1. Applicability
The terms of this General Terms and Conditions and End User License Agreement (“EULA Terms”) are an integral part of the Master Service Agreement (“MSA”) executed between you ("Customer") or (“Reseller”) and Get My Parking Inc., a Delaware corporation ("GMP") and are a legal contract that governs Your and Your consumers activity on GMP’s Platform.
These EULA Terms govern the provision of Services (defined in the MSA or in these EULA Terms) by GMP. Any reference to these EULA Terms means a reference to the MSA read with these EULA Terms. Any reference to an Agreement means a reference to the MSA read with these EULA Terms. These EULA Terms read with the MSA prevail over any of Customer’s general terms and conditions, regardless of whether or when Customer has submitted its request for proposal, order, or such terms to GMP. Provision of Services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these EULA Terms.
2. License Grant Restrictions
(2.1) Restrictions: Any party which is Granted a License under MSA or EULA shall not:3. Definitions
Unless defined elsewhere in these EULA Terms, the following words and expressions shall bear the meanings assigned hereto. The capitalized terms used in these EULA Terms and not specifically defined herein shall have the meaning ascribed to such term in the MSA.
(3.1) Agreement: means the terms of the MSA read with this EULA as applicable including the Exhibits (3.2) Go-live Date: The date on which the platform is made live for consumers, or mobile apps are published on app store/playstore, or platform starts supporting transactions for consumers/corporate users, or such date as may be mutually agreed between the Parties. (3.3) Platform: The set of different modules, apps, or features owned and developed by GMP with various capabilities as described herein, including any Customizations, and upgrades thereof. (3.3) Third Party IP: Any individual software component or plug-ins which has its own copyright and its own applicable license conditions licensed by GMP or by Customer from a third party and used in conjunction with or embedded in the Platform. (3.4) Business Day: A day (excluding Saturdays and Sundays) on which banks in the USA and at the Customer’s office (specified in the MSA) are open for normal banking business in relation to Parties respective obligations or actions or omissions under the Agreement. (3.5) Confidential Information: Any technological, financial, or commercial information, or other information of a proprietary or confidential nature, disclosed by one Party to the other Party under the Agreement, including but not limited to computer software (object and Source Codes), programming techniques and programming concepts, methods of processing data, system designs embodied in software; benchmark results, manuals, data structures, flow charts, logic diagrams, functional specifications, file formats; discoveries, inventions, concepts, designs, documentation, specifications, techniques, processes relating to the software; research and development or investigations of Parties; technical drawings, algorithms, processes, ideas, formulas, data, schematics, trade secrets, know-how, improvements, marketing plans, forecasts and strategies, list of business users, customers and suppliers, and Intellectual Property, weather (i) in writing; in electronic or other documentary form or format; (ii) orally or visually; including but not limited to ideas, methods or plans including information gathered during factory or facility or office visits, if any; or (iii) in other form or format; including but not limited to software, samples, equipment, models or tools or notes. (3.6) Customization: The integration or modification or inclusion of an additional feature or features to the Platform as may be agreed between the Parties from time to time. (3.7) Documentation: The collection of manuals (for users, training, system administration and support), training and procedural materials, help files, flow charts, logic diagrams, programming comments, release notes, and any revisions and additions thereto, whether in written, printed, electronic, or other format that describe the features and functionality of the Platform and the proper procedure for using the Platform or any portion thereof. (3.8) Intellectual Property: Includes all intellectual property, in any part of the world, whether registered or not registered - in particular:(a) (i) all trademarks, service marks, trade names, logos; (ii) patents, design rights; (iii) trade secrets, including, know-how, technology, Source Code, APIs, databases, design elements including user interfaces, formulae, industrial, scientific and commercial information, techniques and inventions; (iv) processes, manuals, documentation, and scientific and technical data and information; (v) copyrights, works of authorship, and topography rights, database rights; (vi) computer hardware and software including computer programs and any other information in relation to the above;
(b) technical know-how and information, business, and market information, in relation to product and process development validation, integrated business support services, operational support services, end user services, training and support service, marketing and other allied services. (c) all rights under licenses in respect of all the above specified at (a) herein. (d) any applications or registrations for the protection of all the rights specified at (a); and (e) all renewals and extensions thereof.
(3.9) Source Code:: The programming instructions used to create the Platform or other proprietary materials of GMP that may be necessary or useful for maintaining, updating, or enhancing the Platform. (3.10) User: Individual or company or any other person involved in using the Platform. (3.11) Parties: means GMP and Customer4. Interpretation
The Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors. Nothing contained herein shall be construed to provide any benefit to any Person who is not a Party to the Agreement; Any reference to an article, Clause, appendix, clause, sub-clause, paragraph, sub-paragraph, schedule or recital or Exhibit is a reference to an article, Clause, appendix, clause, sub-clause, paragraph, sub-paragraph, schedule or recital or Exhibit of the Agreement; Any reference to any agreement, instrument or other document (a) shall include all appendices, exhibits and schedules thereto and (b) shall be a reference to such agreement, instrument or other document as amended, supplemented, modified, suspended, restated or novated from time to time; Any reference to any statute shall be construed as including all statutory provisions consolidating, amending or replacing such statute; The terms “hereof”, “hereby”, “hereto”, “hereunder” and similar terms shall refer to the Agreement as a whole; The term, “including” shall mean “including, without limitation”; Where the consent or approval of a Party to the Agreement is required hereunder to any act, deed, matter or thing such requirement shall in the absence of any express stipulation to the contrary herein mean, the prior consent or approval (as the case may be) in writing; An agreement, representation or warranty in favor of two or more Persons is for the benefit of them jointly and severally.
5. Services
GMP shall provide mobile applications, software, hardware, and other products and services to Customer as described in the Agreement (the "Services") in accordance with the Agreement. GMP may from time to time change the Services without the consent of Customer, provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the MSA. GMP may charge for the time it spends assessing and documenting a change request of any nature whatsoever from Customer on a time and materials basis in accordance with the MSA.
6. Platform Updates
GMP may update or modify the Platform without notice.
7. Third-Party Integrations
GMP is not liable for disruptions, damages, or losses caused by third-party integrations unless explicitly agreed in writing.
8. Performance Dates
GMP shall use commercially reasonable efforts to meet any performance dates specified in the MSA, and any such dates shall be estimates only.
9. Customer's Obligations
Customer shall:
(9.1) Cooperate with GMP in all matters relating to the Services and provide such access to Customer’s premises (if needed), and such accommodation and other facilities as may be requested by GMP, for the purposes of performing the Services. (9.2) Respond promptly to any GMP request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for GMP to perform the Services in accordance with the requirements of the Agreement. (9.3) Provide such Customer materials or information as GMP may request to conduct the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and (9.3) Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start. (9.4) Customer covenants that it shall have taken necessary approvals and permissions from third parties prior to using their trademark or brand in relation to Use of Platform in accordance with the terms of this Agreement. (9.5) Customer covenants to apprise GMP of any non-proprietary brands or trademarks which are being used in relation to the Use of the Platform and agrees to take written approval from GMP before using brands or trademarks of any third parties. (9.6) Procure specified hardware directly from the manufacturer or vendor before delivery of the Platform and later as and when required. Hardware vendors will provide warranty and service on hardware components as per their warranty policies. (9.7) Be responsible for procuring and maintaining an internet connection and / other required telecommunications networks and servers for the purpose of Use of the Platform. (9.8) Undertake risk of sending data and information via internet and / or other telecommunication networks using the Platform. (9.9) Not to utilize GMP technology systems in any manner other than as prescribed by GMP or as per the terms of the MSA. (9.10) Acknowledge that access to the Platform does not include any right to access the servers which are controlled by GMP or access or use the Source Code or the code base.10. Customer's Acts or Omissions
If GMP’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Customer or Customer’s agents, subcontractors, consultants, or employees, GMP shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
11. User Obligations
(11.1) Compliance: Users agree to comply with all applicable laws and regulations.
(11.2) Accuracy: User must provide accurate information and update it, as necessary. (11.3) Audit Rights: GMP reserves the right to audit your usage of the Platform to ensure compliance.12. Customization
Parties shall agree in writing on all Customization Estimates before providing additional manpower for any work on any Customizations. The Customization Estimate shall be invoiced monthly (in advance, subject to adjustments) for the duration of the Customization. An increase of more than 10% in the actual time taken and costs, expenses, or fees incurred by GMP as compared to the Customization Estimate shall be invoiced by GMP to Customer prior to Delivery of the Customization and accordingly, the revised Customization Estimate shall be mutually discussed and agreed between Parties.
13. Acceptance Testing
Customer will give GMP written notice of acceptance or rejection of such Platform or Customization within seven (7) Business Days after receipt of the same. If a statement of rejection is given, Customer shall specify its reasons for the same and shall provide a reasonable explanation of how the Platform or Customization varies from the specifications. GMP agrees to use commercially reasonable efforts to correct all aspects of the Platform or Customization that do not conform with the specifications in the manner set out by Customer in its statement of rejection and redeliver the corrected Platform or Customization for acceptance within a reasonable period of time as may be mutually agreed by the Parties after receipt of such notice of rejection.
14. Data Protection and Privacy
(14.1) Compliance: Users agree to comply with all applicable laws and regulations.
(14.2) Accuracy: User must provide accurate information and update it, as necessary. (14.3) Audit Rights: GMP reserves the right to audit your usage of the Platform to ensure compliance.15. GMP Equipment
If applicable to GMP’s provision of the Services, GMP may agree to provide Customer with certain equipment, including but not limited to Android devices, power supplies, text messages, GMP applications and all intellectual content viewed by Customer, credit card readers, LPR Cameras, and other items required by GMP to provide services (the "Equipment") as more particularly set forth in the Agreement. Customer may only use the Equipment in the course and scope of its business. GMP shall retain all ownership rights, title, and interest to the Equipment unless Customer has purchased it outright. Customer shall return all Equipment within ten (10) days following the expiration or earlier termination of Services. Customer shall be financially liable for the full replacement cost of any and all loss and damage to Equipment, except for ordinary wear and tear.
16. Beta Features
Beta features are provided "as is" without warranties. GMP is not liable for issues arising from beta features.
17. Fees and Expenses; Payment terms; Interest on Late Payments
(17.1) In consideration of the provision of the Services by GMP and the rights granted to Customer under the Agreement, Customer shall pay the fees set forth in the MSA (the "Fees"). GMP will invoice Customer monthly at the beginning of every month for the previous calendar month’s Services..
(17.2) Upon execution of the MSA, GMP will charge Customer for any fees associated with setting up Customer’s account, training Customer’s personnel, and shipping Equipment. If the contract start date listed in the Agreement begins any time other than the first (1st) day of a calendar month, GMP will charge Customer the fixed the amount due for the whole month and variable fees on actuals. Any usage of Customer’s account prior to the start date may be subject to an additional charge of the overage rate of Customer’s plan. (17.3) Customer agrees to reimburse GMP for all reasonable travel and out-of-pocket expenses incurred by GMP in connection with the performance of the Services. (17.3) Customer shall pay the Fees via automated clearing house debit ("ACH") in accordance with the fee schedule set forth in the Agreement. Customer shall pay all invoiced amounts due to GMP upon receipt of GMP’s invoice. Customer shall pay the Fees in US dollars via ACH on the Tenth (10th) day of the month. Customer agrees that all GMP invoices are deemed to be approved five (5) days after Customer’s receipt unless Customer notifies GMP in writing of Customer’s disapproval of such invoice. For non-sufficient funds (NSF) payments or declined transactions, a fee equal to Fifty and No/100 Dollars ($50.00) will automatically be added to the invoice. (17.4) Customer agrees to pay any and all GMP fees associated with a rejected payment including GMP reasonable and actual attorneys’ fees for collection of Customer’s past due invoices. (17.5) Customer agrees to pay any and all GMP fees associated with a rejected payment including GMP reasonable and actual attorneys’ fees for collection of Customer’s past due invoices.:18. Training, Support of Platform
GMP undertakes to provide training once before “go-live” of the Platform or Customization as per the delivery schedule in Exhibit of the MSA. After the initial training, GMP may provide additional training whenever requested by the Customer at an additional cost to be agreed between the Customer and GMP. GMP shall provide the training material to the Customer. The language of the training material shall be in English only. GMP can provide onsite training / support upon request of the Customer at any time before or after the Go-Live. The Customer shall be responsible for bearing all expenses. This shall include all training expenses including travel, visa, lodging, boarding etc., in addition to manpower charges, in case the Customer requests onsite training / support from GMP at any time before or after the Go-Live date as defined in the MSA, and additional training services as agreed between the Customer and GMP for which additional costs shall be mutually agreed. In no event shall GMP be liable for any Hardware support or support relating to any Third-Party IP whether such Hardware or Third-Party IP has been provided by or procured with or without support of GMP. In no event shall GMP be responsible if the Platform does not function as per specifications due to any Hardware malfunction or malfunction of Third-Party IP.
19. Taxes
Customer shall be solely responsible for all applicable state and local taxes associated with the Services, including but not limited to sales taxes, parking taxes, and any other related taxes imposed by state, local, or other relevant authorities (collectively referred to herein as "Taxes"). Customer agrees to pay these Taxes in accordance with the applicable laws and regulations. GMP shall not be liable for any Taxes associated with the fees that Customer is paid by any third parties for parking. Customer shall indemnify, defend, and hold harmless GMP and its affiliates, partners, officers, shareholders, owners, directors, members, trustees, beneficiaries, employees, principals, contractors, licensees, agents or representatives (the "GMP Parties") from any claims, demands, liabilities, costs, or expenses (including reasonable attorney’s fees) arising out of or related to any failure by Customer to comply with the tax obligations under this Clause.
20. Ownership and Intellectual Property
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product, Equipment, and all other materials that are delivered to Customer under the MSA or prepared by or on behalf of GMP in the course of performing the Services, including any items identified as such in the MSA (collectively, the "Deliverables") shall be owned by GMP. All intellectual property rights in the Platform, including software, documentation, and trademarks, remain with GMP.
21. Payment Processing
By utilizing the Services, Customer acknowledges and agrees that in cases where Customer opts to utilize its own chosen third-party provider of payment processing services (a "Payment Processor") for processing payment transactions, Customer will be solely responsible for designating and maintaining any required financial account established by Customer with such Payment Processor (a "Merchant Account"). Such Payment Processor must always be in compliance with Payment Card Industry Data Security Standard ("PCI DSS") requirements. Customer agrees to provide evidence of PCI DSS compliance to GMP upon request. Customer is responsible for ensuring that its Payment Processor’s systems and services are compatible with GMP systems and payment processing requirements. GMP reserves the right to request any documentation or information required by GMP to verify compatibility. Customer further agrees to comply with all PCI DSS requirements, including implementing commercially reasonable security measures, conducting regular security assessments, and maintaining compliance with PCI DSS standards. Failure to comply with these requirements may result in termination of Customer’s access to the Services. Customer shall indemnify, defend, and hold harmless the GMP Parties from any claims, damages, losses, or liabilities arising out of or related to Customer’s use of Customer’s chosen Payment Processor and failure to comply with PCI DSS requirements. Customer shall execute any necessary forms provided by GMP if Customer elects to use its own Payment Processor.
22. Insurance
Customer shall, at its own expense, maintain and carry adequate insurances in full force and effect with financially sound and reputable insurers at their own costs, to cover their liabilities.
23. Indemnification
(23.1) Indemnity Obligations of GMP
(23.1.1) GMP shall, at its expense, defend, indemnify, and hold harmless Customer and its employees, directors, officers, consultants, agents, and representatives against any Losses resulting from, or arising out of: (23.1.2) Any material breach of any representation or warranty or covenant or undertaking made by GMP under the Agreement which has not been cured or remedied within a period of 90 (Ninety) days, or such additional time as is reasonably necessary to cure the breach as long as the curing party is acting diligently ("Cure Period") from the date of such breach or failure, GMP having been notified in writing by Customer. (23.2) Indemnity Obligations of Customer Customer shall, at its expense, defend, indemnify, and hold harmless GMP and its employees, directors, officers, consultants, agents, and representatives against any Losses resulting from, or arising out of: (23.2.1) Use of any Intellectual Property belonging to Customer or Third-Party IP arranged by Customer or by GMP on request of Customer and which is integrated with the Platform, with such use being declared by a lawful authority as infringing or misappropriating any Intellectual Property of any third party.: (23.2.2) Use of consumer data, breach of data privacy laws or any other data related breach caused by Customer or its affiliates.: (23.2.3) Any material breach of any representation, warranty, or covenant or undertaking made by Customer under the Agreement which has not been cured or remedied within the Cure Period from the date of such breach or failure, Customer having been notified in writing by GMP.24. Confidential Information
(24.1) All non-public, confidential or proprietary information of GMP, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing disclosed by GMP to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services, these EULA Terms, and the MSA is confidential, and shall not be disclosed or copied by Customer without the prior written consent of GMP. Customer agrees to use the Confidential Information only to make use of the Services and Deliverables. GMP shall be entitled to injunctive relief for any violation of this Clause.
(24.2) Each Party acknowledges that it will acquire Confidential Information and materials about the other Party, including, but not limited to technology, systems, know-how, business plan, data processing techniques, computer programs, experimental works, and lists of its customers and suppliers. (24.3) Both Parties acknowledge that all such knowledge, information, and material acquired are the trade secrets and confidential and proprietary information of the other Party. Both Parties agree, during and after the Term of the Agreement, to hold such Confidential Information in strict confidence, as they would their own, and not to disclose it to third parties or use it in any way without the other Party’s prior written authorization. (24.4) The Parties further agree to take all reasonable precautions to protect the confidentiality of the Confidential Information, including implementing and enforcing operating procedures to minimize the possibility of unauthorized use or copying of the Confidential Information. However, a Party may disclose Confidential Information without such authorization to an employee or agent of the Party who must have such information to perform its obligations under the Agreement, provided that the employee or agent has been advised of the confidential nature of such information and is under an express written obligation to maintain such confidentiality on terms which are at least as stringent as the confidentiality obligations contained herein. (24.5) Customer agrees that the Platform is GMP’s sole and exclusive property. Customer shall treat the Intellectual Property of GMP on a confidential basis and not disclose it to any third party without GMP’s prior written consent, except when reasonably necessary to fulfil its obligations under the Agreement. (24.6) GMP agrees that customer data is Customer’s sole and exclusive property. GMP shall treat Customer data on a confidential basis and not disclose it to any third party without Customer’s prior written consent. (24.7) Confidential Information shall not include any information which (a) is in the public domain at the time of disclosure or becomes public domain information other than through a breach of the Agreement, or (b) has been lawfully acquired by a Party from a Person who has no obligation to maintain its confidentiality, or (c) is adequately demonstrated by one Party’s business records to have been independently developed by it prior to any disclosure or (d) was in the other Party's lawful possession before the disclosure; (24.8) Where Confidential Information is required to be disclosed by Law by any court of competent jurisdiction or by any regulatory or administrative body, the Party disclosing such Confidential Information shall strive to provide the other Party with 30 (thirty) days’ notice. (24.9) Each Party agrees that prior to disclosing any Confidential Information of the other party to any third party, it will obtain from that third party a written acknowledgment that such third party and through it, such third party’s employees, will be bound by the same terms as specified in this clause with respect to the Confidential Information.25. Representation and Warranty
Customer represents and warrants to GMP that:
(25.1) Customer’s signatory is at least eighteen (18) years of age. (25.2) Customer is eligible to register and use the Services and have the right, power, and ability to enter into and perform under these EULA Terms and the MSA. (25.3) Any information Customer provides in connection with the Services, including Customer’s business name, accurately and truthfully represents Customer’s business or personal identity under which Customer operates. (25.4) Customer and all transactions initiated by Customer will comply with all federal, state, and local laws, rules, and regulations applicable to Customer and/or Customer’s business. (25.5) Customer will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner to interfere with the operation of the Services. (25.6) Customer’s use of the Services will be in compliance with these EULA Terms read with the MSA.GMP represents and warrants to the Customer that:
(25.1) It is the rightful owner of the Platform and owns and retains all title and Intellectual Property rights in the Platform and the Documentation other than in respect of Third-Party IP embedded in the Platform that it is lawfully authorized to use. (25.2) Grant of the License to Use the Platform and any Documentation and other Customizations by Customer in accordance with the terms of the Agreement will not constitute an infringement, misappropriation or unlawful use or disclosure of any Intellectual Property Right of any third party. (25.3) Any media on which the Platform is distributed shall be free of defect(s). Upon breach of the warranty in the preceding sentence, GMP shall replace the defective media. (25.4) The Platform will be, free of viruses, malicious code, time bombs, trojan horses, back doors, drop dead devices, worms, or other code of any kind that may disable, erase, display any unauthorized message, permit unauthorized access, automatically or remotely stop the Platform from operating, or otherwise impair Customer hardware, network, data, or systems. GMP shall employ appropriate system security measures to safeguard any data or reports which are communicated through or stored on GMP’s servers. (25.5) To the best of GMP’s knowledge, there is no claim, litigation or proceeding pending or threatened against GMP with respect to the Platform or any component thereof alleging infringement or misappropriation of any Intellectual Property of any Person. (25.6) Upon breach of any of the warranties under this Clause, GMP, at GMP’s sole cost, shall cure the breach of the warranty or covenant to Customer’s reasonable satisfaction within ninety (90) Business Days of notice by Customer. (25.7) In addition to the above, GMP warrants that a Platform or Customization will function as intended and in accordance with the specifications applicable to the same. GMP provides a warranty for a period of 180 days from the date of delivery, during which time GMP shall rectify any errors, bugs or other non-functioning aspects of the Platform or Customization at no charge to Customer.26. Additional Limitation of Liability
GMP is not responsible for any losses like lost profits or data arising from the services, regardless of legal theory or whether GMP was advised of the possibility of such damages. GMP's total liability will not exceed the amount paid by the customer in the three (3) months prior to the claim. The customer's sole remedy is GMP's effort to repair or re-perform the services. GMP does not warrant that the Platform will meet Customer’s needs or be free from errors or that the service will be uninterrupted or that it will be safe from hacking or other security threats. GMP makes no warranty of any kind in relation to any products, software, hardware, content, and equipment obtained from third parties.
27. Termination
(27.1) Termination by Notice: Either Party shall have the option to terminate this Agreement at any time during the Term for any reason whatsoever, by providing prior written notice of not less than three (3) months to the other party. Consequences of termination are as per the terms of the Agreement.
(27.2) Consequences of Termination by Notice:
(27.2.1) On termination with notice, the consequences will be as follows:
(27.2.1.1) All amounts payable for the service rendered by GMP unto the date of termination shall be paid in accordance with the payment terms set out in the Agreement.
(27.2.1.2) Customer shall cease to have a License(s) to Use the Platform and Customer shall ensure that it surrenders the License and returns any copies or backups of the Platform and all Confidential Information to GMP within 90 days.
(27.2.1.3) Each Party shall return all proprietary and Confidential Information to the other Party.
(27.2.2) If the Agreement is terminated by Customer as per Clause 21.1then:
(27.2.2.1) All amounts for the service rendered by GMP unto the date of termination shall be paid in accordance with the payment terms set out in the Agreement. Upon payment of such fees, no further fees shall be payable by Customer to GMP.
(27.2.2.2) GMP shall return to Customer all Confidential Information which is in the possession of GMP, forthwith.
(27.2.2.3) Customer shall cease to have a License to the Platform and Customer shall ensure that it surrenders the License and returns any copies or backups of Platform and all Confidential Information to GMP within 90 days.
(27.3) Termination for Other Causes by GMP:
(27.3.3) In addition to any remedies that may be provided under the Agreement, GMP may terminate the Agreement with immediate effect upon written notice to Customer, if Customer:
(27.3.3.1) Fails to pay any amount when due under the MSA.
(27.3.3.2) Has not otherwise performed or complied with any of the terms of the Agreement, in whole or in part.
(27.3.3.3) Becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or
(27.3.3.4) Commits fraud, or if GMP reasonably believes that Customer may have committed fraud.
(27.3.3.5) Has used the Platform in a manner not authorized by the Agreement or by any Applicable Laws.
(27.3.3.6) GMP, on Customer’s request, integrated any Third-Party IP or other technology with the Platform and such Third-Party IP or other technology infringes or misappropriate the Intellectual Property of any other third party as determined by a final non-appealable order by the relevant dispute resolution forum.
(27.4) Termination for Material Breach Each Party may terminate the Agreement for material breach by the other Party by giving written notice to the other Party and allowing the other Party fifteen (15) days to cure the material breach or such additional time as is reasonably necessary to cure the breach as long as the curing party is acting diligently; provided, however, in no event shall the cure period exceed beyond ninety (90) days. If the other Party does not cure the material breach within the cure period, then the Agreement shall automatically terminate. In the event of termination, the Platform and all the Intellectual Property of GMP shall be returned to GMP and thereupon all other copies of the Platform, if any, shall be destroyed by the Customer in its possession upon the instructions of GMP.:
28. Dispute Resolution:
Any dispute between the Parties relating to this Agreement shall first be addressed by the relevant executives of each Party, who shall meet upon the written request of either Party in a good faith attempt to resolve all outstanding issues before either initiates any adversarial proceeding. If a resolution has not been reached within ten (10) days after such meeting or if the Parties have not met after a period of 10 (ten) days from the date of written request by either Party, either Party may require the dispute to be determined by binding arbitration in the State of Delaware, under the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration shall be conducted in English by one arbitrator mutually acceptable to the Parties selected in accordance with AAA rules. Customer acknowledges and agrees that the arbitrator shall not have the power to award any punitive damages, or any damages excluded or limited by the Agreement
29. Waiver
No waiver by GMP of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by GMP. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
30. Force Majeure
Neither party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any terms of the Agreement (except for any obligations of Customer to make payments to GMP under the Agreement), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of the Agreement; (f) national or regional emergency; (g) strikes, labor stoppages, or slowdowns or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within fifteen (15) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party’s failure or delay remains uncured for a period of sixty (60) consecutive days following written notice given by it under this Clause 18, either party may thereafter terminate the Agreement upon thirty (30) days’ written notice.
31. Delays and Omission
No delay or omission to exercise any right, power, or remedy accruing to any Party upon any breach or default under the Agreement, shall be deemed a waiver of any other breach or default thereafter occurring. Any waiver, permit, consent, or approval of any kind or character on the part of any Party of any breach or default under the Agreement, or any waiver on the part of any Party of any provisions or conditions of the Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under the Agreement or by law or otherwise afforded to any of the Parties, shall be cumulative and not alternative.
32. Equitable Relief
Notwithstanding anything contained in the Agreement, nothing will prevent GMP and/or its licensor from obtaining equitable or injunctive relief in any court of competent jurisdiction.
33. Assignment
Customer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of GMP, which may be withheld at GMP’s sole discretion. Any purported assignment or delegation in violation of this Clause is null and void. No assignment or delegation relieves Customer of any of its obligations under these terms. GMP may assign these terms, and all the policies and other documents incorporated or referenced in it (including all rights, licenses, and obligations under it or them), in whole or in part and without notice to Customer and without Customer’s prior consent, for any reason, including for the purpose of internal restructuring (for example, mergers or liquidations).
34. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
35. No Third-Party Beneficiaries
The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express, or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
36. Agreement Disclosure
GMP may, after obtaining Customer’s prior written consent, publicize the business relationship between GMP and Customer resulting from the MSA in the form of digital media, including but not limited to the platforms of LinkedIn, Twitter, Facebook, or Instagram, or press releases and public posts and announcements. Customer agrees that GMP may include Customer’s name in GMP Customer rosters for the purpose of GMP business development efforts. Customer shall, upon written request, be given reasonable opportunity to review and approve all information pertaining to Customer prior to public disclosure. Customer may also be requested to participate in additional activities, such as success stories, references, and marketing initiatives.
37. Attorneys’ Fees
If any action at law or in equity is necessary to enforce the Agreement, the prevailing party will be entitled to reasonable and actual attorneys’ fees and costs.
38. Notices
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the MSA or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered either by (i) personal delivery, (ii) nationally recognized overnight courier (with all fees pre-paid), (iii) facsimile (with confirmation of transmission), (iv) electronic mail (without notice of transmission error), or (v) certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party thereof, and (b) if the party giving the Notice has complied with the requirements of this Clause.
39. Severability
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term, provision of this Agreement, invalidate, or render unenforceable such term or provision in any other jurisdiction.
40. Information Rights
Customer will provide GMP with true, fair, and accurate monthly reports from the Go-live Date on the number of Locations the Platform is being Used and the dates from which use at such Locations has been activated; as well as the number of Transactions (as defined in Exhibit E of the MSA) being undertaken on the Platform or in relation to which the Platform is being used by Customer. GMP will have the right to access such information as is required to fulfill its obligations under the Agreement and to gather data for invoicing Customer. Upon request by GMP, Customer shall provide GMP with any access, documentary evidence, and proof as may be necessary for GMP to undertake inspections of electronic and physical documents for the purposes of evaluating any misuse of the License or unauthorized access to the Platform
41. Service Level Agreement
This is a Standard Service Level Agreement (SLA) between Customer and GMP, applicable only to the Platform provided by GMP to Customer. This document is subject to annual revisions at the sole discretion of GMP.
42. Service Assurance and Availability
GMP will provide Support Services in connection with the maintenance and repair of the Platform as specified herein below:
42.1 Updates
At the discretion of GMP, GMP shall deliver to Customer and install necessary bug fixes and updates for the Platform ("Updates"). The Customer shall permit GMP to deliver such updates at all times and shall agree to any modifications of the Platform that may result from such Updates. The Customer acknowledges that GMP shall not be liable for any deficiency in performing Support Services if such deficiency results from any interference on the part of the Customer in the delivery and installation of the Updates.
42.2 Support Services
| Priority Level | Description | Initial response time | Target Correction Time |
|---|---|---|---|
| P1 | Critical System failure of back-end platform resulting in 100% inability of the Customer to use the Platform across all live locations | 2 hours | 8 hours |
| P2 | System available, however major application’s features are unusable. Primary business flow cannot be conducted across more than 10 live locations. | 8 hours | 24 hours |
| P3 | Major system issues where critical services are available but performing outside of agreed SLAs. | 24 hours | Planned Sprint Release |
| P4 | Medium/Low-level issues requiring minor enhancements or customer-related operational tasks impacting customer experience. | 72 hours | Planned Sprint Release |
42.3 Service Disruption Escalation Matrix
In case the Customer encounters Service disruptions, the following escalation procedure shall be followed:
42.4 Exclusions
In case the Customer encounters Service disruptions, the following escalation procedure shall be followed:
42.5 Customer Obligations
Customer acknowledges that its timely provision of and, allowing GMP access to, Customer operations documentation, equipment, network, assistance, complete and accurate information and data from its officers, agents, and employees is essential to performance of Support Services as set forth in this SLA and that GMP shall not be liable for any deficiency in performing Support Services if such deficiency results from Customer’s failure to provide full cooperation.
42.6 Reporting
On the request of the Customer, GMP will provide the following reports once a quarter.
Amendment and Modification
GMP may amend the Agreement at any time with notice that GMP deems to be reasonable by (i) posting the revised version on GMP’s website, (ii) communicating it to Customer during performance of the Services, or (iii) via delivery of notice by electronic mail to Customer (each such amended version of the Agreement is referred to herein as a "Revised Version"). Immaterial changes are made from time to time in the ordinary course to accommodate changes and provisions GMP must adhere to with various third-party service providers and compliance laws (e.g., AWS, payment gateways, GDPR, etc.). Such changes apply to all GMP customers. The Revised Version will be effective as of the time it is posted on the link but will not apply retroactively. Customer’s continued use of the Services after the posting of a Revised Version constitutes Customer’s acceptance of such Revised Version. Any dispute that arises out of this Agreement will be governed by the version of the Agreement in place when the dispute arose.