Términos y condiciones
Versión 7. Fecha: 05 octubre 2020
PLEASE READ THESE TERMS AND CONDITIONS OF USE (these “Terms”) CAREFULLY, AS THEY GOVERN YOUR ACCESS OR USE, FROM WITHIN THE UNITED STATES AND ITS TERRITORIES AND POSESSIONS, of the website at [www.elparking.com/usa], content, products, ELPARKING’ applications, and the services (collectively, the “Services” as more fully defined below) made available in the United States and its territories and possessions, by ELPARKING USA Inc. (and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “ELPARKING”, “we”, “our”, or “us”). In these Terms we describe users of the Services, whether registered or not, as “Users”. In these Terms, the words "including" and "include" mean "including, but not limited to."
1. Introduction – Contractual Relationship
- 1.1 THESE TERMS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND ELPARKING. By accessing or using the Services, you represent that you are of legal age in your jurisdiction to enter into a binding agreement with ELPARKING and you confirm your agreement to be bound by these Terms. If you are not able to make the representations in the preceding sentence you are prohibited from using the Services, however, any unauthorized use of the Services by you shall be subject to these Terms until such unauthorized use has been terminate. ELPARKING may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason, and without any liability to you.
- 1.3 THE ARBITRATION AGREEMENT WILL REQUIRE YOU TO RESOLVE DISPUTES (other than arising under the Privacy and Cookies Policy) WITH ELPARKING ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS ARBITRATION AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
- 1.4 Our collection, use and disclosure of personal information from Users of the Services is as provided in ELPARKING's Privacy and Cookies Policy available at [http://www.elparking.com] (the “Privacy and Cookies Policy”). To use the Services you must agree to these Terms and to the Privacy and Cookies Policy.
2. Changes to the Terms
- 2.1 ELPARKING may modify or supplement these Terms. Any changes to these Terms shall be effective upon ELPARKING’s notice to you via posting of the revisions at this location indicating at the top of this document the date that revisions were last made or via electronic means (email or SMS) or in the amended policies or supplemental terms on the applicable Service(s). Except as otherwise provided in the Privacy and Cookies Policy with respect to the User’s protection of personal information, your continued access or use of the Services after the effective date of the modification constitutes your consent to be bound by these Terms, as amended.
- 3.1. Unless expressly stated otherwise, the services offered by ELPARKING (the “Services”) through mobile applications (the “Applications”) and access to the website www.elparking.com/usa (the “Site”), comprise (1) informing Users of the location and potential availability of certain public and/or private parking spots ("Parking Spots") and facilitating the reservation of Parking Spots by displaying Parking Sports, processing reservations and collecting fees on behalf of the Operators (the “Reservations”); (2) facilitating the purchase of permits, codes, certificates, validations or parking validations for daily parking, monthly parking, events (such as concerts, sport events, etc.) transportation and the like (collectively, “Permits”) from relevant Operators (as defined below); (3) paying for traffic violations; and (4) any additional services that may be added from time to time. ELPARKING may terminate any Services with respect to you, or generally cease offering, modify, add, discontinue or deny access to the Services, or any portion thereof, at any time for any reason, provided however that any such modification shall not apply to Reservations made prior to such modification. Any modification to any Service(s) shall be notified by ELPARKING to you at least seven days prior to the effective date, provided however that any change in the fees charged by the Operators shall not be considered a modification to a Service, and therefore, shall not be notified to you. If you are not in agreement with any such change you should discontinue using the applicable Service. If you reject the changes, you acknowledge and agree that ELPARKING may unilaterally terminate the Services with respect to you, and these Terms, without any liability to you.
- 3.2 ELPARKING does not: (1) negotiate terms of licenses or settle disputes between users of the Services; (2) provide a parking service, operate a parking lot or other parking facility, or otherwise accept custody of motor vehicles or establishes the prices for Parking Spots (the “Excluded Parking Services”); (3) endorse the use of cell phones or other distracting devices while driving; or (v) provide services other than the Services ((1) through (3) are collectively referred to as "Excluded Services"). You agree and acknowledge that you are not purchasing any Excluded Services from ELPARKING. The Excluded Parking Services are provided by Operators (as defined below) who are neither our agents nor acting in our behalf and we have no responsibility whatsoever regarding the safety of persons or property in the Parking Spots or any facility where the Parking Spots are located found through use of the Services. We are not responsible for any consequences arising from the Excluded Services, including, without limitation, consequences arising from not being able to park or delays associated with parking, road closures or changing traffic conditions. Although we do not guarantee the availability of a specific Parking Spot, if a booked Parking Spot is unavailable at your time of Reservation, we will attempt to locate an alternative Parking Spot, provide you with a refund and/or otherwise resolve any issues in accordance with our standard customer service policies and procedures.
- 3.3 Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate region-specific disclosures (e.g., a particular webpage on elparking.com/usa) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services. For more details on the Services that ELPARKING offers at all times and in each location please consult the website www.elparking.com/usa and the Applications for an updated list on all the services and pricing provided in each location and that are available.
4. Registration – User Account
- 4.1. You must register for and maintain an active account to use the Services (“Account”). Registering for the Services will not be completed until ELPARKING confirms by electronic means (email and/or SMS) the acceptance of this registration. You must be of the legal age to hold a driving license and enter into binding contracts to obtain an Account. Account registration requires you to submit to ELPARKING certain personal information, including your name and email address. In order to use the Services, you may be required to provide vehicle license registration as well as at least one valid payment method supported by ELPARKING (either a credit card or accepted payment partner) (the “Payment Method”). You must be the holder or at least a co-holder of the Payment Method. The user authorizes ELPARKING to charge by the selected means of payment the amounts derived from the use of the Services and overall the application of these Terms. Your failure to provide and maintain accurate, complete and updated information in your Account (including having an invalid or expired Payment Method) authorizes ELPARKING to block or terminate your access and use of the Services or terminate these Terms, without right to any compensation to you.
- 4.2. Other information (such as age and gender) may be requested to be provided voluntarily. During the registration procedure you will create a password to access the confidential information and features of the Services (such as Reservations, transactions, personal data). You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account password at all times. You will be liable for any damages arising from the loss of your access tools due to your negligence or improper use of your log in credentials.
- 4.3. We may, from time to time, send you e-mail about your Account, orders or pricing changes. We may also send you e-mail with general information or special offers about products and services that may be of interest to you or ask you to complete surveys that we use for internal research. You may elect not to receive emails from us, other than automated service messages pertaining to the information you may have requested (i.e. confirming reservations, real-time status, availability). When you have consented to receive marketing material from us, ELPARKING will collect data on the category and location at which you have made the request in order to send you marketing communications which match your preferences. If you wish to change your preferences about your data or how we contact you should do the following: once logged in to the Site or the Application, you can view the personal information stored by ELPARKING by clicking on the "Account” going to “Configuration” and then “Privacy and Customisation” and making the changes you wish. You also have choices with respect to cookies as provided in the Privacy and Cookies Policy. By modifying your browser preferences, you have the choice to accept all cookies, to be notified when a cookie is set, or to reject all cookies.
5. Payment – Wallet
- 5.1 You are responsible for all charges, fees, duties, taxes, and assessments arising out of the Services (the “Charges”). In consideration for facilitating your transaction, you agree to pay to ELPARKING all Charges (including any overage fees) for ELPARKING’s provision of the Services as specified on the Site or the Application. You authorize ELPARKING charge your Payment Method and/or Wallet for the Charges, which includes the parking rate displayed on the Site (or Applications), plus where applicable, service fees, overage fees, and taxes. This parking rate is a combination of the rate for Parking Spots (established by the Operators) reserved on your behalf by ELPARKING and the facilitation fee retained by ELPARKING to compensate us for our services. ELPARKING may change the fees for any Services at any time.
- 5.2 The amounts collected by ELPARKING on behalf of the Operators in connection with your Reservation include all anticipated applicable taxes in connection thereof. The Operators are responsible for remitting applicable taxes to the applicable taxing jurisdictions. ELPARKING is not a vendor collecting and remitting taxes to the applicable taxing authorities nor a co-vendor associated with the vendor with whom ELPARKING reserves its customer's Parking Spots. If you are required by law to withhold any taxes from your payments to ELPARKING, you must provide ELPARKING with an official tax receipt or other appropriate documentation to support such payments.
- 5.2 Except as provided in these Terms or when required by law, all Charges paid by you are non-refundable. You agree to receive the detail of any Services purchased in an email as well as the instructions on how to use the Services purchased (“Confirmation Email”).
- 5.3 When you open an Account and associate your payment method to your Account you will activate a virtual account (the “Wallet”), and you may select a top up replenishment amount option in the settings (the “Top-Up”). The first time you pay for Charges (as defined below), your Payment Method will be automatically charged the Top-Up option you have selected, which will result in the funding of your Wallet. Charges for such transaction will automatically be paid out of the funds then in your Wallet. Each time you use the Services, the applicable Charges will be deducted from the funds in your Wallet.
- 5.4 You can choose to have the Wallet Top-Up replenished automatically every time the amount in the Wallet is equal or below the amount required to pay for a Charge (the “Automatic Top-Up”). Replenishment of your Wallet is accomplished by automatically charging your Payment Method with the Automatic Top-Up option you have selected.
- 5.5 If at any time there are no sufficient funds in your Wallet to pay for the Charges and you have not chosen an Automatic Top-Up, any balance in the Wallet shall be used to pay for the Charges, and the Payment Method in your account shall be used to pay for the remainder balance. You may also replenish the Wallet at any time through the Applications and the Site.
- 6.1 ELPARKING lists the Parking Spots on the Application and the Site and, as such, facilitates the Reservations between Users, and public and private owners, lessors, contractors, managers, agents, customer services, or operators of the Parking Spots (collectively, the "Operators"). ELPARKING does not establish the prices for Parking Spots, operate Parking Spots, or determine parking availability provided by Operators. While ELPARKING makes every effort to provide accurate information regarding the Parking Spots listed on the Site and Applications, at times such information may become inaccurate and ELPARKING shall not be liable for any such inaccuracy. In all cases, your utilization of a Parking Spot will be governed by Operator's customer agreements or policies in place from time to time, including, without limitation, all terms and conditions related to the use of any Parking Spot, any payment terms and conditions and all rules and restrictions imposed by the Operator on the relevant parking facility and/or Parking Spot, as each may be entered into or effected in accordance with the Operator 's standard operating procedures (the "Operator Terms and Conditions").
- 6.2 By making a Reservation, you agree in all cases to abide by the Operator Terms and Conditions. In connection with our provision of the Services, Operators may represent and warrant to us that they have full authority to list the Parking Spots for Reservations. ELPARKING is not responsible for confirming whether any such representation or warranty is true and correct, nor is ELPARKING responsible if any such representation or warrant becomes inaccurate or incomplete prior to your use of a Parking Spot. In addition, ELPARKING will never be responsible for any agreement or other arrangements between you and any Operator, regardless of whether such agreement or other arrangements are related to your Reservation and use of a Parking Spot.
- 6.3 You acknowledge and agree that in order for you to use the Services, ELPARKING must provide to the Operators certain information relating to the Reservation such as your make of vehicle and license plate. The Operators shall use such information only to enable you to use the Services and in compliance with these Terms.
7. Reservations: Modification, Cancellations and Refunds
- 7.1 Reservations made for Services must be cancelled at least 24 hours prior to the start of the Reservation for a full refund unless otherwise provided in the supplemental terms and conditions for the particular Service(s) or the Confirmation Email, or at the time of the Reservation. Such cancellation can be made for any reason before that time unless noted otherwise.
- 7.2 Reservations not cancelled prior to the time period set forth herein shall be non-refundable, regardless of your use or non-use of the Reservation and regardless of any circumstance surrounding the use or non-use of a Reservation (including traffic or weather delays, or cancellation of a related event).
8. Network Access and Devices
- 8.1 If you download and install the Applications in your mobile phone or smartphone, you should have a compatible mobile or smartphone with the technical requirements for the Applications. In no event will ELPARKING be responsible for any damages or poor functioning caused by the download, installation or use of the Applications and/or lack of update of it by you. You are responsible for obtaining the data network access necessary to use the Services, including from the time you book a Service to its provision. Your mobile network's data and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Application and the Services and any updates thereto. ELPARKING does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications such as availability of mobile data services, positioning services via the global navigation satellite system, all of which depend on the capacities and characteristics of the user's mobile phone or smartphone and/or of the internet service providers contracted by the user. The lack of availability of the mobile network can, in particular cases, cause certain Services to not be available due to the necessary data transmission not working. Similarly, Services may be affected by atmospheric interferences, by topographic conditions or obstacles (such as, bridges, tunnels, buildings). The same applies to positioning services based on the global navigation satellite system. Also, internet usage may be subject to additional restrictions (such as, network overload). On the other hand, there may be temporary capacity shortages as a result of peak loads in the services, mobile networks or landlines or on the internet.
- 9.1 ELPARKING may, in its sole discretion, create promotional incentives in the form of promotional codes, promotional discounts or coupon codes that may be redeemed for Account credit, or other features or benefits related to the Services, subject to any additional terms that ELPARKING establishes on a per promotional code basis. Promotions will have a certain duration that will be communicated together with the promotion. You must enter the promotional code during the registration process and obtain the confirmation message of the application of the corresponding promotion to benefit from the promotion. Otherwise, the promotion will be applied at ELPARKING’s sole discretion.
- 9.2 Promotions may be (1) disabled by ELPARKING at any time for any reason without liability to ELPARKING; (2) may only be used pursuant to the specific terms that ELPARKING establishes for such promotion; (3) are not valid for cash; (4) may only be provided to certain users and not to you; and (5) may expire prior to your use. ELPARKING reserves the right to withhold or deduct credits or other features or benefits obtained through the use of promotion by you or any other user in the event that ELPARKING determines or believes that the use or redemption of the promotion was in error, fraudulent, illegal, or in violation of the applicable promotion’ terms or these Terms.
10. Social Media Sites
11. License - Our Proprietary Rights
- 11.1 Subject to your compliance with these Terms, ELPARKING grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use (“License”). The License shall remain in effect until and unless terminated by you or ELPARKING. Any rights not expressly granted herein are reserved by ELPARKING and ELPARKING's licensors.
- 11.2 The Services, all rights therein, and our content, are and shall remain ELPARKING’s or its licensor’s property, including, visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, aggregate user review ratings, reports and other usage-related data in connection with the other elements and components of the Services excluding any third party content (collectively, the "Content").
- 11.3 As between ELPARKING and you, ELPARKING owns all the copyrights, trademarks, service marks, logos, trade names, trade dress and other intellectual and proprietary rights throughout the world (the "IP Rights") associated with the Services and the Content, which may be protected by copyright, patent, trademark and other applicable intellectual property and proprietary rights and laws. By downloading, printing, or otherwise using any of the Content, you agree that you will (i) restrict your use of such Content to personal and non-commercial use, (ii) comply with all of these Terms, and (iii) not violate our rights or the rights of any other person or entity. We do not warrant that use of any of the Content will not infringe the rights of third parties.
- 11.5 Unauthorized commercial publication or exploitation of text, images, documents, materials or any other Content is prohibited without our express written consent. If you wish to use any of the Content for commercial use, publication, or any purpose other than personal use, you must obtain our express written permission prior to such use. We may, in our sole discretion, grant permission for such use on a case-by-case basis and we may charge a usage fee for such use. Without limitation of the foregoing, you agree that you may not sell, convey, license, sublicense, or resell or attempt any of the foregoing.
12. Restrictions on Use
- 12.1 You are responsible for your use of the Services and for any consequences thereof. Without limiting the generality of these Terms, you specifically agree not to do the following while using the Services: (1) falsely state or misrepresent your affiliation with another person or entity; (2) infringe any patent, trademark, trade secret, service mark, copyright, or other intellectual property right of another person; (3) access or use the Account of another user without permission; (4) data mine, scrape, crawl, or use any robot other automatic device, script, technology or processes that send automated queries to the Site, or use other similar methods or tools, to gather or extract any information, data, images, tools, results, content, applications and other material made available via the Services (the “Material”) from the Site; (5) modify the manner in which the Site is displayed or the Services are used, including framing, scraping or any other technique that would alter the display of the Site or the visual display of the Services, including the Material (6) distribute computer viruses or other codes, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or link to the Site or any portion of the Services (including deep linking to a specific portion of the Site or framing Materials in any way) and you may not employ script searches or search results from the Site in a manner that results in the display of any Material on a third party website or elsewhere; (7) interfere with, disrupt, or destroy the functionality or use of any features of the Services or use the Services to compile data (or any other portion of the Materials) in a manner that is used or usable by a competitive listing product or service; (8) interfere with, disrupt, or destroy the servers or networks connected to the Services, or disobey any rules or regulations applicable to such servers or networks; (9) 'Hack' or access without permission our proprietary or confidential records, those of another user, or those of anyone else; (10) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services; (11) remove, circumvent, disable, damage or otherwise interfere with security-related features, or features that enforce limitations on use of, the Services; and/or (12) copy any content for publication in print or online; each as determined in our sole discretion.
- 12.2 We may, at any time in our sole discretion, take any action available at law in response to a breach of any of the restrictions on use stated above.
- 2.3 DO NOT USE WHILE DRIVING. YOU AGREE TO WAIVE, AND TO INDEMNIFY ELPARKING AGAINST, ANY AND ALL CLAIMS AND CAUSES OF ACTION RELATING TO OR ARISING FROM YOUR INSTALLATION AND USE OF THE SITE OR THE APPLICATIONS, INCLUDING WITHOUT LIMITATION THOSE ARISING FROM ACCIDENTS OR INJURIES OR DELAYS DURING SUCH INSTALLATION OR USE.
13. Third Party Beneficiaries
- 13.1 Apple Inc. and Google, Inc. will be third-party beneficiaries to these Terms if you access the Services using the Applications which have been developed for Apple iOS or Android mobile devices, respectively. These third-party beneficiaries are not parties to these Terms and are not responsible for the provision or support of the Services in any manner. Your access to the Services (either through the Site or the Application) using these devices is subject to terms set forth in the applicable third-party beneficiary's terms of service.
- 14.1 ELPARKING puts all reasonable technical and human means at your disposal to protect your internet usage from loss, misuse, and unauthorized access, disclosure, alteration and destruction, but since transmissions over the internet are never completely secure or error free, ELPARKING cannot guarantee your privacy and security when using the Services and, in particular, ELPARKING does not guarantee that unauthorized third parties may not acquire knowledge of the class, conditions, characteristics and circumstances of your Internet usage or that such third party be prevented from accessing and, where applicable, intercepting, deleting, altering, modifying or manipulating in any way the content and all kinds of communications that you transmit, share, store, make available, receive, obtain or access via the Services. ELPARKING may use certain trusted third parties to help us provide, improve, protect, and promote our services. These third parties will access your information only to perform tasks on our behalf and in compliance with these Terms.
- 15.1 The information and descriptions contained on the site and the applications are not intended to be complete descriptions of all terms, exclusions and conditions applicable to every service ELPARKING offers, but are provided for general informational purposes. EL PARKING disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information, applications or the Material accessible by use of the Services.
- 15.2 YOU BEAR THE ENTIRE RISK OF USING THE SERVICES INCLUDING ANY RELIANCE UPON ANY OF THE INFORMATION THEREIN. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES (INCLUDING THE SITE AND THE APPLICATIONS) ARE PROVIDED "AS IS" AND "AS AVAILABLE. ELPARKING DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, ELPARKING AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS AND LICENSORS (each, an “ELPARKING Party”), collectively, "ELPARKING Parties") MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY, COMPLETENESS OR AVAILABILITY OF THE SERVICES REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THE COMPATIBILITT OF THE SERVICES WITH ANY PARTICULAR SOFTWARE OR HARDWARE DEVICES. ELPARKING DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS (INCLUDING OPERATORS). ELPARKING has no obligation to provide any maintenance services, updates, upgrades or error corrections with respect to any Applications. You are solely responsible for any damages to your software or hardware device(s) or loss of data that results from the download or use of the Services.
- 15.3 YOU ACKNOWLEDGE THAT THE SERVICES ALLOW YOU TO MAKE RESERVATIONS FOR PARKING WITH OPERATORS BUT YOU AGREE THAT ELPARKING HAS NO RESPONSABILITY OR LIABILITY TO YOU FOR ANY DAMAGES TO VEHICLES, PERSONS OR PROPERTY, INCLUDING ANY DAMAGES CAUSED OR OCCURRING AT THE PARKING LOCATIONS UNDER CONTROL OF THE OPERATORS OR ARISING FROM ANY TRANSACTIONS WITH THE OPERATORS OR OTHER USERS OF THE SERVICES AT ANY PARKING LOCATION, OR THE OPERATORS’ EMPLOYEES OR WITH OTHER INDIVIDUALS AT THE PARKING LOCATIONS, WHETHER THROUGH THE SERVICES, THE EXCLUDED SERVICES OR OTHERWISE.
16. Limitation of Liability
- 16.1 UNDER NO CIRCUMSTANCES WILL ANY ELPARKING PARTY BE LIABLE TO YOU FOR ANY INJURIES, LOSSES, CLAIMS, DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOST USE OR LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE, IN EACH CASE WHETHER THE CLAIM FOR DAMAGES IS BASED ON CONTRACT, TORT, AND REGARDLESS OF THE NEGLIGENCE, OR OTHERWISE (EVEN IF ELPARKING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHICH ARISE OR ANY WAY CONNECTED TO: (1) YOUR USE OF OR RELIANCE ON OR IN CONNECTION WITH THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; (2) ANY DELAY OR FAILURE IN PERFORMANCE OF THE SERVICES, WHETHER RELATED TO MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, DELETION OF FILES OR EMAIL, COMPUTER VIRUSES OR ANY FAILURE OF PERFORMANCE (WHETHER OR NOT RESULTING FROM COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ELPARKING OR FROM CAUSES BEYOND ELPARKING'S REASONABLE CONTROL; (3) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY OPERATORS, EVEN IF ELPARKING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (4) ANY OTHER MATTERS RELATING TO THE SERVICES, BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, FUNDAMENTAL BREACH, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, WHETHER OR NOT ELPARKING HAD ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT YOU MIGHT INCUR SUCH DAMAGES.
- 16.8 EACH ELPARKING PARTY EXCLUDES, TO THE EXTENT PERMITTED BY LAW, ANY RESPONSIBILITY FOR THE DAMAGES OF ANY NATURE THAT ARISE FROM, MAY BE DUE TO THE KNOWLEDGE THAT THIRD PARTIES MAY HAVE OF THE CLASS, CONDITIONS, CHARACTERISTICS AND CIRCUMSTANCES OF THE INTERNET USAGE THAT YOU MAY MAKE OR THAT MAY BE DUE TO THE ACCESS AND, WHERE APPLICABLE, TO THE INTERCEPTION, ELIMINATION, ALTERATION, MODIFICATION OR MANIPULATION IN ANY WAY OF THE CONTENT AND ALL KINDS OF COMMUNICATIONS THAT YOU TRANSMIT, SHARE, STORE, MAKE AVAILABLE, RECEIVE, OBTAIN OR ACCESS VIA THE SERVICES.
- 16.9 REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF AN ELPARKING PARTY IS FOUND TO BE LIABLE TO YOU, IN NO EVENT SHALL SUCH PARTY'S TOTAL LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITTY, STRICT LIABILITY OR OTHER THEORY),TO YOU OR TO ANY THIRD PARTY CLAIMING THROUGH YOU IN CONNECTION WITH THE USE OF THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION IS LIMITED TO THE GREATER OF (1) THE AMOUNTS, IF ANY, YOU PAID TO US FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, AND (2) $100.
- 16.10 THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. In addition, some jurisdictions do not permit certain disclaimers of warranties or exclusions of damages, in which case such disclaimers and exclusions may not apply to you to the extent they are not permitted.
- 17.1 You agree to indemnify, defend, and hold harmless the ELPARKING Parties, from any claims, demands, losses, liabilities, damages, costs, or expenses (including reasonable attorney fees) arising out of or in connection with: (1) your use of the services or goods obtained through your use of the Services; (2) your unauthorized use of the Services; (3) your breach of these Terms and any use of the Services other than as expressly permitted in these Terms; (4) the use of the Services by any person to whom you give access to your Account; (5) your breach of any Operator Terms and Conditions; or (6) your violation of any law or your violation of any third party right, including the infringement by you of any intellectual property or other proprietary or contract right of any person or entity.
- 17.2 The foregoing indemnity obligations will survive any termination of the Terms or your use of the Services. ELPARKING reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with ELPARKING in asserting any available defenses. You agree not to settle any matter subject to the foregoing indemnification obligations without the express consent and approval of ELPARKING.
- 18.1 You release us and our manager(s), officers, member(s), employees, agents, representatives and licensors from any and all claims, demands, losses and damages of every kind and nature, whether known or unknown, arising out of or in any way relating to the Services, your use of the Services, other users' use of the Services and any dispute or defense you have or claim to have against us or one or more users of the Services.
19. Governing Law
- 19.1 These Terms as well as any Dispute (as defined below) are governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of law principles.
20 Arbitration Agreement
- 20.1 If a dispute arises out of or related to these Terms, or the breach thereof (“Dispute”), and if such Dispute cannot be settled through negotiation, the Parties agree to resolve such Dispute by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “Rules”) then in effect except as modified by this section. The Rules are available at www.adr.org/arb_med. , in New York City conducted in the English language by an arbitrator (and not any federal, state, or local court or agency) (the “Arbitrator”). The arbitrator shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this arbitration agreement, including any claim that all or any part of this arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Notwithstanding any choice of law or other provision in these Terms, the parties agree and acknowledge that this arbitration agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York.
- 20.2 YOU AND ELPARKING AGREE THAT YOU ARE EACH WAIVING YOUR RIGHT TO JURY TRIAL OR TO PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH YOU AND ELPARKING AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SUBSECTION, AND THIS SUBSECTION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR. However, you and ELPARKING each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
21. Other Provisions
- 21.1 Termination and Suspension. We may terminate these Terms, or terminate, suspend or restrict your access to the Services, in the event that you violate any of the Terms or for any other reason, with or without notice or cause. Upon termination or suspension, your right to access the Site, the Applications and use the Services will immediately cease. We may discontinue, temporarily or permanently, all or part of the Services with or without notice. If your access to the Services is suspended or terminated by us you agree that you will not attempt to access the Services by any alias or other disguised or fraudulent identity or otherwise without our express prior written approval and that, in the event of termination, you will destroy all Content in your possession, including all Applications. Upon termination of these Terms, any amount in your Wallet shall be refunded to you upon your request.
- 21.2 Waiver; Remedies. The failure by us to partially or fully exercise any rights or the waiver of any breach of these Terms by you shall not prevent a subsequent exercise of such right by us or be deemed a waiver by us of any subsequent breach by you of the same or any other term of these Terms. Our rights and remedies under these Terms shall be cumulative, and the exercise of any such right or remedy shall not limit our right to exercise any other right or remedy.
- 21.3 Copyright Infringement. Claims of copyright infringement should be sent to the agent listed under the Section “Contact Information”. We provide this contact information for purposes of the Digital Millennium Copyright Act only and reserve the right to respond to communication that is relevant for this purpose.
- 21.4 Severability. If any provision of these Terms is deemed unlawful, invalid, or unenforceable for any reason, then that provision shall be deemed severed from these Terms, and the remainder of these Terms shall continue in full force and effect.
- 21.5 Electronic Contracting and Notice. Your affirmative act of using the Services and/or registering for an Account constitutes your electronic signature to these Terms and your consent to enter into agreements with us electronically. ELPARKING may give notice by means of a general notice on the Services or electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, communication by the applications that allow the authentication for the use of the Services or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or upon the expiration of 12 hours after sending (if sent by email or telephone). You may give notice to ELPARKING, with such notice deemed given when received by ELPARKING, at any time by first class mail or pre-paid post to ELPARKING USA Inc., Attn: 309 W 21st Street, 5 Floor, 10010, NY
- 21.6 Assignment. You may not assign these Terms without ELPARKING's prior written approval. ELPARKING may assign these Terms without your consent to: (1) a subsidiary or affiliate; (2) an acquirer of ELPARKING's equity, business or assets; or (3) a successor by merger. Any purported assignment in violation of this section shall be void.