This agreement (the "Agreement") is entered into by and between you ("Customer") and Smart Parking Solutions US LP ("SPS"). This Agreement includes and incorporates by reference: (i) the Pricing List set forth on the Local Municipality or Campus Page on the EasyPark web site (www.easyparkusa.com) for the applicable municipality campus for which Customer is purchasing EasyPark devices (the "Pricing List"), and (ii) the General Terms and Conditions set forth below. The parties hereto agree as follows:
Order and Purchase of Devices
Customer shall place an online order via SPS's website (the "Order") to purchase that number of EasyPark devices (the "Devices") pursuant to the prices set forth in the Pricing List.
To complete the Order, Customer shall be required to pay an amount equal to the number of Devices selected to be purchased times the Device purchase price as set forth in the Pricing List, plus appropriate taxes, shipping, and handling charges .Payment shall be made by a Visa or Master Card credit or debit card, or via an ACH transfer (each, an "Approved Payment Method"). All payments for Devices are non-refundable.
SPS shall process the Order, and upon completion thereof, SPS shall send the purchased Devices to the Customer.
Each purchased Device shall have a unique identification number associated with the Customer's account (the "Account") within the online EasyPark system (the "EasyPark System").
SPS will charge Customer, and Customer agrees to pay, a non-refundable membership fee for each Device purchased by Customer on either a monthly basis (the “Monthly Fee”) or an annual basis (the “Annual Fee”) as selected by Customer (either, a “Membership Fee”). The Monthly Fee and Annual Fee are set forth in the Pricing List. Monthly Fees shall be billed on a monthly basis commencing on the first day after conclusion of any applicable Trial Period as set forth below. Annual Fees shall be billed on an annual basis commencing on the first day after conclusion of any applicable Trial Period, as set forth below.
Timely payment of the Membership Fee will entitle Customer to the following benefits: (i) customer support via telephone or e-mail during regular business hours; (ii) for each Device, up to one (1) free battery replacement per year, if needed; (iii) 24/7 access to the EasyPark System; and (iv) the ability to add additional parking funds to Customer’s Account.
SPS shall commence billing of the Monthly Fee or Annual Fee on the first day of the month following conclusion of the Trial Period. The “Trial Period” shall commence on the “Trial Start Date,” which shall be the earlier of the date on which customer first: (i) purchases a Device, or (ii) adds a Device on the Update Device Info page. The Trial Period shall conclude at the end of the month following the month in which the Trial Start Date occurred. For example, if the Trial Start Date occurs in January, the Trial Period concludes at the end of February, and billing will commence on March 1.
If a Customer adds one or more Devices to its account during the Customer’s Trial Period, billing for the additional Device(s) shall commence at the conclusion of the Trial Period.
If a Customer adds one or more Devices to its account after conclusion of the Customer’s Trial Period, they will be billed for the additional Devices as follows:
If the Customer has opted to pay a Monthly Fee, it will be billed for the additional fees on the first day of the month following acquisition of the additional Device(s).
If the Customer has opted to pay an Annual Fee, it will be billed on a pro-rated basis for the remainder of the calendar year in which such Device was acquired on the first day of the month following acquisition of the additional Device(s). The pro-rated amount shall be calculated by multiplying the number of newly acquired devices by the number of months remaining in the calendar year, then dividing by twelve (12) and rounding down to the nearest dollar. Thereafter, Customer will be billed the Annual Fee for all its Devices.
* Users with devices registered for use in Arlington, VA are currently exempt from responsibility for paying monthly and/or annual membership fees.
Changing Membership Fee Payment Plans
Customers may switch at any time from either a Monthly Fee payment plan to an Annual Fee payment plan, or from an Annual Fee plan to a Monthly Fee plan by using the Update Payment Information Page, located at https://easyparkusa.com/client#/updatePaymentInfo/.
If Customer switches from a Monthly Fee plan to an Annual Fee plan, SPS shall bill Customer the full Annual Fee on the first day of the calendar month following the month the Customer has notified SPS of its intent to convert to an Annual Fee, and the Annual Fee will cover the subsequent twelve-month period.
If Customer switches from an Annual Fee plan to a Monthly Fee plan, SPS shall commence billing Customer on a monthly basis after conclusion of the twelve-month period covered by the previously paid Annual Fee.
Adding Additional Parking Funds
If during a given calendar month Customer desires to add additional parking funds to the Account, then, provided Customer has timely paid its Membership Fee, SPS shall charge Customer, and Customer agrees to pay, a non-refundable fee in the amount set forth in the Pricing List for each load of such additional funds (the “Reloading Fee”).
Additional parking funds may be added to the Account only via an Approved Payment Method.
Once the Account has been successfully pre-paid with parking funds, Customer shall be able to distribute the parking funds from the Account to Authorized Users' Devices using each Device's unique identification number through the online EasyPark System, as follows:
Customer will need to connect a Device to a personal computer with the supporting USB cable.
Customer must log into SPS's website with its username and password.
Customer will be able to choose an amount of parking funds to be distributed from the Account to each and any Authorized User's Device using the Device's unique identification number, not to exceed the Maximum Amount per Device as set forth in the Pricing List.
Once additional parking funds have been added to a Device, the Device will be simultaneously updated with, among other things, the latest zone charges, and parking rates.
The Device will upload the actual parking usage as stored in the Authorized User's Device to enable the EasyPark System to provide Customer with various parking reports in connection with such Device.
SPS reserves the right to amend the Monthly Fee and the Reloading Fee from time to time, upon a written notice to Customer.
Use of the Device
Customer may distribute the Devices only to Authorized Users. "Authorized Users" shall mean: (i) for Customers who are individuals, you or any person you designate when ordering devices or (ii) for Customers who are legal entities, such as a corporation, partnership, limited liability company, limited liability partnership, or any other corporate form governed and organized under the laws of any state or country outside the United States (each, a "Corporate Entity"), any directors, officers, members, partners or employees of said Corporate Entity. If the Corporate Entity is an educational institution, "Authorized Users" additionally shall include any faculty, staff or students of the institution.
Customer shall only use the Device in accordance with the posted hours of operation for the particular location at which Customer intends to park, at the posted time limit and rate, as applicable, and shall abide by all rules and regulations of the respective parking authorities for which it uses the Device for the purpose of paying parking fees. Customer acknowledges that parking rates and fees are subject to change by the respective parking authorities for which the Device is used for the purpose of paying parking fees without prior notice.
Customer shall be responsible for (i) selecting the appropriate parking rate on the Device for the location where Customer intends to use the Device for the purpose of paying parking fees; (ii) maintaining sufficient balance on the Device for the purpose of paying parking fees; and (iii) ensuring that the Device is properly turned-off upon completion of its use in order to avoid depletion of funds from the Device.
Unless properly utilized and displayed, the Device alone shall not provide evidence of authorized parking and shall be subject to citations, fees and any punitive action deem necessary at the discretion of the respective parking authorities for which it uses the Device for the purpose of paying parking fees.
Customer acknowledges that the geographic areas in which the Device operates are subject to change. SPS reserves the right to change such geographic areas, from time to time, upon a written notice to Customer, and shall not be liable Customer with respect to any such changes in the geographic areas.
Customer shall use the Device only in accordance with the Device's operating instructions booklet included with the Device on purchase.
Customer will not alter, modify, or tamper with the Device (each, an "Unauthorized Modification").
SPS may disclose any and all information collected via the Device and any data related thereto, pertaining to the Authorized Users' parking usage to the applicable local, state, and federal authorities.
Customer acknowledges that SPS shall not refund any amount that Customer has paid in connection with the Device.
If you are executing this Agreement on behalf of a Corporate Entity, You hereby warrant and represent that you are a duly authorized officer of the Corporate Entity, and you are duly authorized to bind the Corporate Entity and execute and deliver this Agreement in the name of and on behalf of the Corporate Entity.
EASYPARK™ GENERAL TERMS AND CONDITIONS
SPS retains all the Intellectual Property (as defined below) rights in and to the Device. "Intellectual Property" means any information or data in whatever form and however communicated, relating to or concerning the EasyPark System and the Device, technology, trade secrets, inventions, discoveries, know-how (whether or not patented or patentable), patent, copyright, designs, unregistered design right, trade names, trademarks, service marks, goodwill, trade dress, drawings, shapes, logos, signs, notation texts, combinations of texts, colors, combination of colors, brand-source indicia, use, applications, or other industrial or intellectual property relating in whole or in part to the Device, as owned or in use by SPS, now or at any time.
Customer shall not, and shall ensure that no third party given access to any Device shall, (i) modify, reverse engineer, reverse assemble, reverse compile, decompile or disassemble the Device or any Intellectual Property related thereto; (ii) create or prepare derivative works based upon the Device or any Intellectual Property related thereto; or (iii) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Device.
Malfunctioning, Lost or Stolen Device
In the event that the Device ceases to operate properly for any reason, Customer is responsible for notifying SPS's customer service in accordance with Section 9 below, and shall be responsible to return the Device to SPS for evaluation.
SPS is not responsible for a lost or stolen Device and shall not compensate or reimburse Customer for unused pre-paid parking funds of a lost or stolen Device.
Customer is required to notify SPS's customer service immediately with respect to any lost or stolen Device in accordance with Section 9 below.
Limited Warranty. The Device is warranted to be free from defects in materials or workmanship for one year from the date of purchase. For warranty procedures Customer should visit SPS's website.
Exclusions. The limited warranty set forth in this Section 3 shall be void with respect to a Device that has been: (1) altered by Customer or a third-party; (2) repaired by someone other than SPS's authorized repairman; (3) subjected to misuse, abuse, neglect or accident; or (4) damaged by improper installation or application.
Limitation of Remedies. Within the warranty period, SPS shall at its sole discretion, repair or replace any Device that fails in normal use. Such repair or replacement will be made at no charge to Customer for parts or labor, provided, however, that Customer shall be responsible for shipping and handling charges.
SPS retains the exclusive right to repair or replace the Device or offer a full refund of the purchase price at SPS's sole discretion. SUCH REMEDY SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY. To obtain warranty service and instructions, Customer should contact SPS's customer service in accordance with Section 9 below.
Exclusive Warranty. THE WARRANTIES AND ANY ASSOCIATED REMEDIES EXPRESSED OR REFERENCED IN THIS AGREEMENT INCLUDING THE PRICING LIST OR THE GENERAL TERMS AND CONDITIONS ARE EXCLUSIVE. NO OTHER WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY SPS OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT ALLOWED BY APPLICABLE LAW, SPS DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Limitation on Liability
CUSTOMER AGREES THAT SPS SHALL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER TO CUSTOMER, ITS EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, AND/OR REPRESENTATIVES, WITH RESPECT TO THE USE OR PERFORMANCE OF THE DEVICE, AND IN NO EVENT SHALL SPS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATIONS, PARKING, STOPPING, AND MOVING FINES, MOTOR VEHICLE RELATED VIOLATIONS, LOST BUSINESS, REVENUE, GOODWILL OR PROFITS, DOWNTIME COSTS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OR UNAVAILABILITY OF, OR DAMAGE TO, DATA, DAMAGES RELATING TO PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR SOFTWARE RESTORATION COST OR ANY OTHER DAMAGES INCURRED BY CUSTOMER. TO THE EXTENT NOT PROHIBITED BY LOCAL LAW, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE THEORY OF LIABILITY WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
Customer shall indemnify and hold harmless SPS from and against all damage, loss, cost, expense or liability relating to, arising from, or as a result of, the use or performance of the Device.
Customer may cancel the Monthly Fee upon a 30 days' prior written notice to SPS; however, SPS shall not refund any amount that Customer has pre-paid in connection with the Device.
SPS may terminate, revoke, or suspend Customer's Account immediately and without any notice, for any failure to comply with the terms of this Agreement, including, without limitation, for any Unauthorized Modification and failure to pay any amount due under this Agreement.
Collection of Expenses
Customer shall pay all costs, including attorneys' fees, incurred by SPS to collect any amount due under this Agreement.
SPS respects the privacy of Customer's information, and accordingly, SPS shall not disclose Customer's information to third parties without Customer's consent, except as specifically stated herein or as required by law.
Arlington, VA residents:
Customer shall direct all correspondence or inquiries pertaining to the use and performance of the Device to SPS's customer service as follows:
EasyParkUSA Customer Service
1694 Eglinton Avenue West
Survival of Certain Obligations
Sections 1, 3, 4 and 5 of this Agreement shall survive the expiration, termination, and/or cancellation of this Agreement or any part thereof, for any reason whatsoever.
The sections and other headings contained in this Agreement are for reference purposes only and shall not control or affect the construction of this Agreement or the interpretation hereof in any respect. Customer may not assign or transfer any of its rights or obligations under this Agreement or any portion thereof, without SPS's prior written consent, and any purported assignment or transfer without such consent shall be null and void. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to choice of laws. Customer agrees that any legal action or proceeding Customer may bring against SPS, its officers, directors, employees, shareholders, agents or representatives with respect to this Agreement must be brought in the state or federal courts located in New York County, New York. Customer consents to submit to the personal jurisdiction of the state and federal courts located in New York County, New York, for such action, and agrees that venue in New York County, New York, is proper and convenient. SPS's failure to insist on strict performance of a covenant hereunder or of any obligation hereunder shall not be a waiver of SPS's right to demand strict compliance therewith in the future, nor shall the same be construed as a novation of this Agreement. In the event any provision, clause, sentence, phrase, or word hereof, or the application thereof in any circumstances, is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder hereof, or of the application of any such provision, sentence, clause, phrase, or word in any other circumstances. SPS reserves the right to enforce the terms of this Agreement through all available legal remedies, including injunctive relief, and to seek damages for any breach of the provisions set forth herein. This Agreement, including the Pricing List and the General Terms and Conditions, constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes all prior understandings, agreements, discussions or representations, whether written or oral, with respect to such subject matter. This Agreement cannot be varied, modified, waived or amended except in a writing executed by both parties to this Agreement. Each party to this Agreement acknowledges that it has not executed it in reliance on any promise, representation, inducement, or warranty that is not contained herein.