ELIMIWAIT TERMS OF SERVICE
Last Updated August 6, 2018
StoneWood Solutions, LLC d/b/a ElimiWait (“ElimiWait”) designs technology-based products and services for the parking, valet, and hospitality industries (the “Products”). These Terms of Service apply to all Products sold or licensed by ElimiWait and govern the relationship between ElimiWait and its customers (each a “Customer”).
To purchase or license Products from ElimiWait, Customer must sign and deliver an ElimiWait Gold Agreement, which incorporates these Terms of Service by reference. Collectively the ElimiWait Gold Agreement and these Terms of Service comprise the binding terms for purchase or license of the Products (the “Agreement”).
“Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control and/or ownership with a party.
“Device” means any electronic device or other hardware leased or sold by ElimiWait under this Agreement to facilitate Customer’s use of the Software and/or Subscription Services. For purposes of this Agreement, Devices shall not include hardware purchased or leased from third-party suppliers by or on behalf of Customer.
“Effective Date” means the date that Customer executes the ElimiWait Gold Agreement.
“ElimiWait Gold Agreement” means the agreement between ElimiWait and Customer to provide Products at one or more Locations.
“ElimiWait Printer” means a Device that enables Customer to receive and print requests from End Users.
“End Users” means (i) Customer’s customers using the Products to request products or services from Customer and (ii) Customer’s employees using the Products to facilitate Customer’s business. End Users may include, without limitation, parking garage customers, attendants, and office staff managers, as well as hospital and hotel users.
“End User Data” means any data, information, and other materials generated by End Users’ use of the Products or Software and that is stored by ElimiWait as part of the Subscription Services.
“Executable Code” means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation.
“Intellectual Property Rights” means, collectively, all worldwide intellectual property rights in and to any works of authorship, moral rights, copyrights, trademarks, service marks, patents, designs, trade secrets, and algorithms.
“Installation Date” means, (i) with respect to each Device, the date that such Device is installed at its Location, and (ii) with respect to each Subscription Service, the date upon which ElimiWait makes the Subscription Service operational at the applicable Location.
“Location” means each of Customer’s places of business where Customer may use the Products, as listed in the ElimiWait Gold Agreement or an addendum thereto.
“Software” means the machine-readable, object-code version of ElimiWait’s proprietary software, including any modified, updated, or enhanced versions thereof, that ElimiWait may provide to Customer subject to license hereunder. Software does not include any Third-Party Software offered under a third-party license agreement.
“Source Code” means the human-readable version of a software program than can be compiled into Executable Code.
“Subscription Services” means the provision of access over the internet to the functionality of the Software running on the System and/or Devices.
“System” means the computer hardware and software (including, without limitation, the Software and other software applications, software interfaces, operating system, and databases), data storage, and all other resources used by ElimiWait to make Software available to, and usable by, Customer via the internet, which may be located at third-party data centers and public cloud infrastructures that are utilized by ElimiWait under contract.
“Third-Party Software” means any software, whether licensed as a standalone product or as part of other software, that is not owned by ElimiWait or its subsidiaries.
The ElimiWait Gold Agreement and these Terms of Service are controlling, and any additional or inconsistent terms and conditions in any acknowledgement, purchase order, or other documents proposed or provided by Customer are expressly rejected.
PRODUCT-SPECIFIC TERMS AND CONDITIONS
Additional terms and conditions applicable to specific Products, including individual Product elements when sold as part of a Product bundle, are set forth in the Product-Specific Terms and Conditions section below.
Certain ElimiWait products require a One Year Plan Term. For other products, customer may elect either a Monthly Plan or a Yearly Plan, as specified in the ElimiWait Gold Agreement.
(a) Term. If Customer elects a Monthly Plan, the term of this Agreement shall commence on the Effective Date and continue as long as there are active Locations subject to an ElimiWait Gold Agreement.
(b) Termination. If Customer elects a Monthly Plan, Customer may terminate this Agreement or any individual Location(s) with or without cause for any reason upon forty-five (45) days prior written notice delivered to ElimiWait. In addition, ElimiWait may interrupt or terminate this Agreement or any individual Location(s) with or without cause, effective immediately upon written notice delivered to Customer. Any interruption or termination of service relating to Customer’s network or internet coverage or connectivity shall not affect Customer’s obligations under this Agreement.
(a) Term. For ElimiWait products requiring a Yearly Plan, or if Customer elects a Yearly Plan, the term of this Agreement shall commence on the Effective Date and continue for the period of time specified in the ElimiWait Gold Agreement (the “Term Commitment”).
(b) Termination. If Customer elects a Yearly Plan or elects a product requiring a Yearly Plan and terminates this Agreement or terminates any individual Location(s) before the Term Commitment is completed, the monthly fees for the remaining months of the Term Commitment for each location terminated will be due in full at that time of termination.
(c) Automatic Renewal. At the end of the Term Commitment, this Agreement shall be automatically renewed for successive terms of the same duration, unless at least ninety (90) calendar days prior to any renewal date, either party notifies the other in writing that this Agreement shall not be renewed.
Effect of Termination. Upon any termination or expiration of this Agreement for any reason, or upon the termination of any individual Location(s), (a) Customer shall promptly pay in full all outstanding payments to ElimiWait (but in any event, no later than thirty (30) days following the date on which termination or expiration is effective); (b) all licenses and other rights granted to Customer hereunder, including any rights to access the Software and any data entered into the Software by Customer or End Users during the Term, shall immediately terminate and Customer shall immediately cease all use of Products in the terminated Locations; (c) Customer shall remove all copies (or permit ElimiWait to remove all copies, if applicable) of the Software from its computer systems and shall return or destroy, at ElimiWait’s option, all such copies; (d) Customer shall return to ElimiWait all affected Devices in good condition and working order, normal wear and tear excepted, within thirty (30) days of the effective date of termination or expiration; (e) ElimiWait shall have no further obligation to provide the Products, including Subscription Services; and (f) the receiving party shall promptly return all Confidential Information of the disclosing party in its possession or control. In the event that this Agreement is terminated or expires for any reason and Customer fails to return all Devices, or returns any Device in any condition other than good condition and working order, Customer authorizes ElimiWait to immediately charge, and Customer agrees to pay, a replacement fee for each affected Device. Customer understands and agrees that following termination or expiration of the services, ElimiWait may delete all of the End User Data from its System and shall have no liability for such action. The expiration or termination of this Agreement does not relieve either party of any obligations that have accrued on or before the effective date of the termination or expiration.
3. LICENSE GRANT
License Grant. Subject to the terms and conditions of this Agreement, ElimiWait grants to Customer a personal, limited, revocable, nonexclusive, nontransferable, non-sublicenseable right and license to use the Software and any phone numbers provided by ElimiWait only during the term of this Agreement and for the limited purpose of enabling the Products (the “License”).
License Restrictions. Customer shall not copy, modify, distribute, sell, or lease any part of the Products, or reverse engineer, attempt to extract the source code of, modify, or create derivative works of the Software.
Termination. Upon termination or expiration of this Agreement for any reason, all license rights granted to Customer hereunder shall immediately terminate.
4. DELIVERY, INSTALLATION, AND SUPPORT
(a) Software. Following execution of the ElimiWait Gold Agreement, ElimiWait shall provide Customer with access to the Software, which may consist of login credentials and/or download keys. The Software is deemed to be delivered upon Customer’s receipt of such access or upon installation of the Software, as appropriate.
(b) Devices. ElimiWait shall deliver each Device to the appropriate Location. All Devices leased to Customer during the term of this Agreement shall remain personal property of ElimiWait, and title to such Devices and any telephone numbers associated therewith shall remain exclusively with ElimiWait. Customer shall keep all Devices free from any and all liens and encumbrances. Customer shall give ElimiWait immediate notice of any attachment or other judicial process, liens, or encumbrances affecting any Devices in Customer’s possession and shall indemnify, defend, and hold ElimiWait harmless from any loss or damage caused thereby. In the event Customer becomes subject to a voluntary or involuntary bankruptcy proceeding or becomes insolvent, this Agreement shall automatically terminate and Customer shall immediately discontinue use of the Device and arrange for its immediate return to ElimiWait.
(c) Subscription Services. Delivery of Subscription Services shall begin on the Installation Date.
(d) Data. All data and other content shall be deemed to have been delivered when ElimiWait transmits the data to the Customer via any electronic means or any other intermediary server/API that is designated as the point of delivery for the data.
(e) Acceptance. All Products are deemed accepted upon delivery.
Locations. All Locations shall be specified in the ElimiWait Gold Agreement or in one or more addenda thereto. Customer represents and warrants that all Locations are owned, operated, leased, managed, and/or controlled by Customer. Customer shall keep each Device at its installed Location and shall not move any Device from its Location except (i) if Customer ceases doing business entirely at an existing Location and relocates that business to a new Location, and (ii) Customer notifies ElimiWait in advance by email at Support@Elimiwaitparking.com of the new Location address and telephone number. Customer covenants and agrees not to allow the use of any Device by anyone other than the employees of Customer and covenants and agrees not to rent or sublease any Device or any part thereof to others for their own use. If Customer requests the addition or removal of Locations, the parties shall execute a new addendum to the ElimiWait Gold Agreement, and any additional Locations shall be subject to the terms of this Agreement.
Defects. Should Customer discover any defect in material or workmanship in any Device within six (6) months of the Installation Date for that Device, Customer shall inform ElimiWait immediately of such defect in writing, and ElimiWait shall replace the Device at its own expense via standard ground shipping. Customer warrants and agrees that such replacement shall be Customer’s sole and exclusive remedy for defects. ElimiWait is not obligated to provide replacement Devices until all terms of payment hereunder have been met, and no default by Customer has occurred. Any replacement requested after expiration of the six (6) month warranty period, or any replacement as a result of Customer’s negligence or misuse of a Device, shall incur a replacement fee as specified in the Product-Specific Terms and Conditions section below. Expedited replacement shipping shall be available at an additional cost.
Limitation on Replacement. Notwithstanding anything stated above, it is understood that ElimiWait shall have no obligation to replace any Device (i) if the damage to or failure of the Device is caused by misuse or negligence by Customer, theft, unexplained loss, abuse, connections to direct current, fire, flood, wind, earthquake, or other acts of god, or (ii) if any wiring, installation, repair, or alteration of the Device, including any additions or program changes, is performed by anyone other than ElimiWait or its authorized representatives without ElimiWait’s prior written consent. ElimiWait grants and assigns to Customer the benefit of any warranties or guarantees provided to ElimiWait by the manufacturer of the Device only to the extent it has the right to do so. It is expected that Customer will make reasonable efforts to protect Devices from any damage beyond normal wear and tear, including, but not limited to, theft, tampering, water, fire, power surges, or other elements which could cause Devices to malfunction.
Customer Support. ElimiWait shall provide customer service via email and/or telephone Monday through Friday from 8:00 AM to 6:00 PM in the Customer's local time zone. Customer may purchase extended service hours at an additional cost.
5. USE OF TRADE NAMES AND AVERTISING
Use of Customer’s Trademarks. ElimiWait may use the name, logo, and trademarks of Customer (the “Trademarks”) for purposes related to the performance of this Agreement. In no event shall ElimiWait use a Trademark with any disparaging, unlawful, or derogatory material.
Advertisements. Either party may mention or use the other party’s trade name, logo, or trademarks or any image thereof or to refer to this Agreement or the services performed hereunder without the prior written consent of the other party.
6. CONFIDENTIAL INFORMATION
Protection of Confidential Information. During the term of this Agreement and for a period of three (3) years from the expiration or termination hereof, each item of Confidential Information (as defined below) that is disclosed by a party (the “Discloser”) shall be held in confidence by the receiving party (the “Recipient”) and used only as necessary for the performance of this Agreement. Recipient may only disclose Confidential Information to those of Recipient’s employees who need to know such information for their work in connection with this Agreement and who have previously agreed to be bound by terms and conditions substantially similar to those of this Section 6. Recipient shall protect all Confidential Information and prevent the unauthorized use, dissemination, or publication of any Confidential Information by using the same degree of care as Recipient uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care.
Confidential Information. For purposes of this Agreement, “Confidential Information” means information that (i) is disclosed to Recipient by Discloser or a person having an obligation of confidence to Discloser, whether such information is written or oral, together with all documents, memoranda, notes, and other writings prepared by Recipient or any of its officers, employees, directors, or agents incorporating such information; and (ii) from the nature of the information so disclosed to either party or the circumstances surrounding the disclosure, a reasonable person would conclude that such information was Confidential Information. Each party shall use reasonable endeavors to mark all Confidential Information as such; however, information not so marked may nevertheless constitute Confidential Information. Confidential Information includes but is not limited to (i) any and all information relating to products or business affairs of Discloser or its Affiliates, research, programs, pricing, customer lists, software, techniques, processes, program files, developments, flowcharts, drawings, source and executable codes, standards, specifications, improvements, inventions, customer strategies, forecasts, sales plans, marketing information, and the like, in the possession of or acquired by or on behalf of Discloser, including similar information with respect to any Affiliates of Discloser; and (ii) the fact of Discloser’s selection and use of particular information in connection with this Agreement and its subject matter, whether or not the particular information is publicly available. Confidential Information shall not include information that Recipient can show (i) is or becomes public knowledge without any action by, or involvement of, Recipient; (ii) is disclosed with the prior written consent of Discloser; (iii) is disclosed pursuant to any final judicial or governmental order, provided that Recipient gives Discloser sufficient prior written notice and all necessary assistance to contest such order; (iv) is independently developed by Recipient without any use of the Confidential Information; or (v) is furnished by Discloser to any third party without confidentiality restrictions and Recipient validly obtains such Confidential Information from such third party.
7. OWNERSHIP AND RESTRICTIONS
Title. Customer acknowledges and agrees that, as between ElimiWait and Customer, title to and ownership of the Products (including all Devices leased to Customer) and the System, including all corrections, enhancements, or other modifications to the Software, whether made by ElimiWait or any third party, and all Intellectual Property Rights therein, are and will at all times be deemed the sole and exclusive property of ElimiWait or its suppliers, as applicable. All rights not expressly granted to Customer in this Agreement are reserved by ElimiWait.
Proprietary Rights Notices. Customer shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by ElimiWait on or in the Products and shall ensure that all such notices are reproduced on all copies thereof.
Restrictions on Use. Customer acknowledges that the Software, its structure, organization, and Source Code, and the System constitute valuable trade secrets of ElimiWait or its suppliers. Accordingly, Customer shall not, directly or indirectly, do any of the following: (a) modify, adapt, alter, translate, or create derivative works from the Software or use the Software for application development purposes; (b) merge the Software with any other software; (c) sublicense, lease, rent, loan, distribute, sell, or otherwise transfer or make available the Software or Products to any third party except as specifically permitted by this Agreement; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software or evaluate the Software in order to develop a competitive product; (e) violate any local, state, federal, or foreign law, treaty, regulation, or convention applicable to Customer in connection with its End Users’ use of the Software; (f) attempt to access data on the System not belonging to or intended for Customer; (g) attempt to probe, scan, or test the System or to breach the security or authentication measures without proper authorization; (h) willfully render any part of the System unusable; (i) publish or disclose to third parties any evaluation of the Software without ElimiWait’s prior written consent; or (j) otherwise use the Software or System except as expressly allowed under this Agreement.
Third-Party Software. Notwithstanding anything to the contrary contained in this Agreement, any Third-Party Software included in any of the Products or licensed as a standalone product is subject to the terms and conditions of any end-user license agreement or additional terms accompanying such software.
End User Data. All rights of ownership, title, and interest in End User Data shall remain with Customer (or its clients or customers). Customer hereby grants to ElimiWait a perpetual, irrevocable, nonexclusive, worldwide right and license to use such End User Data (i) for the purpose of performing this Agreement during the Term, and (ii) for purposes of marketing research and reporting at any time. Upon termination or expiration of this Agreement for any reason, ElimiWait shall have no obligation to migrate any End User Data to Customer or to provide any access to End User Data.
Authorization to Release Data. Notwithstanding anything to the contrary contained in this Agreement, if Customer requests ElimiWait to provide assurances to any governmental agency, regulatory organization, or similar institution (collectively, “Regulatory Agencies”) regarding the Products provided by ElimiWait, Customer authorizes ElimiWait to furnish to such Regulatory Agencies all data, email, and other records stored by Customer on ElimiWait servers or routed through ElimiWait exchange servers, including End User Data. Further, Customer authorizes ElimiWait to provide to the Regulatory Agencies assurances that ElimiWait will comply with any requests for data belonging to Customer received from a Regulatory Agency. Customer agrees to indemnify and hold harmless ElimiWait from and against any and all claims relating to or arising from ElimiWait’s compliance with this provision or release of such data, including End User Data.
Passwords. End Users may access the Subscription Services via the internet by means of a specific account and passwords provided by ElimiWait. ElimiWait may issue to Customer a password (each, a “Password”) for each End User authorized to use the Subscription Services using Customer’s account. Customer is solely responsible for the confidentiality and use of its Passwords and accounts. In no event shall ElimiWait or its suppliers be liable for any loss of End User Data or other claims to the extent the same arose from unauthorized access to the Customer’s account by obtaining a Password caused by a negligent or an intentional act or omission of Customer or its employees or agents.
Competitive Products. During the term of this Agreement and for a period of one (1) year from the expiration or termination hereof, Customer shall not develop, use, market, or sell any competitive product based on or derived in any way from the Software or from the benefits of knowhow resulting from access to ElimiWait’s Confidential Information and Products. The term “benefits of knowhow” means information in non-tangible form, which may be retained by persons who have had access to the Confidential Information, including ideas, concepts, knowhow or techniques contained therein.
8. BILLING AND PAYMENT
Fees. Customer shall pay to ElimiWait the applicable license, subscription, support, purchase price, and other fees for those Products purchased or licensed by Customer, as set forth in the ElimiWait Gold Agreement (collectively, “Fees”). Fees for additional services requested by Customer may also apply. Except as specifically set forth in this Agreement, all Fees are non-refundable.
Monthly Billing. For each Location, Customer shall be billed monthly as indicated in the ElimiWait Gold Agreement. Customer agrees that the monthly Fees due hereunder as set forth in such ElimiWait Gold Agreement shall be paid on a monthly basis in advance of the services rendered. For Locations subject to monthly billing, billing shall commence on the Installation Date for each Location and shall continue on a month-to-month basis at the then-current monthly rate for each Location, until terminated in accordance with the provisions herein. Locations subject to annual billing shall be billed on the Installation Date, and shall automatically renew for successive twelve (12) month periods at the then-current annual rate for each Location, unless either party provides written notice of intent to terminate at least forty-five (45) days prior to renewal. Annual fees shall be due upon renewal.
Late Payments. All invoiced payments shall be due within thirty (30) days of invoice and shall be made without claim of set-off or reduction for any purposes whatsoever. Customer agrees that for amounts not paid by the due date, ElimiWait may charge, and Customer agrees to pay, a late payment charge equal to the lesser of 1.3% of the balance carried forward to the next bill and the maximum charge permitted under state law.
Taxes. Customer shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement. Customer agrees to indemnify, defend, and hold ElimiWait, its officers, directors, employees, successors, and assigns harmless from all claims and liability arising from its failure to report or pay any such taxes, duties, or assessments.
9. LIMITED LIABILITY AND INDEMNIFICATION
. CUSTOMER ACKNOWLEDGES THAT THE NATURE OF THE INTERNET AND MOBILE COMMUNICATION IS NEITHER SECURE NOR PRIVATE. ACCORDINGLY, CUSTOMER’S USE OF THE PRODUCTS IS AT CUSTOMER’S SOLE RISK. THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON INFRINGEMENT, OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT OR RESULTS, OR SYSTEM INTEGRATION, OR ANY WARRANTIES OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. ELIMIWAIT MAKES NO WARRANTY THAT THE SOFTWARE WILL RUN PROPERLY ON ALL DEVICES OR OTHER HARDWARE, THAT THE SOFTWARE, SUBSCRIPTION SERVICES, OR OTHER PRODUCTS WILL MEET THE NEEDS OR REQUIREMENTS OF CUSTOMER OR ITS END USERS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED FOR USE BY CUSTOMER OR ITS END USERS, THAT THE SOFTWARE OR SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED. ANY MATERIAL TRANSMITTED THROUGH USE OF THE PRODUCTS IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM ELIMIWAIT OR THROUGH OR FROM THE PRODUCTS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS IN SECTION 6, IN NO EVENT SHALL ELIMIWAIT BE LIABLE FOR: (a) THIRD-PARTY CLAIMS OR LIABILITIES OTHER THAN THOSE IDENTIFIED BELOW; OR (b) ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS, OR DAMAGE TO DATA, INACCURACY OF DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT ELIMIWAIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
Limitation of Liability. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS IN SECTION 6, IN NO EVENT SHALL ELIMIWAIT’S OR ITS SUPPLIERS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER FOR THE APPLICABLE PRODUCTS DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.
Disclaimer. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND STATUTORY CLAIMS. EACH OF THE PARTIES ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS ALLOCATE THE VARIOUS RISKS BETWEEN THE PARTIES AND FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES.
Indemnification by Customer. Customer agrees to indemnify, defend, and hold harmless ElimiWait, and its subsidiaries, Affiliates, directors, officers, agents, and employees from and against any claims, liabilities, costs, damages, expenses, and losses including, without limitation, reasonable legal and accounting fees, arising out of any third party claim or caused by or in any way connected with Customer’s use of the Products, Customer’s violation of this Agreement, Customer’s violation of any rights of a third party through use of the Products, or Customer’s business operations. This obligation shall survive termination of this Agreement.
Indemnification by ElimiWait. ElimiWait agrees to indemnify, defend, and hold harmless Customer, and its subsidiaries, Affiliates, directors, officers, agents, and employees from and against any claims, liabilities, costs, damages, expenses, and losses including, without limitation, reasonable legal and accounting fees, arising out of any third-party claim brought by an End User relating to ElimiWait’s improper use, storage, distribution, sale, or lease of any End User Data and any third-party claim brought against Customer based on a claim that the Products infringe a registered patent or copyright of any third party. These obligations shall survive termination of this Agreement.
ElimiWait’s Obligation for Infringement Indemnity. If an infringement claim within the scope of this Section 9 is made or appears likely to be made, Customer agrees that ElimiWait may, in its sole discretion and at its expense: (a) enable Customer to continue to use the affected portions of the Products; or (b) replace or modify the Products so that they are non-infringing and substantially equivalent in function to the allegedly infringing Products. If ElimiWait determines that none of these alternatives is reasonably available, then ElimiWait may terminate this Agreement in whole or with respect to the affected Products.
Entire Obligation. THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 9 ARE EACH PARTY’S ENTIRE OBLIGATION AND LIABILITY FROM OR RELATED TO THIS AGREEMENT REGARDING THIRD-PARTY CLAIMS.
Network Connectivity. Use of the Products relies on Customer’s own network or a third party’s cellular connection. ElimiWait does not guarantee data delivery on behalf of cellular carriers or internet providers. ElimiWait makes no guarantees to its network or internet coverage or ability for data to be transmitted and received. ElimiWait does not guarantee the availability, privacy, or security of Customer’s cellular and/or network connections.
Form and Delivery. All notices given under this Agreement must be in writing and shall be effective if delivered by hand, sent by electronic mail, or sent by certified or registered mail, postage prepaid or by a nationally recognized overnight courier service, to the address specified by each party in the ElimiWait Gold Agreement.
Deemed Receipt. Notices delivered by hand shall be deemed received on delivery. Notices sent by nationally recognized overnight courier service or by electronic mail shall be deemed received upon confirmed receipt. Notices sent by certified or registered mail shall be deemed received upon the certified or registered delivery date or date of rejection of the same.
11. DISPUTE RESOLUTION
Negotiation. The parties agree that, before resorting to any formal dispute resolution process concerning any dispute arising from or in any way relating to this Agreement (a “Dispute”), they will first attempt to resolve such Dispute by good-faith negotiation between business principals. Unless otherwise agreed in writing, the parties shall have five (5) business days from the date the initiating party gives written notice of the particular issue to begin negotiations and fifteen (15) business days from the notice date to complete negotiations concerning the Dispute.
Mediation. If the negotiations do not take place within the time indicated above or if the negotiations do not conclude with a mutually agreed-upon resolution within that time frame (or its agreed upon extension), the parties agree to mediate any Dispute. If the parties cannot agree upon a mediator, they shall select an independent mediator from a list of mediators maintained by any bona fide dispute resolution provider. The parties agree to have managers with authority to settle the Dispute participate in the mediation process, including being present throughout the mediation session(s). The parties shall have thirty (30) days within which to commence the first mediation session following the conclusion of their good-faith negotiations or expiration of the time within which to negotiate set forth . The parties further confirm their motivating purpose in selecting mediation is to find a resolution that serves their respective and mutual interests. The parties shall conduct all mediations in New York County, New York and shall bear their own costs.
The parties acknowledge and agree that damages at law may be inadequate remedies for the breach of Section 6 or 7, and, accordingly, agree that either party is entitled to seek injunctive or equitable relief with respect to any such breach without the necessity of proving actual damages or posting a bond or other security. The rights set forth in this Section 12 shall be in addition to any other rights that the parties may have at law or in equity.
Relationship of the Parties. None of the provisions of this Agreement is intended to create, nor shall any be construed to create, any relationship between the parties other than that of independent entities contracting with each other solely to effectuate the provisions of this Agreement. Neither of the parties nor any of their respective representatives or employees is or shall be construed to be the agent, employee, partner, joint venturer, or representative of the other. Neither party shall have any right or authority to enter into contracts or agreements on behalf of the other.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Neither party may transfer, assign, or delegate all or part of this Agreement, including but not limited to the Device, Software, or Service to any third party other than an Affiliate without the other party’s prior written consent. Any attempted assignment in contravention of this provision shall be void and of no effect.
Entire Agreement; Priority of Documents. This Agreement together with the executed ElimiWait Gold Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, and representations between the parties with respect to such subject matter. This Agreement shall govern in the event of any inconsistency between this Agreement and any invoice, shrink-wrap agreement, or click-wrap agreement.
Modifications. ElimiWait reserves the right to modify these Terms of Service at any time and without prior notice to Customer. If ElimiWait modifies these Terms of Service, ElimiWait shall post the modified Terms of Service on its website at www.elimiwait.com/terms. Customer is responsible for regularly reviewing the most current version of the Terms of Service. If ElimiWait makes any material modifications to the Terms of Service, ElimiWait shall give Customer reasonable notice of such modifications. Customer’s continued use of the Products after receipt of such notice of a modification shall indicate Customer’s acceptance of and agreement with the modified Terms of Service. When ElimiWait changes these Terms of Service, ElimiWait will modify the “Last Updated” date above.
Severability. In the event that any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue to be enforceable in accordance with their terms. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
No Third-Party Beneficiaries. Except as expressly provided herein, nothing in this Agreement shall be deemed to create any right in any person or entity not a party hereto, including any End User, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any such person or entity.
Compliance with Laws. Each party shall be responsible for its own compliance with laws, regulations, and other legal requirements applicable to the conduct of its business and this Agreement and agrees to comply with all such laws, regulations, and other legal requirements.
International Trade Compliance. The Products, including any Third-Party Software, are subject to the customs and export control laws and regulations of the United States and any country in which the products are manufactured, received, or used. Customer shall comply with these laws and regulations and shall ensure that any person to whom Customer requests ElimiWait or its suppliers to route Products directly has been made aware of the associated export controls.
Inspections. Customer will permit ElimiWait or its representatives to review Customer’s relevant records and inspect Customer’s facilities and systems to ensure compliance with this Agreement. ElimiWait shall give Customer at least ten (10) days’ advance notice of any such inspection and shall conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations.
Governing Law. This Agreement shall be governed in accordance with the laws of the State of New York, without reference to conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby waive any right to a jury trial.
Attorneys’ Fees. The prevailing party in any action to enforce or interpret this Agreement shall be entitled to recover from the other party all reasonable attorneys’ fees and court costs.
Section Headings. The section headings used in this Agreement are for convenience of reference only and will not limit or extend the meaning of any provisions of this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute together one and the same document.
Force Majeure. No delay or default in performance of any obligation by either party (except payment obligations) shall constitute a breach of this Agreement to the extent caused by force majeure or forces beyond its reasonable control, including fires, labor strikes, accidents, and natural disasters.
PRODUCT-SPECIFIC TERMS AND CONDITIONS
Valet Request is a Subscription Service that allows End Users to transmit and receive text messages to and from Customer’s Locations via ElimiWait’s cloud-based text messaging platform or transmit and receive messages via ElimiWait's online portal platform (which was previously know as 'Valet Mate' until August 2018).
If Customer subscribes to Valet Request, the following additional terms and conditions shall apply.
1. Lease of ElimiWait Printer. Subject to the terms and conditions of this Agreement, upon execution of the ElimiWait Gold Agreement, Customer hereby licenses the ElimiWait Printer(s) specified in the ElimiWait Gold Agreement from ElimiWait. The ElimiWait Printer(s) may be new or refurbished equipment.
2. Replacement Fee. The replacement fee for any ElimiWait Printer returned upon termination or expiration of this Agreement in any condition other than good condition and working order, shall be $295.00.
3. Network Connectivity. Use of Valet Request relies on Customer’s own cellular and/or internet connection within each applicable Location. ElimiWait does not guarantee delivery on behalf of cellular carriers or internet providers. ElimiWait makes no guarantees to its network or internet coverage or ability for data to be transmitted and received. ElimiWait does not guarantee the availability, privacy, or security of Customer’s cellular and/or network connections at any Location.
Valet Display is a Subscription Service that allows Customer and End Users to electronically manage End Users’ vehicle requests via an ElimiWait website accessed via a third-party digital touchscreen device.
If Customer subscribes to Valet Display, the following additional terms and conditions shall apply.
1. Third-Party Hardware. Customer must purchase the digital touchscreen device required for use with Valet Display from a third party. ElimiWait does not currently offer such hardware for lease or purchase. Any such third-party purchase is at Customer’s own risk.
2. Network Connectivity. Use of Valet Display relies on Customer’s own cellular and/or internet connection within each applicable Location. ElimiWait does not guarantee delivery on behalf of cellular carriers or internet providers. ElimiWait makes no guarantees to its network or internet coverage or ability for data to be transmitted and received. ElimiWait does not guarantee the availability, privacy, or security of Customer’s cellular and/or network connections at any Location.
Valet Vision is a Subscription Service that allows Customer to electronically capture and record damage to vehicles via Valet Vision Software running on a mobile device.
If Customer purchases or subscribes to Valet Vision, the following additional terms and conditions shall apply.
1. License Grant. Subject to the terms and conditions of this Agreement, ElimiWait grants to Customer a non-exclusive, non-transferable license to use the pre-installed Valet Vision Software during the term of this Agreement on the devices of employees at the Location(s) specified in the ElimiWait Gold Agreement, subject to the terms set forth therein including, without limitation, number of devices, number of users, and usage volume. The license to use the Valet Vision Software shall automatically terminate at the end of the limited term set forth in the ElimiWait Gold Agreement, unless sooner terminated in accordance with the termination provisions of this Agreement. The Valet Vision Software may be used by Customer solely for Customer’s internal business purposes. Customer may not download, copy, or transfer the Valet Vision Software to other devices.
2. Customer Responsibilities. Customer is responsible for providing all mobile devices or other hardware necessary to support the Valet Vision Software and for implementing reasonable security and environmental precautions for use of the Valet Vision Software. Customer is responsible for all communication, data usage, and other costs associated with the use of the Valet Vision Software.
Command Center is a Subscription Service that allows Customer to electronically manage End Users’ vehicle requests and the daily vehicle exit schedule based on End User requests received for the current day, via an ElimiWait website accessed via a third-party digital touchscreen device
If Customer subscribes to Command Center, the following additional terms and conditions shall apply.
1. Third-Party Hardware. Customer must purchase the digital touchscreen device required for use with Command Center from a third party. ElimiWait does not currently offer such hardware for lease or purchase. Any such third-party purchase is at Customer’s own risk.
2. Network Connectivity. Use of Command Center relies on Customer’s own cellular and/or internet connection within each applicable Location. ElimiWait does not guarantee delivery on behalf of cellular carriers or internet providers. ElimiWait makes no guarantees to its network or internet coverage or ability for data to be transmitted and received. ElimiWait does not guarantee the availability, privacy, or security of Customer’s cellular and/or network connections at any Location.
Valet Mate is a Subscription Service that allows Customer to electronically manage on-site valet operations via mobile devices.
If Customer subscribes to Valet Mate, the following additional terms and conditions shall apply.
1. Lease of Devices. Subject to the terms and conditions of this Agreement, upon execution of the ElimiWait Gold Agreement, Customer hereby licenses the Device(s) specified in the ElimiWait Gold Agreement from ElimiWait. The Device(s) may be new or refurbished equipment.
2. Replacement Fee. The replacement fee for any Device returned upon termination or expiration of this Agreement in any condition other than good condition and working order shall be $295.00.
3. Network Connectivity. Use of Valet Mate relies on cellular internet connectivity provided via third parties. ElimiWait does not guarantee delivery on behalf of cellular carriers or internet providers. ElimiWait makes no guarantees to network or internet coverage, or ability for data to be transmitted and received. ElimiWait does not guarantee the availability, privacy, or security of any third party provider’s cellular and/or network connections at any Location.