END USER LICENSE AGREEMENT
We want you to be safe. Do not use the SENTRY MOBILE smartphone application while driving a vehicle.
By downloading and using the SENTRY MOBILE smartphone application (hereinafter the “Product Software”), you agree to be bound by the following terms of this End User License Agreement (“EULA”) between you and Municipal Parking Systems, Inc. (“MPS” or “we”). IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT SOFTWARE.
Every time you use the Product Software you agree to be bound by the terms of EULA, which may be updated from time-to-time without prior notice to you.
THIS IS A LEGAL AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT SOFTWARE.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES OF PRODUCT SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE PRODUCT SOFTWARE.
Subject to the terms of this EULA, MPS grants to you a limited and nonexclusive license (without the right to sublicense) to utilize one (1) copy of the Product Software, in executable object code form only on a single smartphone or other mobile computing device.
You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product Software or make the Product Software available to any third party, (b) copy or use the Product Software for any purpose other than as permitted in Section 1, (c) use any portion of the Product Software on any device or computer other than as provided in Section 1, (d) remove or alter any trademark, logo, copyright, patent or other proprietary notices, legends, symbols or labels in the Product Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact MPS and provide MPS an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Product Software to any third party without prior written approval of MPS for each such release.
3. Automatic Software Updates.
MPS may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Software Product. If you do not cease using the Software Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Software Product and the Product Software and you agree to promptly install any Updates MPS provides. Your continued use of the Software Product is your agreement to this EULA.
The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of MPS and its licensors. MPS and its licensors reserve all rights in and to the Product Software not expressly granted to you in this EULA. The Product Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to MPS with respect to the Product Software shall be MPS’ property. MPS may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that MPS does not waive any rights to use similar or related ideas previously known to MPS, developed by its employees, or obtained from other sources.
5. Consent to Use of Data.
You agree that MPS and its subsidiaries and agents may collect, maintain, process and use data relating to your vehicle and the personal identification information associated with that vehicle.
Consent to Use of Data: You agree that MPS may collect and use your vehicle data and the personal identification information associated with that vehicle, location data, technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Product Software. MPS may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you, or to supply you with advertising material.
Data Privacy: You agree that MPS may process your vehicle data and the personal identification information associated with that vehicle, location data, technical and related information about your use of the parking space, software which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Product Software usage statistics to facilitate the provisioning of updates, support, invoicing or online services and may transfer such information to other companies in the MPS worldwide group of companies from time to time. This information may include your personal data or information. MPS may share this information with governmental agencies, including the municipality in which the rented parking space is located and with law enforcement agencies.
Interest-Based Advertising: MPS may provide interest-based advertising to you via the meter or your mobile computing device.
6. Do Not Use While Driving.
You agree, represent and warrant, so long as YOU USE OR ACCESS THE PRODUCT SOFTWARE, THAT YOU WILL NOT, UNDER ANY CIRCUMSTANCES, ACCESS, VIEW, OR USE THE PRODUCT SOFTWARE WHILE DRIVING OR OTHERWISE OPERATING A VEHICLE OF ANY KIND (including, without limitation, a car, truck, motorcycle, motor scooter, or bicycle) or operating any dangerous equipment or machinery. You understand that using any handheld device in these circumstances is extremely dangerous, and can result in property damage, physical injuries (including dismemberment) or death. You further agree, represent and warrant, that you will not use or access the Product Software in any manner that places yourself or any other person at risk of injury, and that you will abide by all traffic laws. While effort is made to assure the accuracy of the information presented, the user is responsible for safe driving and for the consequences of decisions as to where to travel or where to drive. Under no circumstance will MPS assume any responsibility or liability for the consequences of driving decisions made by you.
You expressly agree that MPS shall not be liable for any driving decisions made by you or at your suggestion or for any damages, injury or other harm caused by your use of or accessing the Product Software, services or content while driving, operating equipment or machinery, or otherwise in a dangerous and unsuitable manner, and waive any claims or causes of action you may have, now or in the future, arising from or relating to the same. In the event that any party names MPS as a defendant in a case involving your use of the Product Software while operating a vehicle, you agree to indemnify and hold MPS harmless in such action.
7. Term and Termination.
This EULA and the license granted hereunder are effective on the date you first use the Product Software and shall continue for as long as the Product Software resides on your smartphone or mobile device, unless this EULA is terminated under this section. MPS may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to MPS. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software, but the terms of Sections 8 through 21 (inclusive) will remain in effect, after any such termination.
8. Warranty Disclaimer.
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MPS PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND.
MPS DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. MPS DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. MPS MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
YOU USE ALL PRODUCT SOFTWARE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND MPS DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING ANY COMPUTER, MOBILE DEVICE, OR OTHER ITEM OF YOURS, RESULTING FROM YOUR USE OF THE PRODUCT SOFTWARE.
9. Limitation of Liability
Nothing in this EULA and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) MPS BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCT SOFTWARE, EVEN IF MPS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) MPS’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO MPS OR MPS’S AUTHORIZED RESELLER FOR THE PRODUCT OR SOFTWARE AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. MPS DISCLAIMS ALL LIABILITY OF ANY KIND OF MPS’S LICENSORS AND SUPPLIERS.
10. Payment and Charges.
For a payment for parking made through the Product Software to be valid, you must i) provide accurate and complete information required by the Product Software, including license plate number, parking zone, and parking time(s), (ii) provide valid credit card information or other valid form of electronic payment permitted by the Product Software, and (iii) abide by all payment instructions and prompts set forth in the Application.
You are responsible for the validity of the enrolled debit card, credit card, that it has sufficient available funds and is not blocked or inactive. Once the parking is initiated and payment received through the Product Software, you will receive a confirmation of the purchase and it is your responsibility to check that this confirmation is received.
You agree that, when using the Product Software to pay for parking, MPS will charge the parking amount, including any applicable taxes, fees and service charges. The parking fee is calculated based on the parking time and the parking fee applicable when you begin parking, and such fee is charged immediately upon commencement of parking. Once you have been charged the parking fee, such parking fee and any applicable taxes, fees and service charges are
nonrefundable, even if you leave the parking space or lot before the time for which you paid to park has expired or if you entered the license plate, location or amount of time incorrectly.
You bear the sole responsibility to follow any applicable parking rules and regulations. If the Software Product is not available, for whatever reason, or if the Software Product does not provide a confirmation that your payment for parking has been received, it is your responsibility to pay the parking fee using another method.
You are solely responsible for (i) obtaining and maintaining all internet or other communications access, computer hardware and other equipment or electronic media necessary to utilize the Product Software, (ii) any issues pertaining to your mobile computing device (including issues pertaining to any incompatibility of the Product Software with your mobile computing device) and the data plan and data/cellular service providers that permit your mobile computing device to send and receive data wirelessly, and (iii) the data and content provided by you to MPS through the Product Software. MPS shall have no responsibility or liability for analysis, data, recommendations, or other services provided to you based upon incorrect or incomplete data provided by you.
You shall hold MPS harmless in any dispute between you and each of the following: governmental entities, your credit card company and your cell phone company or other mobile data provider. MPS is not responsible for any disputes regarding parking tickets, towing of your vehicle, or other fees or issues that may arise with respect to any parking infraction, failure to pay, failure to follow a parking lot’s instructions, or the like.
11. Third Party Materials.
The Product Software may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that MPS is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. MPS does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions
12. For U.S. Government End Users.
The Product Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Product Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
13. Export Compliance.
The Product Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold MPS harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
14. Arbitration Required, Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and MPS or its successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this EULA, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court.
You and MPS must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR MPS MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, MPS will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) MPS also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator shall honor claims of privilege and privacy recognized at law; (f) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or MPS may bring an individual action in small claims court.
Claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Hennepin or Dakota counties of the state of Minnesota.
With the exception of subparts (a) and (b) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor MPS shall be entitled to arbitration.
If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Hennepin or Dakota counties of the state of Minnesota.
15. Choice of Law.
You agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA and/or your use of the Product Software, will be governed by the laws of Minnesota, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction.
Each party irrevocably submits to the jurisdiction and venue of state or federal courts located in Hennepin or Dakota counties of the state of Minnesota, except that MPS may seek injunctive relief in any court having jurisdiction to protect its intellectual property.
Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.
Any notice to you may be provided by email to the address that you registered with MPS.
If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
All waivers by MPS will be effective only if in writing. Any waiver or failure by MPS to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
20. General Terms.
You are responsible for establishing and maintaining your own password;
You acknowledge that transmission of data over the internet and wireless devices involves unique transmission risks that cannot be fully secured against unauthorized access.
The Product Software is deemed irrevocably accepted upon your use of the Product Software. MPS will have no responsibility to provide maintenance or support services with respect to the Product Software. The parties are independent contractors.
You acknowledge that the Product Software contains valuable trade secrets and proprietary information of MPS, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to MPS for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.
If you have questions regarding this EULA, please contact MPS. MPS’s contact information can be found at http://mpspark.com/
21. Entire Agreement.
Notwithstanding any agreements or terms expressly incorporated by reference in this EULA, this EULA constitutes the entire agreement between the parties. This EULA (as it may from time to time be amended, restated, or otherwise modified) supersedes any prior agreements, understandings, or negotiations, whether written or oral.
Revision Date: April 2, 2016