This PayByPhone Business Subscription Agreement (the “Agreement”) governs the use of the Subscription Service offered by PayByPhone Technologies Inc. and its subsidiaries, including without limitation PayByPhone Limited, Mobile Payment Services SAS, Mathom AG and sunhill technologies GmbH. The entity that provides the Subscription Service is identified on the order form andis referred to here as “PayByPhone”). The person, business or organization obtaining the Subscription Service from PayByPhone is identified on the order form and is referred to here as “Client”. By signing the order form, the Client agrees to be legally bound by this Agreement and the documents referred to in sections 6 and 9.1 of this Agreement.
1.1 Service Set Up
PayByPhone provides a payment service which allows a user to open an account with PayByPhone (“Driver Account”) and use the Driver Account to pay for parking sessions at facilities and metered stalls owned or managed by participating parking operators and other related services(“Parking Sessions”) through PayByPhone operated mobile payment application, website customer support centre or by texting.
Subject to the terms and conditions of this Agreement, PayByPhone shall provide a subscription service (“Subscription Service”) which allows Client to pay for certain Parking Sessions of its employees, independent contractors and other eligible parties (“Drivers”) who use Driver Accounts and to manage payments, eligibility of Drivers and vehicles and reporting through PayByPhone Business administration portal.
The Client will designate eligible Drivers and a payment method to be charged for their Parking Sessions (“Business Payment Method”). The Client may also specify that the Business Payment Method may only be used to pay for Parking Sessions of listed vehicles and provide to PayByPhone the license plate numbers of eligible vehicles. PayByPhone will reflect the provided details in the Client’s PayByPhone Business account (“Client Account”). The Client will invite eligible Drivers to link their Driver Accounts to the Client Account. The Client is solely responsible for (i) ensuring that it has all required privacy consents and permissions from the Drivers to share the required personal details with PayByPhone and to add them to the Client Account and (ii) informing the Drivers at the time of invitation that, oncelinked, the Client will be receiving certain information about the Driver Account activity and will, on request by PayByPhone, present evidence that it has done so. PayByPhone’s obligations in this regard are limited to what is prescribed by the applicable law.
The Client is solely responsible for ensuring that devices used by Drivers to access Driver Accounts linked to the Client Account are, both at the initial set up and throughout the term of the Subscription, equipped with the latest version of the PayByPhone mobile application and the version of web browser recommended by the PayByPhone website without undue delay after such versions become available. PayByPhone and parking operators accept no liability for any incorrect or incomplete linking and updates to Driver Account settings resulting from the use of incorrect version of PayByPhone mobile application or web browser on Driver devices.
Once linked, the Driver Accounts will reflect a masked version of the Business Payment Method that can be used by theDriver to pay for Parking Sessions. Parking Sessions under the Autopass feature of the Driver Accounts are not included inthe Subscription Service at this time.
PayByPhone will provide support through its customer support centre with respect to the use of the Subscription.
1.2 Conditions of Use
The Client will be liable for any payments initiated on the Driver Accounts linked to the Client Account for Parking Sessions using the Business Payment Method. If the Client provided a list of eligible vehicles, the Client will beliable only for Parking Sessions of vehicles on the list, current as of the day before the payment is initiated. The Client is solely responsible for instructing the Drivers on and monitoring the appropriate use of the Business Payment Method and agrees that PayByPhone and the participating parking operators will treat Drivers’ initiation of payment on the Drivers’ Accounts using the Business Payment Method as transactions authorized by the Client. The Client will have no recourse against PayByPhone or parking operators in respect of the Drivers’ misuse of the Business Payment Method or the Driver Accounts linked to the Client Account.
The Client must report, by calling the customer support centre or by email to email@example.com, as soon as possible and no later than 30 days after an online record of transactions is made available, any billing or accounting errors in payments made from the Business Payment Method. The Client will provide all details and supporting documentation that PayByPhone may require to investigate the errors. The Client acknowledges that if its inquiry relates to a billing or accounting error in a payment made to a participating parking operator, PayByPhone customer support centre will redirect the inquiry to the relevant parking operator. Disputes involving parking operators will be resolved pursuant to such operators’ procedures.
If the Client is entitled to a refund for any reason for amounts charged to the Business Payment Method, the Client agrees to accept the refund in a form of credit to the Business Payment Method, unless this Agreement is terminated and the Business Payment Method is no longer valid, in which case PayByPhone will arrange for a refund in a different form.
The Client will at all times remain responsible for ensuring that the Business Payment Method is valid and has sufficient funds. The Client acknowledges that it is subject to the terms, conditions, restrictions, and other requirements of the third party provider of the Business Payment Method and PayByPhone, parking operators and their respective affiliates and contractors will have no liability for any transaction fees, insufficient fund charges, or any other fee or charge that is assessed by such provider in connection with the use of Business Payment Method. PayByPhone and parking operators accept no liability to complete any transaction which cannot be cleared by payment processors, whether because there are not insufficient funds available on the Business Payment Method or for another reason.
1.3 - Administration Portal
PayByPhone will operate, manage and host a browser-based PayByPhone Business administration portal (“Portal”) that will provide the Client with a secure access to the details of the Client Account transaction information and reports for Parking Sessions paid for with the Business Payment Method. PayByPhone will provide support through its customer support centre with respect to the use of the Portal.
The Client may edit the Client Account through the Portal and change details of eligible vehicles, Drivers and Business Payment Method. Alternatively, the Client may effect these changes through PayByPhone customer support centre. Once the Client Account is updated, PayByPhone will update the Driver Accounts linked to the Client Account with the revised information. The Client is solely responsible for ensuring that the information in the Client Account is accurate, complete and up-to-date. If unable to update information in the Portal, the Client shall provide PayByPhone with sufficient notice of any changes during PayByPhone standard business hours.
PayByPhone will provide the Client with confidential credentials to securely access the Client Account on the Portal. The Client is responsible for the use and protection of the credentials in accordance with Section 6 of this Agreement and for reporting any loss, unauthorized use or theft of this information. Until unauthorized use or theft is reported to PayByPhone, all actions performed on the Client Account using Client’s credentials will be binding on the Client and all transactions made on the Drivers’ Accounts prior to such reporting will be treated as authorized by the Client.
The Client agrees to pay a recurring fee in the amount and at frequency specified in the order form (“Subscription Fee”). All amounts payable hereunder are exclusive of any and all taxes and the Client is responsible for payment of such taxes. All prices are stated, and Client shall pay, in the currency identified on the order form. Payments are due within 30 days of the payment date described in the order form. PayByPhone may direct the Client to store credit card credentials with PayByPhone or its service provider to automatically charge the Subscription Fee to the dedicated card on the payment dates described in the order form and the Client will provide such credentials, when requested. PayByPhone may provide a portal for the Client to manage its subscription fees, payment methods and receipts.
PayByPhone customer service centre willaddress any billing or accounting errors related to the Subscription Fee.
This Agreement shall enter into force onthe date of signing of the order form for the Subscription Service (the “Effective Date”) and shall remain in force and effect until such time as it is terminated by PayByPhone or the Client on at least 90 days prior written notice (“Term”). Should a party breach a material term and such breach remains uncorrected for thirty (30) days after receipt of a notice by the breaching party, the non-breaching party may, in addition to all other remedies available at law, terminate this Agreement by providing written notice to the breaching party, without further obligation provided, however, that if the nature of the breach is such that it cannot be reasonably cured within such thirty (30) day period, the breaching party will not be deemed in default of this Agreement so long as such party commences efforts to effect a cure and is diligently pursuing such efforts. Provided, further, that if the breach is as a result of the non-payment of any fee, the non-breaching party may terminate this Agreement if such breach remains uncorrected for ten (10) days after the breaching party's receipt of notice of such breach. The Client is responsible to pay all fees incurred prior to the effective date of termination of this Agreement.
To the full extent permitted by law and except as expressly set forth in this agreement, PayByPhone does not make, and hereby specifically disclaims, any representations or warranties, express or implied, regarding PayByPhone services under this Agreement, including any implied warranties of title, merchantability, fitness for a particular purpose or non-infringement. The Client acknowledges that the PayByPhone services (including, without limitation, any servers or other hardware, software, applications and any other items used or provided by PayByPhone or any third parties in connection with providing access to or hosting any of the foregoing or the performance of any services by PayByPhone under this agreement) are provided by PayByPhone “as is”. The Client hereby releases, remises, forever discharge and gives up anyand all claims which it may have against PayByPhone, which now or here after arise from, relate to or are connected with the use of the PayByPhone services by the Client, Drivers or any third party, or from any act of omission of PayByPhone or any third party in the course of providing the PayByPhone services.
Subject to Section 4.3 and to the full extent permitted by law, each party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other party (the “Indemnified Party”) from and any against any and all third party claims, actions, losses (collectively, “Losses”) resulting from or arising out of the Indemnifying Party’s breach of any representation, warranty or other obligation set forth in this Agreement. The Indemnified Party shall not be entitled to be so indemnified unless it has given the Indemnifying Party prompt written notice of any Losses, afforded the Indemnifying Party the opportunity to assume sole control over the defence and settlement, if applicable, of the Losses, and provided the Indemnifying Party (at the Indemnifying Party’s expense) all relevant information, assistance and authority to enable the Indemnifying Party to perform its obligations hereunder. The Indemnifying Party shall not settle any Losses without the Indemnified Party’s written consent, which shall not be unreasonably withheld.
4.3 Limitation of Liability
To the full extent permitted by law, in no event shall any party be liable for consequential, special, indirect or incidental damages, including but not limited to any damages resulting from loss of use or profits arising out of or in connection with this agreement, whether in an action based on contract, tort (including negligence) or any other legal theory, even if the party has been advised of the possibility of such damages.
Solely for use in connection with this Agreement, PayByPhone grants the Client a limited, non transferable, non exclusive, revocable license to access and use the Subscription Service.
The parties acknowledge and agree that any trademarks, patents, trade names, logos, trade dress, domain names, copyrights or licenses therein, or other enforceable intellectual property rights and whether in hard or electronic copy (collectively “Intellectual Property”) belonging to the other party, given to them under this Agreement or under their respective agreements with the Client is and shall remain the property of that party for the duration of the Term of this Agreement and nothing in this Agreement shall be deemed or interpreted to convey, transfer or assign any Intellectual Property rights to the other party.
Except as expressly stated, nothing in this Agreement shall be deemed or interpreted to convey, transfer or assign any Intellectual Property rights to the other party.
Each party reserves the right to approve in advance the use of its Intellectual Property by the other party in each and every instance.
Upon termination of this Agreement for any reason the parties will use reasonable endeavours to ensure that all such Intellectual Property and material are removed from display and/or destroyed at the request of the other party save where such Intellectual Property is held by the parties in compliance with any statutory obligations and/or the maintenance of proper records.
PayByPhone maintains complete records of all information and data collected or used by PayByPhone from, or relating to Drivers in relation to Driver Accounts, including, without limitation, any data collected from Drivers upon registration of Driver Accounts, data collected from the Client upon the registration of the Client Account, data collected on parking transactions including financial information, data collected on Drivers’ mobile devices, and derivative data used and stored in PayByPhone databases (the “Driver Data”).
PayByPhone shall retain exclusive ownership of all rights, including Intellectual Property rights, in and to the Driver Data.
PayByPhone will provide to the Client from time to time, throughout the duration of this Agreement, part of the Driver Data, including as part of the verifications and reports generated under this Agreement, for the following purposes (the “Purposes”):
i) Such that the Client may use the Driver Data to verify Parking Sessions paid for with the Business Payment Method and, if required by the Client, to generate operation and transaction reports for the Client until such time that these objectives are fulfilled;
ii) In respect of any enforcement proceedings for any parking citations or penalties issued by enforcement agencies for Parking Sessions of eligible vehicles during the Term of this Agreement until such time as any such proceedings are resolved; and
iii) As the Client’s internal and external auditors may reasonably request.
The Client may not use the Driver Data provided by PayByPhone for any purpose other than the Purposes or to retain such Driver Data or any reports generated from such Driver Data any longer than is required to fulfil the Purposes and will permit access to the Driver Data only to those of its employees, advisers or other authorized representatives that have a need to know and are contractually bound to non-disclosure obligations at least as stringent as those specified in this Agreement. The Client shall promptly return to PayByPhone all documents and other tangible materials representing Driver Data and all copies there of, upon written request of PayByPhone. Notwithstanding the foregoing, the Client shall be permitted to retain such copies of, or any computer records or files containing, the Driver Data to the extent required by applicable law.
Neither party will disclose the other party’s confidential or proprietary information, including Driver Data (“Confidential Information”) (including the terms of this Agreement and any information provided by the other party that is confidentially maintained or proprietary or which derives value from not being generally known to persons who can obtain economic value from its disclosure or use or that a reasonable person would consider confidential, given the context) except:
i) to the affiliates of PayByPhone as described in section 8 of this Agreement;
ii) with the other party’s consent;
iii) to employees, agents and contractors who have a need to know in the discharge of their duties and who are subject to a contractual obligation to keep such information confidential that is at least as restrictive as this Agreement;
iv) when required to do so by law or by any binding rule, order or request.
For purposes of this Section 8, the parties agree that confidential or proprietary information does not include any information that is:
(a) already known to the receiving party at the time of disclosure hereunder (other than from the other party hereto) as demonstrated by its written records;
(b) now or hereafter becomes publicly known other than through acts or omissions of the receiving party, or anyone to whom the receiving party disclosed such information;
(c) disclosed to the receiving party, by a third party, under no obligation of confidentiality to the disclosing party or any other party; or
(d) independently developed by the receiving party without reliance on the confidential information of the disclosing party as shown by its written records.
Each party shall exercise reasonable commercial care in protecting the confidentiality of the other party’s confidential information disclosed to it. The parties agree that an actual or threatened breach of this provision would result in irreparable harm to the party whose confidential information would be disclosed in breach, and shall entitle that party to temporary or permanent injunctive relief without proof of actual damages.
9.1 Agreements with Drivers
9.2 Assignment and Amendment
This Agreement shall be binding on the parties, their successors and their permitted assigns. The Client may not assign its rights or obligations under this Agreement without PayByPhone’s consent, not to be unreasonably withheld.
PayByPhone may at any time amend this Agreement. The Client will be notified of any change prior to the effective date of the change by email to the last electronic mail address provided to PayByPhone, through the Portal or byposting on PayByPhone operated public website. All such amendments, updates, modifications, replacements, versions, or revisions are effective on the date indicated in the notice. However, if the change is made for security purposes, PayByPhone can implement such change without prior notice.
9.3 Governing Law
This Agreement, and all matters relating hereto, shall be governed in all respects by the laws of the jurisdiction in which the PayByPhone entity identified on the order form is domiciled, excluding the application of any conflict of laws principles and/or rules. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the competent courts located in the jurisdiction in which the PayByPhone entity identified on the order form is domiciled, and consent to the personal and exclusive jurisdiction and venue of these courts. In the case of PayByPhone Technologies Inc., the relevant jurisdiction is the Province of British Columbia, Canada, in the case of PayByPhone Limited – United Kingdom, in the case of Mobile Payment Services SAS – France, in the case of Mathom AG – Switzerland and in the case of sunhill technologies GmbH – Germany.
9.4 No Agency
Each party, in all matters relating to this Agreement, will act as an independent contractor and independent employers. Except as otherwise expressly set forth herein, neither party will have authority and will not represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other, or to represent the other as an agent, employee or in any other capacity. Nothing in this Agreement shall be construed to have established any agency, joint venture or partnership between the parties. Neither party shall make any warranties or representations on behalf of the other party.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
9.6 Entire Agreement
This Agreement, including the order form, constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior agreements with respect to the subject matter hereof.
9.7 No Waiver
Failure by either party to enforce any provision of this Agreement (whether in any one or more instance) shall not be deemed a waiver of future enforcement of that or any other provision.