ZPS TERMS OF SERVICE
Last Updated: April 11, 2023
These Terms of Service (these “Terms”) apply to your access to and use of the websites, mobile applications and other online products and services (collectively, the “Services”) provided by Zark Parking Solutions, Inc. (“ZPS”, “we”, or “us”). By clicking “I Accept” or by using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 18. If you do not agree to these Terms, do not use our Services.
We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
These Terms are effective as of the date you first access or use our Services and remain effective until your access has been terminated under the terms of the agreement with us, you cease using our services, or we modify the Terms. We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and you continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If you have any questions about these Terms or our Services, please contact us at [email protected].
1. Description of Services
The Services include a parking space reservation solution provided through ZPS’ mobile application and website.
While ZPS provides certain parking reservation Services at ZPS Properties, ZPS does not own, operate, or maintain any parking facilities. You are solely responsible for following any parking restrictions or notices. All applicable parking rules and regulations apply to you and take precedence over any information provided by us.
As used in these Terms, the following capitalized terms shall have the indicated meanings:
“Authorized Vehicle” means, with respect to you or your Licensee, any motor vehicle listed in the applicable individual’s vehicle portfolio in the Services.
“Designated Time” means, with respect to you or your Licensee, a time period reserved by you or your Licensee through the Services during which your Authorized Vehicle or your Licensee’s Authorized Vehicle is authorized occupy a ZPS Parking Space at a specified ZPS Property.
“Fee” means, with respect to your Reservation of a ZPS Parking Space for an Authorized Vehicle of you or your Licensee, the amount due and payable to ZPS.
“Lease” means, if you are a Resident at a ZPS Property, your lease with the Owner of such ZPS Property.
“Licensee” means your guest or visitor, if you are the Resident at a ZPS Property and you are making a Reservation for the Authorized Vehicle of your guest or visitor.
“Losses” means any and all liabilities, claims, demands, damages, losses, fines, penalties, causes of action, suits, cost or expenses, of any kind or description, including, but not limited to, judgments, court costs, attorneys’ fees and amounts agreed upon in settlement.
“Owner” means, with respect to a specified ZPS Property, the Person that owns such Property.
“Payment Processor” means the third-party payment processor contracted by ZPS to accept payments directly from you through the Services.
“Person” means any entity or individual.
“Property Manager” means, with respect to a specified ZPS Property, the Person that manages such Property on behalf of the Owner.
“Reservation” means your reservation through the Services of a ZPS Parking Space at a specified ZPS Property for an Authorized Vehicle at a Designated Time.
“Resident” means an individual who leases a unit at a ZPS Property.
“Towing Agent” means the contracted vehicle towing company of the Owner or Property Manager of a ZPS Property.
“ZPS Parking Space” means a parking space at a ZPS Property that ZPS has contracted with the Owner or Property Manager to make available for temporary reservation to Residents and their Licensees.
“ZPS Parking Space Inventory” means, at any specified time at a specified ZPS Property, the parking spaces at such Property designated as ZPS Parking Spaces.
“ZPS Property” means a community or building whose Owner and/or Property Manager have contracted with ZPS to make parking spaces available for reservation through the Services.
You may use our Services only if you can legally form a binding contract with us, and only in accordance with these Terms and all applicable laws. By using our Services you hereby represent that you are eligible to form a binding contract with us.
If you make a Reservation for yourself, you hereby represent that you are a licensed driver and that your driver’s license has not expired or been suspended.
If you use our Services to make a Reservation on behalf of your Licensee (or your Licensee uses the Services to make a Reservation for his or her Authorized Vehicle): (a) all references to “you” throughout these Terms will also include your Licensee; (b) you hereby represent that you are authorized to accept these Terms on your Licensee’s behalf, and that your Licensee is a licensed driver and whose driver’s license has not expired or been suspended; (c) you and or your Licensee either own, lease, or are a permitted driver of the Authorized Vehicle; (d)you further hereby represent that you are a Resident at the ZPS Property where the Reservation is made, that your Licensee is permitted to enter onto such ZPS Property, that your Licensee’s entry onto such ZPS Property does not constitute a trespass or other violation of any applicable laws or court orders (including injunctions against harassment), and that your Licensee will enter onto the ZPS Property solely for authorized, lawful, personal and non-commercial purposes; (e) you are solely responsible for communicating these Terms to your Licensee and ensuring that your Licensee fully understands them; and (f) in the event that your Licensee violates these Terms, both you and your Licensee agree to be responsible and liable to us, the Owner and the Property Manager for any and all Losses caused by, arising from or attributable to such violation.
If you use our Services to make a reservation for your Authorized Vehicle at a ZPS Property at which you are not a Resident, you hereby represent that: (i) you have been invited to enter onto such ZPS Property by a Resident at such Property; (ii) you are entering onto such ZPS Property solely for authorized, lawful, personal and non-commercial purposes; and (iii) your entry onto such ZPS Property does not constitute a trespass or other violation of any applicable laws or court orders (including injunctions against harassment).
5. User Accounts and Account Security
- Account Registration. You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You will be required to verify your email address. ZPS may approve or reject your account application for any reason.
- Account Security. You must maintain the security of your account. You may not permit others to use your account credentials. If you discover or suspect that someone has accessed your account without your permission, you must notify us promptly in writing if you discover or suspect that someone has accessed your Account without your permission. You are responsible for use of the Services in connection with your account (including the acceptance of a binding offer or the entering into a contractual obligation).
6. Fees and Payment Processing
You may be required to pay a Fee to reserve a ZPS Parking Space through our Services. You will have an opportunity to review and accept the applicable Fee that you will be charged. All Fees are in U.S. Dollars and are non-refundable, except as expressly provided herein. We may change our Fees, from time to time, and will notify you via email in advance of your making any reservation to which the Fee applies, but with no advance notice required for any changes that result in the reduction of Fees.
You hereby authorize ZPS’s designated Payment Processor to charge your credit card on file with ZPS whenever: (a) you incur Fees to make a Reservation; (b) the Towing Agent tows an Unauthorized Vehicle belonging to you I your Licensee; or (c) there is a claim for which ZPS is entitled to indemnity from you or your Licensee under the Terms. You hereby agree to provide ZPS and/or the Payment Processor with updated credit card information upon request. ZPS does not directly collect or retain personally identifiable payment information.
7. Additional Terms
You hereby further understand, acknowledge and agree as follows:
- Your use of our Services is expressly conditioned on your compliance with these Terms. We reserve the right to cancel any transactions or Reservations in violation of these Terms or applicable law.
- After the transaction, you may be prompted to leave feedback on your experience with the Services. Any such feedback constitutes Feedback, as defined below.
- Reservations may not be cancelled by you or your Licensee, and Fees are not refundable, except as expressly provided herein.
- Due to reasons outside of our control (including, but not limited to, the unavailability of parking spaces for any reason), we cannot guarantee or otherwise ensure that a ZPS Parking Space will be available at a ZPS Property at any time, or that a ZPS Parking Space to which you or your Licensee are assigned will continue I be available from the time of the Reservation through the Designated Time. Accordingly, we have the right, from time to time and in our sole discretion, to cancel any Reservation or to reassign any Reservation to a different ZPS Parking Space at the same ZPS Property. We will use commercially reasonable efforts to notify you through the Services of any such cancellation or reassignment in advance of the Designated Time.
- If we cancel a Reservation (other than due to your violation of these Terms or applicable law), we will refund any Fee you paid for such Reservation. Reassigned Reservations will not entitle you to a refund or an opportunity to cancel or otherwise modify the Reservation.
- If you or your Licensee is unable to park an Authorized Vehicle in a designated ZPS Parking Space at the Designated Time because an Unauthorized Vehicle is occupying the space at such time, you will promptly notify us of such inability through the Services. We will use commercially reasonable efforts to reassign the Authorized Vehicle to another ZPS Parking Space at that ZPS Property. If we are unable to do so, we will cancel the Reservation and refund the Fee you paid for such Reservation. The foregoing is your sole remedy with respect to the unavailability of any designated ZPS Parking Space at the Designated Time.
- We may terminate these Terms and your use of the Services at any time, with or without cause.
- Any one of we, the Owner and the Property Manager has the right to tow (or to request, instruct or cause the Towing Agent to tow) any Unauthorized Vehicle at any time, and if an Unauthorized Vehicle belonging to you is towed, you will be solely responsible for all fees, costs and expenses you incur to recover such vehicle from the Towing Agent, and we will not be responsible for any damage to, or loss of, your vehicle caused by any acts or omissions of the Towing Agent.
- We may, in our sole discretion, establish and, from time to time, modify: (a) the Fees; (b) any conditions, restrictions and requirements with respect to how far in advance a Reservation may or must be made; (c) any conditions, restrictions and requirements with respect to minimum and maximum Designated Times; and (d) any other conditions, restrictions and requirements with respect to the Services and Reservations.
- We do not have any direct control over any ZPS Property or the existence, availability, condition, quality, safety, suitability or legality of any ZPS Parking Space. We do not make, and we hereby expressly disclaim, any representations or warranties: (a) with respect to any of the foregoing, or (b) that you, your Licensees and your respective vehicles and other property will not be damaged or stolen at or on a ZPS Property.
- You will cause your Licensees to abide by (a) the same rules and regulations that apply your Lease to your u of parking spaces at the ZPS Property where you are a Resident, and (b) any and all other rules and regulations generally applicable to your guests and visitors under the Lease. Your Lease is hereby amended to incorporate the foregoing terms and conditions. If and to the extent that there are any conflicts or inconsistencies between the foregoing terms and conditions and the terms and conditions set forth in your Lease, from time to time, t] foregoing terms and conditions shall control and govern the relationship between you, on the one hand, and the Owner and/or Property Manager, on the other hand.
- You hereby represent and warrant to ZPS that each Authorized Vehicle of yours or your Licensee’s is in good repair and working order, has a current registration, and is in compliance with all applicable laws, including laws relating to insurance coverage of motor vehicles.
8. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. Without limitation of the foregoing neither you nor your Licensee will:
- Engage in any misconduct or malfeasance or engage in any dangerous (e.g., “tailgating”), negligent, fraudulent, illegal, harassing, threatening, intimidating, predatory or stalking conduct while at, on or in transition to a ZPS Property;
- Disclose any “gate codes,” passcodes or other information that a resident at a ZPS Property is not expressly authorized under the Lease to disclose to guests or visitors;
- Use or attempt to use another user’s account without prior written authorization from that user and ZPS;
- Sell, resell or commercially use our Services without our explicit authorization;
- Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
- Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services (or any components thereof);
- Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Copy, frame, or mirror any part or content of the ZPS application
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area our Services that you are not authorized to access;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
- Develop or use any applications that interact with our Services without our prior written consent;
- Bypass or ignore instructions contained in our robots.txt file;
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity the violates these Terms; or
- Cause or permit any third party to do any of the foregoing.
Enforcement of this Section 8 is solely at ZPS’s discretion, and any failure to enforce this Section 8 in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 8 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
You hereby agree to defend, protect, indemnify and hold harmless ZPS, the Owner and Property Manager of each ZPS Property, their respective affiliates and each of their and their affiliates’ respective directors, officers, managers, shareholders, members, partners, employees and agents, and each of them (each, individually, a “ZPS Party,” and, collectively, the “ZPS Parties”), for, from and against any and all Losses caused by, arising out of, resulting from, attributable or relating to or in any way incidental to any one or more of the foregoing, unless and except to the extent that any Losses are caused by or result from the negligent acts or willful misconduct of ZPS, its officers, employees or agents:
- Your access to or use of the Services or your conduct in connection with the Services;
- Your Feedback;
- Any breach or violation of these Terms by you or your Licensees;
- Any violation, misappropriation or infringement of any rights of another (including intellectual property right or privacy rights) by you or your Licensees;
- Any failure by you or your Licensees to adhere to covenants, rules and regulations specified in your Lease with respect to any ZPS Property where you are a Resident, including, but not limited to, covenants, rules and regulations that apply to your visitors and guests under the Lease;
- Any of your actions or omissions;
- Any inaccurate information you provide through the Services, whether intentionally or unintentionally, including, but not limited to, information about license plates or other vehicle identifying information of vehicles parked in a ZPS Parking Space or at a ZPS Property;
- Any of your Licensee’s actions or omissions while your Licensee is (a) at the ZPS Property at which you are Resident, or (b) in transit to or from such Property;
- Any bodily injury to any person, or damage to (or theft of) any Person’s vehicle or property, that is caused by or otherwise attributable to you or your Licensee;
- Any bodily injury to your Licensee, or any damage to (or theft of) your Licensee’s vehicle, while Licensee is (a) at the ZPS Property at which you are a Resident, or (b) on such Property or in transit to or from such Property (unless and except to the extent that such injury, damage or theft was directly caused by the wrongful acts of ZPS);
- Any failure by you or your Licensees to comply with applicable laws; or
- Any claims by your Licensees for consequential, indirect, incidental, special, exemplary or punitive damages.
You agree to promptly notify ZPS and another other applicable ZPS Party or Parties of any third-party claim, cooperate with the ZPS Parties in defending such claims and pay all fees, costs and expenses associated with defending such claims (including, but not limited to, attorneys’ fees). You also agree that, at the sole option of ZPS, the applicable ZPS Party or Parties will have control of the defense or settlement of any third-party claims. The foregoing indemnity obligations are in addition to, and not in lieu of, any other indemnity obligations set forth in any written agreement between you, on the one hand, and ZPS or any other ZPS Parties, on the other hand.
10. Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by ZPS or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable revocable license to access and use our Services. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
Our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of ZPS and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily submit or otherwise communicate to us any questions, comments, suggestions, ideas, origin or creative materials or other information about ZPS or our Services (collectively, “Feedback”). You understand that we may use (or decline to use) such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish or improve the Services or the Feedback in ZPS’s sole discretion. You understand that ZPS may treat Feedback as nonconfidential.
13. Third-Party Content
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. ZPS does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR SERVICES AND ANY CONTENT THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, ZPS DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE ZPS ATTEMPTS TO MAKE YOUR USE OF SERVICES AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUANTITY AND PERFORMANCE OF THE SERVICES.
15. Limitation of Liability
To the fullest extent permitted by applicable law, ZPS and the other ZPS Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if ZPS or the other ZPS Parties have been advised of the possibility of such damages.
The total liability of ZPS and the other ZPS Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greatest of: (a) $100.00; (b) the Fee paid by you for the Reservation that is the basis for the claim; and (c) in the case of a tow of your vehicle that is not authorized by these Terms, the actual, out-of-pocket fees, costs and expenses you actually pay to the Towing Agent to recover such vehicle.
The limitations set forth in this Section 15 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of ZPS or the other ZPS Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release ZPS and the other ZPS Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
17. Transfer and Processing Data
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
18. Dispute Resolution; Binding Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ZPS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.
No Representative Actions. You and ZPS agree that any dispute arising out of or related to these Terms or our Services is personal to you and ZPS and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or ZPS seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or ZPS seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and ZPS waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against ZPS or relating in any way to the Services, you agree to first contact ZPS and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to ZPS by email at [email protected] or by certified mail addressed to 16454 North 91st, Street, Suite 103, Scottsdale, Arizona 85260, Attn: Zark Parking Solutions, Inc. Legal Department. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and ZPS cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
All disputes submitted to JAMS will be resolved through confidential, binding arbitration before a single arbitrator, except for certain limited circumstances as expressly set forth under these Terms, in court. Arbitration proceedings will be held in Maricopa County, Arizona, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and ZPS agree that these Terms affect interstate commerce and that the enforceability of this Section18 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, ZPS, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and ZPS agree that for any arbitration you initiate, you will pay the filing fee, and ZPS will pay the remaining JAMS fees and costs. For any arbitration initiated by ZPS, ZPS will pay all JAMS fees and costs. You and ZPS agree that the state or federal courts of the State of Arizona and the United States sitting in Maricopa County, Arizona have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and ZPS will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 18 by email to [email protected]. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 19.
If any portion of this Section 18 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 18 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.
19. Governing Law and Venue
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of the State of Arizona, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Arizona or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Arizona and the United States, respectively, sitting in Maricopa County, Arizona.
20. Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
22. Electronic Communications
By creating a ZPS account or otherwise agreeing to these Terms, you also consent to receive electronic communications from ZPS (e.g., via email or by posting notices on our Services). You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
23. Additional Terms Applicable to Mobile Devices
The following terms apply if you install, access or use the Services on any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).
- You acknowledge that these Terms are concluded solely between us, and not with Apple, and ZPS, not Apple, is solely responsible for the iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the App Store will govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
- Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
- Maintenance and Support. You and ZPS acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of ZPS. However, you understand and agree that in accordance with these Terms, ZPS has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
- Product Claims. You and ZPS acknowledge that as between Apple and ZPS, ZPS, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s intellectual property rights, ZPS, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
- Legal Compliance. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Developer Name and Address. Any questions, complaints or claims with respect to the iOS App should be directed to:
Zark Parking Solutions, Inc. 16454 North 91st Street, Suite 103 Scottsdale, Arizona 85260 [email protected]or call toll free at 1-866-GET-ZARK (438-9275)
- Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using the Services.
- Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof).
The following terms apply if you install, access or use the Services on any device that contains the Android mobile operating system (the “Android App”) developed by Google, Inc. (“Google”):
- You acknowledge that these Terms are between You and us only, and not with Google.
- Your use of our Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where You obtained the Android App. We, and not Google, are solely responsible for our Android App and the Services and Content available thereon. Google has no obligation or liability to You with respect to Our Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to our Android App.
These Terms constitute the entire agreement between you and ZPS relating to your access to and use of our Services. Notwithstanding any other provisions of these Terms, Sections 8, 9, 11, 12, 14, 15, 16, 18, 19, 22, and 24 will survive any expiration or termination of these terms. The failure of ZPS to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or the Services, in whole or in part, without your prior written consent. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.