 252 or FARS Parts 27 and 52, and their successors, as applicable. The manufacturer is Parking BOXX Inc.
8.16. EXPORT RESTRICTIONS. You agree to comply with all applicable international and national laws that apply to import or export of the Software Products and the information contained therein, including the U.S. export laws and Export Administration Regulations.