Unless otherwise agreed to by Parking BOXX in writing, the Terms of Sale apply to direct purchasers of Parking BOXX hardware, software and services and Customers who purchase through a reseller. By placing your order or receiving Products and Services described in a quote that references these Terms, you accept and are bound to the Terms of Sale below:
1. Introduction
These Terms of Sale (the “Agreement”), made between you (“you” or “Customer”) and Parking BOXX, govern your purchase and use of Products and Services from Parking BOXX. “Parking BOXX” means Parking BOXX or the Parking BOXX Affiliate identified on the Parking BOXX sales documentation. “Parking BOXX Affiliate” means an authorized reseller of Parking BOXX products. This Agreement is effective upon the earliest of (i) your issuance of a purchase order to Parking BOXX, (ii) your acceptance of these terms in writing, (iii) your acceptance of these terms by receiving Products or Services as described in written document, such as a quote or order form or (iv) your agreement with a reseller that references this Agreement. If you purchased through a reseller or distributor, final prices and sales terms will be between you and the reseller or distributor; however, this Agreement applies to your possession and use of Products and Services.
A. Definitions. “Hardware” means kiosk and station hardware, related devices and other accessories including all embedded components (excluding Software). “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) form, and “Documentation” means the related media, printed materials, online and electronic documentation, including copies. “Products” means Hardware, Software, or both. “Services” means services and Deliverables provided by Parking BOXX. “Deliverables” means the tangible materials, including reports, studies, drawings, software, manuals or written procedures and recommendations that Parking BOXX delivers to you under a Statement of Work. “Third-Party Products” means products, software, or services that are not manufactured or performed by Parking BOXX.
B. Additional Agreements. This Agreement, the Service Agreements and the Software Agreements (each as defined below) form a legally binding contract between you and Parking BOXX. In the event of a conflict or ambiguity, the applicable Service Agreement or Software Agreement will take precedence over this Agreement.
2. Term; Auto-Renewal
This Agreement will continue until all Services, Product warranties, or licenses have expired or been terminated. If you purchased directly from Parking BOXX, Hardware Service and non-perpetual Software licenses may be renewed if you pay a renewal invoice from Parking BOXX or continue to use the Hardware Service or Software past its initial term. If you purchased through a reseller, the payment terms for renewal for the Hardware Service or Software licenses will be as agreed between you and the reseller.
3. Quotes, Ordering, and Payment
Except for subsection B, this Section applies only to direct purchases from Parking BOXX.
A. Quotes and Orders. “Order” means your order of Products or Services by submitting a purchase order that references a Parking BOXX quote, by executing a Parking BOXX order form, or by receiving Products or Services referenced in a written quote provide to you. Your Order is subject to acceptance by Parking BOXX. Acceptance of one Order is independent from any other Order. Quoted prices are effective until the expiration date of the quote, but may change due to shortages in materials or resources, increase in the cost of manufacturing, or other factors. Orders for Third-Party Products are subject to availability and are cancellable only by Parking BOXX. Parking BOXX is not responsible for pricing, typographical, or other errors in any offer, and may cancel orders affected by such errors.
B. Changed or Discontinued Products or Services. Parking BOXX may revise or discontinue Products and Services at any time, including after Customer places an Order, but prior to Parking BOXX’s shipment or performance. As a result, Products and Services Customer receives might differ from those ordered. However, Parking BOXX-branded Products will materially meet or exceed all published specifications for the Products. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned.
C. Title; Shipping Charges; Risk of Loss. Title for Hardware shall pass to Customer only upon full payment of all outstanding debt from Customer to Parking BOXX. Customer shall take all measures necessary to protect seller’s title on and interest in the Hardware. All right, title, and interest in the Software or other intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Software, Hardware and Services, as well as the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to Parking BOXX or the applicable suppliers or licensors, and Customer shall have no rights whatsoever in any of the above, except as expressly granted in this Agreement. Shipping and handling charges are not included in Product prices unless expressly indicated at the time of sale. Loss or damage that occurs during shipping (including returns) is the responsibility of Customer unless otherwise agreed. Fees & handling charges for changes to shipping addresses provided by Customer after shipping shall be the responsibility of Customer. Shipping and delivery dates are estimates only. Customer must notify Parking BOXX in writing within 21 days of the invoice date if Customer believes any part of the Order is missing, incorrect, or damaged. Without such written notice, the invoice and Order will deemed to be accurate, complete and accepted by the Customer, otherwise theinvoice and Order will be deemed to be accurate, complete and accepted by Customer.
D. Payment. Invoices are due and payable within the time period stated on your invoice, or if not stated, within 30 days from the invoice date. Payment must be made in the method and currency identified by Parking BOXX. Credit approval may be revoked at any time. Parking BOXX may invoice parts of an Order separately or together in one invoice. Customer’s continued use and/or operation of Products and Services shall be deemed to be acceptance by Customer of the Parking BOXX Products. All invoices shall be deemed accurate unless Customer advises Parking BOXX in writing of a material error within 10 days following receipt. If Customer advises Parking BOXX of a material error, (i) any amounts corrected by Parking BOXX in writing shall be paid within 14 days of correction and (ii) all other amounts shall be paid by Customer by the due date. If Customer withholds payment upon an assertion that an invoiced amount is erroneous, and Parking BOXX concludes that such amount is accurate, Customer shall pay interest as described below from the due date for such amounts until Parking BOXX’s receipt of those amounts. Customer may not offset, defer or deduct any invoiced amounts that Parking BOXX determines are not erroneous following the notification process set forth above. Any assignment of your payment obligations to a third-party financing company (other than Parking BOXX) must be approved in advance in writing by Parking BOXX, and you will not be excused from your obligations under this Agreement. Parking BOXX may charge a late penalty of 1.5% per month on undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late penalties will be recalculated every 30 days based on your current outstanding balance. Parking BOXX, without waiving any other rights or remedies and without liability to Customer, may suspend, disable or terminate any or all Products or Services and refuse additional orders for Products or Services until all overdue amounts are paid in full. Parking BOXX shall be entitled to all reasonable legal and attorney fees and associated costs of collecting overdue amounts.
E. Taxes. You are responsible for sales tax and any other taxes or governmental fees associated with your Order. If Parking BOXX does not charge tax for out of state sales at the time an order is placed, but a state or other government entity later determines that tax should have collected, you agree to pay any such taxes due upon such determination. If you qualify for a tax exemption, you must provide Parking BOXX with a valid certificate of exemption or other appropriate proof of exemption. The charges stated on each line item of the invoice shall include all duties, levies or any similar charges and exclude VAT or equivalent sales or use tax. Customer shall also pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes) from the factory in Milton, Ontario, Canada.
F. Product Returns and Exchanges. Before returning or exchanging Products, you must contact Parking BOXX to obtain an authorization number (RMA) for your return. Any product returned to Parking BOXX without prior authorization from Parking BOXX will be considered an unauthorized return, and you will not receive credit for the product and Parking BOXX will not ship the product back to you. Within 30 days from the date on the packing slip, you may return non-custom Products (i.e. products without customized artwork and custom printing) in its original or equivalent packaging for a credit or a refund of the purchase price paid, less shipping and handling, and any applicable restocking fees (as further described below). You are responsible for risk of loss and shipping and handling fees. Additional fees, including up to a 25% restocking fee, may apply. If you fail to follow the return or exchange instructions, Parking BOXX will not be responsible for any loss, damage, or modification of Hardware. Credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing associated with your purchase. Title to returned or exchanged Hardware shall pass to Parking BOXX upon receipt at the specified Parking BOXX facility.
• Ship back all products you are seeking to return to Parking BOXX and for which you received an RMA number. For partial returns, your credit may be less than the invoice or individual component price.
• Return the products in their original packaging, in as-new condition, along with any media, documentation and any other items that were included in your original shipment.
• Ship the products at your expense, and insure the shipment or accept the risk of loss or damage during shipment.
Note: Before you return the product to Parking BOXX, make sure to back up any data on the hard drive(s) and on any other storage device in the product. Remove any and all confidential, proprietary and personal information as well as removable media such as flash drives, CDs and PC Cards. Parking BOXX is not responsible for any confidential, proprietary or personal information; lost or corrupted data; or damaged or lost removable media that may be included with your return.
G. Order Cancellation and Change Fees. After Parking BOXX receives an order from you, any cancellation and/or change requests must be made in writing. Cancellation of parts or consumables orders thereafter will be subject to a restocking fee of 25%. Order change fees will be assessed based on the nature of the request. Due to the extensive amount of work at the outset of parking system orders and custom orders, deposits received by Parking BOXX for custom orders, including but not limited to parking system orders and orders with products that incorporate customized artwork or custom printing, RFID cards with custom site codes, weatherized keypads, items with custom finishes and/or colors, are not refundable and such Products, Services and Deliverables are not returnable.
H. Storage Fees. Once you are notified that your system is ready for shipping or as complete as the system can be by Parking BOXX (per items waiting for your approval and/or action), the order will begin to accrue storage fees of 2.5% of the total order price per month.
I. Discounts and Pricing. Discounts provided on prior Orders, including but not limited to Products and service rates, are no guarantee of discounts on future Orders. Pricing provided on prior Orders, including but not limited to Products and service rates, are no guarantee of pricing on future Orders. Please request a quote to ensure accurate pricing based on current circumstances.
4. Services and Software
A. Service Agreements. Parking BOXX may provide Services, Service-related Software, or Deliverables to you in accordance with one or more “Service Agreements.” “Service Agreements” are service contracts, including “Service Descriptions,” “Statements of Work,” and any other mutually executed documents. Each Service Agreement will be interpreted separately from any other Service Agreement.
B. Hardware Services.
i. Exclusions. “Hardware Services” are Services necessary to repair a defect in materials or workmanship of Hardware. Hardware Services do not include preventive maintenance or repairs required due to (a) software problems; (b) alteration, adjustment, or repair of the Hardware by anyone other than Parking BOXX or Parking BOXX’s representatives; (c) accident, misuse, or abuse of the system or component (such as fire, water leakage, use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) that have not been caused by Parking BOXX; (d) moving of the system from one geographic location or entity to another; or (e) an act of nature.
ii. Customer Authorization for Provision of Services. Some warranties or service contracts for Third-Party Products may become void if Parking BOXX provides services for such products. PARKING BOXX SHALL NOT BE RESPONSIBLE FOR ANY EFFECT THAT THE HARDWARE SERVICES MAY HAVE ON THOSE WARRANTIES OR SERVICE CONTRACTS. You authorize Parking BOXX to use or otherwise access any and all Third-Party Products you provide to us as may be necessary to perform the Services or as requested by you, including but not limited to copying, storing, and reinstalling a backup system or data.
C. Software. The Software is subject to, and you are bound by, the applicable Software Agreement. “Software Agreement” means (i) the software license agreements included with the software installation folder or agreed to by the use of the Software, or (ii) if no license terms accompany the Software or are not otherwise made available to you by Parking BOXX, the End User License Agreement, found at Parking BOXX.com/license and ParkingBOXX.com/software-eula. Software includes installation, configuration and back-up of applicable files but does not include physical media with executable installation files.
D. Data Services. Any data services provided by Parking BOXX shall be subject to the terms set for in a Data Agreement. Absent a separate agreement, Data Services maximum usage is limited to 100 MB per monthly billing cycle. Additional overage shall be billed at $10 USD per additional MB. Once the hardware is in your physical possession you are responsible for any data overages. Lost or stolen hardware must be reported immediately and you will continue to be responsible for all data overage fees until such Data Services have been terminated with the provider. In the event that Data Overages occur, Parking BOXX reserves the right to immediately terminate any Data Services.
E. Customer & System Data. In connection with Parking BOXX’s performance or your use of the Services and Service-related Software, Parking BOXX may obtain, receive, and/or collect data or information, including system-specific data (collectively, the “Data”). You represent and warrant that you have obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which you are located. You grant Parking BOXX (i) a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely to provide the Services or Service-related Software; (ii) a license to aggregate and use the Data in an anonymous manner in support of Parking BOXX’s marketing and sales activities; and (iii) the right to copy and maintain the Data on Parking BOXX’s or its suppliers’ servers as necessary to prove or disprove any allegations pertaining to system performance or to provide the Services.
F. Merchant Services. For any merchant services or receipt of funds from credit card payment it is the responsibility of the Customer to confirm that funds are received and deposited within the bank account within 3 business days after first receipt of funds. Parking BOXX shall no be responsible for any fees not processed or received.
5. Proprietary Rights
The Products and Software are protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Software, Products and Deliverables, and the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to Parking BOXX or its suppliers or licensors. Subject to Parking BOXX’s receipt of payment in full for the applicable Services, Parking BOXX grants you a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely (i) in the country or countries in which you do business; (ii) for your internal use; and (iii) as necessary for you to enjoy the benefit of the Services as stated in the applicable Service Agreements.
6. Limited Warranty
A. THE LIMITED WARRANTIES FOR PARKING BOXX-BRANDED OR PARKING BOXX-LICENSED HARDWARE SHALL BE AS STATED IN THE DOCUMENTATION PROVIDED WITH THE HARDWARE. IF THERE IS NO SUCH DOCUMENTATION, THEN THE WARRANTIES SHALL BE 90 DAYS LABOR AND ONE-YEAR HARDWARE (“EXPRESS WARRANTIES”) FROM THE DATE OF SHIPPING OR INSTALLATION, (ONLY IF EQUIPMENT IS INSTALLED BY A PARKING BOXX TECHNICIAN). THE LIMITED WARRANTIES FOR SOFTWARE SHALL BE AS STATED IN THE APPLICABLE SOFTWARE AGREEMENT. THE SERVICES WILL BE PROVIDED IN A GOOD AND WORKMANLIKE MANNER.
B. THE ABOVE WARRANTIES DO NOT COVER DAMAGE DUE TO EXTERNAL CAUSES, SUCH AS ACCIDENT, ABUSE, MISUSE, PROBLEMS WITH ELECTRICAL POWER OR ELECTRICAL POWER NOT IN ACCORDANCE WITH PRODUCT INSTRUCTIONS, SERVICES NOT PERFORMED OR AUTHORIZED BY PARKING BOXX (INCLUDING INSTALLATION OR DE-INSTALLATION), USAGE NOT IN ACCORDANCE WITH PRODUCT INSTRUCTIONS, USAGE WITHOUT COMPLETION OF RECOMMENDED TRAINING COURSES, FAILURE TO TAKE REMEDIAL STEPS RECOMMENDED BY PARKING BOXX SUPPORT, NORMAL WEAR AND TEAR, USE OF PARTS AND COMPONENTS NOT SUPPLIED OR INTENDED FOR USE WITH THE PRODUCTS OR SERVICES, OR POST-INSTALLATION UPGRADES REQUIRED FOR MACHINES TO ACCEPT NEW BILLS, COINS OR BE IN COMPLIANCE WITH NEW MERCHANT ACCOUNT, PCI, EMV REQUIREMENTS OR OTHER REGULATIONS. ANY WARRANTY FOR A THIRD-PARTY PRODUCT IS PROVIDED BY THE PUBLISHER, PROVIDER, OR ORIGINAL MANUFACTURER. ALL THIRD-PARTY PRODUCTS ARE PROVIDED BY PARKING BOXX “AS IS.”
C. EXCEPT AS EXPRESSLY STATED ABOVE OR IN THE EXPRESS WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, PARKING BOXX (INCLUDING PARKING BOXX AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT; (ii) FOR ANY THIRD-PARTY PRODUCTS; (iii) FOR THE PERFORMANCE OF OR RESULTS TO BE OBTAINED FROM ANY PRODUCTS OR SERVICES; OR (iv) THAT THE PRODUCTS OR SERVICES WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION OR ERROR AND SUCH STANDARD OF NORMAL OPERATION SHALL BE DETERMINED IN THE SOLE DISCRETION OF PARKING BOXX. The Parking BOXX-branded Products and Services are not fault-tolerant, and they are neither designed nor intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of the Products or Services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). Parking BOXX expressly disclaims any express or implied warranty of fitness for High-Risk Activities.
7. Confidentiality
“Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential. Confidential Information may only be disclosed to the receiving party’s personnel, professional advisors, agents, and subcontractors (“Representatives”), on a “need-to-know” basis in connection with this Agreement. Representatives shall be bound to treat the Confidential Information under terms at least as restrictive as those herein, and the receiving party shall be liable for unauthorized disclosures by its Representatives. Each party will use at least the same degree of care as it employs with respect to its own Confidential Information, but not less than a commercially reasonable standard of care. The foregoing shall not apply to information that (i) is independently developed without use of the other party’s Confidential Information; (ii) has been obtained from a source which is not under a confidentiality obligation; or (iii) is or becomes publicly available without fault of the receiving party. If receiving party must disclose Confidential Information as required by law, it shall give reasonable prior notice to the disclosing party. These obligations shall continue for 3 years from the initial date of disclosure, except that obligations related to information about a party’s intellectual property shall never expire.
8. Indemnification
A. If you purchased Products or Services directly from Parking BOXX, Parking BOXX shall defend and indemnify you against any third-party claim that Parking BOXX-branded Products or Services (excluding Third-Party Products and open source software) infringe or misappropriate that third party’s United States (“U.S.”) patent, copyright, trade secret, or other intellectual property rights (“Claim(s)”). In addition, if Parking BOXX receives prompt notice of a Claim that Parking BOXX believes is likely to result in an adverse ruling, then Parking BOXX shall at its option, (i) obtain a right for you to continue using such Products or Deliverables or for Parking BOXX to continue performing the Services; (ii) modify such Products or Services to make them non-infringing; (iii) replace such Products or Services with a non-infringing equivalent; or (iv) if you purchased directly from Parking BOXX, refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product or Deliverables. Parking BOXX shall have no obligation for any claim arising from (a) modifications of the Products and Services that were not performed by or on behalf of Parking BOXX; (b) misuse, or the combination or use with Third-Party Products (the combination of which causes the claimed infringement); or (c) Parking BOXX’s compliance with your written specifications, including the incorporation of any software or other materials or processes you provide or request. Parking BOXX’s duty to indemnify and defend the Claim is contingent upon: (x) your prompt written notice of the Claim; (y) Parking BOXX’s right to solely control the defense and resolution of the Claim; and (z) your cooperation in defending and resolving the Claim. These are your exclusive remedies for any third-party intellectual property claim, and nothing in this Agreement or elsewhere will obligate Parking BOXX to provide any greater indemnity.
B. You shall defend and indemnify Parking BOXX against any third-party claim resulting or arising from: (i) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or components requested by you to be used with, or installed or integrated as part of the Products or Services; (ii) your violation of Parking BOXX’s intellectual property rights; (iii) any inaccurate representation regarding the existence of an export license or any allegation made against Parking BOXX due to your alleged violation of applicable export laws; or (iv) your transferring or providing access to Excluded Data (as defined below) to Parking BOXX.
C. Each party shall defend and indemnify the other against any third-party claim for personal bodily injury, including death, where the injury has been exclusively caused by the indemnifying party’s gross negligence or willful misconduct in connection with this Agreement.
9. Compliance with Laws
A. In performing its obligations under this Agreement, each party agrees to comply with all laws and regulations applicable to such party including the customs and export control laws and regulations of the U.S.; and the country in which the Products or Services are delivered or performed.
B. Customer certifies that all items (including hardware, software, technology and other materials) it provides to Parking BOXX for any reason comply with local regulatory requirements. Parking BOXX is not responsible for determining whether any Third-Party Product to be used in the Products and Services satisfies regulatory requirements of the country to which such Products or Services are to be delivered or performed, and Parking BOXX shall not be obligated to provide any Product or Service where the resulting Product or Service is prohibited by law or does not satisfy the local regulatory requirements.
C. Parking BOXX’s privacy policies explain how Parking BOXX treats your personal information and protects your privacy and can be found at Parking BOXX.com/privacy.
10. Termination or Suspension
A. Suspension or Modification of Services. Parking BOXX may suspend, terminate, withdraw, or discontinue all or part of the Software or Services when Parking BOXX believes, in its sole judgment, that Customer is in violation of its obligations set forth herein or as otherwise agreed in writing or are in violation of your involved in any fraudulent or illegal activities.
B. Termination. Either party may terminate a Service Agreement or Software Agreement if the other party commits a material breach and the breach is not cured within 90 days of receipt of written notice. Termination of any Service Agreement will not terminate other Service Agreements, and termination of all Service Agreements will not terminate this Agreement. Parking BOXX may terminate this Agreement and all Service Agreements and Software Agreements immediately, if (i) you fail to make any payment when due; (ii) you declare bankruptcy or are adjudicated bankrupt; (iii) a receiver or trustee is appointed for you or substantially all of your assets; or (iv) you purchased through a reseller and, as applicable, the agreement between you and such reseller expires or is terminated, the agreement between Parking BOXX and such reseller expires or is terminated, or your reseller is delinquent on its payment obligations to Parking BOXX. Further, Parking BOXX may terminate a Service Agreement immediately if you are acquired by or merge with a competitor of Parking BOXX. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
11. Limitation of Liability
A. PARKING BOXX WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS OR SERVICES EXCEPT FOR YOUR BREACH OF SECTIONS 3(D) OR 7, OR YOUR VIOLATION OF PARKING BOXX’S INTELLECTUAL PROPERTY RIGHTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; LOSS CAUSED BY A VIRUS OR MALWARE; LOSS OF OR DAMAGE TO PROPERTY; CLAIMS OF THIRD PARTIES; LOSS OF BUSINESS OPPORTUNITY; (iv) BUSINESS INTERRUPTION OR DOWNTIME; (v) THE PRODUCTS, DELIVERABLES OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE; OR (vi) THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
B. TO THE FULLEST EXTENT PERMITTED BY LAW, PARKING BOXX’S TOTAL LIABILITY, IN THE AGGREGATE, TO CUSTOMER, AND ANYONE BY, THROUGH, OR UNDER CUSTOMER FOR ANY CLAIMS, LOSSES, COSTS, OR DAMAGES WHATSOEVER ARISING OUT OF , RESULTING FROM OR IN ANY WAY RELATED TO THIS PROJECT OR AGREEMENT FROM ANY CAUSE OR CAUSES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, PROFESSIONAL ERRORS AND OMISSIONS, STRICT LABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY PARKING BOXX DURING THE PRIOR 6 MONTHS OF THIS AGREEMENT FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM(S).
C. THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR PARKING BOXX’S SALE OF PRODUCTS OR SERVICES TO CUSTOMER, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
12. Logo; Publicity; Press Release
Parking BOXX reserves the right to place its logo on Products in a size not to exceed 6″ x 2.5″. Customer agrees not to remove or otherwise obscure such logos and agrees to pay to Parking BOXX a penalty of $1,000 USD per incident.
After installation of a Parking BOXX system has been completed, Parking BOXX may refer to the Customer (including any Customer-related companies affiliated through ownership or control) on Parking BOXX’s website or other marketing materials which display customers of Parking BOXX and to use Customer as a possible reference, provided that you may decline Parking BOXX this right by emailing legal[at]parkingboxx[dot]com stating that you do not wish to be used as a reference or listed on Parking BOXX’s website. Any Parking System Discounts shall be contingent upon the customer's consent to take photos, videos and testimonials of the installed Parking System for use in Parking BOXX's instructional and marketing materials. Should such consent not be granted, then any discount amount shall become immediately due in full. Customer, however, may request that any logo or brand be obscured in such photos or videos. At any time following installation, Parking BOXX and Customer may issue a press release or other public statement related to this system installation if each party consents in writing.
13. Additional Terms
A. Independent Subcontractor Relationship; Assignment; Subcontracting. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation on behalf of the other party except as specified in this Agreement. Neither party’s employees, agents, nor consultants shall be considered under any circumstances to be employees of the other party. Parking BOXX has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any of its rights, duties, obligations or liabilities provided that if it subcontracts its duties in providing Services, Parking BOXX shall remain responsible for the performance of such Services under this Agreement. You may not assign this Agreement without Parking BOXX’s permission.
B. Excused Performance. A party shall not be liable to the other for any delay in performing its obligations if the delay is caused by circumstances beyond its reasonable control, provided that the other party is promptly notified in writing. If the circumstance lasts longer than 30 days, then the other party may terminate, in whole or in part, this Agreement or the affected Service Agreement or Software Agreement by giving written notice to the delayed party. This Section shall not relieve either party of its obligations under this Agreement (including payment), but rather will only excuse a delay in performance.
C. Governing Law. This Agreement and any related Service Agreement(s), and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND PARKING BOXX, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers (a “Dispute”) will be governed by the laws of the State of Oregon (or if in Canada, in Ontario), without regard to conflicts of law. The UN Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply.
D. Venue. The parties agree that any Dispute shall be brought exclusively in the state or federal courts located in Washington County, Oregon or in Halton Region, Ontario. The parties agree to submit to the personal jurisdiction of such courts.
E. Bench Trial. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute.
F. No Class Actions. NEITHER PARTY SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
G. Limitation Period. NEITHER PARTY shall be liable for any claim brought more than 2 years after the cause of action for such claim first arose.
H. Dispute Resolution. Customer and Parking BOXX will attempt to resolve any Dispute through negotiation or by utilizing a mediator agreed to by the parties, rather than through litigation. Negotiations and mediations will be treated as confidential. If the parties are unable to reach a resolution within 30 days of notice of the Dispute to the other party, the parties may pursue all other courses of action available at law or in equity.
I. Notices. Notice to Parking BOXX under this Agreement or any related Service Agreement must be in writing by electronic mail to the address below, and will be effective upon receipt.
Parking BOXX, Attn: Contracts Manager
legal@parkingboxx.com
J. Updates. These Terms are periodically updated and your continued us of the software and products evidences your continued acceptance of updates to these Terms, which should be checked reguarly to review the updates.
K. Entire Agreement; Severability. This Agreement is the entire agreement with respect to its subject matter and supersedes all prior or contemporaneous communications or agreements that may exist. If you purchased directly from Parking BOXX, any preprinted terms on your purchase order shall be of no force or effect. Modifications to this Agreement will be made only through a written amendment signed by both parties. If any provision of this Agreement is found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force. No rights may arise by implication or estoppel, other than those expressly granted herein.
