@ ParkMobile ParkMobile Service Agreement
This ParkMobile Service Agreement ("Agreement") is made by and between Parkmobile, LLC, a Delaware limited liability company, with offices at 1100 Spring St. NW, Ste 200, Atlanta, GA 30309 ("ParkMobile") and City of Santa Ana, a California municipality, with offices at 20 Civic Center Plaza (M-25), P.O. Box 1988, Santa Ana, CA 92702-1988 ("Client").
This Agreement will become effective as of December 1, 2023 (the "Effective Date"). In consideration of the mutual covenants and agreements set forth in this Agreement, the parties agree as follows:
PARTY CONTACTS
Client ParkMobile
Legal Name: City of Santa Ana Legal Name: Parkmobile, LLC Contact:
Email:
Phone:
Address:
City of Santa Ana
Sales Rep:
Email:
Phone:
Address:
Krystela Gomez
[email protected]
20 Civic Center Plaza (M-25)
P.O. Box 1988
Parkmobile, LLC
1100 Spring St. NW
Ste 200
Santa Ana, CA 92702-1988 Atlanta, GA 30309
- - ---
Services
Initial Term
Renewal
Termination
Merchant of Record
PSA·LF
rev. 09122
For legal notices:
with a copy to ParkMobile's Legal Department at the
above address and to [email protected].
SERVICE TERMS
-- -- -
ParkMobile will provide Client with the Services related to the following types of parking transactions: On-Demand
5 years beginning on the Effective Date
This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement's express provisions or either party provides written notice of non-renewal at least sixty (60) days before the end of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").
Either party may terminate this Agreement effective immediately on written notice to the other party, if the breaching party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non- breaching party provides the breaching party with written notice of such breach.
The parties designate Client as the merchant of record. Client is responsible for the payment of payment processing and related fees. ParkMobile will pass real-time authorized debiUcredit card transactions to Client via a gateway solution. ParkMobile will issue invoices to Client on a monthly basis for all fees due to ParkMobile under this Agreement. Client shall pay each invoice within thirty (30) days of the invoice date. Client shall make all payments hereunder in US dollars to the address or account specified on the applicable invoice.
EXHIBIT 1
@ ParkMobile ParkMobile Service Agreement
Parking Locations The Services will be provided to Client in the following locations / geographical territory:
All Client locations
Signage Client will receive one free welcome kit that includes the aluminum signs and/or decal stickers necessary to complete implementation (installation not included). All signage included in the welcome kit is designed using ParkMobile's standard signage templates. Custom signage may be made available to Client for purchase at ParkMobile's current signage rates. Any requested changes to ParkMobile's standard signage templates will be treated as custom signage.
Additional and/or replacement signage may be purchased by Client at ParkMobile's then- current signage rates. Installation and maintenance of all signage is Client's sole responsibility.
Governing Law State of California
Schedules This Agreement incorporates the following Schedules: Schedule 1: Client General Terms and Conditions; Schedule 2: Services
IMPLEMENTATION FEES
------- - - - -- ------- --
Description
Implementation Fee
Custom Development
-
Call Center & Customer Support
Client Support & Maintenance
Hosting
Enforcement Portal
Reporting Portal
Marketing & Advertising
Units Rate
0 $1,000.00
0 $165.00/hr
Total Implementation Fees:
ADDITIONAL FEES
--
The parties have executed this Agreement as of the Effective Date.
CITY OF SANT A ANA
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rev. 09/22
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Name: Tony Stewart
Title: chief Legal officer
Date: 12/1/2023
Price
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EXHIBIT 1
® ParkMobile ParkMobile Service Agreement
1. 1.1
1.2 1.3
1.4 1.5
1.6 1.7
1.8 1.9
2. 2.1
2.2 PSA-LF
rev. 09/22
SCHEDULE 1:
CLIENT GENERAL TERMS & CONDITIONS
SERVICES
General. During the term, ParkMobile will provide the
Services to Client in accordance with the terms and 2.3 conditions of this Agreement.
Launch Date. The parties will mutually agree upon the
launch date for the Services.
ParkMobile Application. On and after the launch date,
Client's Parking Locations, along with associated Parking Information, will be made available to the general public through the ParkMobile Application.
Parking Management Services. Subject to the license
granted in Section ·2, Client will be provided access to the Platform to manage Client's Parking Locations and
associated Parking Information.
Parking Locations. The parties agree that ParkMobile
does not own, operate, manage, or maintain any Parking
Location. Client agrees that ParkMobile is not responsible for the condition or operation of any Parking Location, including, but not limited to, the operation of third-party hardware and/or software-based solutions used by Client at the Parking Location or for the delivery and/or fulfillment of parking or other services at the Parking Location.
Publicity of Services. Each party will use commercially reasonable efforts to market the Services throughout the Term. All brochures and promotional material to be
distributed by Client will be in a form mutually agreed upon by the parties, which will not be unreasonably withheld or delayed.
Exclusivity. Throughout the term, the parties agree that ParkMobile will be the exclusive provider of electronic payment parking services for Client.
PCI DSS. ParkMobile has obtained, and will continue to
maintain throughout the term, Payment Card Industry -
Data Security Standard (PCI DSS) certification.
Online Client General Terms & Conditions. The parties
agree that this Agreement supersedes the Client General Terms and Conditions that is publicly available at
2.4 2.5
https://parkmobile.io/client-terms with respect to the 2.6 Services provided under this Agreement.
ACCESS & USE OF PLATFORM
Provision of Access. Subject to and conditioned on
Client's and its Authorized Users' compliance with the terms and conditions of this Agreement, all applicable laws and regulations, and Client's payment of fees, ParkMobile
grants Client a non-exclusive, non-transferable right to access and use the Platform during the Term. Such use is limited to Client's internal use. ParkMobile will provide Client the Access Credentials within a reasonable time
following the Effective Date.
Documentation License. ParkMobile hereby grants to
Client a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for
Client's internal business purposes in connection with its use of the Services.
Use Restrictions. Client will not, directly or indirectly, and will not permit any third party to, access or use the Platform except as expressly permitted by this Agreement. For
purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement
expressly permits: (a) copy, modify, or create derivative works of the Platform or Documentation, in whole or in part; (b) rent, lease, copy, lend, sell, sublicense, assign,
distribute, publish, transfer, or otherwise make available the Platform or Documentation to any person or entity; (c)
reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any
software component of the Platform, in whole or in part; (d) bypass or breach any security device or protection used by the Platform or access or use the Platform other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) remove any proprietary notices
from the Platform or Documentation; (f) use the Platform or Documentation in any manner or for any purpose that
infringes, misappropriates, or otherwise violates any IP Right or other right of any person, or that violates any applicable law; (g) upload invalid data, malware, or other software agents through the Platform; or (h) use the
Platform for any purpose beyond the scope of the access granted in this Agreement.
Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any IP Rights in or relating to, the Services, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services are and will remain with ParkMobile.
Changes. ParkMobile reserves the right, in its sole
discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of ParkMobile's services to its customers; (ii) the competitive strength of or market for ParkMobile's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable law.
Suspension or Termination of Services. Notwithstanding
anything to the contrary in this Agreement, ParkMobile may suspend, terminate, or otherwise Client's, any Authorized User's, or any other person's access to or use of all or any part of the Services, without incurring any resulting
obligation or liability, if: (a) ParkMobile receives a judicial or other governmental demand or order, subpoena, or law
enforcement request that expressly or by reasonable
implication requires ParkMobile to do so; or (b) ParkMobile believes, in its good faith and sole discretion, that (i) Client or any Authorized User has failed to comply with any
material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Client or any Authorized User is, has been, or is likely to be using the Services for fraudulent, misleading, or unlawful activities; EXHIBIT 1
@ ParkMobile
(iii) there is a threat or attack on any of the Services; (iv) Client's or any Authorized User's use of the Services
disrupts or poses a security risk to ParkMobile or to any other client, end user, vendor or partner of ParkMobile; or (v) this Agreement expires or is terminated. This Section does not limit any of ParkMobile's other rights or remedies, whether at law, in equity, or under this Agreement.
3. CLIENT RESPONSIBILITIES
3.1 Use of Platform Account. Client is responsible and liable for all uses of the Platform resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Client must notify ParkMobile immediately of any breach of security or unauthorized use of Client's account.
3.2 Parking Information. Client is responsible for setting all rates, zones, and other required information regarding its Parking Locations offered through the ParkMobile
Application and for keeping such information up to date within the Platform.
3.3 Effect of Client Failure or Delay. ParkMobile is not responsible or liable for any delay or failure of performance caused in whole or in part by Client's delay in performing, or failure to perform, any of its obligations under this Agreement.
4. SERVICE AND SUPPORT
4.1 Scheduled Maintenance. ParkMobile will use
commercially reasonable efforts to schedule downtime for routine maintenance of the Services between the hours of 12:00 a.m. and 4:00 a.m., Eastern Time; however,
ParkMobile may modify this window from time-to-time by
providing Client with advance notice. If ParkMobile
anticipates that it will need to perform maintenance
activities that are likely to be disruptive to the use of the Services outside of the scheduled maintenance window,
ParkMobile will use commercially reasonable efforts to give Client at least 24 hours prior notice. Notwithstanding the foregoing, ParkMobile reserves the right to perform any required emergency maintenance work outside of the
scheduled maintenance window. To the extent practicable, ParkMobile will use commercially reasonable efforts to
notify Client before commencing any emergency
maintenance outside of the scheduled maintenance
window and will use commercially reasonable efforts to limit or avoid impact to use of the Services.
4.2 Client Support. ParkMobile will use commercially
reasonable efforts to assist Client with any technical
support that Client may reasonably require in using the Services. ParkMobile will provide technical support for rate and configuration changes to Client Monday - Friday
(excluding holidays) between the hours of 8:00 a.m. and 6:00 p.m. (ET). For issues relating to On-Demand Parking Services, Client may submit a support request via email to [email protected]. For issues relating to Reservation Parking Services, Client may submit a support request via email to [email protected]. ParkMobile will provide Client with emergency technical support 24 hours a day, seven
days a week, 365 days a year. In the event of an
emergency involving technical and/or system availability ParkMobile Service Agreement
issues, Client may contact the on-call engineer via email to [email protected].
4.3 End-User Support. ParkMobile will provide customer
support for ParkMobile Users 24 hours a day, seven days a week, 365 days a year. There are multiple methods that ParkMobile Users can access customer support, such as:
ParkMobile's online ticketing system, in-app chat feature, and toll-free phone number.
5. CONFIDENTIAL INFORMATION
5.1 General. Neither party will disclose the other party's Confidential Information except to its employees, affiliates, agents, or professional advisors ("Representatives") who need to know it and who have a legal obligation to keep it confidential. The receiving party will use the disclosing party's Confidential Information only to exercise rights and fulfill obligations under this Agreement. The receiving party will ensure that its Representatives are also subject to the same non-disclosure and use obligations. The receiving
party may disclose the other party's Confidential
Information when required by law after giving reasonable notice to the disclosing party, if permitted by law.
5.2 Personal Data. In the event a party discloses Personal Data to the other party, the receiving party will have the right to use the Personal Data only as required and necessary to perform its obligations under this Agreement.
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1 Client Data. Client Data remains the sole and exclusive property of Client. Client grants ParkMobile a perpetual, irrevocable, royalty-free license to use Client Data in connection with the Services.
6.2 Client Brand Features. Client grants to ParkMobile a nonexclusive, nonsublicensable, nontransferable, royalty free license during the term to display Client's Brand
Features in connection with providing and/or marketing the Services. ParkMobile will not make any use of Client's
Brand Features in a manner that dilutes, tarnishes or blurs the value of such Brand Features.
6.3 ParkMobile IP. Client acknowledges that, as between Client and ParkMobile, ParkMobile owns all right, title, and interest, including all IP Rights, in and to the Services, including but not limited to the ParkMobile Application and the Platform.
6.4 ParkMobile Brand Features. ParkMobile grants to Client a nonexclusive, nonsublicensable, nontransferable, royalty free license during the term to display ParkMobile's Brand Features in . connection with the Services, subject to
ParkMobile's Brand Guidelines available at
https://parkmobile.io/company/parkmobile-media
assets/logos/. Client will not make any use of ParkMobile's Brand Features in a manner that dilutes, tarnishes or blurs the value of such Brand Features.
6.5 ParkMobile User Data. ParkMobile User Data remains the sole and exclusive property of ParkMobile. ParkMobile may sublicense certain ParkMobile User Data to Client upon
Client's execution of ParkMobile's Data Protection
Agreement. Client will not, directly or indirectly: (i) sell or PSA-LF
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® ParkMobile
resell ParkMobile User Data in any capacity or form; (ii) create any derivative work using ParkMobile User Data; or (iii) use ParkMobile User Data for purposes other than
those specifically allowed in this Agreement.
Notwithstanding the foregoing, the parties acknowledge
and agree that ParkMobile will not sublicense or provide any PCI Data to Client.
6.6 Resultant Data. Resultant Data remains the sole and exclusive property of ParkMobile. ParkMobile grants Client a revocable, royalty-free, non-exclusive, non-assignable, non-transferable license to applicable Resultant Data for the duration of the term only for Client's internal use in connection with the Services.
6.7 Reservation of Rights. ParkMobile reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by
implication, waiver, estoppel, or otherwise, to Client or any third party any IP Rights or other right, title, or interest in or to the ParkMobile Application and/or the Platform.
7. FEES AND PAYMENT
7.1 Fees. Client shall pay ParkMobile the fees set forth in the Agreement that incorporates these Client General Terms & Conditions ("Fees") in accordance with this Section 7.
7.2 Payment Terms. The parties designate Client as the
merchant of record. Client is responsible for the payment of payment processing and related fees. ParkMobile will pass real-time authorized debit/credit card transactions to Client via a gateway solution. ParkMobile will issue invoices to Client on a monthly basis for all fees due to ParkMobile under this Agreement. Client shall pay each invoice within thirty (30) days of the invoice date. Client shall make all payments hereunder in US dollars to the address or
account specified on the applicable invoice. City and
Consultant agree that all payments due and owing under
this Agreement shall be made through Automated Clearing House (ACH) transfers. Consultant agrees to execute the City's standard ACH Vendor Payment Authorization and
provide required documentation. Upon verification of the data provided, the City will be authorized to deposit
payments directly into Consultant's account(s) with
financial institutions.
7.3 Taxes. All fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar
assessments. Without limiting the foregoing, Client is
responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder,
other than any taxes imposed on ParkMobile's income.
7 .4 Reserved
7.5 No Deductions or Setoffs. All amounts payable to
ParkMobile under this Agreement shall be paid by Client to ParkMobile in full without any setoff, recoupment,
counterclaim, deduction, debit, or withholding for any
reason (other than any deduction or withholding of tax as may be required by applicable law).
ParkMobile Service Agreement
7.6 Fee Increases. Beginning on the first anniversary of the Effective Date and continuing annually thereafter on a
compounding basis, fees shall increase by five percent
(5%) or the percentage equal to the average increase in all items under the Consumer Price Index over the prior 12- month period, whichever is greater. Based on this criteria, fees shall then round up to the nearest two (2) decimal places. This change will take effect without prior notice to Client.
7.7 Reserved.
8. REPRESENTATIONS AND WARRANTIES
8.1 Mutual. Each party represents, warrants and covenants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other legal entity under the laws of the jurisdiction of its incorporation or other organization; (b} it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is
required to grant under this Agreement; (c) the
representative that is executing this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d} when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
8.2 ParkMobile. ParkMobile represents, warrants, and
covenants to Client that ParkMobile will perform the
Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike
manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
8.3 Disclaimers. EXCEPT FOR THE EXPRESS
WARRANTIES SET FORTH IN SECTION 8.1 AND
SECTION 8.2, ALL SERVICES ARE PROVIDED "AS IS."
PARKMOBILE SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON
INFRINGEMENT, AND ALL WARRANTIES ARISING
FROM COURSE OF DEALING, USAGE, OR TRADE
PRACTICE. WITHOUT LIMITING THE FOREGOING,
PARKMOBILE DOES NOT WARRANT THAT THE
SERVICES OR ANY PRODUCTS OR RESULTS OF THE
USE THEREOF WILL BE UNINTERRUPTED OR ERROR
FREE. PARKMOBILE SHALL NOT BE LIABLE FOR
DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR
OTHER PROBLEMS INHERENT IN USE OF THE
INTERNET AND ELECTRONIC COMMUNICATIONS.
9. INDEMNIFICATION
9.1 Mutual. Each party will indemnify, defend, and hold harmless the other party from and against any and all
losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred as a result from any third-party claim, suit, action, or proceeding ("Third-Party Claim") to the extent it arises from a breach of the
indemnifying party's representations and warranties under this Agreement.
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9.2 ParkMobile. ParkMobile will indemnify, defend, and hold harmless Client from and against any and all Losses
incurred by Client resulting from any Third-Party Claim that the Platform or any use of the Platform in accordance with this Agreement, infringes or misappropriates such third party's IP Rights, provided that Client promptly notifies ParkMobile in writing of the claim, cooperates with
ParkMobile, and allows ParkMobile sole authority to control the defense and settlement of such claim.
9.3 Client. Client will indemnify, defend, and hold harmless ParkMobile from and against any and all Losses incurred by ParkMobile resulting from any Third-Party Claim arising out of Client's willful disclosure or deliberate misuse of ParkMobile User Data in violation of this Agreement.
9.4 Mitigation. If any of the Services are claimed to, or in ParkMobile's opinion are likely to, infringe, misappropriate, or otherwise violate any third-party IP Rights, or if Client's use of the Services is enjoined or threatened to be enjoined, ParkMobile may, at its option and sole cost and expense:
(a) obtain the right for Client to continue to use the Services as contemplated by this Agreement; (b) modify or replace the Services, in whole or in part, to seek to make the
Services (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute the Services, as applicable, under this Agreement; or (c) by written notice to Client, terminate this Agreement and
require Client to immediately cease any use of the Services.
9.5 Sole Remedy. THIS SECTION 9 SETS FORTH CLIENT'S
SOLE REMEDIES AND PARKMOBILE'S SOLE LIABILITY
AND OBLIGATION FOR ANY ACTUAL, THREATENED,
OR ALLEGED CLAIMS THAT THE SERVICES OR ANY
SUBJECT MATTER OF THIS AGREEMENT INFRINGES,
MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD
PARTY.
10. LIMITATION OF REMEDIES AND DAMAGES
10.1 Exclusion of Damages. EXCEPT AS OTHERWISE
PROVIDED IN SECTION 10.3, IN NO EVENT WILL
PARKMOBILE OR ANY OF ITS LICENSORS, SERVICE
PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ITS
SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE
THEORY, INCLUDING BREACH OF CONTRACT, TORT
{INCLUDING NEGLIGENCE), STRICT LIABILITY, AND
OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION,
USE, BUSINESS, REVENUE, OR PROFIT OR
DIMINUTION IN VALUE; (8) IMPAIRMENT, INABILITY TO
USE OR LOSS, INTERRUPTION, OR DELAY OF THE
SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR
RECOVERY OF DATA, OR BREACH OF DATA OR
SYSTEM SECURITY; (D) COST OF REPLACEMENT
GOODS OR SERVICES; (E) LOSS OF GOODWILL OR
REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR
PUNITIVE DAMAGES, REGARDLESS OF WHETHER
SUCH PERSONS WERE ADVISED OF THE POSSIBILITY
OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES
OR DAMAGES WERE OTHERWISE FORESEEABLE,
AND NOTWITHSTANDING THE FAILURE OF ANY
ParkMobile Service Agreement
AGREED OR OTHER REMEDY OF ITS ESSENTIAL
PURPOSE.
10.2 Cap on Monetary Liability. EXCEPT AS OTHERWISE
PROVIDED IN SECTION 10.3, IN NO EVENT WILL THE
COLLECTIVE AGGREGATE LIABILITY OF PARKMOBILE
ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER ARISING UNDER OR RELATED TO BREACH
OF CONTRACT, TORT {INCLUDING NEGLIGENCE),
STRICT LIABILITY, OR ANY OTHER LEGAL OR
EQUITABLE THEORY, EXCEED ONE TIMES THE TOTAL
AMOUNTS PAID TO PARKMOBILE UNDER THIS
AGREEMENT IN THE 12 MONTH PERIOD PRECEDING
THE EVENT GIVING RISE TO THE CLAIM. THE
FOREGOING LIMITATIONS APPLY EVEN IF ANY
REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.3 Exceptions. The exclusions and limitations in Section 10.1 and Section 10.2 do not apply to ParkMobile's obligations under Section 9 or liability for ParkMobile's gross
negligence or willful misconduct.
11. RESERVED
12. GENERAL TERMS
12.1 Assignment. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntary, involuntarily, by operation of law, or otherwise, without ParkMobile's prior written consent. No assignment, delegation, or transfer will relieve Client of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 12.1 is void. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
12.2 Severability. If a court of competent jurisdiction holds any term or provision of this Agreement to be invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
12.3 Headings. The headings in this Agreement are for
reference only and do not affect the interpretation of this Agreement.
12.4 Notices. Any notice or communication permitted or
required under this Agreement must be in writing and will be deemed received by the addressee: (a) when received, if delivered by hand with signed confirmation of receipt; {b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email (with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third business day after the date mailed by certified or registered mail, return receipt requested, postage
prepaid. Notices must be sent to the attention of the
respective party's legal department at the address set forth at the beginning of this Agreement or such other address as either party may specific in writing. Any notice permitted or required under this Agreement that is sent to ParkMobile shall also be sent via email to [email protected].
12.5 Governing Law. This Agreement and all related
documents, and all matters arising out of or relating to this PSA-LF
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Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the
laws of the State of California, United States of America (including its statutes of limitations).
12.6 Amendment; Waivers. Any amendment must be in writing, signed by both parties, and expressly state that it is
amending this Agreement. No waiver by any party will be effective unless explicitly set forth in writing and signed by the party so waiving. No terms or conditions stated in a Client purchase order, vendor onboarding process or web portal, or any other Client order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void,
notwithstanding any language to the contrary therein,
whether signed before or after this Agreement.
12.7 Entire Agreement. This Agreement, together with any other documents . incorporated herein by reference,
constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and
supersedes all prior and contemporaneous
understandings, agreements, representations, and
warranties, both written and oral, with respect to such subject matter.
12.8 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.9 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party's
reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical,
telecommunications, or other utility failures, earthquakes, storms or other elements of nature, pandemics, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
12.10 Independent Contractors. The parties to this Agreement are independent contractors. The parties do not intend, and nothing in this Agreement should be construed, to create or enter into any partnership, joint venture, employment,
franchise, agency, or similar relationship. Neither party has the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
12.11 Export Control. Client will comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, Client: (i) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the
U.S. government as a "terrorist supporting" country; (ii) will not (and will not permit any third parties to) access or use any Service in violation of any U.S. export embargo,
prohibition or restriction, and (iii) will not submit to any Service any information that is controlled under the U.S.
International Traffic in Arms Regulation.
12.12 Interpretation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules
ParkMobile Service Agreement
referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
12.13 Counterparts. The parties may execute this Agreement in counterparts, including PDF and other electronic copies, which taken together will constitute one instrument.
13. DEFINITIONS
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Platform. "Authorized User" means Client's employee, consultant,
contractor, and agent who is authorized by Client to access and use the Platform under the rights granted to Client pursuant to this Agreement.
"Brand Features" means a party's trade names,
trademarks, service marks, logos, domain names, and
other distinctive brand features.
"Client Data" means any data specific to Client's operation that is provided by Client to ParkMobile to be used in the provision of Services that is not available to ParkMobile publicly or by other means.
"Confidential Information" means information that one party (or an affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would
normally be considered confidential information under the circumstances. It does not include information that is
independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations or becomes public through no fault of the
recipient.
"Documentation" means any manuals, instructions, or other documents or materials that ParkMobile provides or makes available to Client in any form or medium and which
describe the functionality, components, features, or
requirements of the Services.
"IP Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright,
trademark, trade secret, database protection, or other
intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. "Parking Information" means parking zones, parking rates, parking restrictions, selected payment methods, and other information necessary for the provision of the Services for a specific Parking Location.
"Parking Location" means the location or locations of
Client's on-street parking, off-street parking, reservation parking, parking lots, parking decks, permitted parking, and other facilities where ParkMobile Users may park.
"ParkMobile Application" means any and all mobile and/or web applications, services, or interfaces developed,
hosted, or managed by, on behalf of, or in partnership with ParkMobile and that are made available to the general
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rw-1. 09/22
EXHIBIT 1
® ParkMobile
PSA·LF
rev. 09122
public and that facilities the payment of parking
transactions.
"ParkMobile User" means an end user that uses the
ParkMobile Application.
"ParkMobile User Data" means information, data, and other content, in any form or media, that is submitted, posted, or otherwise transmitted by or on behalf of a ParkMobile User, directly or indirectly, through the ParkMobile Application. "PCI Data" means, as applicable, payment card number,
cardholder name, expiration date, card verification code or value, service code, and/or security-related information used to authenticate cardholders and/or authorize payment card transactions
"Personal Data" means (i) any information about an
identified or identifiable individual; or (ii) information that is not specifically about an identifiable individual but, when combined with other information, may identify an individual.
Personal Data includes names, email addresses, postal
addresses, telephone numbers, government identification numbers, financial account numbers, payment card
information, license plate information, online identifiers (including IP addresses and cookie identifiers), network and hardware identifiers, geolocation information, and any
information that constitutes "personal data" or "personal information" within the meaning of any relevant and
applicable data privacy or protection laws.
"Platform" means access-controlled mobile and/or web
applications, services or interfaces developed, hosted, or managed by, on behalf of, or in partnership with ParkMobile that are made available to Client to administer, configure, manage and/or monitor parking sessions, parking rates,
and/or parking restrictions associated with Client's Parking Locations.
"Resultant Data" means data and information related to
Client's, Authorized Users' and/or ParkMobile Users' use of the Services that is used by ParkMobile in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
"Services" means the ParkMobile Application, the Platform, and all other services provided by ParkMobile under this Agreement.
ParkMobile Service Agreement
EXHIBIT 1
® ParkMobile
SCHEDULE 2: SERVICES
ON-DEMAND PARKING SERVICES
ParkMobile Service Agreement
ParkMobile offers a service to ParkMobile Users that facilitates the activation of and payment for on-demand parking using the ParkMobile Application ("On-Demand Parking").
ParkMobile Users may begin and, if applicable, end a parking transaction in a variety of ways: (1) visiting https://app.parkmobile.io; (2) calling ParkMobile's IVR System, or (3) using the ParkMobile Application. In order to register with ParkMobile and begin a parking session, a consumer simply provide ParkMobile with the information required by ParkMobile to create an account, including payment method information and license plate number. Thereafter, subsequent parking sessions only require the ParkMobile User to enter or select the applicable parking duration available for the applicable location.
The parking zone code of the Client parking areas are indicated on parking signs or on parking meters. Enforcers of the Client check the validity of parking status real time against the Platform via a web service offering, provided as part of the Services, to determine if a valid parking right exists. This information can be accessed by using a handheld terminal, mobile device or personal digital assistant (PDA).
ParkMobile does not provide or pay for Client's use of handheld terminals, mobile devices or PDAs for enforcement or any data plans or other items needed for communication between such items and the Services.
At their option, ParkMobile Users will receive parking alert services from ParkMobile via SMS, ParkMobile Application push notification or email. The ParkMobile User may be notified, for example, when parked for an extended period of time or when the maximum parking time nears expiration.
ParkMobile Users can use On-Demand Parking anywhere the Services are available.
All parking charges are automatically charged to the ParkMobile User's payment method, and ParkMobile Users have real time access to an online account-based personal page accessible from https://app.parkmobile.io to access and print parking history, receipts, and statements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
ATTEST:
Jennifer Hall
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
�/ By:;:;;Z7
�athan Martinez ;?/'
Assistant City Attorney
PSA-LF
rev. 09/22
RECOMMENDED FOR APPROVAL:
Michael Garcia
Executive Director
CITY OF SANT A ANA
Tom Hatch
Interim City Manager
CONTRACTOR:
Counter-Signed Page 2
Contractor
EXHIBIT 1