SERVICES AGREEMENT

This Services Agreement (“Agreement”) is entered between AirGarage, Inc., with a place of business at 1112 Bryant Street, San Francisco, CA 94103 (“AirGarage”), and user (“Customer”).
1.
SERVICES AND SUPPORT
1.1.
AirGarage provides a web-based parking management solution that allows parking garage and lot owners or operators (“Parking Operators”) to register parking spots, set parking prices, advertise and lease its identified parking spaces and connect with automobile owners and drivers (“Drivers”) and related setup and ongoing services, as further described in Exhibit A (the “Services”). Subject to the terms of this Agreement, AirGarage will use commercially reasonable efforts to provide the Services to Customer.
1.2.
AirGarage does not own, create, sell, resell, provide, control, or manage automobiles or parking spots; provide, control or manage Drivers, or Parking Operators; nor is AirGarage a real estate broker or insurer. Except for the Services described in Exhibit A, AirGarage is not responsible for the maintenance and upkeep of Customer’s parking garage or lot, including but not limited to any parking spots in such garage or lot. When Drivers and Parking Operators (including Customer) enter directly into a contract with each other once such parties reach an agreement for specific parking spots, pricing, frequency of payment or any other terms. AirGarage is not and does not become a party to, or other participant in, the contractual relationship between Drivers and Parking Operators.
1.3.
As part of the registration process, Customer will identify an administrative user name and password for Customer’s account with AirGarage. AirGarage reserves the right to refuse registration of, or cancel, passwords it deems inappropriate.
1.4.
Subject to the terms hereof, AirGarage will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
2.
RESTRICTIONS AND RESPONSIBILITIES
2.1.
Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, design, construction, or algorithms relevant to the Services or any , documentation, or data related to the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by AirGarage or authorized within the Services); (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (iv) remove any proprietary notices or labels.
2.2.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with AirGarage’s then-current standard terms, conditions and policies published on the AirGarage website (https://airgara.ge/terms/) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless AirGarage against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although AirGarage has no obligation to monitor Customer’s use of the Services, AirGarage may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the web-based application provided as part of the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.4.
Customer shall cooperate with AirGarage in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable AirGarage to provide the Services, including but not limited to authorization of AirGarage to enter Customer’s parking garage or lot as needed in connection with the Services. Customer authorizes AirGarage to tow automobiles and enforce any parking requirements or conditions on behalf of Customer.
3.
CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information that is material to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of AirGarage includes non-public information regarding features, functionality, and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to AirGarage to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.
3.2.
Customer shall own all right, title, and interest in and to the Customer Data. AirGarage shall own and retain all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Services or support, (c) any signage provided as part of the Services, and (d) all intellectual property rights related to any of the foregoing.
3.3.
Notwithstanding anything to the contrary, AirGarage shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and AirGarage will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other AirGarage offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.
COLLECTION OF DRIVER PAYMENTS; PAYMENT OF SERVICES FEES
4.1.
Customer shall be responsible for and pay the fees and expenses detailed in the attached Exhibit B (the “Fees”) for the Services in accordance with the payment or disbursement schedule set forth in Exhibit B.
4.2.
AirGarage shall collect parking and related fees from Drivers in accordance with the applicable price listed by AirGarage on its website for the use of designated parking spots (“Driver Payments”). AirGarage shall be responsible for ensuring the security, privacy, and legal compliance of the Driver Payments. Customer assumes no responsibility for Driver Payments made by Drivers to AirGarage.
5.
TERM AND TERMINATION
5.1.
This Agreement begins on the Effective Date and will continue for one year (“Initial Service Term”), unless terminated earlier pursuant to this Section 5. This Agreement will automatically renew for additional periods of the same duration as the Initial Service Term, unless either party gives at least 30 days written notice of non-renewal prior to the end of the then-current term (each, a “Renewal Term”). Any Renewal Terms together with the Initial Service Term are collectively the “Term” of this Agreement.
5.2.
In addition to any other remedies it may have, either party may also terminate this Agreement upon 30 days’ written notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided; and AirGarage may deduct any outstanding amounts owed to AirGarage under this Agreement. Upon any termination, AirGarage will make all Customer Data available to Customer for electronic retrieval for a period of 30 days, but thereafter AirGarage may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.
DISPUTE RESOLUTION
6.1.
Any and all disputes arising out of this Agreement shall be governed by California law.
6.2.
In the event of a dispute, Customer and AirGarage shall first convene to attempt to resolve the dispute through informal meetings and discussions.
6.3.
Any and all disputes arising out of this Agreement that cannot be resolved by the parties through an informal meeting process shall be resolved by binding arbitration. Arbitrations shall be conducted by the American Arbitration Association (AAA) pursuant to its Consumer Arbitration Rules and shall take place in San Francisco County, California.
6.4.
In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
7.
WARRANTY AND DISCLAIMER
AirGarage shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by AirGarage or by third-party providers, or because of other causes beyond AirGarage’s reasonable control, but AirGarage shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, AIRGARAGE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND AIRGARAGE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.
LIMITATION OF LIABILITY
8.1.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, AIRGARAGE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), DIRECTORS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND AIRGARAGE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO AIRGARAGE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT AIRGARAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT AIRGARAGE IS A SERVICE PROVIDER THAT CONNECTS DRIVERS WITH CUSTOMER AS A PARKING OPERATOR AND THAT AIRGARAGE ASSUMES NO RESPONSIBILTY FOR, NOR LIABILITY FOR, ANY INTENTIONAL OR UNINTENTIONAL DAMAGE CAUSED TO CUSTOMER BY DRIVERS.
8.2.
CUSTOMER ACKNOWLEDGES THAT AIRGARAGE IS A SERVICE PROVIDER THAT CONNECTS DRIVERS WITH CUSTOMER AS A PARKING OPERATOR AND THAT AIRGARAGE ASSUMES NO RESPONSIBILTY FOR, NOR LIABILITY FOR, ANY INTENTIONAL OR UNINTENTIONAL DAMAGE CAUSED TO CUSTOMER BY DRIVERS.
9.
MISCELLANEOUS
9.1.
This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between Customer and AirGarage. Customer does not have authority of any kind to bind AirGarage in any respect whatsoever.
9.2.
The Services are non-exclusive; AirGarage retains the right to enter agreements with other customers.
9.3.
Customer warrants that it possesses the legal authority to enter into a binding legal obligation and that Customer will only use Services to make legitimate transactions with Drivers.
9.4.
Customer warrants that all information Customer has provided pursuant to this Agreement, and that Customer will provide in the future to AirGarage for the rendering of services, is true, accurate, current, and complete.
9.5.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by Customer except with AirGarage’s prior written consent. AirGarage may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
EXHIBIT A
Description of Services
Subject of payment of the applicable Fees by Customer, AirGarage will provide the following Services to Customer:
9.5.(i)(i)1.
Setup Services
9.5.(i)(i)1.a.
Preparation and installation of physical signage for parking lots and spots
9.5.(i)(i)1.b.
Designation of parking spots for rent
9.5.(i)(i)1.c.
Creation of parking spot listing on website
9.5.(i)(i)1.d.
Customer training (as necessary)
1. Ongoing Services
a.
Advertise Customer’s parking
b.
Provide an online dashboard for Customer to control the number of parking spaces available for rent
c.
Set and maintain dynamic pricing for Customer’s parking lot
d.
Provide a system to allow Customer to register the vehicles of pre-approved Drivers that are not using AirGarage’s platform or services
e.
Enforce parking requirements and conditions relate to Customer’s parking spots, including but not limited to non-payment of parking fees by any Driver, illegal or unauthorized parking and towing
EXHIBIT B
Fees and Expenses
1.
Services Fee. AirGarage will retain 30% of any Driver Payments for the Services provided to Customer (“Services Fees”). AirGarage shall disburse the remainder of any Driver Payments, less any Services Fees and expenses for Enforcement Services, to Customer.
2.
Enforcement Expenses. AirGarage may enforce parking requirements and conditions or Driver payment obligations on behalf of Customer (“Enforcement Services”). Customer shall be responsible for any and all expenses related to any actions, activities, fees, costs and expenses related to Enforcement Services.
3.
Payment. AirGarage will disburse the owed amounts of Driver Payments to Customer on a monthly basis by the fifth day of each month for all amounts accrued in the previous month (the “Disbursement”).
EXHIBIT C
Support Terms
AirGarage will provide technical support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Arizona time with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by calling 480-401-2401 or any time by emailing support@airgara.ge.
AirGarage will use commercially reasonable efforts to respond to all Helpdesk tickets within two (2) business days.