The following ParkMyCloud, Inc. terms and conditions of this Master Subscription Agreement (“Terms” or “Agreement”) constitute a legal agreement between you and the entity on whose behalf you are accessing the Service (“Client”) and ParkMyCloud, Inc. (“ParkMyCloud”) relating to ParkMyCloud’s proprietary customer engagement platform (the “Software”) which is made available for Client’s use as provided herein (the “Service”). Client’s use of the Service is subject to the terms and conditions set forth below, so Client should take the time to fully understand how these Terms govern Client’s relationship with ParkMyCloud and Client’s use of the Service. If you have questions regarding the Terms, please contact ParkMyCloud.
CLIENT’S RIGHT TO USE THE SERVICE IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CLIENT. IF YOU ARE ACCESSING THE SERVICE ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IF CLIENT DOES NOT AGREE WITH ANY PROVISION OF THE TERMS, OR YOU DO NOT HAVE AUTHORITY TO BIND CLIENT, YOU MUST AND MAY NOT ACCESS OR USE THE SERVICE IN ANY MANNER FOR ANY PURPOSE.
ParkMyCloud reserves the right to modify, alter, or otherwise update these Terms by posting such change to its website at least thirty days prior to its effective time. Client is encouraged to review the Terms from time to time. Your continued use of the ParkMyCloud Services following the posting of changes will constitute your acceptance of any and all posted changes.
Service and Licenses
Service and Access Credentials
Service and Access Credentials
Client will provide reasonable cooperation, assistance, information and access to ParkMyCloud as may be necessary to initiate Client’s use of the Service. Subject to all terms and conditions of these Terms, ParkMyCloud will provide Client with access to certain functionality of its proprietary software for use as permitted under this Agreement. As part of the implementation process, Client will identify an administrative user name and password that will be used to set up Client’s account. Client may use the administrative user name and password to create subaccounts for its employee users (each with unique login IDs and passwords). Client shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Client. ParkMyCloud reserves the right to refuse registration of, or to suspend or cancel, login IDs that violate the terms and conditions set forth in these Terms.
Subject to all terms and conditions of these Terms, ParkMyCloud grants Client a nonexclusive, nontransferable (except as set forth herein) right to access and use certain functionality of the Software made available by ParkMyCloud (including the Background Materials (as defined below) necessary to use the Service), solely for Client’s internal business purposes during the term set forth on the applicable order and subject to any limitations set forth on such order. The Software is made available to Client solely as hosted by or on behalf of ParkMyCloud, and nothing in these Terms shall be construed to grant Client any right to receive any copy of the Software. Client’s access and use of the Service shall comply with all other conditions set forth in all documentation, such as the user guide, help information, and other document regarding the Service, in each case that is provided or made available by ParkMyCloud to Client in electronic or other form (“Documentation”). For avoidance of confusion, this includes, for example, any requirements regarding data formats, number of permitted users or prohibited uses.
Client shall not directly or indirectly (a) use any of ParkMyCloud’s Confidential Information (as defined below) to create any service, software or documentation that performs substantially the same functionality as the Service, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service or Background Materials (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, transfer, distribute, rent, lease, time-share or use any ParkMyCloud Property (as defined below) in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of or otherwise modify any ParkMyCloud Property, or (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns in connection with Client’s use of the Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.
From time to time, ParkMyCloud may solicit from Client or Client may make, in its sole discretion, suggestions for changes, modifications or improvements to the Service (“Feedback”). All Feedback shall be solely owned by ParkMyCloud (including all intellectual property rights therein and thereto) and shall also be ParkMyCloud’s Confidential Information. Client shall and hereby does make all assignments necessary to achieve such ownership. Client warrants that it has all rights necessary in the Feedback to comply with these terms.
Client hereby grants ParkMyCloud a nonexclusive and royalty-free right and license to access, copy, process and use all information, data and other content provided by Client in connection with its authorized use of the Service (“Client Data”), including all data regarding Client’s users that is processed by the Service, solely for the purpose of providing the Service, or as otherwise provided herein. Client agrees that (a) the Service depends on the availability of the Client Data and (b) ParkMyCloud will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Client Data. Unless otherwise expressly agreed in a writing that is signed by an authorized representative of ParkMyCloud, ParkMyCloud shall have no obligation to store Client Data beyond any period specified in your order.
Client is responsible for providing (a) all subscriptions and credentials necessary for ParkMyCloud to receive the Client Data and (b) all equipment, servers, devices, storage, other software, databases, network and communications equipment and ancillary services needed to send data to ParkMyCloud from its facility (collectively, “Client Systems”). Client shall ensure that Client Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation.
ParkMyCloud will not be liable for any failures in the Service or any other problems which are related to (a) the Client Data or Client Systems or (b) any satellite, telecommunications, network or other equipment or service outside of ParkMyCloud’s facilities or control.
ParkMyCloud will use commercially reasonable efforts to provide Client with technical support and to make available updates for the Service in accordance with its regular business practices. Client agrees that ParkMyCloud may charge for any support service resulting from problems, errors or inquiries related to the Client Data or Client Systems.
Pricing and Payments
Client shall pay a fee for the right to use the Service (“Service Fee”) at ParkMyCloud’s then-current rates or as otherwise set forth in the ParkMyCloud order form completed by Client. Client shall pay the Service Fee monthly or annually in advance in accordance with the ParkMyCloud order form completed by Client. Payments shall be made in US dollars in full. All payments required by these Terms are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Client agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon ParkMyCloud’s net income. All amounts payable by Client hereunder, including all Service Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Client’s payment of such amounts to ParkMyCloud.
“Confidential Information” means, (a) with respect to ParkMyCloud, all financial, business or technical information disclosed by or for ParkMyCloud in relation to these Terms that is of a nature that should reasonably be considered to be confidential and proprietary, and, (b) with respect to Client, non-public Client Data and any personally identifiable information relating to individual persons (“PII”) that is included within Client Data. Except for the specific rights granted by these Terms, neither party (“Recipient”) may use, copy or disclose any of the other’s (“Discloser”) Confidential Information without Discloser’s written consent, and shall use reasonable care to safeguard Discloser’s Confidential Information, including obligating Recipient’s employees, contractors and agents (“Representatives”) who are given access to Discloser’s Confidential Information to keep such information confidential. ParkMyCloud agrees to treat PII included in the Client Data in accordance with all applicable United States laws and regulations. The foregoing obligations shall not apply to any Confidential Information (other than PII) that Recipient can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to Discloser, (c) generally available to the public without breach of these Terms or (d) independently developed by it without reference to or use of any of Discloser’s Confidential Information. Promptly upon Discloser’s request at any time, Recipient shall return all of Discloser’s tangible Confidential Information. Each party may disclose the general nature, but not the specific terms, of these Terms without the prior consent of the other party; provided, however, that either party may provide a copy of these Terms or otherwise disclose its terms on a confidential basis in connection with any financing transaction or due diligence inquiry. Nothing herein shall prevent a party from disclosing these Terms or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, Recipient shall use reasonable efforts to (a) promptly notify Discloser in writing of such requirement to disclose and (b) cooperate as reasonably requested by Discloser at no expense to Recipient in protecting against or minimizing any such disclosure or obtaining a protective order.
As an exception to any limitations on ParkMyCloud’s right to disclose information, in the event ParkMyCloud goes through a possible business transaction, such as a merger, acquisition by another company, or other sale of the company or all or a portion of its assets, Client Data (including PII) will likely be among the assets disclosed to the potential transferee (under a duty of confidentiality) and transferred, if the transferee will be continuing the Services. Client agrees that ParkMyCloud may transfer such Client Data and PII without Client’s prior consent.
As used in these Terms: “Background Materials” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, Report Formats, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are used by ParkMyCloud in providing the Service and Results (including any correction, improvement, extension or other modification to the Service made, created, conceived or developed by or for ParkMyCloud, including at Client’s request or as a result of feedback provided by Client to ParkMyCloud); “Reports” means the reports, charts, graphs and other presentation in which the Results are presented to Client; “Report Formats” means the formatting, look and feel of the Reports; and “Results” means the work products resulting from the Service that are delivered to Client by ParkMyCloud through the Service, and which are based on the Client Data. For the sake of clarity, Results shall expressly exclude all Background Materials.
Results and Client Data
Client shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Results and Client Data. Client acknowledges and agrees that the Results will be presented to it in a Report, the Report Format of which is proprietary to ParkMyCloud. Client may make copies of the Reports only for its internal purposes in using the Results. Client hereby grants ParkMyCloud a non-exclusive royalty-free right and license to use the Results, for purposes of providing the Service to Client and for ParkMyCloud’s internal business purposes.
General Learning; Aggregate Data
Client agrees that ParkMyCloud is free to disclose aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another customer). Client further agrees that (a) ParkMyCloud shall have the right to create compilations and analyses of Client Data and Results (“Aggregate Data”) and to create reports, studies, analyses and other work product from Aggregate Data (“Analyses”) and (b) ParkMyCloud shall have exclusive ownership rights to, and the exclusive right to use, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other customers and prospective customers of the Services; provided, however, that ParkMyCloud shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Client Data or in a manner in which the identity of any individual person or his or her PII can be reasonably ascertained.
Reservation of Rights
Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and ParkMyCloud (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service, Documentation, Background Materials, Aggregate Data, and Analyses (collectively, “ParkMyCloud Properties”).
Warranties and Disclaimers
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARKMYCLOUD SOFTWARE AND SERVICES, AND ANY RESULTS OBTAINED THERE FROM BY CLIENT ARE PROVIDED WITHOUT ANY OTHER WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, PARKMYCLOUD MAKES NO WARRANTY (I) THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (II) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICE, OR (III) THAT ANY ERRORS IN THE SERVICE CAN OR WILL BE CORRECTED. PARKMYCLOUD HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
Injunctions of the Service
If the Service becomes or, in ParkMyCloud’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, ParkMyCloud may, at its option (1) obtain for Client the right to continue using the Service or (2) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to ParkMyCloud, then it may terminate these Terms upon written notice to Client and refund to Client any prepaid Service fees, pro-rated for the remainder of the prepaid period.
Subject to the foregoing provision, and the limitations of liability provided in these Terms, ParkMyCloud agrees to defend Client against any third party claims that the Service provided hereunder by ParkMyCloud infringes the rights of any third party, in each case, excluding claims caused by Client’s failure to meet its obligations under this Agreement.
Client agrees to indemnify and hold harmless ParkMyCloud against any third party claims and all resulting losses, liabilities, costs and expenses attributable to or arising from (a) any actual or alleged breach of Client’s representations and warranties contained herein, (b) Client’s unauthorized use of the Service or other ParkMyCloud Software, Confidential Information or other information, (c) Client’s use of the Results, including any modifications thereto or any combination of the Results with any other data or information where the claim would not have arisen but for such modification, combination or use, or (d) any actual or alleged violation by Client of the rights of any third party (including intellectual property rights or any rights of privacy or publicity).
The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement. The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost). The indemnifying party shall not enter into any settlement that imposes liability or obligations on the indemnified party without obtaining the indemnified party’s prior written consent of the settlement.
LIMITATION OF LIABILITY
IN NO EVENT SHALL PARKMYCLOUD BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY: (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PARKMYCLOUD BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID OR OWED TO PARKMYCLOUD HEREUNDER DURING THE PRECEDING TWELVE (12) MONTH PERIOD. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
Term and Termination
These Terms shall commence on the date Client begins using the Service (the “Effective Date”) and shall continue in effect for as long as Client’s authorized use of the Service continues (as set forth in ParkMyCloud order form completed by Client); provided however, that obligations of Confidentiality shall continue in effect for two (2) years after the expiration or termination of the Service.
ParkMyCloud may agree to grant you access to a trial version of the Service that may be available free of charge during a trial period specified by ParkMyCloud. If granted access to a trial version, these Terms shall apply to Client’s use of the trial version and, if Client later converts to the paid version, these Terms will also apply to Client’s use of the paid version. The trial version may not have all the features or functionality of the paid version of the Service. ParkMyCloud may terminate Client’s access to the trial version at any time.
These Terms may be earlier terminated by either party if the other party breaches a provision of these Terms and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) after receiving written notice of such breach from the non-breaching party. ParkMyCloud reserves the right to suspend or terminate access to the Service if Client violates the license grant or restrictions regarding use of the Service.
Effects of Termination
Upon any expiration or termination of these Terms, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of these Terms shall survive, and (b) the provisions titled Feedback, Confidentiality, Proprietary Rights, Warranties and Disclaimers, Indemnification, Limitation of Liability, Effects of Termination and General Provisions shall survive. Unless otherwise agreed in writing and signed by an authorized representative of ParkMyCloud, ParkMyCloud has no obligation to retain any Client Data or Results after the expiration or termination of this Agreement.
These Terms (which includes any ParkMyCloud order form executed by the parties) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of these Terms.
Waivers, Consents and Modifications
No waiver, consent or modification of these Terms shall bind ParkMyCloud or Client unless in writing and signed by the party against which enforcement is sought. These Terms may be modified solely upon the written agreement of both Client and ParkMyCloud. The failure of either party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights.
If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
Governing Law; Venue; Waiver of Jury Trial
These Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to these Terms. Exclusive jurisdiction and venue for actions related to these Terms or Client’s use of the Service will be the U.S. District Court Eastern District (Alexandria Division) or the courts of the Commonwealth of Virginia located in either Fairfax County or Loudoun County and both parties consent to the jurisdiction of such courts with respect to any such actions. In any action or proceeding arising out of or relating to this Agreement, the prevailing party will be entitled to receive in addition to all other damages to which it may be entitled, its costs and expenses (including reasonable attorneys’ fees) incurred by such party in connection with such action or proceeding.
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party, which, in the case of Client, shall be the address provided to ParkMyCloud upon signing up for the Service, and, in the case of ParkMyCloud, shall be 21351 Gentry Drive, Suite 255, Sterling, VA 20166 or, if different, the address set forth in the contact section of ParkMyCloud’s website, or at such other address for either party as is designated in a subsequent notice. All notices shall be in English, effective upon receipt. Notwithstanding the foregoing, ParkMyCloud may provide notice to the Client via email to the email last provided to ParkMyCloud by the Client administrator, or by posting the notice on the ParkMyCloud website.
This Agreement shall be binding upon and for the benefit of ParkMyCloud, Client and their permitted successors and assigns. Either party may assign this Agreement to its Affiliates or as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, Client many not otherwise assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of ParkMyCloud, and any attempted assignment or delegation without such consent will be void.
The parties shall be independent contractors under these Terms, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose. BY USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CLIENT. IF YOU ARE ACCESSING THE SERVICE ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IF CLIENT DOES NOT AGREE WITH ANY PROVISION OF THE TERMS, OR YOU DO NOT HAVE THE AUTHORITY TO BIND CLIENT, YOU MAY NOT ACCESS OR USE THE SERVICE IN ANY MANNER FOR ANY PURPOSE.