Marketing Services Agreement

This Marketing Services Agreement (“Agreement”), together with any applicable Marketing Services Order Form (“Order Form”), governs Client’s (as defined below) use and access to SpotHero, Inc.’s (together with its affiliates and subsidiaries, including SpotHero Canada Inc., (“Company”)) Marketing Services (as defined below). By accepting this Agreement when executing an Order Form that references this Agreement or using and accessing Company’s Marketing Services at any time, Client agrees to the terms of this Agreement.

Company may change, add, or delete the terms and conditions outlined herein from time to time in its sole discretion. Client will receive notice via an e-mail address associated with Client's business account in the event material changes are made. A Client’s continued use of the services outlined in this Agreement now or following the posting of any such notice of any changes will indicate acceptance by the Client of such modifications.

This Agreement is entered into by Client and Company. Client means the entity or individual set forth in the applicable Order Form who utilizes or otherwise accesses Company’s Marketing Services. Company and Client are each sometimes individually referred to as a “Party” or collectively as the “Parties”.

WHEREAS, Company and its affiliates own and maintain websites and mobile apps (collectively, the “Website”), through which it provides marketing services to owners and/or operators of parking facilities or locations and through which end users (“Customers”) may reserve parking spaces electronically in such parking facilities or locations, whether through a computer or using their mobile phone;

WHEREAS, Client manages, operates and/or owns various parking facilities or locations and desires to have Company provide certain Marketing Services (as defined below) in connection with Client’s parking operations, pursuant to the terms of this Agreement.

The Parties hereby agree as follows:

1. Definitions. Capitalized terms used in this Agreement will have the following meanings:

(a) “Drive Up Rate” means the rate Client charges to its clientele who purchase the use of parking spaces directly from Client.

(b) “Monthly Parking Spot” means a parking spot reserved by a Customer via the Website for a period of at least one (1) calendar month.

(d) “Parking Spot Inventory” means a quantity of both Monthly Parking Spots and Transient Parking Spots for which Client specifically authorizes Company to accept Reservations.

(e) “Reservation” means a Customer’s reservation made via the Website for either a Monthly Parking Spot or a Transient Parking Spot.

(f) “Reservation Price” means the full price paid by a Customer and collected by the Company for a Reservation (but excluding any amounts explicitly described herein as not constituting any part of the “Reservation Price”). Client shall set the Reservation Price pursuant to Section 8 (Responsibilities of Client) of this Agreement. The Reservation Price shall be the full price the Customer pays for the Reservation, which includes the price of the parking, applicable taxes, commissions, and fees (except as otherwise provided herein with respect to the additional fees described in Section 3 (Commission, Charges, and Payment for Marketing Services)).

(g) "Taxes" shall mean any sales, use, parking, or other taxes, duties, levies and charges.

(h) “Transient Parking Spot” means a parking spot reserved by a Customer via the Website for a period of less than one (1) calendar month for a specified date or specified dates.

2. Marketing Services. During the Term of this Agreement, Company and its affiliates shall market and advertise the Website, market to customers for a Monthly or Transient Parking Spot, display on the Website and other partner platforms (as determined by Company) the Parking Spot Inventory, process Reservations and collect the Reservation Price from Customers (the “Marketing Services”) on behalf of Client. Company shall also provide Client a monthly report showing Reservation data. Customer’s payment to Company satisfies the obligation to pay for the Reservation. Company assumes no other Customer obligations or liabilities associated with the Marketing Services unless expressly provided herein. In order to carry out Company’s responsibilities under this Agreement, Client provides Company with a worldwide, non-exclusive, royalty-free license to use Client’s intellectual property, such as its trademarks, copyrights and images. Company shall be required to cease such use (or any specific use) within 30 days of its receipt of written notice from Client of Client’s request for Company to cease such use (or any specific use). In the event that Client is not the owner of a parking facility or location in which Customers reserve parking spaces pursuant to this Agreement, Client shall indemnify and hold harmless Company for any liability, claims, suits, actions, debts, damages, costs, charges, and expenses, including court costs and attorneys’ fees, incurred by Company (collectively, “Claims”) relating to Company’s use of Client’s intellectual property or Company’s intellectual property in any such parking facility against such owner. The parties acknowledge that Company neither owns nor operates the parking facilities or locations and it has no license to use or operate the parking facilities or locations.

3. Commission, Charges and Payment for Marketing Services. No later than the fifth (5th) day of each month, Company shall prepare and deliver to Client, or make available electronically to Client, a statement (“Monthly Statement”) detailing all parking reservations that occurred during the prior month. Within thirty (30) days following such fifth (5th) day, Company shall issue payment to Client for the reported aggregate Reservation Prices, less Company’s commission as set forth in the applicable Marketing Services Order Form and, if applicable, less any Taxes applicable to the Reservation Price that are owed to a jurisdictional authority where Company has, in its sole discretion, decided to remit such Taxes on Client’s behalf. For the avoidance of doubt, the aggregate Reservation Prices (less Company commission) paid to Client shall include all applicable Taxes related to the Reservation, unless Company has, in its sole discretion, decided to remit applicable Taxes to a jurisdictional authority on Client’s behalf (in accordance with the foregoing sentence). Customer’s payment to Company satisfies the obligation to pay for the Reservation. Further, Company may also from time to time, in its sole discretion, elect to charge Customers an additional convenience/service fees (or other SpotHero-specific fees), which shall not constitute any part of the Reservation Price.

4. Taxes. Aside from the limited circumstances set out below in this section, Client shall be responsible for the payment of all Taxes, the preparation and filing of all tax documentation, and the compliance with all applicable tax laws in connection with the operation of its parking facilities and the revenue (including the Reservation Price) collected from Customers in connection therewith. Company shall have no responsibility for payment or collection of any Taxes implicated by rules or ordinances regarding the use, privilege or service of parking a motor vehicle. Client shall indemnify Company for all Claims due to Client’s failure to properly and timely file and/ or pay any applicable sales, parking, use, lease, tangible personal property, excise, income or other taxes. Company cannot and does not offer tax-related advice to you. In order to comply with applicable law (as determined by Company in its sole discretion), in limited circumstances, Company will calculate and remit applicable Taxes on Client’s behalf to applicable jurisdictional authorities based on the Reservation Price (which in all cases is set by Client). If Company has decided, in its sole discretion, to remit any Taxes on behalf of Operator, such Taxes amounts calculated for remittance by Company will be reflected in the Monthly Statement, as described in Section 3 above. Company reserves the right to withhold the payment of any amounts owed to Client and pay such amounts to the applicable jurisdictional authorities, as required by applicable local, state, provincial, national or other law, rule, regulation, ordinance, statute, judgment or order, in each case as determined by Company in its sole discretion, or to seek later payment from Client for any amounts of Taxes uncollected and unremitted related to Client’s use of Company’s Services (e.g., due to tax registration information provided by Client being incorrect).

5. Refunds and Adjustments.

(a) Customer Complaint.

i. In the event of a Customer complaint, Company shall determine, in its reasonable discretion, if Client failed to meet its obligations and may make adjustments, in its reasonable discretion, to the Monthly Statement.

ii. The above described adjustments shall not exceed the cost of the associated Reservation.

(b) Drive Up Rate Adjustments.

i. In the event that the Drive Up Rate is less than the Reservation Price at the time of the Reservation or when the Reservation is redeemed, Company, in its reasonable discretion, may provide a complete or partial refund to the Customer and may make adjustments accordingly to the Monthly Statements.

ii. The above described adjustments shall not exceed the cost of the associated Reservation.

i. In the event Company is required to refund or issue credit in lieu of a refund for any amount paid via the Website (including for credit card fraud), Company shall not be required to remit such amount to Client and if Company has already paid such amount to Client, Company shall be entitled to a refund or alternatively may offset such amount against future amounts owed by Company to Client.

6. Term and Termination. This Agreement shall commence on the Effective Date and shall continue for a period of one year (the “Initial Term”). Thereafter, this Agreement shall automatically renew upon these same terms and conditions for successive one-year periods (each a “Renewal Term”). Such automatic renewal shall occur unless either Party provides written notice indicating its intent that the Agreement not renew to the other Party at least thirty (30) days prior to the expiration of the then-existing Initial Term or any Renewal Term, as the case may be. The Initial Term and each Renewal Term are collectively referred to as the Term. Notwithstanding anything to the contrary herein, either Party may terminate this Agreement upon thirty (30) days written notice to the other Party. Any terms or provisions of this Agreement, including, but not limited to, those affecting warranties, indemnities, limitation of liability, which by their nature extend beyond the expiration or termination of this Agreement shall remain in effect and survive the termination or expiration hereof. In the event that either Party believes that the other has materially breached any obligations under this Agreement, such Party shall so notify the breaching Party in writing. The breaching Party shall have ten (10) days from the receipt of notice to cure the alleged breach and to notify the non-breaching Party in writing that cure has been effected. If the breach is not cured to the reasonable satisfaction of the non-breaching Party within such ten (10) day period the non-breaching Party shall have the right to immediately terminate this Agreement.

In the event of termination by either Party, Client shall honor all Reservations created prior to and including the date of termination and all provisions hereunder shall remain in effect as related to such Reservations.

7. Representations and Warranties. Client and Company each hereby individually represent and warrant that: (i) it has the full authority and legal right to carry out the terms of this Agreement; (ii) the terms of this Agreement will not violate the terms of any agreement, contract, or other instrument to which it is a party and no consent or authorization of any other person, firm, agency or corporation is a condition precedent to this Agreement; and (iii) this Agreement is a legal, valid, and binding obligation of Client and Company, as the case may be, enforceable in accordance with its terms, except as limited by bankruptcy and other laws of general application relating to or affecting the enforcement of creditors’ rights. Without limitation of the foregoing, Client also represents and warrants that it is either the owner of the parking facilities or locations used in the consummation of the transactions contemplated by this Agreement or that it has the explicit written consent and authorization as required by law and/or pursuant to any agreement, written or otherwise, to permit the consummation of the transactions contemplated by this Agreement. Client further represents and warrants that it owns or otherwise has sufficient legal right to use (and allow Company to use) any images provided to Company for use on the Website.

8. Responsibilities of Client.

(a) Client shall: (i) provide Company with its Parking Spot Inventory for each month no fewer than seven business days prior to the first day of such month and shall also provide the Drive Up Rate and Reservation Price for such Parking Spots at that time; (ii) notify Company 72 hours prior to making any changes to the Drive Up Rate or Reservation Price; (iii) honor all Reservations and provide for the use of the reserved parking spot to Customers; (iv) ensure that Customers who purchase a Monthly Parking Spot through the Website shall have the option of purchasing monthly parking in the same parking lot for a period of six additional months immediately following the month reserved on the Website at the same Reservation Price; (v) use its best efforts to provide the highest service levels reasonably possible under the circumstances to Customers; (vi) ensure that the garages and facilities managed by Client adhere to the terms and conditions of this Agreement; (vii) provide true and correct information relating to the Parking Spot Inventory to Company (including with respect to on-site amenities) and provide prompt notice to Company of any changes thereto; (viii) not list a Reservation Price that is greater than the Drive Up Rate; and and (ix) comply at all times with Company’s policies and procedures as they may be established, stated and/or modified from time to time at the Company’s sole discretion. Upon written request from Company, Client shall be required to provide to Company a current copy of its liability and property insurance coverage, as well as any applicable tax registration(s)/certificates and business license number(s). If Company requests such information, Client agrees to provide such information within ten (10) business days, and Client represents and warrants that the information provided is true and correct. Company reserves the right to temporarily or permanently disable or remove Client’s listings from the Website and/or other partner platforms in the event that (i) Company has reason to believe that any of the foregoing responsibilities, or any of Client’s other representations herein, are no longer true, (ii) Company determines in good faith that it is in the best interest of Company and its Customers or (iii) Company determines that it is appropriate to investigate the listings in connection with a dispute related to such Parking Spot Inventory.

(b) In the event that any Customer (at the time such Customer is parking a car in connection with a Reservation) receives a ticket issued by a parking enforcement representative working on behalf of Client (a “Private Ticket”), and Company determines, in its sole discretion, that such Private Ticket was issued erroneously, then upon notice by Company to Client, Client shall reverse the Private Ticket, ensure that Customer is not liable for payment of the Private Ticket and reimburse such Customer for any actual out of pocket expenses incurred as a result of such error. Client shall not be entitled to payment of any portion of the Reservation Price paid by a Customer that is erroneously issued a Private Ticket.

9. Pricing Tool for Clients (a/k/a Flex Rates): Client is responsible for setting and managing the Reservation Price for Parking Spots listed by Client for reservation on Company’s Website. In its sole discretion, Company may offer Client a pricing tool for Client’s Parking Spots (“Pricing Tool”) allowing Client to generate Reservation Prices for Parking Spots listed by Client on Company’s Website based on customized Reservation Price inputs (“Inputs”) set by Client in accordance with Section 8 (Responsibilities of Client) of this Agreement. At all times, Client shall maintain the ability to adjust the Inputs through use of the Operator Dashboard currently available at https://spothero.com/control-panel or by contacting the Company’s Seller Support team. In the future, Company reserves the right to utilize this Pricing Tool as the exclusive method for allowing Client to set prices for Parking Spots listed by Client for reservation on Company’s Website. If, at that time, Client does not wish to utilize the Pricing Tool, Client shall notify Company and Company shall immediately remove any Parking Spots listed by Client from Company’s Website.

10. Indemnification.

(a) Client agrees to defend, indemnify and hold Company harmless against any and all third party Claims arising from or relating to Client’s breach of this Agreement, as a result of any violation of any applicable law or regulation by Client or as a result of or in connection with any cost or claims in connection with any property damage to vehicles, casualty, personal injury or security incidents occurring at any parking facility used in the consummation of the transactions contemplated by this Agreement. For purposes of example, and without limiting the generality of the preceding sentence, in the event a Customer's vehicle is towed and SpotHero deems it appropriate to reimburse Customer for the cost of such tow, Client will be responsible for indemnifying Company for such costs either through an adjustment to Client's Monthly Statement or direct payment by Client to Company.

(b) Company agrees to indemnify and hold Client harmless against any and all third-party Claims (including claims by third party providers engaged by Company) arising from or relating to Company’s breach of this Agreement or as a result of any violation of any applicable law or regulation by Company.

11. Limitation of Liability. Neither Party shall be liable to one another for any special, consequential (even if a Party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses of any kind or any lost or imputed profits arising out of this Agreement or the termination thereof, however caused, and whether based in contract, tort (including negligence), product liability or any other theory of liability regardless of whether such Party has been advised of the possibility of such damages, losses, costs or expenses. Each Party hereto waives any claims that these exclusions deprive such Party of an adequate remedy. Except for liabilities resulting from either Party’s willful misconduct or gross negligence or from either Party’s indemnification obligations set forth above, each Party’s liability to each other shall not exceed the total amount of the Fees paid or payable by Company to Client within the one-year period immediately preceding the date that the alleged wrongful act first occurred.

12. Compliance with Laws. Company and Client shall comply with all laws, rules, and regulations, whether local, state, provincial, or federal, applicable to the sale of Parking Spots and to the providing of Marketing Services, but only to the extent such laws, rules and regulations are applicable to it.

13. Confidentiality. In connection with entering into and performing under this Agreement, each Party may receive or have access to commercially valuable technical and non‑technical confidential or proprietary information of the other Party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including but not limited to, source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, payment terms, this Agreement, marketing and business plans, information concerning such Party’s vendors, and such Party’s contemplated plans, strategies and prospects (“Confidential Information”). In addition to the foregoing, each Party recognizes that the other Party may have received and in the future may receive confidential or proprietary information of a third party (“Third Party Confidential Information”). Any Third Party Confidential Information disclosed by one Party to the other Party shall be deemed to be the disclosing Party’s Confidential Information. Except as expressly and unambiguously allowed herein, the receiving Party will hold in confidence and not disclose or use any Confidential Information of the disclosing Party and will similarly bind its employees and agents. Each Party acknowledges and agrees that any Confidential Information received or obtained from the other Party will be the sole and exclusive property of the other Party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law or requested pursuant to a bona fide legal, governmental or administrative process, the Party required or requested to disclose Confidential Information may disclose such Confidential Information in connection therewith; provided, that such Party will, to the extent legally permissible, provide notice to and reasonably cooperate with the other Party (at the other Party’s request and expense) so that the other Party may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing, Confidential Information shall not include, and neither Party will be liable for disclosure of, any information received by the receiving party under this Agreement if the information: (a) is or becomes generally available to or known to the public through no wrongful act of the receiving Party; (b) was previously known by the receiving Party through no wrongful act of receiving Party; (c) was independently developed by the receiving Party without reference to the Confidential Information; or (d) was lawfully disclosed to the receiving Party by a third party under no obligation of confidentiality to the other Party.

14. Proprietary Rights. Company owns and shall retain all right, title and interest in and to the processes, data and technology utilized in providing the Marketing Services, all information collected via the Website from Customers and all intellectual property (including, without limitation, all copyrights, trademarks, patents and know-how) associated therewith.

15. Privacy and Security. In the event that Company provides Client with any personal information of any Customer, Client agrees that (a) it is not receiving such personal information from Company or its affiliates as consideration for any services or other items provided to Client, (b) Client is prohibited from retaining, using or disclosing such personal information for any purpose other than for the specific purpose of performing the services relating to its relationship with the Company, including retaining, using or disclosing such personal information for a commercial purpose other than providing such services, (c) Client is prohibited from retaining, using or disclosing such personal information outside of the direct business relationship between it and the Company, and (d) Client will not further collect, sell or use such personal information except as necessary to perform the specific business purpose relating to the information provided. If Company is required to direct Client to delete any such personal information, Client agrees to comply with such request in accordance with applicable law. Client certifies that it understands, and will comply with, these restrictions. For purposes of this paragraph, “personal information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household; all terms in this section shall have the meanings ascribed to them under applicable law, including the California Consumer Privacy Act (“Act”), under which Client shall be considered a “service provider” and Company shall be considered the “business.” Client further agrees to implement and maintain reasonable security measures, procedures and practices to protect the Company’s Confidential Information, and Client agrees to maintain the confidentiality of, and safekeep and protect, Company’s Confidential Information (and any other information provided by Company to it) in accordance with all applicable laws, regulations, rules and guidelines, including but not limited to, protections under the Act.

16. Arbitration. Any controversy or claim arising out of or relating to this Agreement or the breach thereof, whether common law or statutory, shall be settled exclusively by arbitration in Chicago, Illinois, using in either case the American Arbitration Association. The arbitration shall be heard before three arbitrators, one to be chosen by Company, one to be chosen by Client, and the third to be chosen by those other two arbitrators. The arbitrators shall apply the internal law of Illinois in determining the rights, obligations, and liabilities of the parties. The arbitrators shall not have the power to alter, modify, amend, add to, or subtract from any term or provision to this Agreement, nor to grant injunctive relief, including interim relief, of any nature. Such injunctive relief may be pursued by Client or Company, as the case may be, from the federal and state courts of the state of Illinois. The availability of such relief shall depend upon proofs and showings required under the applicable law. In all other respects, the commercial rules of the American Arbitration Association shall govern the arbitration. Judgment on the award of the arbitrators may be entered by any court having jurisdiction to do so, and the parties to the Agreement hereby irrevocably consent and submit to the personal jurisdiction of the federal and state courts of the State of Illinois for this purpose as well as for any and all other purposes in connection with this Agreement. The failure or refusal of either Party to submit to arbitration as provided in this Agreement shall constitute a breach of this Agreement. If judicial action is commenced in order to compel arbitration, and if arbitration is in fact compelled, the Party that shall have resisted arbitration shall be required to pay to the other Party all costs and expenses, including reasonable attorneys’ fees, that it incurs in compelling arbitration. All other fees and charges of the American Arbitration Association shall be borne as the arbitrators shall determine in their award.

17. Miscellaneous.

(a) Governing Law; Jurisdiction; Legal Fees. This Agreement has been entered into and shall be governed, construed, and interpreted in accordance with the laws of the State of Illinois without reference to any conflicts of law principles. Each Party consents to the exclusive personal jurisdiction of the state and federal courts located in Cook County, Illinois and agrees that any claim against the other arising from or in connection with this Agreement shall be brought in such courts. In any legal proceeding relating to a dispute arising out of or relating to this Agreement, the prevailing Party shall be entitled to an award of legal fees and costs.

(b) Notices. Any and all notices and all communication provided for in this Agreement shall be given in writing. Such notices and other communications shall be deemed given upon delivery whether delivered by hand, by confirmed email message, via United States Mail, Registered or Certified, or via nationally recognized overnight courier service, to the respective Party. Client must send any notices under this Agreement (including breach notices) to Company, in English, at the following address, legal@spothero.com, and include “Attn. Legal Department” in the subject line. Company may send notices to the email addresses on Client’s account with Company or, at Company’s option, to Client’s last-known postal address.

(c) Assignment. This Agreement shall inure to the benefit of and be binding upon the parties and their successors and permitted assigns. This Agreement may not be assigned by either Party without the prior written consent of the other Party; provided, however, that, it may be assigned to any person, firm or corporation which purchases all or substantially all of the assets of either Party or to any person, firm, or corporation into which or with which either Party consolidates or merges.

(d)Amendments. Unless otherwise contemplated herein, this Agreement shall not be modified or amended except by a written agreement signed by authorized representatives of Client and Company.

(e) No Waiver. No failure or delay on the part of any Party in the exercise of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right. All rights and remedies under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.

(f) Anti-Corruption. You agree that you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of SpotHero's employees, agents or subcontractors in connection with this Agreement. You will use reasonable efforts to promptly notify SpotHero at legal@spothero.com should you learn of any violation of this restriction.

(g) Force Majeure. Neither Client nor Company shall be liable for any delay or failure in performance under this Agreement or interruption of service resulting, directly or indirectly, from acts of God, civil or military authority, act of public enemies, war, accidents, fire, explosions, earthquakes, floods, the elements, strikes, or any similar cause beyond the reasonable control of such Party (a “Force Majeure”), so long as, following the cessation of such cause, such Party uses its reasonable efforts to resume its performance hereunder.

(h) Relationship. Company shall be acting solely as a marketing and reservation provider for Client and nothing contained in this Agreement shall be construed to imply a joint venture or partnership relationship between the parties. Except as specifically set forth herein, neither Party by virtue of this Agreement shall have any right, power, or authority to act or create any obligations, express or implied, on behalf of or for the use of any other party, and Client and Company shall not be obligated, separately or jointly, to any third party by virtue of this Agreement. The Marketing Services are provided by Company to Client on a non-exclusive basis.

(i) Headings. The headings and section numbers appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or otherwise describe the scope or intent of the sections of this Agreement.

(j) Severability. If any one or more provisions of this Agreement shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired; provided, however, that in such case the parties agree to use their best efforts to achieve the purpose of the invalid provision by a new legally valid provision.

(k) Full Agreement. This Agreement, and any exhibits and addenda attached hereto, contain and embody the entire agreement of the parties hereto, and no representations, inducements, or agreements, oral or otherwise, made at any time between the parties or with any third party relating to the subject matter hereof which are not contained in this Agreement or in the exhibits or addenda, if any, shall be of any force or effect. Notwithstanding the foregoing, Client and its representatives may be granted access to a browser-based, online dashboard currently located at spothero.com/control-panel, and in connection with such access, Client agrees to comply with the terms and conditions governing such use, currently located at spothero.com/seller-terms-of-use (and as may be updated from time to time).

Effective Date: June 15, 2020.

Last Updated: June 15, 2023.