1. SCOPE OF CONTRACT.
1.1. The capitalized terms used in these Terms are defined in the final Section of these Terms.
1.2. You should read these Terms carefully before Using the Platform. When you open a Parkofon Account with us, download our App, order a Transponder, or Use our Platform, you are directed to these Terms and required to accept and/or agree to these Terms in order continue. The availability of the Platform on the Internet, in online mobile app stores, and as built in functionality in vehicles (such as in an onboard navigation system) constitutes a continuing offer by Parkofon to you to Use the Platform according to these Terms. By opening a Parkofon Account with us, installing our App, or Using the Platform or any of its components, you accept that offer and a binding contract between you and Parkofon is created whereby you unequivocally agree to adhere to these Terms, without limitation, restriction, or qualification. You and Parkofon stipulate that sufficient consideration exists and has been received to create that contract, and that it is therefore binding upon each of you and Parkofon. By your Use of the Platform, you make the material representation, upon which you wish Parkofon to rely, that you will fully adhere to all of the terms, conditions, obligations, and restrictions set forth in these Terms in connection with your Use of the Platform.
1.4. If you do not agree to the Terms set forth herein or otherwise on the Platform, you must not Use it. We retain the right to change, modify, update, revise, and/or amend the content of the Platform and/or the terms and conditions set forth in these Terms at any time and, each time you Use the Platform you agree that the current version of these Terms is applicable to you and your Use of the Platform and constitutes the contract between you and Parkofon. Any changes made to these Terms shall be effective immediately upon posting on our Site. Your continued Use of the Platform constitutes acceptance of the then current version of these Terms. Each time you Use our Platform, start or stop Parking Session, complete a Transaction and/or you provide us with information or data via the Platform, you are accepting and agreeing to the then current version of these Terms, which supersedes and replaces all prior versions of these Terms. You are responsible for checking our Site for the current version of these Terms or reading the current version of these Terms in the Platform. You acknowledge and agree that there is adequate and sufficient consideration for any change, modification, update, revision, or amendment to these Terms and that you have received such consideration.
1.5. This is not an agreement between you and any Transaction Entity, but is an agreement between you and Parkofon, even if the Platform is accessed through a Transaction Entity website or app.
1.6. We provide the Platform solely for your personal use, except as otherwise expressly agreed to by us in writing, at our sole discretion.
1.7. By your Use of the Platform, you stipulate that a violation of any of the terms and conditions in these Terms may result in irreparable harm to Parkofon not compensable in money damages, such that, without limitation, injunctive relief shall be a necessary and appropriate remedy.
1.8. By your Use of the Platform or any component thereof, you stipulate that the Materials are owned by Parkofon and are the Intellectual Property of Parkofon.
1.9. Your Use of the Platform or any component thereof is conditioned on your agreement to accept, abide by, and be governed by these Terms.
1.10. Your continued use of the Platform is subject to your agreement to these Terms, as amended from time to time. You agree to perform the obligations set forth in these Terms that are required to allow Parkofon to deliver the Platform to you.
1.12. The Platform is intended for Use by users who are of the legal age to hold a driving license and enter into binding contracts. In any case, accounts of users under the age of 16 years will be cancelled and deleted by us, upon receiving notice.
2. OPENING YOUR ACCOUNT.
2.1. You can open your Parkofon Account with Parkofon (and automatically become a Member) by downloading and installing the App; ordering and obtaining the Parkofon Transponder from Parkofon only; using the process provided on the Site (using Personal Pages); using our IVR System; or contacting Member Services. You may change settings and change, update, or delete any information you provide by using the App, the Personal Pages, the IVR System, or Member Services. Any settings changed or any change, update, or deletion of information you provide, regardless of the method selected, will be reflected both in the App and on your Personal Pages.
2.1.1. The Platform may not be available in all Parking Locations. Your ability to use the Platform to initiate a Parking Session may be limited by the relevant Transaction Entity. We have no control over such limitations and we have no liability for any fees, charges, or payments that are required by the Transaction Entity to Use the Platform to start and pay for Parking Sessions in the areas controlled by such Transaction Entity and you acknowledge that such fees or charges may apply and that you are solely responsible for such fees, charges, or payments.
3. USE OF THE TRANSPONDER
3.1. You agree that the Transponder is the property of Parkofon and shall be returned.
3.2. You agree to install the Transponder in accordance with the Transponder Installation Instructions.
3.3. You agree that Parkofon shall have no obligation or liability to the User with respect to use or performance of the Transponder. User agrees to indemnify and hold Parkofon, their agents, representatives and respective employees harmless from and against any and all damage, loss, cost, expense, injury or liability relating to, arising from, or as a result of the use of, or the performance of the Transponder, or as a result of inaccurate user account information.
3.4. You agree to be fully responsible for any and all charges arising from the use of each Transponder until such time as User either surrenders the Transponder or reports it lost/stolen to Parkofon.
3.5. Lost or Stolen Transponder: User must notify Parkofon immediately of any lost or stolen Transponder, identifying the Transponder by the User’s phone number associated with the Parkofon Account. Until Parkofon is notified, the User will continue to be responsible for charges. Once notified, Parkofon will invalidate the Transponder. The User shall be responsible for the cost of the lost or stolen Transponder ($150.00 for each Transponder). The fee will be waived if the User provides a copy of an official police report indicating that the Transponder was stolen.
3.6. Damaged Transponder: The Transponder is the property of Parkofon. Any Transponder that has been altered, defaced, or damaged in any manner will result in a fee of $150.00 for each Transponder.
3.7. Parkofon will pay for the delivery and return of the Transponder by United States Postal Service or courier delivery services, using return labels available from Parkofon Member Services by following the cancellation directions. If a User fails to follow the cancellation directions on the Parkofon website or cancels within three months of beginning a subscription, the User is responsible for fees associated with returning the Transponder.
3.8. The User is responsible for properly installing the Transponder in the User’s vehicle. Parkofon is not liable for any damages to the User’s vehicle as a result of such installation. Any damage to the User’s vehicle is the sole liability of the User.
4. ACCESS TO PLATFORM/LIMITED LICENSE.
4.1. The Platform, the Materials, and Intellectual Property may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed without the written permission of Parkofon. Moreover, you agree not to download (other than page caching) or modify any portion of the Platform without Parkofon's prior written approval, except as is expressly provided herein. Notwithstanding the foregoing, Parkofon grants you a limited, nontransferable, nonexclusive, revocable license to access the Platform and make personal, noncommercial Use of the Platform. You are also granted a limited license to print copies of any Materials posted on the Platform, but only for your personal, noncommercial use. Except as expressly provided herein, all Intellectual Property rights are reserved.
4.2. With respect the license to Use the Platform as described herein, you agree to these License Restrictions:
4.2.1. You shall not share with or assign, copy (except as expressly set forth herein), sublicense, transfer, lease, rent, sell, distribute, or otherwise provide to any third party (i) this license, (ii) the Platform, (iii) any Use of the Platform, or (iv) your rights under these Terms;
4.2.2. Other than as expressly set forth in these Terms, you shall not (i) modify, adapt, translate, duplicate, disassemble, decompile, reverse assemble, reverse compile, or reverse engineer, or take similar action with respect to the Platform or any component thereof for any purpose, or (ii) attempt to discover the underlying source code or algorithms of the Platform (unless enforcement of this restriction is prohibited by applicable law and then, only to the extent specifically permitted by applicable law, and then only upon providing us with reasonable advance written notice and opportunity to respond);
4.2.3. You shall not permit any party, whether acting directly or on behalf of you, to breach or violate any of these License Restrictions.
4.2.4. In connection with any violation or breach of this Section, we may terminate your access to the Platform and your Parkofon Account without notice. Additionally, we have the right to commence legal action against you for damages and/or equitable relief in such instances.
5. YOUR USE OF THE PLATFORM.
5.1. You are responsible for providing and agree to (i) provide Parkofon with complete, correct, and accurate information about you when you open your Parkofon Account, and (ii) promptly update that information after it changes. The details of your Parkofon Account can be updated within your Personal Pages via the Site, the App, or by contacting Member Services. You are responsible for keeping your password and login information for the Site secret so that only you can access your Parkofon Account's Personal Pages on the Site. We are not responsible for any failure by you to keep your password secure, or any unauthorized access to your Parkofon Account or Personal Pages. You agree to notify Parkofon immediately of any unauthorized use of your Parkofon Account or Personal Pages. Until you notify us of an unauthorized use of your Personal Pages, we will continue to process Transactions and charge them to your Payment Method.
5.2. You are responsible for completing your own Transactions. You are responsible for (i) reserving, via the App, the parking space in a Parkofon-enabled garage at the time you intend to park there, (ii) showing the email or screen in your App with Reservation ID, start and end time of your parking session to garage and/or Parkofon personnel when requested. Use of the Platform does not guarantee you a parking space and, except as is necessary in connection with parking with a Reservation, you only activate the Services after you have found an available space.
5.3. Parking Restrictions shall take precedence over any information that you receive from Parkofon (e.g., a prohibition on parking in a certain area). The Parking Restrictions apply to you and your Use of the Platform does not in any way exempt you from identifying and complying with the Parking Restrictions.
5.4. Parking rates vary as a result of parameters set by the Transaction Entity such as Parking Location, time of day, day of the week, special events, and the like and these variances are beyond our control and may not be reflected in the Platform in a timely manner. Increases or other changes to parking rates, changes to the Parking Restrictions or other parking variables, and/or the introduction of new Parking Restrictions are beyond our control and may not be reflected in the Platform in a timely manner. You are solely responsible for determining the parking rates applicable to your Parking Session before commencing a Parking Session.
5.5. You are solely responsible for all Parking Penalties. You are solely responsible for resolving with the relevant authorities any issues that you may have regarding Parking Penalties. We do not enforce Parking Restrictions and do not assess Parking Penalties. If you are assessed a Parking Penalty, your sole and exclusive remedy with us is to delete your Parkofon Account and delete and/or un-install the App.
5.6. You are solely responsible for all fees or charges you incur in connection with your use of your Mobile Device with the Platform, including but not limited to, data usage, texting, overages, per-minute charges, roaming, and other telecom or access charges and you acknowledge that such fees or charges may apply and that you are solely responsible for such charges and fees.
5.7. If you are dissatisfied with any of these Terms, or if the Platform is not as described, does not include expected functionality, fails to operate, fails to operate error free, is unavailable to complete Transactions, or does not otherwise meet your needs or expectations, your sole and exclusive remedy is to return the Transponder (if applicable), request to cancel your Parkofon Account and delete and/or un-install the App.
6. GARAGE/LOT PARKING PURCHASE POLICY.
6.1. We provide consumers with opportunities to purchase parking in garages and parking lots owned and operated by third parties. Users using the Transponder will be charged a preset hourly fee in $0.50 increments with a minimum of one-hour fee charged after the User exits the garage or lot. Users’ parking will be automatically extended and charged in $0.50 increments before 8pm until the User exits the garage or lot and stops the Parking Session in their App. Users who park in garages after 8pm will be automatically charged an additional $8 and parking will expire at 7am the following morning. Users may continue to park after 7am for the preset per-hour fee in $0.50 for that garage or lot.
6.2. Users are responsible for showing the screen or email containing the QR code, start and end time of their Parking Session to the parking attendant, valet and/or Parkofon personnel at the garage/lot in order to gain entrance. If the User also uses Parkofon Transponder to park in a garage/lot, the User is responsible for keeping their Transponder charged and on through the entire time of their Parking Session, including 5 minutes before they enter the garage/lot. The failure to properly show the code to the parking attendant, valet and/or Parkofon personnel at the garage/lot and to properly charge the Parkofon Transponder and keep it powered on could result in additional charges, which are the sole responsibility of the User. No refunds will be issued for improper operation and use of the Transponder or failure to report such failures within 24 hours of such failure.
7.1. You agree to pay all Transaction Charges together with all other fees, charges, or assessments related to Transactions, whether imposed by a Transaction Entity, a Payment Entity, or another third party pursuant to these Terms and all fees for Services, if any.
7.2. You are responsible for all Transactions initiated using your Parkofon Account and the related Transaction Charges. If you permit another person or persons to access or use your Parkofon Account, we will treat this as if you have authorized such use and you will be liable for all Transactions incurred by those persons using your Parkofon Account.
7.3. Parkofon shall process the amounts for Transactions by charging your Payment Method at the time of your Transaction. If you do not have at least one valid Payment Method with all necessary Payment Information, we may immediately suspend or block your ability to complete a Transaction. If your Payment Method is declined your Parkofon Account may be blocked or terminated. Additionally, Parkofon reserves the right to transfer the claims for unpaid Transaction Charges to third parties.
7.4. You are responsible for promptly updating all Payment Information in the event of any changes. We will have no liability for your inability to complete Transactions as a result of incorrect or outdated Payment Information.
7.5. Not all Parking Locations accept all Payment Methods. Some Parking Locations may require the use of a particular Payment Method, which may require your registration or enrollment to create an account in addition to and separate from your Parkofon Account. We have no liability for any Transaction that is rejected because the Payment Method(s) you registered are not accepted at a Parking Location.
7.6. You may have the opportunity to designate a preferred Payment Method in the Platform. If your preferred Payment Method is declined or not accepted for any reason, the Platform will automatically select another Payment Method that you have registered to complete the Transaction. This process will continue until a registered Payment Method is found through which the Transaction can be completed with all Transaction Charges being paid. We have no liability for any transaction fees, insufficient fund charges, or any other fee, penalty, or charge that is assessed as a result of charges made to any your registered Payment Methods. You shall remain fully liable to us for the amount of any outstanding Transaction Charges.
7.7. You are subject to any applicable terms, conditions, restrictions, and other requirements of any Payment Provider related to any Payment Method and we have no liability for any transaction fees, insufficient fund charges, or any other fee or charge that is assessed by a Payment Provider in connection with your use of such Payment Provider for Transactions.
7.8. In connection with your Transactions, we may charge a pre-authorization amount be placed against your credit or debit card, which may reduce the funds you have available for your use. Any pre-authorization funds not used to complete your Transaction will be released after 72 hours.
7.9. A history of your Transactions, indicating the Parking Locations, times and Transaction Costs is accessible by you from your Personal Pages on the Site. If you require a printed invoice, you can print it from your Personal Pages on the Site. Alternatively, if you wish to receive an invoice by mail, you may request one from Member Services, and we will provide you with one, subject to a processing fee.
7.10. If, in good faith, you dispute any fees for a Transaction, you must provide written notice of the dispute to us and the applicable Transaction Entity, if any, within thirty (30) days of the date of the Transaction (or such shorter notice requirement of that Transaction Entity). Your failure to comply with this procedure shall constitute your approval of such fees.
7.11. In the event that you owe us money in connection with your Use of the Platform, you will pay interest on all amounts not paid when due at the rate of 1.5% per month, or the highest lawful rate, whichever is less.
7.12. With respect to Reservations:
7.12.1. The Transaction may be subject to service fee(s) and a non-refundable per order payment processing fee.
7.12.2. There will be no fee administered for any cancellation of a reserved parking event up to three (3) hours prior to the scheduled parking event, provided, however, that the rules for a reserved parking event cancellation dictated by the Transaction Entity may require a longer notice period.
7.12.3. There will be a service fee equal to fee 100% of the original reservation price administered for any cancellation within three (3) hours (or such other time period as dictated by the Transaction Entity) of the scheduled reserved parking event, or if you do not utilize the scheduled reserved parking. The fee will be charged against your Payment Method.
7.13. We don't have the access or ability to reverse, modify, or cancel transactions or to partially or fully refund the fees the Parking Operator has collected.
7.14. If you would like to contact your Parking Operator to see if they are willing to accommodate a request, we encourage you to do so.
7.15. Only authorized members of Parkofon’s Member Services can authorize a refund for any amount of Transaction Charges. In connection with an authorized refund, we will endeavor to submit and process within 72 business hours of your request.
8. CONTRIBUTIONS TO THE SITE.
To the extent that there are opportunities for our users to contribute User Content to the Platform, including to the Site, we cannot preview User Content or all third-party content before it appears and we are not liable or responsible for any User Content or content from third parties. You shall not provide illegal or prohibited User Content, including User Contact containing, among other things, unlawful, fraudulent, threatening, abusive, libelous, defamatory, indecent, obscene, pornographic or otherwise objectionable materials. We may remove any User Content from the Site for any reason or no reason. If you discover this kind of material on the Site, please notify us via email firstname.lastname@example.org or contact Member Services by phone 855-546-7275. We will investigate your claim and may then take the actions deemed appropriate. By posting User Content, you grant us ownership rights in such User Content and we have the right to publish such User Content.
9. USER CONDUCT.
By Using the Platform, you make the material representations upon which you wish Parkofon to reasonably rely, that you will comply with the Conduct Rules set forth in this Section. In connection with any non-compliance with, violation of, or breach of this Conduct Rules by you, we will have no liability to and we may terminate your access to the Platform and your Parkofon Account without notice. Additionally, we have the right to sue you for damages in such instances.
9.1. You will not Use the Platform in an unauthorized manner, or in a manner which violates any legal or regulatory proscription or duty, including, without limitation, violating Parkofon's Intellectual Property rights or the Intellectual Property rights of any third party;
9.2. You will not Use the Platform in a way that violates any rules or requirements set forth in these Terms or in any portion of the Platform;
9.3. You will not utilize the Platform in a manner that is harmful to Parkofon or any other person or entity;
9.4. You will not utilize any information that you gained as a result of using the Platform to illegally or improperly violate another person's or entity's privacy or personally identifiable information rights;
9.5. You will not Use any of Parkofon's Marks as metatags on other websites or otherwise use Parkofon's Marks for your own advertising or pecuniary gain, including without limitation utilization as Google AdWords;
9.6. You will not Use the Platform in regard to any commercial activities, advertising or sales without the prior written consent of Parkofon, which may be unreasonably withheld;
9.7. You will not upload any virus, malware, or other program or agent to damage the Platform in any way
9.8. You will not use any robot, spider or other intelligent agent software or device to access or monitor the Platform in any manner;
9.9. You will not Use the Platform, transmit to or through the Platform, or post User Content (i) for any unlawful purpose, or (ii)which consists of any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, indecent, obscene, pornographic, or otherwise objectionable information, images, or content;
9.10. You will not restrict any other user from properly using the Platform, including without limitation, by way of "computer hacking" or other attacks, or otherwise altering the software or functionality of the Platform and its underlying programs;
9.11. You will not imply that any of your public statements are endorsed by Parkofon, including those made in social media, or that you are otherwise associated with Parkofon in any manner;
9.12. You will not Use the Platform if you have been temporarily or indefinitely suspended from your Use of the Platform;
9.13. You will not transmit any material, nonpublic information about any person or entity without the proper authorization to do so;
9.14. You will not transmit any advertisements, solicitations or any unsolicited communication without Parkofon's express permission to do so;
9.15. You will not cover or obscure any advertisements located within our Platform;
9.16. You will not revise, modify, reverse engineer or in any way alter any portion of the Platform or its contents or underlying technology;
9.17. You will not "frame" or "mirror" any part of the Platform;
9.18. You will not utilize any device to enable him to circumvent the structure of the Platform and/or spam or flood the Site;
9.19. You will not collect any information about visitors to the Platform without Parkofon's express permission to do so;
9.20. You will not deliver to or through the Platform, or provide links to any postings outside the Platform without the prior written permission of Parkofon, including, without limitation, to any materials which are deemed, in Parkofon's sole discretion to be harmful, lewd, obscene, violent, insulting, threatening, hateful or otherwise objectionable;
9.21. You will not impersonate any other person and/or falsely state or otherwise misrepresent that you have an affiliation with any other person or entity, or otherwise mislead, deceive or defraud Parkofon or any other party;
9.22. You will not create a database utilizing any information found within the Platform or the Materials;
9.23. You will always drive vigilantly, safely, and prudently according to road conditions and in accordance with all traffic laws while using the Platform. The following requirements are not the only rules or practices which pertain to vigilant, safe, and prudent driving and, our failure to include a rule or a practice is not to be taken as a consent or suggestion that the violation of such rule or a practice is acceptable:
9.23.1. While driving, it is forbidden for you to non-verbally interact with the Platform or use the Platform in a non-verbal manner for any purpose other than navigation to a parking venue (as long as such interaction does not interfere with safe driving).
9.23.2. Using the Platform to conduct searches, parking transactions, purchases, or payments is only to be done after you have stopped your vehicle in a safe location and appropriate location as permitted by law.
9.23.3. Using the Platform to conduct searches, parking transactions, purchases, or payments may be done by your passenger, provided it does not distract your attention to the road and does not interfere with safe driving;
9.24. You are at least 16 years of age and you are authorized to provide information to Parkofon through the Platform, install the Platform, and open a Parkofon Account;
9.25. You understand that, subject to applicable Federal and State laws regulations to the contrary, Parkofon shall not be required to provide any refunds, credits, benefits, or other compensation for any discontinued component of the Platform or discontinuance of the Platform itself;
9.26. You agree not to reproduce, duplicate, copy, sell, resell, modify or exploit for any commercial purposes any portion of the Platform, including, without limitation, access to the Platform or any of the Materials, Marks or Intellectual Property; and
9.27. You acknowledge and agree that your representations hereunder shall survive termination of your Parkofon Account, licenses hereunder, or Use of the Platform.
10. INTELLECTUAL PROPERTY
10.1. Our Intellectual Property is the sole property of Parkofon and its Affiliates or other representatives (as applicable) together with the goodwill associated therewith. Other than as expressly set forth herein, you are not authorized to use our Intellectual Property or any variations thereof. Other than as expressly set forth herein, Parkofon does not grant to you any express or implied ownership or other rights to any Intellectual Property and all such rights are retained by Parkofon and its Affiliates. You are liable for any and all damages of every kind resulting from any infringement by you of our Intellectual Property rights.
10.2. We are the sole owner of any derivatives, new versions, enhancements, updates, changes, etc. of our Intellectual Property, even if wholly or partially based upon your ideas, comments, suggestion, questions, requests, and the like.
10.3. Portions of Platform may provide you with an opportunity to post and exchange information, ideas and opinions. Be advised that such postings do not reflect the views of Parkofon. In no event shall Parkofon assume or have any responsibility or liability for the postings or for any claims, damages or losses resulting from any other posting use and/or appearance on the Platform.
10.4. You hereby represent and warrant that you have all necessary rights in and to User Content you provide to or through the Platform and that neither your provision of User Content nor the User Content itself will infringe any proprietary or other rights of third parties or contain any libelous, tortuous, or otherwise unlawful information.
11. COPYRIGHTS AND MARKS; RESTRICTIONS ON USE.
11.1. The Materials on the Site and in the Platform are copyrighted by Parkofon, its Affiliates, and its third party licensors, whether explicitly marked or not, under United States and international copyright laws and are subject to other intellectual property and proprietary rights and laws. Such Material is protected under United States and international copyright, trademark, unfair competition laws, and similar laws. Such Material may not be used, copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale or redistributed in any way without the prior written permission of Parkofon, with the sole exception that you may print copies of the Materials for your own personal, noncommercial use.
11.2. The Marks may not be used, copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale or redistributed in any way without the prior written permission of Parkofon, with the sole exception that you may print copies of the Marks for your personal, noncommercial use and provided that you: (1) maintain all copyright and other intellectual property notices together and intact with any information or content; (2) do not modify or otherwise alter any information or content; and (3) do not expressly or implicitly suggest an association with any services, product, brands or affiliates through the use of any information or content. You may not change or delete any author credit, trademark, Mark, legend, proprietary or copyright notice. You must follow and observe all additional copyright notices or other restrictions contained in any parts of the Platform.
Any communications, including, without limitation, e-mails, pictures, audio clips, videos, graphics and/or other material sent directly, or by carbon copy or otherwise from you to Parkofon or any of our officers, managers, employees, representatives, attorneys, or agents and any postings to the Platform shall become Parkofon's property upon the transmission of the same. You grant the perpetual and irrevocable right to us to both publicly or nonpublicly use the same, including the identifying information contained therein, in any manner whatsoever, at no charge.
13.1. As part of your Use of the Platform, Parkofon may send reminders, alerts, or critical Platform-related notifications via Messaging. Parkofon may use one or more of the following providers for SMS message delivery: Cellular One Dobson, Centennial Cellular Corp, Sprint, Verizon Wireless, RCC – Unicel, Virgin Mobile USA, Boost, T-Mobile, Cincinnati Bell, AT&T, ALLTEL, and U.S. Cellular, and other and future providers.
13.2. You may set your Messaging settings via your Personal Pages or the App. By agreeing to these Terms and Conditions, you certify that you are the owner of the Mobile Device and the account holder of the mobile phone number provided to Parkofon or that you have the owner’s and/or account holder's express permission to use the specified Mobile Device to receive Messaging about Transactions or your Parkofon Account from Parkofon and exchange other information related to your Mobile Device, Mobile Device account, GPS location, or Parkofon Account.
13.3. With each Parking Session, you may receive Messaging relating to your Parking Session or Parkofon service communications.
13.4. You acknowledge and agree that the reception of Messaging is not 100% guaranteed and that you are responsible for the timely activation or deactivation of a Transaction. You further acknowledge and agree that the reception of Messaging is dependent on the operation, coverage, and services of your mobile network provider and/or internet service provider. Parkofon shall have no responsibility or liability for the damages and costs incurred by you not receiving Messaging on time or at all or by the insufficient operation of your mobile network, mobile phone company and/or internet service provider.
13.5. You may opt out of receiving of SMS, email, or push notifications by making changes to your Personal Pages or via the setting in the App (in the case of push notifications you can only choose to stop receiving them within the settings for your Mobile Device).
13.6. Opting out of Messaging may impair your ability to use the full functionality and features of the Platform and may prevent you from enjoying the full benefits of the Platform (for example, receiving notification of Promotions).
14.1. When you open a Parkofon Account either through our mobile app, IVR, Member Services or online, the Platform automatically enrolls you as a Member and you will remain a Member until such time as you cancel your Parkofon Account. Members are charged a Member Fee on a monthly or annual basis (or as otherwise determined by us). As a Member, you have Member Benefits. By opening a Parkofon Account, you authorize us to charge your Payment Method for the applicable Member Fees.
14.2. We may, without notice, change, restrict, or delete any Membership Right at any time. You may cancel your Parkofon Account, and thereby membership at any time, by sending your request to Member Services.
14.3. Failure to use or cancellation of your Parkofon Account does not make you eligible for a refund of past or current membership fees. No refunds will be given for a failure to utilize your Parkofon Account during the membership term.
14.4. Parkofon requires a reasonable amount of time to process your any membership change or cancellation request.
14.5. We may, without notice, change, restrict, or delete any Membership Right at any time.
14.6. You may cancel your Parkofon Account, and thereby membership at any time, by sending your request to Member Services.
14.7. Failure to use or cancellation of your Parkofon Account does not make you eligible for a refund of past or current membership fees. No refunds will be given for a failure to utilize your Parkofon Account during the membership term.
14.8. Parkofon will pay for the return of the Transponder as set forth above only for Members of a minimum of three months. Any Member who cancels membership within three months of opening a Parkofon account must pay costs associated with returning the Transponder. As set forth above, the failure to return the Transponder, or the return of a malfunctioning Transponder will result in a fee to the use of $150.
15. ELECTRONIC DELIVERY.
You agree and consent to the Electronic Submission of all communications, confirmations, consents, acknowledgements, agreements, amendments, documents, policies, notices, information, data, and disclosures that we provide one another in connection with your Use of the Platform, your Parkofon Account with us, your payment processing through third parties, and your use of our Services. You agree to the Electronic Submission of any and all Platform, Parkofon Account, or Transaction information, including without limitation:
15.2. Parkofon Account and third party payment processors activation, details, and information;
15.3. Personal Page details and information;
15.4. Transaction receipts, confirmations, cancellations, and related information;
15.5. Parkofon Account statements, reconciliations, charges, debits, refunds, credits, history, and related information;
15.7. Promotions and any related Promotion Criteria; and
15.8. Any other Platform, Parkofon Account, or Transaction information, acknowledgement, documentation, or consent.
15.9. All communications, including notices, shall be deemed effective upon the proper initiation of such Electronic Submission. We both stipulate that Electronic Submissions pursuant to this Section are in compliance with and governed by the E-SIGN Act and are deemed to effective submissions or deliveries of the items described in this Section.
16. NOTICES TO PARKOFON.
All notices or other communications to Parkofon, if any, that are required to be given under these Terms must be in writing, which shall be given by delivery to the address set forth below by way of either personal delivery, certified mail, return receipt requested, two-day mail or overnight mail by a commercial carrier. Notices to Parkofon shall be deemed given only upon receipt. Notices to Parkofon may also be given by electronic mail to Member Services, provided that it is followed by an exact copy by either regular mail, personal delivery, certified mail, return receipt requested or two-day mail or overnight mail by a commercial carrier to the same addresses set forth above. Such notice shall be deemed effective twenty-four (24) hours after the message was sent, if no "system error" message or other notice of non-delivery is generated. Notices to Parkofon shall be addressed as set forth below unless we change it by updating these Terms. The physical address for giving notice to Parkofon is Parkofon Inc., 5444 Chieftain Circle, Alexandria, VA 22312.
You agree to indemnify, hold harmless and defend Parkofon with respect to any claim, demand, cause of action, debt, liability, damages, costs or expenses, including reasonable attorney's fees and expenses of Parkofon's selected attorneys, arising from any third-party claim against Parkofon relating to (i) your violation of law, ii) your infringement of any Intellectual Property or similar proprietary rights of any person or entity; (iii) any noncompliance with or violation of the Conduct Rules or License Restrictions; (iv) any User Content provided by you; (v) your improper or illegal Use of the Platform; (vi) any act or omission or willful misconduct of yours; (vii) any breach of any of your representations, warranties, or covenants made herein; and (viii) any failure by you to comply with these Terms.
18. ATTORNEYS’ FEES.
If we undertake any action to enforce these Terms, we will be entitled to recover from you, and you hereby agree to pay, any and all attorneys’ fees and any cost of litigation, in addition to any other relief at law or in equity to which we may be entitled. In such event, we shall be entitled to recover all costs including both actual pre-judgment and post-judgment attorney's fees and costs, involved directly or indirectly in our enforcement efforts, whether or not we do so through institution of formal legal proceedings.
20.1. You explicitly agree that your Use of the Platform or the Materials is at your own and sole risk. You also understand and agree that any Materials or other data, content, or information downloaded or otherwise obtained through your Use of the Platform are obtained at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from such download. You understand that Parkofon cannot and does not guarantee or warrant that files, including the Materials, available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. Parkofon makes no warranty regarding any use of confidential or private information that you may provide. Parkofon makes no commitment to update the information found on or in the Platform or Materials. No warranty and/or representation will extend to any third person.
20.2. EXCEPT AS SPECIFICALLY AND EXPRESSLY SET FORTH IN THESE TERMS, THE PLATFORM AND MATERIALS ARE PROVIDED "AS IS," "AS AVAILABLE," AND WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND AND PARKOFON DISCLAIMS THAT THE FUNCTIONS CONTAINED IN THE PLATFORM OR THAT WHICH IS CONTAINED IN THE MATERIALS WILL: MEET YOUR REQUIREMENTS, NEEDS, OR EXPECTATIONS; BE RELIABLE, ACCURATE, SECURE, COMPLETE, OR WHOLE; OPERATE DEFECT OR ERROR FREE OR IN A TIMELY OR RELIABLE WAY. WE DO NOT WARRANT OR COVENANT THAT ANY DEFECTS OR ERRORS ASSOCIATED WITH THE PLATFORM WILL BE CORRECTED. EXCEPT AS SPECIFICALLY AND EXPRESSLY SET FORTH IN THESE TERMS, THERE ARE NO OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE, OPERATION OF LAW, TRADE USAGE, COURSE OF PERFORMANCE OR DEALING OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR A PARTICULAR USE, NON-INFRINGEMENT, TITLE, ACCURACY, QUALITY OF INFORMATION, QUIET ENJOYMENT, OR COMPLETENESS; ALL SUCH WARRANTIES BEING SPECIFICALLY AND FULLY DISCLAIMED BY PARKOFON. WE FURTHER DISCLAIM ANY LIABILITY TO YOU FOR ANY THIRD PARTY CHARGES, INCLUDING, BUT NOT LIMITED TO, DATA USAGE, OR TELECOM CHARGES FOR DEVICES USING THE PLATFORM. WE DO NOT WARRANT THAT PLATFORM WILL WORK ON YOUR MOBILE DEVICE, WITH YOUR OPERATING SYSTEMS, OR WITH ANY OTHER SOFTWARE INSTALLED ON YOUR MOBILE DEVICE. OTHER WRITTEN OR ORAL REPRESENTATIONS OR AFFIRMATIONS OF FACT, INCLUDING BUT NOT LIMITED TO, STATEMENTS FROM PARKOFON OR ANY OTHER SOURCE REGARDING THE PERFORMANCE OR FEATURES OF THE PLATFORM OR SERVICES THAT ARE NOT CONTAINED IN THESE TERMS, SHALL NOT IN ANY WAY BE BINDING ON PARKOFON, CREATE ANY OBLIGATION OR WARRANTY, AND ARE HEREBY EXPRESSLY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE ELIMINATION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
20.3. We are not responsible for the conduct of other users, whether online or offline. Under no circumstances shall Parkofon be responsible for any loss or damage, including, without limitation personal injury or death, resulting from the Use of the Platform by other users or the conduct of any other users or third parties, whether online or offline.
20.4. We have no control over any aspect of your parking at a Parking Location. You are responsible for determining your own safety and the safety of your vehicle and article left in your vehicle at any Parking Location. We are not responsible for damage to your vehicle, loss of your vehicle, or loss of articles left in your vehicle or for any personal injury in any circumstances, including, without limitation: fire, weather, or other Act of God; theft or other criminal activity of any kind; mechanical defects; accidents; or your Use of the Platform, whether in-motion or at rest. You park at your own risk at any Parking Location, and you will have no recourse against us or have any cause of action against us in connection with any parking at any Parking Location.
20.5. Parkofon is not responsible for any Parking Penalties you incur or receive, even if the Platform was Used in connection with a Transaction. You are solely responsible for resolving with the relevant authorities any issues that you may have regarding Parking Penalties. We do not enforce Parking Restrictions or assess Parking Penalties and have no ability to control the actions of third parties who enforce Parking Restrictions or assess Parking Penalties.
20.6. If you authorize Parkofon to contact the relevant authorities on your behalf regarding your Parking Penalties, you acknowledge and agree that, in such cases, Parkofon may provide all or a portion of your personal details to the relevant authorities as such is needed to resolve your Parking Penalties. In addition, in the event that you fail to pay any amounts owing for Transactions or Parking Penalties (whether due to a declined credit card or other circumstances), then Parkofon, upon the reasonable request of the relevant authorities, may provide all or a portion of your personal details to such authorities, which you acknowledge and agree that they may use solely for purposes of collecting or attempting to collect any unpaid amounts owed by you.
20.7. THE PERFORMANCE OF THE PLATFORM CAN VARY DUE TO SEVERAL FACTORS, INCLUDING WITHOUT LIMITATION: SPECIFIC MOBILE DEVICE LIMITATIONS AND CAPABILITIES; MOBILE DEVICE SERVICE PROVIDER, NETWORK LIMITATIONS, AND CAPABILITIES; MOBILE DEVICE MULTI-TASKING; MOBILE DEVICE MEMORY; GPS "LOCK" TIME, AVAILABILITY, AND ACCURACY; MOBILE DEVICE SETTINGS; INTERNET AVAILABILITY; MESSAGING OPT OUTS; AND PLATFORM AVAILABILITY, OPERABILITY, OR ERRORS. PARKOFON MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PERFORMANCE, OPERABILITY, OR AVAILABILITY PLATFORM.
20.8. Your sole and exclusive remedy for any breach by us of any term or condition set forth in these Terms is to cease to Use the Platform, un-install the App, return the Transponder (if applicable), and terminate your Parkofon Account.
21. LIMITATION OF LIABILITY.
21.1. WE ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT, MOBILE DEVICE, OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, INSTALLING, USING, OR BROWSING IN THE PLATFORM OR YOUR DOWNLOADING OF ANY MATERIALS. WE ASSUME NO RESPONSIBILITY FOR AND ARE NOT LIABLE FOR: (A) DATA CHARGES IN CONNECTION WITH THE USE OF THE PLATFORM ON YOUR MOBILE DEVICE, (B) ANY FAILURE, DELAY OR INABILITY TO USE ANY COMPONENT OF THE PLATFORM, (C) ANY TRAFFIC VIOLATION OR CITATION OR PARKING PENALTY, (D) ANY DAMAGE TO YOUR VEHICLE WHILE PARKED, (E) ANY AUTOMOBILE OR OTHER MOTORIZED VEHICLE ACCIDENT.
21.2. EXCEPT WHERE SPECIFICALLY REQUIRED BY LAW, (A) IN NO EVENT SHALL PARKOFON BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS, REVENUE, DATA, OR DATA USE OF ANY KIND AND (B) THE MAXIMUM AGGREGATE LIABILITY OF PARKOFON SHALL BE LIMITED US $10.00 IN THE AGGREGATE, IN EITHER CASE WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND ARISING OUT OF OR RELATED TO THE AGREEMENTS OR THE USE OF THE PLATFORM AND MATERIALS, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.3. IN OUR SOLE DISCRETION, IN ADDITION TO ANY OTHER RIGHTS OR REMEDIES AVAILABLE TO PARKOFON AND WITHOUT ANY LIABILITY WHATSOEVER, PARKOFON AT ANY TIME AND WITHOUT NOTICE MAY SUSPEND, RESTRICT, OR TERMINATE YOUR ACCESS TO ANY COMPONENT OF THE PLATFORM.
21.4. SOME STATES DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
BY USING THE PLATFORM AND/OR THE MATERIALS, YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE AND GIVE UP ANY AND ALL CLAIMS WHICH YOU MAY HAVE AGAINST PARKOFON, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO OR ARE CONNECTED WITH THE USE OF THE PLATFORM, SERVICES, AND MATERIALS. YOU FURTHER WAIVE, RELEASE AND GIVE UP ANY AND ALL CLAIMS AND DEFENSES ARISING FROM OR RELATING TO ANY ACT, EVENT OR OMISSION. THIS INCLUDES, WITHOUT LIMITATION, ANY CLAIM WHICH COULD BE ASSERTED NOW OR IN THE FUTURE UNDER (I) THE COMMON LAW; (II) ANY OF THE PARKOFON POLICIES, PRACTICES, OR PROCEDURES; AND/OR (III) ANY FEDERAL AND/OR STATE STATUTES OR REGULATIONS.
23. AUTHORIZED PERMISSION FOR USE.
You shall be considered an entity if the individual accessing the Platform is doing so on behalf of an entity or is utilizing that entity's computer system in connection with a task (either paid or unpaid) for that entity. If you are an entity, the person using the Platform on its behalf hereby makes the material representation upon which you wish Parkofon to rely that you are authorized to bind that entity to the Terms, as well as any other obligations imposed or undertaken through Use of the Platform.
24. PARKOFON TERMINATION.
24.1. Without limiting other rights or remedies set forth in these Terms or as otherwise available by law or in equity, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your access to the Platform, including the Site, in whole or in part: (a) if you breach the Agreements; (b) if we are unable to verify or authenticate any information you provide to us, should we elect to engage in such verification; (c) if we otherwise determine, in our sole discretion, that termination is appropriate. We may also cancel your Permit order under the same circumstances. If we terminate your access to the Platform, we are also terminating the license granted hereunder.
24.2. If we believe that the User Content you provided has violated or is inconsistent with these Terms or violated the rights of Parkofon, another user, or the law, you agree that monetary damages may not provide a sufficient remedy to Parkofon for violations of these Terms and you consent to injunctive or other equitable relief for such violations. Parkofon may release user information about you if required by law or subpoena, or if the information is necessary or appropriate to release to address an unlawful or harmful activity. Parkofon is not required to provide any refund to you if you are terminated as a User because you have violated these Terms.
25. APPLICABLE LAW, JURISDICTION AND DISPUTE RESOLUTION.
25.1. You agree that these Terms and the Agreements and all disputes arising thereunder, related hereto, or related to the Use of the Platform or Materials will be governed by and construed in accordance with the laws of the State of Delaware, USA, excluding its principles of conflicts of law and the private international law rules.
25.2. Neither you nor we may institute a suit regarding any dispute, whether directly or indirectly related or collateral to these Terms or the Use of the Platform without first complying with this Section.
25.2.1. All claims or disputes between the parties, shall be submitted to arbitration administered by a mutually acceptable arbitrator affiliated with the American Arbitration Association whose rules and guidelines shall apply. The arbitration proceedings shall be in English in the State of Virginia. Without limitation, any dispute over the arbitrability of a matter shall be specifically reserved for the arbitrator to exclusively hear, and shall not be submitted to a court. The arbitrator shall have the authority to award any remedy or relief that a court of the State of Delaware could order or grant.
25.2.2. Service of the written notice to initiate the aforementioned arbitration shall be deemed complete when sent either as required by Court procedure or by (i) electronic mail to any of your current or future electronic mail addresses; (ii) ordinary mail or ordinary or two-day mail by a commercial carrier, in the event a regular mailing address has been provided by the party upon which service is being effected or is otherwise determined by the serving party; or (iii) otherwise in accordance with the laws and procedures of the State of Delaware.
25.2.3. Should the parties be unable to agree upon an arbitrator, the arbitrator shall be chosen by a determination of a court of competent jurisdiction.
25.2.4. Each party will perform all acts, including the execution and delivery of further documents, as the arbitrator deems necessary or desirable to confirm and carry out the terms of the award rendered. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof. The award rendered by the arbitrator in any arbitration is final and binding on the parties. The arbitration award may be appealed to a court of competent jurisdiction solely on the basis that the award was arbitrary or capricious.
25.3. However, notwithstanding the foregoing, either prior to, during or after the arbitration process, either party may institute a suit in equity for a temporary injunction (a) to preserve the status quo; (b) to enjoin a breach or threatened breach of this Release; (c) to obtain specific performance; (d) to compel the arbitration or further its purposes; (e) to enforce a settlement or award in such arbitration; and/or (f) for any other equitable relief.
25.4. You agree that and consent to the exclusive jurisdiction and the venue for any litigation will be in the state or federal courts of Alexandria, Virginia.
25.5. YOU AND PARKOFON (A) AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND (B) EACH AGREE TO WAIVE TRIAL BY JURY. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
26. FURTHER ASSURANCES.
You covenant and agree to perform further all acts and execute all supplementary instruments or documents which may be requested by Parkofon to carry out the provisions and effectuate the intent of these Terms.
We may freely assign our rights in and to and obligations under these Terms. You acknowledge that you may not assign, transfer or sell its rights under these Terms without Parkofon 's express written consent, which may be withheld for any reason or no reason. Any purported assignment without Parkofon's consent shall be deemed null and void.
If any portion of these Terms is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion shall be construed as narrowly as possible in order to give effect to as much of the Terms as possible.
29. DOWNLOADING THE APP.
30. LINKED SITES.
You acknowledge and agree that Parkofon has no responsibility for the accuracy or availability of information provided Linked Sites. Links to Linked Sites are provided as a convenience to you, and do not constitute an endorsement by or association with Parkofon of such sites or the content, products, advertising or other materials presented on such sites. Parkofon does not author, edit or monitor any Linked Sites. You acknowledge and agree that Parkofon is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services available on such Linked Sites. If you access a Linked Site, you do so at your own risk.
31. NO THIRD PARTY BENEFICIARIES.
These Terms are not intended to be for the benefit of, and shall not be enforceable by any unaffiliated third party, except as may be specifically provided herein. Nothing herein, express or implied, is intended to or shall confer on any third party any rights (including third-party beneficiary rights), remedies, obligations or liabilities under or by reason of these Terms or otherwise set forth in the Platform, except as may be specifically provided herein. These Terms shall not provide third parties with any remedy, claim, liability, reimbursement, cause of action or other right in excess of those existing without reference to the terms herein. No third party shall have any right, independent of any right that exists irrespective of these Terms, to bring any suit at law or equity for any matter governed by or subject to the provisions herein.
32. PROHIBITED BY LAW.
In the event that any aspect of the Platform or these Terms is prohibited by law in your jurisdiction, you agree not to Use the Platform. It is solely your responsibility to determine whether it is allowed by law to participate in the Platform. Without limitation, you release Parkofon from all liability that could arise from your prohibited participation in the Platform or acceptance of these Terms. Moreover, and without limiting the indemnification otherwise provided herein, you shall indemnify, defend and hold Parkofon harmless for any and all damages relating to a violation of this Section.
33. INTERNATIONAL USE.
In light of the international scope of the Internet, you agree to comply with all local laws, rules and regulations, including but not limited to those applicable to online conduct and acceptable Internet content. Without limitation, you acknowledge and agree that you shall comply with all applicable laws and regulations regarding the transmission of technical data from the United States or the country in which you may reside. Without limiting the foregoing, you are responsible for compliance with all import/export laws and regulations of the United States and any other country with jurisdiction.
34.1. Nothing contained in or displayed on the Platform or contained in these Terms constitutes or is intended to constitute legal advice by us or any of our Parkofon or any of our officers, managers, employees, representatives, attorneys, or agents.
34.2. Parkofon's failure to enforce any term, provision or condition of these Terms, including the breach or default thereof, by conduct, course of dealing or otherwise, in one or more instances shall not be deemed a waiver. To the extent that a provision of these Terms is deemed unenforceable, the balance of it shall remain in full force and effect.
34.4. You may not change, modify, or amend this Agreement unless such change, modification or amendment is made in a writing executed by us.
34.5. You acknowledge that you have not accepted or agreed to these Terms in reliance on any representations or other promises of Parkofon which are not specifically and expressly included herein.
34.6. The headings in these Terms are for convenience and shall have no force and effect.
34.8. By your Use of the Platform, you represent that you have had the opportunity to review these Terms with counsel of your choosing. You further acknowledge that you have thoroughly read these Terms; understand that you are giving up certain legal rights that may otherwise exist and are taking on certain obligations and responsibilities; have asked any questions you desire to clarify the meaning these Terms; and believe it is in your interest to nevertheless proceed with opening a Parkofon Account and installing and Using the Platform.
34.9. In the event that Parkofon or another party has provided you with a translation of these Terms from the English language to another language, you agree that such translation is provided for convenience only; that the American English language version of this Agreement governs the relationship between you and Parkofon; and, if there is any conflict between the American English language version of this Agreement and such translation, the American English language version shall take precedence. All disputes arising under this Agreement shall be resolved in the English language.
34.10. The provisions of these Terms that by their sense and context are intended to survive termination (whether by you cancelling or closing your Parkofon Account, ceasing to Use the Platform, or uninstalling the App, or by termination by Parkofon) shall so survive termination.
35.1. "Affiliates" mean any person or entity which directly or indirectly controls, is controlled by or is under common control with us, whether by ownership or otherwise.
35.3. "App" means our mobile Parking Session management application for scheduling, starting, and completing Parking Sessions and Transactions, including but not limited to on-street and off-street parking, parking permits, parking reservations, long term or short term parking, Event parking, etc., and other applications that we may develop.
35.4. "Claims" mean claims and rights based on any act, event or omission, and from any and all manner of rights, claims, complaints, demands, causes of action, proceedings, liabilities, obligations, legal fees, costs and disbursements of any nature whatsoever.
35.5. "Conduct Rules" mean those conduct rules set forth in Section 9.
35.6. "Electronic Submission" means the electronic delivery or submission of communications, agreements, documents, policies, notices, disclosures, etc. via Messaging, uploading, downloading, or posting such in or on the Platform and includes, without limitation, everything that we electronically provide you in connection with your use of the Platform, your Parkofon Account, and your use of our Services whether via Messaging or other means.
35.7. "E-SIGN ACT" refers to the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. ch. 96, as amended.
35.8. "Events" mean temporary or short term events like sporting events, concerts, festivals, entertainment events, and the like.
35.9. "Intellectual Property" means, collectively, Marks, inventions, techniques, methods, works of authorship, know-how, publicity rights, trade secrets, proprietary rights, and all other intellectual property rights related thereto.
35.10. "IVR System" means our interactive voice response system.
35.11. "Linked Sites" are third party websites that are linked to the Platform and are accessible from the Platform.
35.12. "License Restrictions" mean those restrictions set forth in Section 4.2.
35.13. "Marks" mean, whether registered or unregistered, all patents, trademarks, trade names, servicemarks, logos, company names, brand names, design marks, trade-dress, service or product names and descriptions, emblems, copyright notices; any pending applications for seeking registration or grant of rights; and any other intellectual property or proprietary notices.
35.14. "Materials" mean, collectively, all information, images, and content displayed, presented, or controlled, or otherwise included in or on the Platform, including but not limited to: Marks; images; photographs; text; software; pictures; graphics; video clips; audio clips; digital downloads; data; information, messages; any and all other information presented, displayed, or controlled by the Platform; other text, graphics, audio clips, video clips, digital downloads, photographs; data compilations together with the look and feel of the Platform and the user experience, including our color combinations; button shapes, sizes, icons, images, organization; and other graphical elements.
35.15. "Member" means a User who has been automatically enrolled in our basic membership level when registering with us for a Parkofon Account.
35.16. "Member Fees" mean fees charged by us on a monthly or annual basis to Members and are in addition to the Parking Fees for each Transaction.
35.17. "Member Benefits" mean, collectively, those rights, offers, discounts, savings, or perquisites set forth on the Site, or accessed via the Platform, which are available to you based upon your status as a Member.
35.18. "Member Services" mean Parkofon’s helpdesk function and other customer support, and can be reached via email at email@example.com or by phone at 855-546-7275.
35.19. "Messaging" means, collectively, communications with you via SMS texts, in Platform messaging, push notifications, or email.
35.20. "Mobile Device" means any portable, wireless computing device with a wireless network interface using Wi-Fi or cellular service that is capable of mobile data communications and Internet access, and includes: smartphones; tablets; similar devices; and any built-in vehicle technology or technology added to, installed in, or incorporated in a vehicle that provides the foregoing capabilities, whether provided by the vehicle manufacturer, a contractor, or an OEM manufacturer.
35.21. "Parking Location" means the location or locations of a Transaction Entity’s, on-street parking, off-street parking, gated parking, reservation parking, parking garages, parking lots, parking decks, permitted parking, and other facilities where you may park.
35.22. "Parking Operator" means, collectively, public (like municipalities and universities) and private owners, operators, managers, contractors, customer service, representatives, agents, and vendors for a Parking Location.
35.23. "Parking Penalties" mean, collectively, any parking fine, ticket, summon, and citation; penalty; your vehicle being wheel booted, towed, or impounded; and/or other methods of enforcing Parking Restrictions.
35.24. "Parking Restrictions" mean, collectively, notices, signs, rules, or directions provided by relevant government authorities; traffic attendants; Transaction Entities; or other authorized people or entities and include without limitation, spaces or zones designated as "no parking," "emergency," "tow-away," "handicapped," "reserved" and the like, time or day limitations, vehicle size limitations.
35.25. "Parking Session" refers to the time period your vehicle is parked in a parking space at a Parking Location as determined by the commencement and completion of parking Using the Platform in connection with on-street and off-street parking, parking reservations, long term or short term parking, event parking, and permit parking.
35.26. "Parkofon", "us", "we", or "our" mean, collectively Parkofon and its Affiliates.
35.27. "Parkofon Account" refers to the account you register with us and activate for the purpose of Using the Platform by: downloading and installing the App; ordering and obtaining the Transponder from Parkofon only; using the process provided on the Site; using our IVR System; or contacting Member Services.
35.28. "Payment Information" means information, including information of any type necessary to process payments in connection with any Transaction, related to payments via the Payment Methods.
35.29. "Payment Methods" mean acceptable methods of payment we currently accept through our third party Payment Providers, Braintree Payments, and any other payment methods we accept in the future as reflected in the App.
35.30. "Payment Providers" mean, collectively, issuers of credit, debit, prepaid, gift card or the like; banking or financial institutions; electronic or digital wallet companies; and any other entity through which payments are made to complete Transactions.
35.31. "Personal Pages" is a reference to the pages on our Site that you use to open your Parkofon Account (if you choose to open your Parkofon Account on our Site) or access the Personal Information provided when you opened your Parkofon Account.
35.32. "Platform" means, collectively, our App, Transponder, Services, Site, and IVR System, together with any future updates, changes or additions thereto.
35.34. "Reservation" means a pre-booked parking space at a Parking Location.
35.35. "Services" mean, collectively, our backend technologies, functions, servers, databases and our other products, services, content, features, technologies, applications, and related websites or other applications.
35.36. "Site" means our website located at http://www.Parkofon.com.
35.38. "Transponder" means, the physical device that you receive from Parkofon that you install in your car and works with the App.
35.39. "Transaction" means, collectively, starting, stopping, paying for, completing or making Parking Session transactions of all kinds, including, on-street parking, off-street parking, Permit purchases, monthly or other long-term parking transactions, short term parking transactions, reservations, Event parking purchases, and completing other financial transactions Using our Platform using our accepted Payment Methods and any Use of Services.
35.40. "Transaction Charges" include all: parking fees; reservation fees; service charges; taxes; Transaction Entity fees; assessments or charges; Transaction Fees related to a Transaction; and all other costs, charges, and fees related to a Parking Session.
35.41. "Transaction Entities" mean, collectively, Parking Operators; valet service providers; sports teams; theaters; entertainment or festival venues; distributors of the Platform; Parking Operators; other entities with whom we have a co-branding relationship; companies or entities for whom we provide our software or Platform without out attribution (white labeled software or Platform); entities for whom we provide parking management services; governmental agencies; municipalities; vehicle manufacturers; OEM manufacturers; Event organizers and partners; education entities; and any other entities or companies for whom we provide our Platform as a contractor, service provider, parking management tool and the like.
35.42. "Transaction Fees" are fees charged by us on a Transaction by Transaction basis and (i) are charged when you initiate and pay for a Parking Session, (ii) are in addition to the regularly charged parking fees for your area, (iii) and vary from Parking Location to Parking Location based on several factors including Payment Method chosen, Parking Location, membership level, any agreement in place with the Transaction Entity, and applicability of any offered promotion.
35.43. "Use" means utilizing the Platform or its components in any manner, including, without limitation, opening a Parkofon Account, viewing the Platform, completing a Transaction, installing the App, and the like.
35.44. "User Content" means contributions that you or others make to the Site, which may include, among others, uploading your user profile, participating in chats, using our bulletin boards, etc.
35.45. "User", "Users", "you" or "your" means the person accessing or using our Platform. If the person accessing or using our Platform, acts on behalf of, or for the purposes of another person, including a business or other organization, "User", "Users", "you" or "your" also mean that other person, including a business organization.
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