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GrydPark Lot Management Licensee Terms and Conditions
Terms
1. Definitions:
(a) “Aggregated Statistics” means data and information related to Licensee’s use of the GrydPark Platform that is used by GrydPark in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “Authorized User” means Licensee’s employees, consultants, contractors, and agents (i) who are authorized by Licensee to access and use the GrydPark Platform under the rights granted to Licensee pursuant to the Agreement; and (ii) for whom access to the GrydPark Platform has been purchased hereunder.
( c) “Booking” has the meaning set forth in Section 5(b)(i).
(d) “Booking Fee” has the meaning set forth in Section 6(b)(ii).
(e) “CASL” means An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23, as amended from time to time, and any succession legislation thereto.
(f) “CEM”a commercial electronic message as defined in CASL.
(g) “Claims”means any and all actual or threatened claims, demands, actions, causes of action, liabilities, losses, damages, fines, penalties (including, without limitation, administrative monetary penalties), costs and expenses (including, without limitation, legal fees on a solicitor-and-own client basis, investigation fees and disbursements).
(h) “Confidential Information” has the meaning set forth in Section 9.
(i) “Documentation” means GrydPark’s user manuals, handbooks, instructions and guides relating to the GrydPark Platform provided by GrydPark to Licensee either electronically or in hard copy form, as well as any end user documentation relating to the GrydPark Platform.
(j) “Feedback” has the meaning set forth in Section 10(c).
(k) “Fees” has the meaning set forth in Section 7(a).
(l) “GrydPark Account” has the meaning set forth in Section 4(a).
(m) “GrydPark IP” means the any and all intellectual property provided to Licensee or any Authorized User in connection with the GrydPark Platform. For the avoidance of doubt, GrydPark IP includes Aggregated Statistics and any information, data, or other content derived from GrydPark’s monitoring of Licensee’s access to or use of the Services, but does not include Licensee Data.
(n) “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
(o) “Initial Term” has the meaning set forth in Section 13(a).
(p) “Losses” has the meaning set forth in Section 11(a)(i).
(q) “Notice” has the meaning set forth in Section 14( c).
(r) “Permitted Assignee” means, with respect to that party: an affiliate, subsidiary, successor by amalgamation or operation of law, purchaser of all or substantially all of its assets, or a lender of the assigning party, if such assignment is as collateral security.
2. Application of the Terms of Service.
In addition to the terms and condition of the Agreement, the Licensee’s use of the GrydPark Platform is subject to the Terms of Service as amended or updated from time to time. In the event of any inconsistency between the Agreement and the Terms of Service, the terms and conditions of the Agreement shall apply.
3. Overview of Services and the GrydPark Platform.
(a) During the Term, and subject to the terms and conditions of the Agreement, the Licensee may, through the GrydPark Platform, access such Services and products in accordance with the Services for which the Licensee is subscribed.
(b) GrydPark may, as a convenience and value-added service provide the Licensee with access to value-added services as may be made available by GrydPark, in its discretion, from time to time (each a “Value Added Service”). To the extent that the Licensee has signed up for or otherwise avails itself of any Services, including Value-Added Services, the terms applicable herein to that Service shall apply.
(c ) For greater certainty, the GrydPark Platform is a technology-based platform that assists Owners and Property Managers with managing, monetizing, and enforcing their Parking Services, and provides such other Services, as set out herein in accordance with the Licensee’s Tier, selected Add-Ons, and as otherwise may be made available from time to time. GrydPark is not a parking lot operator or property manager and does not engage in on the ground enforcement, or undertake to manage or maintain physical aspects of the parking areas or Spots; GrydPark provides the Licensee tools to assist it with managing its own parking, either by the Licensee, or with the assistance of other third-party providers.
4. Access and Use.
(a) Account Registration. To access and use the GrydPark Platform, the Licensee must register and maintain an account with GrydPark (the “GrydPark Account“). The Licensee must provide accurate, current and complete information when registering a GrydPark Account and keep its GrydPark Account information and the information of its Authorized Users up-to-date and accurate at all times.
(b) Provision of Access. Subject to and conditioned on Licensee’s payment of Fees and compliance with the terms and conditions of the Agreement, GrydPark hereby grants Licensee a non-exclusive, non-transferable right to access and use the GrydPark Platform during the Term, solely for use by Authorized Users in accordance with the Licensee’s Tier, and the terms and conditions herein. Such use is limited to Licensee’s internal business use with respect to the Services for which it is registered, in accordance with its Tier and selected Add-Ons.
(c ) Use Restrictions. Licensee shall not use the GrydPark Platform for any purposes beyond the scope of the access and license granted in the Agreement. Licensee shall not at any time, directly or indirectly, and shall not permit any Authorized Users or others to: (i) copy, modify, or create derivative works of the Documentation or GrydPark Platform,, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, transfer, or otherwise make available the Documentation or GrydPark Platform, except to Parkers and Authorized Users (as the case may be), in accordance with the Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any component of the GrydPark Platform, in whole or in part; or (iv) use the GrydPark Platform, in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. GrydPark reserves all rights not expressly granted to Licensee in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the GrydPark IP.
(e) Suspension. Notwithstanding anything to the contrary in the Agreement, GrydPark may temporarily suspend Licensee’s and any Authorized User’s access to any portion or all of the GrydPark Platform if: (i) GrydPark reasonably determines that (A) there is a threat or attack on any of the GrydPark IP, (B) Licensee’s or any Authorized User’s use of the GrydPark IP disrupts or poses a security risk to the GrydPark IP or to any other customer, user, or vendor of GrydPark, (C) Licensee, or any Authorized User, is using the GrydPark IP for fraudulent or illegal activities, (D) subject to applicable Law, Licensee has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) GrydPark’s provision of the GrydPark Platform to Licensee or any Authorized User is prohibited by applicable law; (ii) any vendor of GrydPark has suspended or terminated GrydPark’s access to or use of any third-party services or products required to enable Licensee to access the GrydPark Platform; or (iii) in accordance with Section 7(a) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). GrydPark shall use commercially reasonable efforts to provide written notice of any Service Suspension to Licensee and to provide updates regarding resumption of access to the GrydPark Platform following any Service Suspension. GrydPark shall use commercially reasonable efforts to resume providing access to the GrydPark Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. GrydPark will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any Authorized User, Tenant, or Parker, may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, GrydPark may monitor Licensee’s use of the GrydPark Platform and collect and compile Aggregated Statistics. As between GrydPark and Licensee, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by GrydPark. Licensee acknowledges that GrydPark may compile Aggregated Statistics based on Licensee Data input into the GrydPark Platform. Licensee agrees that GrydPark may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law; provided that such Aggregated Statistics do not identify Licensee or Licensee’s Confidential Information.
5. Representations and Warranties.
- it has the capacity to enter into the Agreement and to perform each of its obligations hereunder; and
- it has duly authorized, executed and delivered the Agreement and the Agreement constitutes a legally valid and binding obligation and is enforceable against it in accordance with its terms except as such enforcement may be limited by applicable bankruptcy, insolvency and other laws of general application affecting the enforcement of creditor’s rights and subject to general equitable principles.
- the Licensee has full authority to list any Spots being listed by it directly on the GrydPark Platform and that it has exclusive use of any such Spots for the entirely of any periods during which it has made the Spot available for booking (a “Booking”);
- the Owner has beneficial ownership of the property or facility where the Spot(s) are situated and all necessary rights of ingress and egress from and to the Spots (“Access Rights”) and that such Access Rights shall extend to any Parkers
- where the Agreement is entered into by a Property Manager, that the Licensee has full authority to enter into the Agreement as agent for and on behalf of the Owner and that upon execution of the Agreement, the obligations of the Licensee hereunder shall be binding obligations of the Owner;
- any Spot Offering or Parking Services offered by a Licensee and the performance by the Licensee and the Parker of their respective obligations under the Parking Spot Rental Agreement in connection with any Spot Offering will (i) not breach any agreements the Licensee (and the Owner, if applicable) has entered into with any third parties or the Facility Rules, and (ii) comply with all applicable laws, Tax requirements, and other rules and regulations (as such capitalized terms are defined in the Terms of Service);
- it has obtained any and all consents, permits, licenses or approvals necessary to offer any Spot Offering or to perform its obligations under the Parking Spot Rental Agreement in connection with any Spot Offering or Parking Services; and
- it has obtained all necessary consents to be and remain in compliance with, and will in all other respects perform its obligations under the Parking Spot Rental Agreement in compliance with CASL. Without limiting the generality of the foregoing, compliance with CASL requires, among other things, the Licensee, as a person who sends a commercial electronic message (each, a CEM) in respect of the GrydPark Platform, to: (i) obtain the recipient’s consent to receive the CEM; or (ii) confirm that consent to send the CEM to the recipient can be implied; or (iii) confirm that the CEM is either not subject to CASL, or that the CEM may be sent to the recipient pursuant to an exemption to consent, under CASL. Additionally, all CEMs sent by the Licensee in respect of the GrydPark Platform shall contain: (i) identification information; and (ii) an unsubscribe mechanism, to the extent required by CASL.
6. Licensee Responsibilities.
(a) General. Licensee is responsible and liable for all uses of the GrydPark Platform and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Licensee will be deemed a breach of the Agreement by Licensee. Licensee shall use all reasonable efforts to make all Authorized Users aware of the Agreement’s provisions as applicable to such Authorized User’s use of the GrydPark Platform and shall cause Authorized Users to comply with such provisions.
(b) Spot Offerings.
- The Licensee covenants and agrees that when creating or posting any Spot Offering, it will:
- provide complete and accurate information about the Spot (such as Spot description and location);
- disclose any rules, restrictions, limitations or other deficiencies that may apply to the Spot of the Parking Services (including Facility Rules);
- ensure that any terms and conditions in its Spot Offerings do not conflict with the Agreement, the Terms of Service, or the Parking Spot Rental Agreement;
- keep its Spot Offering information accurate and up-to-date at all times;
- provide any other pertinent information as may be required or requested by GrydPark from time to time.
- With respect to Spot Offerings other than Visitor Parking stalls,, GrydPark shall be responsible for setting the amount of any rental fees specified in the Booking (such fees referred to herein as the “Booking Fees” or a “Booking Fee”) for each Spot Offering, at GrydPark’s sole discretion. GrydPark may consult with the Licensee regarding the amount of Booking Fees for Spot Offerings, provided that GrydPark is not obligated to rely on any such recommendations. For greater certainty, a Booking Fee is the amount of rental fee specified in the Booking, not including any Service Fees, Taxes or other charges, as may be applicable from time to time.
- The Licensee shall be entitled to a portion of the Booking Fees collected by GrydPark from the Parker, as set out in your GRYDPARK LOT MANAGEMENT LICENSEE AGREEMENT.
7. Fees and Payment.
(a) Fees. Licensee shall pay GrydPark the fees (“Fees“) as set forth in your GRYDPARK LOT MANAGEMENT LICENSEE AGREEMENT without off-set or deduction. Licensee shall make all payments hereunder in Canadian dollars on or before the due date set forth in your GRYDPARK LOT MANAGEMENT LICENSEE AGREEMENT, and authorizes GrydPark to withhold any applicable Service Fees, Chargebacks and any applicable Taxes (as such terms are defined in the Terms of Service), which will be collected pursuant to the Terms of Service. If Licensee fails to make any payment when due, without limiting GrydPark’s other rights and remedies: (i) GrydPark may charge interest on the past due amount at the rate of 5% per annum or, if lower, the maximum amount permitted under applicable Law; (ii) Licensee shall reimburse GrydPark for all reasonable costs incurred by GrydPark in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) GrydPark may suspend Licensee’s and its Authorized Users’ access to any portion or all of the GrydPark Platform until such amounts are paid in full.
(a) Taxes. All Fees and other amounts payable by Licensee under the Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by Licensee hereunder, other than any taxes imposed on GrydPark’s income.
8. Privacy.
9. Confidential Information.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential”, including, without limitation, information about the GrydPark Platform, Documentation, the GrydPark Hardware, and any other systems used in connection with the Agreement (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; (d) Aggregated Statistics of the disclosing Party; or (e) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under the Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire 10 years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
10. Release by Parker.
The Providing User accepts no liability for the loss or damage to any vehicles (including the Vehicle) parking upon the Spot or Facility or the contents of such vehicles. The Parker releases the Providing User from every claim it has or might have in connection with anything that might occur upon, in or at the Spot or Facility, except only to the extent resulting from (i) the willful misconduct or gross negligence of the Providing User or any person for whom the Providing User is responsible at law; or (ii) a breach of this Agreement by the Providing User.
11. Indemnification.
(a) Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at GrydPark’s option, defend GrydPark Indemnitees from and against any and all losses, damages, liabililtes, costs (including reasonable legal fees) (“Losses”) resulting from any Claim that the Licensee Data, or any use of the Licensee Data in accordance with the Agreement, infringes or misappropriates such third party’s intellectual property rights and any Claims based on Licensee’s, its Authorized Users’, or anyone for whom the Licensee is responsible under the Agreement or at law’s: (i) improper use of the GrydPark Platform; (ii) negligence or willful misconduct; (iii) use of the GrydPark Platform in a manner not authorized by the Agreement; (iii) use of the GrydPark Platform in combination with data, software, hardware, equipment or technology not provided by GrydPark or authorized by GrydPark in writing; (iv) modifications to the GrydPark Platform not made by GrydPark; (v) use of the GrydPark Platform, and any interaction with other Users, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such use or interaction, including any parking enforcement or other actions; (vi) GrydPark’s collection and remittance of any Taxes; and Licensee’s breach of any law, regulation, or third party right, including but not limited to any privacy and property rights, provided that Licensee may not settle any Claim against GrydPark unless GrydPark consents to such settlement, and further provided that GrydPark will have the right, at its option, to defend itself against any such Claim or to participate in the defence thereof by counsel of its own choice.
(b) Sole Remedy. THIS SETS FORTH REGISTRANT’S SOLE REMEDIES AND GRYDPARK’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE GRYDPARK PLATFORM AND ITS SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12. Limitation of Liability.
IN NO CASE SHALL GRYDPARK, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION ANY LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM REGISTRANT’S, ITS PROPERTY MANAGER’S, TENANTS’ OR AUTHORIZED USERS’ USE OF OR INABILITY TO USE ANY OF THE GRYDPARK PLATFORM OR ANY PARKING SERVICES, LOT MANAGEMENT, OR ENCORCEMENT SERVICES, PROCURED OR USED BY USERS IN USING THE GRYDPARK PLATFORM, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE GRYDPARK PLATFORM OR ANY PRODUCT OR SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS, DAMAGE, DEATH, OR INJURY OF ANY KIND INCURRED AS A RESULT OF OR RELATING TO THE USE OF THE GRYDPARK PLATFORM OR ANY CONTENT (OR SPOT OFFERINGS) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE GRYDPARK PLATFORM OR THE UNAVAILABILITY OF OR INABILITY TO USE THE GRYDPARK PLATFORM, INCLUDING THE PARKING SERVICES, LOT MANAGEMENT, SECURE PARK, VALUE ADDED SERVICES, PARKING ENFORCEMENT AND ANY SUCH OTHER SERVICES OR PRODUCTS AS MAY BE MADE AVAILABLE FROM TIME TO TIME, EVEN IF ADVISED OF THEIR POSSIBILITY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL GRYDPARK’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE GRYDPARK PLATFORM EXCEED THE GREATER OF (1) THE AMOUNTS THAT REGISTRANT HAS PAID OR IS PAYABLE BY REGISTRANT TO GRYDPARK FOR USE OF THE GRYDPARK PLATFORM OVER THE PRIOR YEAR; OR (2) ONE HUNDRED DOLLARS ($100).
13. Term and Termination.
(a) Term. The initial term of the Agreement begins on the Effective Date and, unless terminated earlier pursuant to the Agreement’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term“). The Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days’ prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term“).
(b) Termination. In addition to any other express termination right set forth in the Agreement:
- Either the Licensee or GrydPark may terminate the Agreement by providing the other party thirty (30) days’ written notice.;
- Either the Licensee or GrydPark may terminate the Agreement immediately by providing written notice to the other party if the other party becomes insolvent or becomes subject to any proceeding under bankruptcy or insolvency law.
- GrydPark may terminate the Agreement immediately if the Licensee breaches the terms of the Agreement or the Terms of Service.
(c ) Effect of Expiration or Termination. In the event the Agreement expires or is terminated for any reason:
- both parties will remain liable for all amounts due under the Agreement and the Terms of Service up to and including the effective date of termination (and any amounts owing under any provisions of the Agreement and the Terms of Service which are intended to survive termination of the Agreement);
- GrydPark shall be entitled to temporarily or permanently suspend the Licensee’s GrydPark Account and cancel any of the Licensee’s Bookings that are scheduled for dates on or after the effective date of termination; and
(d) Survival. s 1 (Definitions), 6(f) (Non-Engagement), 7 (Fees and Payment), 8 (Privacy), 9 (Confidential Information), 10 (Intellectual Property Ownership; Feedback), 11 (Indemnification), 12 (Limitations of Liability), 13(b) (Termination), 13(c ) (Effect of Expiration or Termination), and 14 (Miscellaneous) shall survive any termination or expiration of the Agreement as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of the Agreement.
14. Miscellaneous.
(a) Entire Agreement. The Agreement, together with any other documents incorporated herein by reference, including but not limited to the Terms of Service, the Parking Spot Rental Agreement, and the Privacy Policy, and all related Annexes, Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Order of Precedence. In the event of any inconsistency between the statements made in the body of the Agreement and any other documents incorporated herein by reference, the following order of precedence governs to the extent of that the terms conflict: (i) first, the Agreement (ii) second, any other documents incorporated herein by reference.
(c ) Notices. Unless otherwise set out herein, all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth on the first page of the Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email (in each case, with confirmation of transmission) if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (d) on the fifth day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
(d) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, unavailability of telecommunications or cellular service, passage of law or any action taken by a governmental or public authority.
(e) Amendments and Modifications. No amendment to or modification of the your GRYDPARK LOT MANAGEMENT LICENSEE AGREEMENT is effective unless it is in writing and signed by an authorized representative of each Party.
(f) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(g) Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(h) Governing Law. The Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to the Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of Canada and the Province of Manitoba. The Licensee and GrydPark irrevocably attorn and submit to the exclusive jurisdiction of the courts of Manitoba to resolve any dispute arising out of the Agreement or the GrydPark Platform.
(i) Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to the Agreement, including any exhibits, schedules, attachments, and appendices attached to the Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Manitoba, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
(j) Assignment. Licensee may not, without the prior written consent of GrydPark, which shall not unreasonably be withheld, assign or otherwise transfer any of its rights or delegate or otherwise transfer any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise. Any purported assignment, transfer or delegation in violation of this Section will be null and void. No assignment, transfer or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. The Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and permitted assigns. Notwithstanding the above, GrydPark may assign or otherwise transfer any of its rights or delegate or otherwise transfer any of its obligations hereunder to a Permitted Assignee.
(k) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 9 (Confidential Information) or, in the case of Licensee, Section 4(c ) (Use Restrictions), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(l) Counterparts. The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of the Agreement delivered by facsimile, email, or other means of electronic transmission, including but limited to DocuSign, is deemed to have the same legal effect as delivery of an original signed copy of the Agreement.
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Last modified: July 6, 2023