Terms of Service

June 1, 2016

AGREEMENT between YOU and
Applied Telemetrics Inc. (dba ‘PayBySky’)
(hereinafter referred to as “PayBySky”, “us” or “we”)

This is a terms of service agreement (the “Agreement” or “Terms”) between PayBySky and you that governs all access to and use of PayBySky’s parking payment and ancillary services as provided through an in-vehicle meter (a “SkyMeter”) and cloud based servers, as the same may, from time to time, be enhanced, altered or amended, including software, software updates, software upgrades, documentation, and reports contained or made available to you in the course of your use (collectively referred to as the “Service” or “Services”).

Please read this Agreement carefully. The Service and your access to and use of the Service may subject to other posted notices, communications, policies or codes of conduct (collectively, “Ancillary Provisions”). All Ancillary Provisions are incorporated by reference into this Agreement. By subscribing to and/or using any of the Service, you agree to be bound by this Agreement, including Ancillary Provisions, together with any modifications, from time to time, made to the Agreement or Ancillary Provisions. It is your responsibility to ensure that you have read and are familiar with the current version of the Agreement and Ancillary Provisions. If you do not agree to the terms and conditions in this Agreement and the Ancillary Provisions, do not subscribe to or use the Service.

“You” and “your” means you, your corporation, your employees, your agents and any persons whom you have designated as “authorized users” or “administrators” of the Service and, as the context warrants, your account. If the entity entering into this Agreement is a corporation or other legal entity, the individual acting on behalf of such corporation or legal entity represents that he/she has the authority to bind such corporation or entity to this Agreement.

THIS DOCUMENT CONTAINS INFORMATION REGARDING:
1. Your Account
2. Administering Your Account.
3. Data Privacy and Retention.
4. Accessing and Using Our Site and Services.
5. Our Provision of the Services.
6. Requirements for Use of Our Services.
7. Compliance With Laws.
8. Term and Termination.
9. Warranties.
10. Miscellaneous.

1. Your Account
1.1. Service. The basic PayBySky parking service covers parking in the city in which you have contracted with us and may cover street, lot and garage facilities. The PayBySky service will initiate and complete a parking event with the parking operators system without intervention from the driver. The Skymeter must be activated and all PayBySky and payment account information must be completed and up to date in order for the service to function. The driver will have to periodically check the power and operating LED on the Skymeter to ensure it is operational. The driver must ensure a solid green light shows up on the Skymeter for each parking transaction indicating that payment has been processed and registered. Full installation and regular service checks can be found at myPayBySky.com. Any ancillary services offered by PayBySky and contracted to by the user will be covered by this agreement.
1.2. Initiating Service. Following your acquisition and installation of a SkyMeter(s) and receipt of payment for any upfront and/or monthly based charges, PayBySky will activate your account and begin providing the Services which commence upon the Skymeter being installed (the date of the initial service activation represents the “Service Activation” or “Provisioning Date”).
1.3. myPayBySky.com. Activation of your account enables you to log in and use the account administration website “www.myPayBySky.com”. Your account will have multiple levels of security access, with the highest level being the administrative account (an “Admin Account”). When you activate your Admin Account, you will create your own password, which you must use in order to access and use the Services and make any changes to the account profile.
1.4. Account Information. You agree that any information you provide in creating your Admin Account is complete and accurate, and you agree to keep it up to date. For example, we provide some notices by email and you agree to keep your admin account email current and valid as a method for providing notices under these Terms.
1.5. Fees. Prices and terms of payment for the Service options you select will be at published rates, unless specifically agreed to under a separate pricing agreement. You agree to pay a monthly interest charge on overdue amounts calculated on an annual rate of interest of eighteen percent (18%) from the date the amount is overdue.

2. Administering Your Account.
Your Admin Account allows you to designate and manage who has access to the Services (“Users”), and to track and report on vehicle activities, as well as perform other administrative functions. You are responsible for selecting your passwords, maintaining the confidentiality of your passwords, and internal management or administration of the Services for your Users. You agree that PayBySky has no liability with regard to the use of such passwords by third parties. You are responsible for any and all use of the Services and your Account, even if the result of unauthorized use arising from improper use of your passwords. You agree to notify us immediately if you have any reason to believe that the security of your account has been compromised, whereupon we will take such reasonable action as is available to mitigate the situation.

3. Data Privacy and Retention.
We will comply with the Privacy Policy (found at http://www.PayBySky/privacy-policy/) in handling and using your User Data, and we will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your User Data that are consistent with industry standards for similar services. “User Data” means the information generated by our Services and submitted into our system. Unless required by law, upon termination of this Agreement and your use of the Service, PayBySky is not obligated to retain User Data for more than three (3) months before being deleted.

4. Accessing and Using Our Site and Services.
4.1. Subscription Services. Subject to all of the terms and conditions of this Agreement, including your payment of any required fees, PayBySky will make the Services available to you.
4.2. Restrictions. You will not use the Services for any unlawful purpose or contrary to this Agreement. You will (1) ensure that your Users comply with this Agreement; (2) use commercially reasonable efforts to prevent unauthorized use of the Services; and (3) use the Services only in accordance with the User Guide and applicable laws and government regulations.
4.3. Hardware Requirements. In order to utilize Services, you must acquire, install and activate a SkyMeter in each vehicle for which Services are required.
4.4. Hardware Transfers. SkyMeter, PayBySky’s interface hardware, may be sold or transferred to another PayBySky account. You will need to notify us through your Administrator Account if you wish to transfer your Skymeter to another account.

5. Our Provision of the Services.
5.1. User Guide. We describe the main functions of our Services in the instructions and manuals we make available via our “User Guide”, which is available at: www.myPayBySky.com. When we update and enhance the Services we will update the User Guide from time to time.
5.2. Technical Support. As part of our Services, we will make our standard technical support available to you. Such support may, in PayBySky’s discretion, include on-line help, FAQ’s, training guides and templates and the use of live help.
5.3. Installation. The Skymeter is designed to be user installed. It is mandatory that it is installed in accordance with the instructions that come with the unit. If there are any questions or assistance is needed to install the Skymeter, the user must contact Customer Support at 1-888-237-7077 ext 900, or email at support@paybysky.com for further assistance, instructions or to arrange for help to install the unit.
5.4. On-going operations. You or the vehicle operator must ensure the Skymeter is installed according to instructions provided with the Skymeter. It is your responsibility to make sure that the unit is receiving power and is in an operational state. Failure to do so may result in parking citations for non-payment. The costs of these citations will be your responsibility. PayBySky will not accept any liability for parking citations if the unit is not powered on, or is in a non-operating state
5.5. Other Services from PayBySky. PayBySky may also provide other services, such as administrative log books, location based tracking and geofencing and other services as they become available.

6. Requirements for Use of Our Services.
6.1. Availability. The PayBySky Service is a real time active service. It requires the Skymeter to have access to power and information from the vehicle and surrounding environment at all times in order to function. Any disruption in power, signal jamming or disruption of information flow will disable the Service and void all service level performance stipulated in this Agreement and publicly.
6.2. The PayBySky service starts and stops parking transactions. You are responsible to ensure there are sufficient funds available in your payment account to cover any and all parking transactions that will be initiated by the Service. Failure to maintain sufficient funds in the payment account may result in parking tickets or fines, which will be your responsibility or that of the vehicle owner. PayBySky will not accept any liability for any charges, fines or fees related to non payment if the account is suspended or deactivated. Any change to the payment account status or connection information must be updated by you through the Admin Account.

7. Compliance With Laws.
You agree to comply with all federal, state, provincial, and local/municipal laws, rules, and regulations related to or connected with use of the Services, and you assume all liability and responsibility for your use of the Services. If PayBySky reasonably determines that you are not in compliance with applicable laws in your use of the Services, we reserve the right to immediately suspend or terminate your use of the Services, and you will be solely responsible for any penalties and other sanctions for legal noncompliance.

8. Term and Termination.
8.1. Term. This Agreement commences on the Service Activation Date and shall continue for twelve (12) months (“Initial Term”) and shall automatically renew for consecutive one (1) year periods (each a “Renewal Period” and all Renewal Periods together with the Initial Term, the “Term”) thereafter, unless either party has provided notice of its intent not to renew this Agreement, which notice must be given in writing not less than sixty (60) days prior to the expiry of the Initial Term or a Renewal Period, as the case may be. Either party may terminate this Agreement for cause on sixty (60) days written notice of a material breach to the other party if the breach remains uncured at the expiration of the notice period. Non-payment of any service or other fees when due is a material breach.
8.2. Suspension of Services. We may suspend or terminate your use of the Services if: (i) we have reason to believe you are using the Services in a manner that may cause harm to us or to a third party, including actions that violate any applicable laws, rules or regulations; or (ii) you fail to pay, when due, any Service or other fees; (iii) you fail to comply with the terms of this Agreement.
8.3. Effect of Termination. Upon termination or expiration of this Agreement we will make your User Data available to you (either from www.myPayBySky.com or through a third party offsite storage provider) for up to thirty (90) days after termination. After that thirty (90) day period, you will lose access to any data and we will have no obligation to maintain any, and will have the right to delete, all data related to the expired or terminated Agreement and we will have no further obligation to make such data available to you. Termination will not relieve you of the obligation to pay any fees due or payable to PayBySky incurred prior to the effective date of termination.

9. Warranties.
9.1. Warranty. Each party represents and warrants to the other party that (i) it has the power and authority to enter into and perform all obligations under this Agreement, and (ii) it will comply with all applicable laws in its performance under this Agreement.
9.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, PAYBYSKY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, THIRD-PARTY SERVICES, OR MATERIALS PROVIDED BY PAYBYSKY, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS. You agree that the Services may be inaccessible or inoperable due to scheduled periodic maintenance and upgrades or for reasons beyond our reasonable control including but not limited to (i) equipment malfunctions, or (ii) service interruptions caused by independent telecommunications providers that provide data connectivity to our data centers.
9.3. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL AND PUNITIVE/EXEMPLARY DAMAGES TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT IN CONNECTION WITH A MISAPPROPRIATION OF INTELLECTUAL PROPERTY, OR OBLIGATIONS UNDER SECTION 2 (DATA PRIVACY) OR SECTION 11 (MUTUAL INDEMNIFICATION), THE AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER FOR DAMAGES UNDER OR ARISING FROM THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR IN TORT) WILL BE LIMITED TO THE TOTAL AMOUNT PAYABLE TO PAYBYSKY IN ONE (1) MONTH OF SERVICE OR THE EQUIVALENT OF $50 CAD (WHICHEVER IS GREATER) PRECEDING THE APPLICABLE CLAIM UNDER THIS AGREEMENT.

10. Miscellaneous.
10.1. Counterparts; Fax and/or Scanned Signatures. The Agreement is deemed to have been accepted on the date the Provisioning of PayBySky Services commences.
10.2. Governing Law; Venue. The validity, construction and interpretation of the Agreement will be governed by the internal laws of the Province of Ontario, Canada.
10.3. Assignment. You may not assign this Agreement to a third party by operation of law or otherwise, without our prior written consent.
10.4. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
10.5. Interpretation. Headings in the Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement. If any provision of the Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under the Agreement will be construed as a waiver of such right or power. A waiver by either party of any breach by the other party will not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights.
10.6. Amendments. From time to time, PayBySky may amend these Terms in its sole discretion. PayBySky will post the amended terms on the PayBySky website and will further notify you of any material changes by promptly sending an email or posting a notice in your Admin Account. These amendments will be posted 30 days prior to the amendment coming in effect. By continuing to access or use the Services after PayBySky has provided you with such notice of a change, you are indicating that you agree to be bound by the modified Terms. Any renewed subscription will be governed by PayBySky’s then-current Terms.