These ParkAmigo Merchant POS API Terms (“API Terms”) apply to the use of the any Application Programming Interfaces made available by ParkAmigo to Merchant (collectively, the “PA APIs”) for the purpose of integrating the Systems with Merchant’s POS in connection with Merchant’s use of the Services.
1.2 License Restrictions. Merchant agrees that it will not itself, and will not allow any of its subsidiaries and affiliates and each of their respective directors, officers, employees, agents, partners, suppliers, service providers, contractors or end users (collectively, the “Merchant Parties” and as used in this Section 1.2, all references to “Merchant” will include the “Merchant Parties”) to, engage in any of the prohibited activities set forth in this Section 1.2 (collectively, the “Prohibited Activities”). PA reserves the right, with or without notice, to block or revoke access to any or all of the PA Materials if PA determines in good faith that Merchant is engaging in any of the Prohibited Activities. PA may monitor Merchant’s use of the PA Materials to improve the PA Materials and to ensure compliance with these API Terms, and may suspend Merchant’s access to the PA Materials or the POS Integration without notice if PA believes that Merchant is in violation of these API Terms.
1.3 Limited Use of PA Marks in Connection with the POS Integration. PA grants to Merchant a non-exclusive, revocable, non-sublicensable, non-transferable limited license to use the PA name, names of the PA products and/or services, and related PA trademarks, service marks or logos solely for the purpose of describing the POS Integration (and not, under any circumstances, in connection with any advertising, promotional or marketing materials for Merchant’s own POS or other products or services) and solely in accordance with all branding and trademark guidelines provided by PA, which may be amended or updated from time to time. Merchant acknowledges that PA will not be required to incorporate Merchant branding or attribution on the PA websites and applications.
1.4 Reservation of Rights; No Other Licenses. The PA Materials as well as the trademarks, copyrights, trade secrets, patents or other intellectual property (collectively, “Intellectual Property”) contained therein will remain the sole and exclusive property of PA, and Merchant will assist PA in protecting such ownership. PA reserves to itself all rights to the PA Materials not expressly granted to Merchant herein. Except as expressly provided in these API Terms, neither party acquires any rights or interest in or to the Intellectual Property of the other party. All rights in each party’s respective Intellectual Property will remain the sole property of the party owning such Intellectual Property. Neither party will utilize the other’s Intellectual Property except as expressly authorized under these API Terms.
1.5 Feedback. In the event that Merchant chooses to provide PA with feedback, suggestions or comments regarding the PA Materials, or Merchant’s use thereof, Merchant agrees that PA will be free to use, copy, modify, create derivative works, distribute, publicly display, publicly perform, grant sublicenses to, and otherwise exploit in any manner such feedback, suggestions or comments, for any and all purposes, with no obligation of any kind to Merchant, in perpetuity.
1.6 Non-Exclusivity. PA reserves the right to develop and extend its products and capabilities without regard to whether those products compete with or invalidate the POS Integration or other service, or products offered by Merchant.
2.1 PA Data Use by Merchant. In addition to the restrictions set forth in Section 1.2, Merchant will not, nor will it permit any third party to, use any PA Data for any purpose other than providing the POS Integration. For clarity, Merchant agrees that it will not (i) share PA Data (individually or in the aggregate) with, or for the benefit of, any third party; (ii) collect, store or aggregate PA Data in any manner; or (iii) use PA Data for any purpose other than to provide the POS Integration. PA Data will be considered PA’s Confidential Information.
2.2 Usage Data. Merchant agrees that PA may collect, access and use any and all (i) usage data and information related to Merchant’s use of the PA Materials (“Usage Data”), and (ii) data and information that Merchant provides through the PA APIs, including, without limitation, menu information and photographs (“Merchant Data”), in each case, individually or in the aggregate, for any business purpose, internal or external, including, without limitation, providing the Systems and Services; providing enhancements to the PA Materials; analysing trends and preferences; and/or developing new products, services, features and functionality. Merchant represents and warrants that it has all rights required to provide Usage Data and Merchant Data to PA for the purposes intended hereunder. Further, if Usage Data or Merchant Data includes Personal Data, Merchant agrees to obtain all necessary consents and authorizations from the applicable users (a) to provide such Personal Data to PA and (b) for PA to use such Personal Data as provided herein.
2.3 Sensitive Information. Merchant will not provide to PA through the PA APIs or otherwise any sensitive Personal Data, including, without limitation (i) social security numbers, passport numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (ii) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended) or similar information under other comparable laws or regulations; or (iii) financial account numbers (including, without limitation credit or debit card numbers, or any related security codes or passwords, bank account information or Non-Public Information (as defined in the Gramm-Leach-Bliley Act of 1999, as amended) or similar information under other comparable laws or regulations.
2.4 Encryption and Secure Transmission. Merchant must ensure that any PA Data or data otherwise related to the POS Integration is encrypted (using TLS encryption or some other mutually agreed encryption method) and transmitted over a secure, encrypted channel (e.g., HTTPS).
2.5 Security Obligations. Merchant has obtained and will maintain third-party certifications and audits regarding its security standards consistent with industry best practices. Upon PA’s written request, Merchant will make available to PA (or PA’s independent, third-party auditor) a copy of Merchant’s then most recent third-party audits or certifications, as applicable, or any summaries thereof. Further, PA (or a third party on PA’s behalf) reserves the right to audit, assess, examine and/or review Merchant’s systems and controls at Merchant’s physical and/or technical environment and its policies and procedures used in order to ensure that Merchant follows these API Terms as well as any and all data protection laws. Merchant will fully cooperate with such assessment, including by providing access to knowledgeable personnel, physical premises, documentation, infrastructure, information resources, electronic or removable media and application software that processes, stores or transports Confidential Information and any other reasonable access and/or assistance. If any audit (whether conducted by or on behalf of PA or by Merchant’s third-party auditors) identifies any deficiencies, Merchant will, at its sole cost and expense, promptly take all actions necessary to remediate such deficiencies.
2.6 Data Breach Obligations. Merchant maintains security incident management policies and procedures and will promptly notify PA of any actual or suspected unauthorized access to or disclosure of PA Data of which Merchant becomes aware (a “Data Breach”). Merchant will identify the cause of, and remediate, such Data Breach; take all steps necessary to comply with applicable data protection law; and fully cooperate with PA to comply with any other remedial steps taken by PA. Further, Merchant agrees not to notify any regulatory authority, nor any PA User, on behalf of PA unless PA specifically requests in writing that Merchant do so. PA reserves the right to review and approve the form and content of any notification before it is provided to any party.
3.1 Responsibility for POS Integrations. Merchant is solely responsible for the POS and the POS Integration, and PA will have no liability or obligations with respect to the same (including support obligations, unless otherwise set forth herein). Merchant represents, warrants and covenants that (i) it has and will at all times maintain the right to provide the POS and POS Integration to PA Users as provided hereunder; (ii) that the POS Integration (and any related materials provided to PA) will comply with all applicable laws and regulations, will not infringe the intellectual property or other rights of any third parties, and will not contain viruses, worms, malware or any other harmful scripts or code; and (iii) it will provide timely support for the POS Integration. If the POS or the POS Integration includes any open source software, Merchant further represents, warrants and covenants that it: (i) has complied and will comply with all applicable open source software licensing terms; and (ii) has not and will not use any open source software in such a manner that would cause any software or other Intellectual Property of PA to be subject to any open source software licensing terms, restrictions or obligations.
3.2 Service Level. Merchant will perform all integration work necessary to effectuate the purpose of these API Terms in strict compliance with the PA Documentation, these API Terms, and all applicable laws, rules and regulations, and in a professional and workmanlike manner that is at least in accordance with industry standards for the performance of like services. Merchant will immediately notify PA in the event of any failure of the POS Integration. PA reserves the right, in its sole discretion, to block Merchant’s access to the PA APIs at any time to address any actual or potential issues with the POS Integration.
3.3 Payments. In consideration for Merchant’s access to the PA APIs, Merchant will pay to PA the POS Commission selected in the Services Form. PA will not be liable to Merchant for any fees hereunder.
3.4 No Surcharge. In no event will Merchant levy or charge any fee, surcharge, or other financial assessment to PA User or any other person or company in connection with the integration, installation, support or use of the PA APIs or of any other PA products or services through the POS Integration.
4.1 API Usage Limits. To maintain optimum performance and ensure that the PA APIs are available to all of PA’s partners, customers and merchants, Merchant’s API call usage will be limited to 60 requests/minute per token (or as otherwise communicated to Merchant by PA), and PA reserves the right to suspend the POS Integration without notice in the event Merchant exceeds such usage.
4.2 Orders. Merchant may not initiate or cancel any requests for orders or pick-up services without the consent of the PA User associated with the order or pick-up request. Merchant may not, and may not encourage or allow any third party to interfere with, hinder, limit, or modify the order amount or any associated fees. In addition, the following terms will apply:
4.3 Support. Merchant agrees that it will
4.4 Testing and Troubleshooting. Merchant agrees to provide to PA requested Merchant hardware and software related to the POS Integration for testing and troubleshooting purposes.
5.1 Confidential Information. “Confidential Information” means any information relating to or disclosed in connection with these API Terms and the use of the PA Materials, which is non-public, including, but not limited to, access credentials, API keys, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, projections, and marketing data. Merchant agrees that, unless PA gives its prior written authorization, Merchant will:
5.2 Compelled Disclosure. If Merchant become legally obligated to disclose Confidential Information by any governmental entity with jurisdiction over it, to the extent permitted by law, Merchant will give PA prompt written notice of such obligations sufficient to allow PA the opportunity to pursue its legal and equitable remedies regarding such potential disclosure (including but not limited to making an application for a protective order). Merchant agrees to:
5.3 Return of Materials and Remedies. All documents and other tangible objects containing or representing Confidential Information that have been disclosed or made available by PA to Merchant, and all copies or extracts thereof or notes derived therefrom that are in Merchant’s possession, will be and remain the property of PA, and will be promptly returned to PA or destroyed (to the extent permitted by law, with proof of such destruction), upon PA’s written request. The Parties acknowledge that money damages may be an inadequate remedy for breach of this provision. Therefore, PA will be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened breach of this provision by any Merchant Party, in addition to all other remedies available to it at law or in equity.
5.4 Press and Publicity. Merchant may not issue any press release or other announcement regarding the POS Integration or Merchant’s relationship with PA without PA’s prior written consent.
6.1 By Merchant. Merchant may terminate these API Terms by providing PA sixty (60) days prior written notice.
6.2 By PA. PA may immediately revoke Merchant’s access to the PA APIs with or without notice if it determines in good faith that such use violates any of these API Terms or if it otherwise objects to Merchant’s use of the PA APIs for any reason. PA may also terminate any rights granted hereunder or these API Terms, and may add or remove functionalities or features of the PA APIs, at any time and for any reason at PA’s sole discretion. PA will not be liable to Merchant or any third party for any costs or damages as a result of the revocation of access to the PA APIs or termination of these API Terms.
6.3 Termination of the Agreement. These API Terms will automatically terminate upon the termination of the Agreement between PA and Merchant.
6.4 Consequences of Termination. Upon any termination of these API Terms:
7.1 Merchant Indemnity. Merchant will indemnify, defend and hold harmless the PA Parties, individually and collectively, against any claims, suits, actions or proceedings (“Claims”) brought against the PA Parties by a third party to the extent arising from:
7.2 PA Indemnity. PA will indemnify, defend and hold harmless the Merchant Parties, individually and collectively, against any Claims brought against the Merchant Parties by a third party to the extent arising from any claim that the PA Materials or any part thereof, infringes, misappropriates, or violates any U.S. patent, trademark or service mark, copyright, trade secret or any other proprietary or intellectual property right of any third party.
7.3 Procedure. The party seeking indemnification (the “Indemnitee”) will provide the other party (the “Indemnifying Party”) prompt written notice of any Claim. The selection of counsel, the conduct of the defence, and any settlement will be within the Indemnifying Party’s control, provided that the Indemnitee will have the right to participate in the defence of any such claim using counsel of its choice (at Indemnitee’s own expense). No settlement of a Claim requiring anything other than the payment of money will be made without notice to, and the prior written consent of, Indemnitee, which consent will not be unreasonably withheld or delayed.
7.4 Merchant Insurance. Merchant will maintain commercially reasonable insurance coverage, including, without limitation:
8.1 Representations and Warranties. Each party represents and warrants to the other party that:
8.2 DISCLAIMER. THE PA MATERIALS ALONG WITH ANY OTHER MATERIALS PROVIDED BY PA IN CONNECTION WITH THESE API TERMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 ABOVE, PA, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER PA NOR ANY OF ITS LICENSORS GUARANTEES THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS OF ANY DATA OR INFORMATION AVAILABLE THROUPA THE PA APIS OR THE OTHER PA MATERIALS. FURTHER, PA DOES NOT WARRANT THAT THE PA MATERIALS OR OTHER PRODUCTS AND SERVICES WILL MEET MERCHANT’S REQUIREMENTS OR THAT USE THEREOF WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE, OR SECURE.
8.3 Exclusions. For clarity but without limitation, PA will not be liable for any loss or damage to the extent such loss or damage results from Merchant’s act or omission, or the act or omission of any Merchant Party, or any other third party.
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ParkAmigo U.S LLC
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New York, NY 10001
Attn: Legal Department