1.1. These Terms represent a legal agreement between you and ParkMobile for the use of the Self-Service Portal (“Portal”). By signing up for an account, you are agreeing that these Terms will govern your use of the Portal. All references to “you” and “yours” means you, your employees, agents and contractors and any other entity on whose behalf you accept these Terms, all of whom also shall be bound by these Terms. “ParkMobile,” “us,” “we,” or “our” mean ParkMobile, LLC and its affiliates.
1.2. These Terms are in addition to the applicable Parking Services Agreement and/or Reservation Services Agreement (“Other Agreements”) between you and ParkMobile, which remain in full force and effect as they may be amended from time to time. In the event of any conflict between any provision in these Terms and the provisions of any applicable Other Agreements, the provisions in these Terms will control with respect to your use of the Portal. ParkMobile may change any of these Terms at any time, with or without notice to you, by posting them on www.ParkMobile.com (“Site”). You should visit the Site from time to time to review our then current Terms.
2. ACCOUNT SET UP AND TERMINATION
2.1. To use the Portal, you must set up an account. You may register an account by submitting a request to the ZenDesk via the following email: support@ParkMobile.io. The request must include the following information: (a) company name; (b) company representative’s full name and email address; (c) names of other user(s) who will be authorized to have access to the Portal; and (d) locations to be managed through the Portal. By opening an account you represent and warrant that all information you provide is current, complete and accurate to the best of your knowledge, and agree to promptly update the information to ensure that it remains current, complete and accurate. ParkMobile may refuse service, suspend or terminate accounts of any users and change eligibility requirements at any time.
2.2. Upon registration, you will be required to select a username and password. You agree to keep this information safe and to not disclose it to any third party. You are responsible for any and all activities that occur under your account. If you suspect that your account has been accessed without permission or otherwise compromised, notify ParkMobile immediately.
2.3. We may add to or remove functions at our discretion from time to time without notice to you. You may deactivate authorized users or add new authorized users by submitting another request to support@ParkMobile.io
2.4. ParkMobile may terminate or suspend your account at any time for any or no reason and without notice to you. You may terminate your account for any or no reason at any time by notifying support@ParkMobile.io in writing via email or with a letter addressed to ParkMobile, LLC at 1100 Spring St. NW, Suite 200, Atlanta, GA 30309.
2.5. Upon any termination of any applicable Other Agreement or your account for any reason, the right to use the Portal and any other rights or permissions granted to you in these Terms will end and you must stop using the Portal. Once terminated, ParkMobile may permanently delete your account and all the data associated with it.
2.6. You are responsible for obtaining and maintaining connectivity, computer software, hardware and other equipment needed for access to and use of the Portal and all charges related to the same.
3. INFORMATION IN THE PORTAL
3.1. Once the account is activated, you may use the Portal to update the location of your parking facility, create or modify rates, inventory, policies and restrictions applicable to your parking facility.
3.2. You represent and warrant that any additions, deletions and changes you make are accurate and complete, whether such information is added by you or another authorized user, or such information is provided to us for entry into the Portal. You further represent and warrant that any content or material that you submit to the Portal does not infringe any proprietary right of any other party, including but not limited to patent, copyright, trademark, trade secret or confidentiality obligation.
4. SAFE AND LAWFUL USE OF THE PORTAL
4.1. You agree to comply with the following rules when using the Portal:
a. Observe all applicable laws.
b. Do not permit anyone else to use your account. You are responsible for keeping your password and login information secret so that only you can access your account. Notify ParkMobile immediately of any unauthorized use of your account.
c. Do not use the Portal for any illegal, unauthorized, unintended or unsafe purposes, or in any manner inconsistent with these Terms or that is damaging to the Portal, any of its components or underlying systems.
d. Do not use the Portal in a manner that is defamatory, harassing, obscene, pornographic, threatening or which otherwise infringes or violates the rights of others. This includes any information that you may add to the Portal, including any statement, image, advertisement or other content that in our sole judgment could be perceived to threaten, advocate or incite physical harm or violence against others or to promote the harassment, intimidation, abuse, breach of privacy or discrimination against others.
e. Do not interfere in any way with any other user of the Portal.
f. Do not attempt to distribute, sublicense, transfer or resell your account or to any other person or entity, or use it for your own advertising or commercial activities, including but not limited to Google AdWords.
g. Do not “frame” or “mirror” any part of the Portal.
h. Do not knowingly introduce viruses or other malicious or harmful material or use the Portal in connection with unsolicited communications.
i. Do not attempt to interrupt or decipher the transmissions between the Portal and any other systems or devices or attempt to circumvent our security or network, including trying to access or monitor data not intended for you.
j. Do not copy, reverse engineer, decompile, disassemble, translate, modify, alter or otherwise change the Portal or any part thereof or attempt to derive the source code, library or structure of the Portal.
k. Do not remove, modify, cover or obscure any of ParkMobile’s or its supplier’s trademarks, trade names, logos, metatags, patent or copyright notices or other markings.
l. Do not create a database using any information found on the Portal.
m. Do not engage in competitive analysis, benchmarking or evaluation for the purpose of designing, modifying, or developing software or services similar in purpose, scope, or function to the Portal.
4.2. If you violate any of these rules, we have the right to suspend or terminate your account without notice and without liability, and to sue you for damages. If you think anyone is violating any of these Terms, you should notify ParkMobile immediately.
5. SOFTWARE LICENSE AND INTELLECTUAL PROPERTY
5.1. Subject to your compliance with these Terms, ParkMobile hereby grants to you a limited, nontransferable, nonexclusive, revocable license to access the Portal and make use of the Portal in object code form only. This license shall terminate immediately upon any suspension, termination or cancellation of your account or any applicable Other Agreement. Except for the limited license expressly granted in this Section 5.1, ParkMobile remains the owner of all right, title and interest in and to the Portal and all of its components, including but not limited to all patents, trademarks, service marks, trade secrets, copyrights and any other intellectual property rights. Any derivatives, new versions, enhancements, updates or changes, even if wholly or partially based on your ideas, comments, suggestion, questions, requests, shall be the sole and exclusive property of ParkMobile.
5.2. All editorial content, information, messages, text, images, photos, video, audio, sounds, illustrations, artworks, graphic designs, names, logos and trademarks on the Portal, together with the look and feel of the Portal and the user experience, including our color combinations; button shapes, sizes, icons, images, organization, and other graphical elements, belong to ParkMobile and/or its suppliers, and may not be copied, reproduced, retransmitted, distributed, disseminated, sold, published, broadcasted or transferred in whole or in part, without our express written permission.
5.3. The parties agree that monetary damages may not be an adequate remedy if this Section 5 is breached and, therefore, in addition to any other legal or equitable remedies, ParkMobile shall be entitled to seek an injunction or similar equitable relief against such breach or threatened breach.
6. QUALIFICATIONS ON USE AND DISCLAIMERS
6.1. ParkMobile does not warrant that the Portal will be available, accessible, uninterrupted, timely or error free. ParkMobile shall not be liable if for any reason the Portal is not available at any time or for any period. In addition, access to the Portal occasionally may be restricted to allow for repairs, maintenance or introduction of new features and services. ParkMobile reserves the right to withdraw any information, features or services from the Portal at any time.
6.2. You are solely responsible for keeping the information on the Portal accurate, complete and up-to-date. You are solely responsible for setting the parking rates, inventory, policies and restrictions for your facilities and insuring the accuracy, completeness and timeliness of all such information. ParkMobile shall have no liability whatsoever for any of your acts or omissions on the Portal.
6.3. The Portal will only work on compatible devices and operating systems and certain functionality will only work if the device is connected to the Internet or be available only with certain operating systems.
6.4. ParkMobile has operational security policies and procedures to protect your information from loss, misuse, alteration or unintentional destruction, but ParkMobile makes no representations or warranties regarding the security of the Portal.
6.5. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE PORTAL IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOUR USE OF THE PORTAL. THE PORTAL IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PARKMOBILE, ITS AFFILIATES, LICENSORS, SUPPLIERS, AND THEIR RESPECTIVE OFFICERS, REPRESENTATIVES OR EMPLOYEES BE LIABLE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU OR ANYONE ELSE IN RELIANCE ON THE INFORMATION PROVIDED BY THE PORTAL. PARKMOBILE DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, RELIABILITY, ACCURACY, COMPLETENESS OR TITLE.
6.6. Applicable law may not allow certain warranty exclusions, so one or more of the above disclaimers may not apply to you. If you are dissatisfied with the Portal for any reason, your sole and exclusive remedy is to stop using the Portal and terminate your account by contacting support@ParkMobile.io in writing.
7. LIMITATION OF LIABILITY AND INDEMNITY
7.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL PARKMOBILE OR ITS AFFILIATES, LICENSORS, SUPPLIERS, AND THEIR RESPECTIVE OFFICERS, REPRESENTATIVES OR EMPLOYEES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS, INJURY OR DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGES, OR ANY LOSS OF INCOME, PROFITS, GOODWILL, DATA, CONTRACTS, USE OF MONEY, OR LOSS OR DAMAGES ARISING FROM OR CONNECTED IN ANY WAY TO BUSINESS INTERRUPTION, AND WHETHER IN TORT, CONTRACT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH YOUR OR ANYONE ELSE’S USE OF THE PORTAL OR ANY OF ITS COMPONENTS.
7.2. Without limiting the generality of the foregoing, ParkMobile will not be liable to you or anyone else for any financial or other damages due to or arising from:
a. Interruptions, delays, unavailability or inability to use the Portal or any part thereof.
b. Defects or errors in the Portal or any of its components.
c. Changes or removal of functionality on the Portal.
d. Your account username and/or password becoming known to third parties, whether through your actions or through fraud, malware or phishing.
e. Your use or misuse of the Portal, including but not limited to any errors, omissions or oversights related to any content or information provided (or erroneously not provided) by you in the Portal.
f. Personal injury or damage or loss of tangible property due to acts of nature, severe weather conditions, civil unrest, military action, terrorism, theft or other criminal activity, computer system failures, loss of data, or delays in transportation.
g. Unauthorized use, interception or infiltration of your account, the Portal or any of ParkMobile’s systems.
h. Viruses or other malware that may infect your computer, device or other property due to your use of the Portal.
7.3. Nothing in these Terms shall exclude either party’s liability for death or personal injury arising from such party’s gross negligence or willful misconduct, fraudulent misrepresentation or anything else that cannot be excluded or limited under applicable law.
8. You agree to indemnify, defend and hold harmless ParkMobile and its Affiliates, licensors, suppliers, and their respective officers, representatives and employees, form and against any liability, loss, injury, demand, action, cost, expense or claim, including but not limited to attorneys’ fees and court costs, arising out of or in connection with: (a) your use or misuse of the Portal, or (b) any other party’s use or misuse of your account; (c) your breach of these Terms; or (d) your infringement of any intellectual property rights of any person or entity. GOVERNING LAW AND DISPUTE RESOLUTION
8.1. These Terms and any dispute or claim arising out of or relating to these Terms or with their subject matter (including any non-contractual disputes or claims) will be governed by and construed in accordance with the laws of the State of Georgia, USA, without regard to its conflict of laws provisions.
8.2. You agree that all disputes or claims of every kind and nature between you and us arising out of or relating to these Terms or the Portal shall be submitted to binding arbitration pursuant to the then existing Commercial Arbitration Rules of the American Arbitration Association (“Rules”). The arbitration shall be conducted with a single arbitrator, selected in accordance with the Rules. Each party shall bear its own costs of arbitration. Arbitration hearings shall be conducted in metropolitan Atlanta, Georgia, USA, and the award rendered by the arbitrator shall be final and binding on all parties to the proceeding. Judgment on any award may be entered by either party in any court of competent jurisdiction. Nothing contained herein shall be deemed to give the arbitrator any authority, power, or right to alter, change, amend, modify, add to, or subtract from any of the provisions of these Terms. Both parties agree that this Section 9.2 shall be a complete defense to any suit, action or proceeding instituted in any federal, state or local court or before any administrative tribunal with respect to any controversy or dispute arising under these Terms.
8.3. Notwithstanding the requirement of Section 8.2, either prior to, during or after the arbitration process, either party may seek injunctive relief in a court of law or equity to: (a) to assert, protect or enforce its rights in any intellectual property, including but not limited to patents, copyrights, trademarks or trade secrets; (b) to enjoin a breach or threatened breach of these Terms; (c) to obtain specific performance; (d) to compel the arbitration or further its purposes; (e) to enforce a settlement or award in such arbitration; and/or (f) for any other equitable relief. You agree that and consent to the exclusive jurisdiction and the venue for any such litigation will be in the state or federal courts of in metropolitan Atlanta, Georgia.
8.4. EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. EACH PARTY AGREES TO WAIVE TRIAL BY JURY. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THESE TERMS, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
8.5. NO CAUSE OF ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE INSTITUTION OF LEGAL PROCEEDING ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER.
8.6. You explicitly agree that your Use of the Platform or the Materials is at your own and sole risk. You also understand and agree that any Materials or other data, content, or information downloaded or otherwise obtained through your Use of the Platform are obtained at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from such download. You understand that ParkMobile cannot and does not guarantee or warrant that files, including the Materials, available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. ParkMobile makes no warranty regarding any use of confidential or private information that you may provide. ParkMobile makes no commitment to update the information found on or in the Platform or Materials. No warranty and/or representation will extend to any third person.
8.7. EXCEPT AS SPECIFICALLY AND EXPRESSLY SET FORTH IN THESE TERMS, THE PLATFORM AND MATERIALS ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND AND PARKMOBILE DISCLAIMS THAT THE FUNCTIONS CONTAINED IN THE PLATFORM OR THAT WHICH IS CONTAINED IN THE MATERIALS WILL: MEET YOUR REQUIREMENTS, NEEDS, OR EXPECTATIONS; BE RELIABLE, ACCURATE, SECURE, COMPLETE, OR WHOLE; OPERATE DEFECT OR ERROR FREE OR IN A TIMELY OR RELIABLE WAY. WE DO NOT WARRANT OR COVENANT THAT ANY DEFECTS OR ERRORS ASSOCIATED WITH THE PLATFORM WILL BE CORRECTED. EXCEPT AS SPECIFICALLY AND EXPRESSLY SET FORTH IN THESE TERMS, THERE ARE NO OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE, OPERATION OF LAW, TRADE USAGE, COURSE OF PERFORMANCE OR DEALING OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR A PARTICULAR USE, NON-INFRINGEMENT, TITLE, ACCURACY, QUALITY OF INFORMATION, QUIET ENJOYMENT, OR COMPLETENESS; ALL SUCH WARRANTIES BEING SPECIFICALLY AND FULLY DISCLAIMED BY PARKMOBILE. WE FURTHER DISCLAIM ANY LIABILITY TO YOU FOR ANY THIRD PARTY CHARGES, INCLUDING, BUT NOT LIMITED TO, DATA USAGE, OR TELECOM CHARGES FOR DEVICES USING THE PLATFORM. WE DO NOT WARRANT THAT PLATFORM WILL WORK ON YOUR MOBILE DEVICE, WITH YOUR OPERATING SYSTEMS, OR WITH ANY OTHER SOFTWARE INSTALLED ON YOUR MOBILE DEVICE. OTHER WRITTEN OR ORAL REPRESENTATIONS OR AFFIRMATIONS OF FACT, INCLUDING BUT NOT LIMITED TO, STATEMENTS FROM PARKMOBILE OR ANY OTHER SOURCE REGARDING THE PERFORMANCE OR FEATURES OF THE PLATFORM OR SERVICES THAT ARE NOT CONTAINED IN THESE TERMS, SHALL NOT IN ANY WAY BE BINDING ON PARKMOBILE, CREATE ANY OBLIGATION OR WARRANTY, AND ARE HEREBY EXPRESSLY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE ELIMINATION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
8.8. We are not responsible for the conduct of other users, whether online or offline. Under no circumstances shall ParkMobile be responsible for any loss or damage, including, without limitation personal injury or death, resulting from the Use of the Platform by other users or the conduct of any other users or third parties, whether online or offline.
8.9. THE PERFORMANCE OF THE PLATFORM CAN VARY DUE TO SEVERAL FACTORS, INCLUDING WITHOUT LIMITATION: SPECIFIC MOBILE DEVICE LIMITATIONS AND CAPABILITIES; MOBILE DEVICE SERVICE PROVIDER, NETWORK LIMITATIONS, AND CAPABILITIES; MOBILE DEVICE MULTI-TASKING; MOBILE DEVICE MEMORY; GPS “LOCK” TIME, AVAILABILITY, AND ACCURACY; MOBILE DEVICE SETTINGS; INTERNET AVAILABILITY; MESSAGING OPT OUTS; AND PLATFORM AVAILABILITY, OPERABILITY, OR ERRORS. PARKMOBILE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PERFORMANCE, OPERABILITY, OR AVAILABILITY PLATFORM.
8.10. Your sole and exclusive remedy for any breach by us of any term or condition set forth in these Terms is to cease to Use the Platform, un-install the App, and terminate your ParkMobile Account.
9.1. ParkMobile may seek injunctive relief or other equitable relief If you violate any of these Terms. ParkMobile shall be entitled to recover reasonable attorneys’ fees and cost of litigation in any action against you for breach of these Terms. In addition, you agree to reimburse ParkMobile for all costs and expenses incurred in responding to a subpoena related to your account, including but not limited to attorneys’ fees, employee time spent retrieving records, preparing documents and participating in a deposition. ParkMobile will cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or locate anyone in breach of these Terms.
9.2. Either party’s failure to require performance of any provision of these Terms shall not affect that party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
9.3. If any provision of these Terms is held unenforceable, then such provision will be modified to reflect the intention of the parties, and the remaining provisions of these Terms will remain in full force and effect.
9.4. You may not resell, assign or transfer any of your rights under these Terms. Any such attempt may result in termination of your Account, without liability to ParkMobile. ParkMobile may assign its rights and obligations under these Terms at any time without notice.
9.5. By using the Portal, you consent to receive electronically all communications, including notices, agreements, confirmations, legally required disclosures or other information relating to the Portal. ParkMobile may post them on the Site or your account. If you desire to withdraw your consent to be notified electronically, you must discontinue using the Portal. ParkMobile may email or send text messages to you from time to time to inform you about our products and services that we think will interest you, unless you inform us that you opt out from receiving such promotional communications.
9.6. If you have been provided a translation of these Terms from the English language to another language, you agree that such translation is provided for convenience only; that the American English language version of these Terms governs the relationship between you and ParkMobile; and, if there is any conflict between the American English language version and such translation, the American English language version controls. All disputes arising under this Agreement shall be resolved in the English language.
9.7. Sections 2.5, 5.3, 7, 8 and 9 of these Terms shall survive the termination or cancellation of your account.
9.8. These Terms and the applicable Other Agreements make up the entire agreement between you and ParkMobile and supersede all prior agreements, representations and understandings.