IP OR
MEMORANDUM
To: City Clerk Date: December 19, 2023
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From: Michael Garcia, Executive Director, Community Development Agency Subject: Request to Update Exhibit 1 of Item #22: ParkMobile Agreement The Community Development Agency would like to update Item No. 22 Agreement with ParkMobile, LLC's Exhibit 1 Agreement to reflect the same terms listed in the staff report, which is a three-year agreement with an option to extend for a two-year term.
Attached is the updated Exhibit 1 that matches the staff report.
C: Tom Hatch, Interim City Manager
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 15, 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: Sales Rep: Krystela Gomez
Email: Email: Krystela. [email protected]
Phone: Phone:
Address: Address:
City of Santa Ana Parkmobile, LLC
20 Civic Center Plaza (M-25) 1100 Spring St. NW
P.O. Box 1988 Ste 200
Santa Ana, CA 92702-1988 Atlanta, GA 30309
For legal notices:
with a copy to ParkMobile's Legal Department at the
above address and to [email protected].
SERVICE TERMS
Services ParkMobile will provide Client with the Services related to the following types of parking transactions: On-Demand
Initial Term Three (3) years beginning on the Effective Date Renewal The Client may grant up to one (1), two (2) year extension of the Agreement by a writing by the City Attorney and City Manager, 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") Termination 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 Merchant of Record 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 PSA-LF Page 1 of 9
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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 Units Rate Price
Implementation Fee $1,000.00 $0.00
Custom Development $165.00/hr $0.00
Total Implementation Fees: $0.00
ADDITIONAL FEES
Call Center & Customer Support WAIVED
Client Support & Maintenance WAIVED
Hosting WAIVED
Enforcement Portal WAIVED
Reporting Portal WAIVED
Marketing & Advertising WAIVED
USER FEES
On-Demand User Fee $0.40 per transaction
The parties have executed this Agreement as of the Effective Date.
CITY OF SANTA ANA PARKMOBILE, LLC
see last page Tony stewart?
By: By:
Name: Name: Tony stewart
Title: Title: chief Legal officer
Date: Date: 12/1/2023
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SCHEDULE 1:
CLIENT GENERAL TERMS & CONDITIONS
SERVICES Client's internal business purposes in connection with its use of the Services.
1.1 General. During the term, ParkMobile will provide the Services to Client in accordance with the terms and Use Restrictlons. Client will not, directly or indirectly, and conditions of this Agreement. will not permit any third party to, access or use the Platform expressly permitted by this Agreement. For
1.2 Launch Date. The parties will mutually agree upon the purposes of clarity and without limiting the generality of the launch date for the Services. foregoing, Client shall not, except as this Agreement
1.3 ParkMobile Application. On and after the launch date, expressly permits; (a) copy, modify, or create derivative Client's Parking Locations, along with associated Parking works of the Piatform or Documentation, in whole or in part; Information, will be made available to the general public (b) rent, lease, copy, lend, sell, sublicense, assign through the ParkMobile Application. distribute, publish, transfer, or otherwise make available the Platform or Documentation to any person or entity; (c)
1.4 Parking Management Services. Subject to the license reverse engineer, disassemble, decompile, decode, adapt, granted in Section 2, Client will be provided access to the or otherwise attempt to derive or gain access to any Platform to manage Client's Parking Locations and software component of the Platform, in whole or in part; (d) associated Parking Information. bypass or breach any security device or protection used by
1.5 Parking Locations. The parties agree that ParkMobile the Platform or access or use the Platform other than by an one mar an are the my raoile Authorized User through the use of his or her own then valid does not own, operate, manage, or maintain any Parking
Location. Client agrees that ParkMobile is not responsible Access Credentials; (e) remove any proprietary notices for the condition or operation of any Parking Location, from the Platform or Documentation; (f) use the Platform or including, but not limited to, the operation of third-party Documentation In any manner or for any purpose that hardware and/or software-based solutions used by Client at Infringes, misappropriates, or otherwise violates any IP the Parking Location or for the delivery and/or fulfillment of Right or other right of any person, or that violates any parking or other services at the Parking Location. applicable law; (g) upload invalid data, malware, or other software agents through the Platform; or (h) use the
1.6 Publicity of Services. Each party will use commercially Platform for any purpose beyond the scope of the access reasonable efforts to market the Services throughout the granted in this Agreement.
Term. All brochures and promotional material to be
distributed by Client will be in a form mutually agreed upon 2.4 Reservation of Rights. Nothing in this Agreement grants by the parties, which will not be unreasonably withheld or any right, titie, or Interest In or to (including any license delayed. under) any IP Rights in or relating to, the Services, whether expressly, by implication, estoppel, or otherwise. All right,
1.7 Exclusivity. Throughout the term, the parties agree that title, and interest in and to the Services are and will remain ParkMobile will be the exclusive provider of electronic with ParkMobile. payment parking services for Client.
Changes, ParkMobile reserves the right, in its sole
1.8 PCI DSS. ParkMobile has obtained, and will continue to discretion, to make any changes to the Services that it maintain throughout the term, Payment Card Industry - deems necessary or useful to: (a) maintain or enhance: (i) Data Security Standard (PCI DSS) certification. the quality or delivery of ParkMobile's services to Its
1.9 Online Client General Terms & Conditions. The parties customers; (i) the competitive strength of or market for agree that this Agreement supersedes the Client General performance; or (b) to comply with applicable law.
Terms and Conditions that is publicly
https://parkmobite.io/client-terms Suspension or Termination of Services. Notwithstanding Services provided under this Agreement. anything to the contrary in this Agreement, ParkMobile may
2. ACCESS & USE OF PLATFORM suspend, terminate, or otherwise Client's, any Authorized User's, or any other person's access to or use of all or any
2.1 Provision of Access. Subiect to and conditioned on part of the Services, without incurring any resulting Cilent's and its Authorized Users' compliance with the terms obligation or liability, if: (a) ParkMobile receives a judicial or and conditions of this Agreement, all applicable laws and other governmental demand or order, subpoena, or law regulations, and Client's payment of fees, ParkMobile enforcement request that expressly or by reasonable grants Cllent a non-exclusive, non-transferable right to implication requires ParkMobile to do so; or (b) ParkMobile access and use the Platform during the Term. Such use is belleves, in its good faith and sole discretion, that (i) Clent limited to Client's internal use, ParkMobile will provide or any Authorized User has failed to Client the Access Credentials within a reasonable time material term of this Agreement, or accessed or used the following the Effective Date. Services beyond the scope of the rights granted or for a purpose not authorlzed under this Agreement; (il) Cllent or
2.2 Documentation License. ParkMobile hereby grants to any Authorized User is, has been, or is likely to be using the Client a non-exclusive, non-sublicensable, non-transferable Services for fraudulent, misleading, or unlawful activities; license to use the Documentation during the Term solely for PSA-LF Page 3 of 9
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(iii) there is a threat or attack on any of the Services; (iv) issues, Client may contact the on-call engineer via email to Client's or any Authorized User's use of the Services [email protected]. disrupts or poses a security risk to ParkMobile or to any End-User
4.3 Support. ParkMobile will provide customer
other client, end user, vendor or partner of ParkMobile; or (v) this Agreement expires or is terminated. This Section support for ParkMobile Users 24 hours a day, seven days a week, 365 days a year. There are multiple methods that does not limit any of ParkMobile's other rights or remedies, whether at law, in equity, or under this Agreement. ParkMobile Users can access customer support, such as:
ParkMobile's online ticketing system, in-app chat feature,
3. CLIENT RESPONSIBILITIES and toll-free phone number.
3.1 Use of Platform Account. Client is responsible and liable 5. CONFIDENTIAL INFORMATION for all uses of the Platform resulting from access provided by Client, directly or indirectly, whether such access or use 5.1 General. Neither party will disclose the other party's is permitted by or in violation of this Agreement. Client must Confidential Information except to its employees, affiliates, agents, or professional advisors ("Representatives") who notify ParkMobile immediately of any breach of security or need to know it and who have a legal obligation to keep it unauthorized use of Client's account.
confidential. The receiving party will use the
Parking Information. Client is responsible for setting all party's Confidential Information only to exercise rights and rates, zones, and other required information regarding its fulfill obligations under this Agreement. The receiving party Parking through the ParkMobile will ensure that its Representatives are also subject to the Application and for keeping such information up to date same non-disclosure and use obligations. The receiving within the Platform. party may disclose the other party's Confidential Information when required by law after giving reasonable Effect of Client Failure or Delay. ParkMobile is not
notice to the disclosing party, if permitted by law.
responsible or liable for any delay or failure of performance caused in whole or in part by Client's delay in performing, 5.2 Personal Data. In the event a party discloses Personal or failure to perform, any of its obligations under this Data to the other party, the receiving party will have the right Agreement. to use the Personal Data only as required and necessary to obligations under Agreement.
4. SERVICE AND SUPPORT
4.1 6. INTELLECTUAL PROPERTY OWNERSHIP
commercially reasonable efforts to schedule downtime for routine maintenance of the Services between the hours of 6.1 Client Data. Client Data remains the sole and exclusive 12:00 a.m. and 4:00 Eastern Time; however, property of Client. Client grants ParkMobile a perpetual, ParkMobile may modify this window from time-to-time by irrevocable, royalty-free license to use Client Data in providing Client with advance notice. If ParkMobile connection with the Services. anticipates that it will need to perform
6.2 Client Brand Features. Client grants to ParkMobile a activities that are likely to be disruptive to the use of the Services outside of the scheduled maintenance window, nonexclusive, nonsublicensable, nontransferable, royalty ParkMobile will use commercially reasonable efforts to give free license during the term to display Client's Brand Features in connection with providing and/or marketing the Client at least 24 hours prior notice. Notwithstanding the foregoing, ParkMobile reserves the right to perform any Services. ParkMobile will not make any use of Client's Brand Features in a manner that dilutes, tarnishes or blurs required emergency maintenance work outside of the
the value of such Brand Features.
scheduled maintenance window. To the extent practicable, ParkMobile will use commercially reasonable efforts to ParkMobile IP. Client acknowledges that, as between notify Client before commencing any emergency Client and ParkMobile, ParkMobile owns all right, title, and maintenance outside of the interest, including all IP Rights, in and to the Services window and will use commercially reasonable efforts to limit including but not limited to the ParkMobile Application and or avoid impact to use of the Services. the Platform.
4.2 Client Support. ParkMobile will 6.4 ParkMobile Brand Features. ParkMobile grants to Client reasonable efforts to assist Client with a nonexclusive, nonsublicensable, nontransferable, royalty support that Client may reasonably require in using the free license during the term to display ParkMobile's Brand Services. ParkMobile will provide technical support for rate Features in connection with the Services, subject to and configuration changes to Client Monday - Friday ParkMobile's Brand Guidelines available at (excluding holidays) between the hours of 8:00 a.m. and https://parkmobile.io/company/parkmobile-media- 6:00 p.m. (ET). For issues relating to On-Demand Parking assets/logos/. Client will not make any use of ParkMobile's Services, Client may submit a support request via email to Brand Features in a manner that dilutes, tarnishes or blurs [email protected]. For issues relating to Reservation the value of such Brand Features.
Parking Services, Client may submit a support request via email to [email protected]. ParkMobile will provide Client ParkMobile User Data. ParkMobile User Data remains the with emergency technical support 24 hours a day, seven sole and exclusive property of ParkMobile. ParkMobile may sublicense certain ParkMobile User Data to Client upon
days a week, 365 In the event of an
emergency involving technical and/or system availability Client's execution of ParkMobile's Data Protection Agreement. Client will not, directly or indirectly: (i) sell or PSA-LF Page 4 of 9
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resell ParkMobile User Data in any capacity or form; (il) 7.6 Fee Increases. Beginning on the first anniversary of the create any derivative work using ParkMobile User Data; or Effective Date and continuing annually thereafter on a (ili) use ParkMobile User Data for purposes other than compounding basis, fees shall increase by five percent specifically Agreement. (5%) or the percentage equal to the average increase in all Notwithstanding the foregoing, the parties acknowledge items under the Consumer Price Index over the prior 12- and agree that ParkMobile will not sublicense or provide month period, whichever is greater. Based on this criteria, any PCI Data to Client. fees shall then round up to the nearest two (2) decimal places. This change will take effect without prior notice to
6.6 Resultant Data. Resultant Data remains the sole and exclusive property of ParkMoblle. ParkMobile grants Client a revocable, royalty-free, non-exclusive, non-assignable, 7.7 Reserved. non-transferable license to applicable Resultant Data for the duration of the term only for Client's internal use in 8. REPRESENTATIONS AND WARRANTIES connection with the Services. 8.1 Mutual. Each party represents, warrants and covenants to
6.7 Reservation of Rights. ParkMobile reserves all rights not the other party that: (a) it is duly organized, validly existing, expressly granted to Client in this Agreement. Except for and in good standing as a corporation or other legal entity the limited rights and licenses expressly granted under this under the laws of the jurisdiction of its incorporation or other Agreement, nothing in this Agreement grants, by organization; (b) it has the full right, power, and authority to implication, waiver, estoppel, or otherwise, to Client or any enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is
third party any IP Rights or other right, title, or interest in or to grant under this Agreement; (c) the to the ParkMobile Application and/or the Platform.
representative that is executing this Agreement has been
7. FEES AND PAYMENT duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered
7.1 Fees. Client shall pay ParkMobile the fees set forth In the by both parties, this Agreement will constitute the legal, Agreement that incorporates these Client General Terms & valid, and binding obligation of such party, enforceable Conditions (Fees") in accordance with this Section 7. against such parly in accordance with its terms.
7.2 Payment Terms. The parties designate Client as the
8.2 ParkMobile. warrants,
merchant of record. Client is responsible for the payment of covenants to Client that ParkMobile will perform the
payment processing and related fees, ParkMobile will pass real-time authorized debit/credit card transactions to Client Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike
via a gateway solution. ParkMobile will issue invoices to manner in accordance with generally recognized Industry Client on a monthly basis for all fees due to ParkMobile standards for similar services and will devote adequate under this Agreement. Client shall pay each invoice within resources to meet its obligations under this Agreement. thirty 30) days of the invoice date. Client shall make all payments hereunder in US dollars to the address or 8.3 EXCEPT FOR THE EXPRESS account specifled on the applicable invoice. City and WARRANTIES SET FORTH IN SECTION 8.1 AND Consultant agree that ail payments due and owing under SECTION 8.2, ALL SERVICES ARE PROVIDED "AS IS." this Agreement shall be made through Automated Clearing PARKMOBILE SPECIFICALLY DISCLAIMS ALL IMPLIED House (ACH) transfers. Consultant agrees to execute the WARRANTIES OF MERCHANTABILITY, FITNESS FOR A City's standard ACH Vendor Payment Authorization and NON- provide required documentation. Upon verification of the INFRINGEMENT, AND ALL WARRANTIES ARISING data provided, the City will be authorized to FROM COURSE OF DEALING, USAGE, OR TRADE into Consultant's accounts) with PRACTICE. WITHOUT LIMITING THE FOREGOING, financial institutions. PARKMOBILE DOES NOT WARRANT THAT THE
SERVICES OR ANY PRODUCTS OR RESULTS OF THE
7.3 Taxes. All fees and other amounts payable by Cilent under
USE THEREOF WILL BE UNINTERRUPTED OR ERROR-
this Agreement are exclusive of taxes FREE. PARKMOBILE SHALL NOT BE LIABLE FOR
DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR
responsible for all sales, use, and excise taxes, and any OTHER PROBLEMS INHERENT IN USE OF THE other similar taxes, duties, and charges of any kind imposec INTERNET AND ELECTRONIC COMMUNICATIONS. by any federal, state, or local governmental or regulatory authorlty on any amounts payable by Client hereunder, INDEMNIFICATION other than any taxes imposed on ParkMobile's income.
9.1 Mutual. Each party will indemnify, defend, and hold
7.4 Reserved harmless the other party from and against any and all No Deductions or Setoffs. All amounts payable to losses, damages, labilities, costs (including reasonable
7.5 attorneys' fees) ("Losses") incurred as a result from any ParkMobile under this Agreement shall be paid by Client to third-party claim, suit, action, or proceeding ("Third-Party ParkMobile Claim") to the extent it arises from a breach of the indemnifying party's representations and warrantles under this Agreement.
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9.2 ParkMobile. ParkMobile will indemnify, defend, and hold AGREED OR OTHER REMEDY OF ITS ESSENTIAL harmless Client from and against any and all Losses PURPOSE.
Incurred by Client resulting from any Third-Party Claim that the Platform or any use of the Platform in accordance with 10.2 Cap on Monetary Liability. EXCEPT AS OTHERWISE this Agreement, infringes or misappropriates such third PROVIDED IN SECTION 10.3, IN NO EVENT WILL THE
COLLECTIVE AGGREGATE LIABILITY OF PARKMOBILE
party's IP Rights, provided that Client promptly notifies ARISING OUT OF OR RELATED TO THIS AGREEMENT, ParkMobile in claim, cooperates
ParkMobile, and allows ParkMobile sole authority to control WHETHER ARISING UNDER OR RELATED TO BREACH the defense and settlement of such claim. OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, OR ANY OTHER LEGAL OR
Client. Client will indemnify, defend, and hold harmless EQUITABLE THEORY, EXCEED ONE TIMES THE TOTAL ParkMobile from and against any and all Losses incurred AMOUNTS PAID TO PARKMOBILE UNDER THIS by ParkMobile resulting from any Third-Party Claim arising AGREEMENT IN THE 12 MONTH PERIOD PRECEDING out of Client's willful disclosure or deliberate misuse of THE EVENT GIVING RISE TO THE CLAIM. THE ParkMobile User Data in violation of this Agreement. FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.4 Mitigation. If any of the Services are claimed to, or in ParkMobile's opinion are likely to, infringe, misappropriate, Exceptions. The exclusions and limitations in Section 10.1 or otherwise violate any third-party IP Rights, or if Client's and Section 10.2 do not apply to ParkMobile's obligations use of the Services is enjoined or threatened to be enjoined, under Section 9 or liability for ParkMobile's gross ParkMobile may, at its option and sole cost and expense: negligence or willful misconduct. (a) obtain the right for Client to continue to use the Services
11. RESERVED
as contemplated by this Agreement; (b) modify or replace the Services, in whole or in part, to seek to make the 12. GENERAL TERMS Services (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which 12.1 Assignment. Client shall not assign or otherwise transfer case such modifications or replacements will constitute the any of its rights, or delegate or otherwise transfer any of its Services, as applicable, under this Agreement; or (c) by obligations or performance under this Agreement, in each written notice to Client, terminate this Agreement and case whether voluntary, involuntarily, by operation of law, require Client to immediately cease any use of the Services. or otherwise, without ParkMobile's prior written consent. No assignment, delegation, or transfer will relieve Client of any
9.5 Sole Remedy. THIS SECTION 9 SETS FORTH CLIENT'S of its obligations or performance under this Agreement. Any SOLE REMEDIES AND PARKMOBILE'S SOLE LIABILITY purported assignment, delegation, or transfer in violation of AND OBLIGATION FOR ANY ACTUAL, THREATENED, this Section 12.1 is void. This Agreement is binding upon OR ALLEGED CLAIMS THAT THE SERVICES OR ANY and inures to the benefit of the partles and their respective SUBJECT MATTER OF THIS AGREEMENT INFRINGES, successors and permitted assigns.
MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD 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 LIMITATION OF REMEDIES AND DAMAGES effect.
Exclusion of Damages. EXCEPT AS OTHERWISE Headings. The headings in this Agreement PROVIDED IN SECTION 10.3, IN NO EVENT WILL reference only and do not affect the interpretation of this
PARKMOBILE OR ANY OF ITS LICENSORS, SERVICE
PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ITS Notices. Any notice or communication permitted SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE required under this Agreement must be in writing and will THEORY, INCLUDING BREACH OF CONTRACT, TORT be deemed received by the addressee: (a) when received, (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND if delivered by hand with signed confirmation of receipt; (b) OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, when received, if sent by a nationally recognized overnight BUSINESS, REVENUE, OR PROFIT OR courier, signature required; (c) when sent, if by email (with DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO confirmation of transmission), if sent during the addressee's USE OR LOSS, INTERRUPTION, OR DELAY OF THE normal business hours, and on the next business day, if SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR sent after the addressee's normal business hours; and (d) RECOVERY OF DATA, OR BREACH OF DATA OR on the third business day after the date mailed by certified SYSTEM SECURITY; (D) COST OF REPLACEMENT or registered mail, return receipt requested, postage GOODS OR SERVICES; (E) LOSS OF GOODWILL OR prepaid. Notices must be sent to the attention of the REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, respective party's legal department at the address set forth INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR at the beginning of this Agreement or such other address DAMAGES, REGARDLESS OF WHETHER as either party may specific in writing. Any notlce permitted SUCH PERSONS WERE ADVISED OF THE POSSIBILITY or required under this Agreement that is sent to ParkMobile OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES shall also be sent via email to [email protected].
OR DAMAGES WERE OTHERWISE FORESEEABLE, Governing Law. This Agreement AND NOTWITHSTANDING THE FAILURE OF ANY documents, and all matters arising out of or relating to this
® ParkMobile' ParkMobile Service Agreement
Agreement, whether sounding In contract, tort, or statute referred to herein shall be construed with, and as an integral are governed by, and construed in accordance with, the part of, this Agreement to the same extent as if they were laws of the State of Callfornia, United States of America set forth verbatim herein. (including its statutes of llmitations).
12.13 Counterparts. The parties may execute this Agreement in Amendment; Walvers. Any amendment must be in writing, counterparts, Including PDF and other electronic copies, signed by both parties, and expressly state that it is which taken together will constitute one instrument. amending this Agreement. No waiver by any party will be effective unless explicitly set forth in writing and signed by 13. DEFINITIONS the party so walving. No terms or conditions stated In a "Access Credentials" means any user name, identification Client purchase order, vendor onboarding process or web number, password, license or security key, security token, portal, or any other Client order documentation shall be PIN, or other security code, method, technology, or device, Incorporated into or form any part of this Agreement, and all used alone or in combination, to verify an individual's identity and authorization to access and use the Platform. any language to the contrary therein,
whether signed before or after this Agreement. "Authorized User" means Client's employee, consultant, contractor, and agent who is authorized by Client to access Entire Agreement. This Agreement, together with any and use the Platform under the rights granted to Client other documents. incorporated herein by reference, pursuant to this Agreement. constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and "Brand Features" means a party's trade names, supersedes all prior and contemporaneous trademarks, service marks, logos, domain names, and understandings, agreements, representations, and other distinctive brand features. warranties, both written and oral, with respect to such "Cllent Data" means any data specific to Client's operation subject malter. that is provided by Client to ParkMobile to be used in the Third-Party Beneficiaries. There are no third-party provision of Services that is not avallable to ParkMobile beneficlaries under this Agreement. publicly or by other means.
Force Majeure. Neither party will be liable to the other for "Confidential Information" means information that one party any delay or failure to perform any obligation under this (or an affiliate) discloses to the other party under this Agreement (except for a failure to pay Fees) if the delay or Agreement, and that is marked as confidential or would failure results from any cause beyond such party's normally be considered confidential information under the reasonable control, Including acts of God, labor disputes or circumstances. It does not include information that is industrial disturbances, systemic electrical, independently developed by the recipient, is rightfully given telecommunications, or other utility failures, earthquakes, to the recipient by a third party without confidentiality storms or other elements of nature, pandemics, blockages, obligations or becomes public through no fault of the embargoes, riots, acts or orders of government, acts of terrorism, or war. "Documentation" means any manuals, instructions, or other
12.10 Independent Contractors. The parties to this Agreement documents or materials that Parklobile provides or makes are independent contractors. The partles do not intend, and avallable to Client in any form or medlum and which nothing In this Agreement should be construed, to create or describe the functlonality, components, features, or enter into any partnership, joint venture, employment, requirements of the Services. 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 trademark, trade secret, database protection, or other import laws and regulations of the United States and other Intellectual property rights laws, and all similar or equívalent applicable jurisdictions. Without Ilmiting the foregoing, rights or forms of protectlon, in any part of the world.
Client: (l) represents and warrants that it is not listed on any "Parking Information" means parking zones, parking rates, U.S. government list of prohibited or restricted parties or parking restrictions, selected payment methods, and other located (or a national of) a country that is subject to a U.S. information necessary for the provision of the Services for government embargo or that has been designated by the a specific Parking Location.
U.S. govemment as a "terrorist supporting" country; (ii) will not (and will not permit any third parties to) access or use "Parking Location" means the location or locations of any Service in violation of any U.S. export embargo, Client's on-street parking, off-street parking, reservation prohibition or restriction, and (iii) will not submit to any parking, parking lots, parking decks, permitted parking, and Service any information that is controlled under the U.S. other facilities where ParkMobile Users may park.
International Traffic in Arms Regulation.
"ParkMobile Application" means any and all mobile and/or
12.12 Interpretation. This Agreement shall be construed without web applications, interfaces developed, regard to any presumption or rule requiring construction or hosted, or managed by, on behalf of, or in partnership with interpretation against the party drafting an instrument or ParkMobile and that are made available to the general causing any instrument to be drafted. The Schedules
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public and that facilities the payment of parking
transactions.
"ParkMobile User" means an end user that uses the
ParkMobile Application.
"Patel, bayor a media that is atomi at order or "ParkMobile User Data"! otherwise transmtted 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 o value, service code, and/or security-related information used to authenticate cardholders and/or authorize payment card transactions
Personal Data includes names, email addresses, posta
addresses, telephone numbers, government identification numbers, financial account
information" within the meaning of any relevant and
applicable data privacy or protection laws.
"Platform" means access-controlled mobile and/or web
lanage and/or monitor parking sessions, parking rates
and/or parking restrictions associated with Client's Parkin 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.
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SCHEDULE 2: SERVICES
ON-DEMAND PARKING SERVICES
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: CITY OF SANTA ANA
Jennifer Hall Tom Hatch
Clerk of the Council Interim City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO CONTRACTOR:
City Attorney
Counter-Signed Page 2
Contractor
By:
Jonathan Martinez
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
Michael Garcia
Executive Director
PSA-LF Page 9 of 9
rav. 08/22