This License Agreement (“License”) is entered into by and between you and Predictive Logistics, Inc. d/b/a/ RigPark (“Company”, “we” or “us”).
Upon acceptance of your application by us, you agree to license to us on an exclusive basis the number of semi-truck parking spaces (“Spaces”) located on the Property set forth in your on-line application to be designated by you for use by our customers (“Customers”) for the parking of semi-trucks and trailers.
As a material inducement for us to accept your application and enter into this License, you represent and warrant to us the following: (a) you are the owner or leasee of the certain real estate located at the location provided to us in your on-line application (“Property”), (b) you have not licensed or leased the Spaces to any third party; (c) you has the legal right and authority to license the Spaces to us and to make them available for semi-truck parking; (d) the entry and performance of this License by you will not breach or lead to a breach of any agreements, including any lease relating to the Property, that you may have with any third party; (e) you have liability and other insurance in appropriate amounts and with appropriate coverages to insure against the risks associated with licensing the Spaces; (f) you have the requisite corporate power and authority to enter into this License; and (g) the Company and any Customer shall be entitled to quiet enjoyment of the Space without interference from you or any person holding title superior to you. The Company makes no warranties or representations, express or implied.
This License shall become effective on the later of: (a) the date set forth below, or (b) the date that we begin marketing the Spaces to the public. Unless earlier terminated in accordance with the terms hereof, this License shall have an initial term of the shorter of (a) three years or (b) the term of your lease (if the Space is located on leased property)(“Initial Term”) from the Effective Date, which term shall renew automatically at the end of the term unless either party shall have given written notice the other party at least ninety (90) days in advance of the expiration of the initial (or renewal) term (the Initial Term and any renewal term, the “Term”).
Either you or we may terminate this License with one day prior written notice without further liability if the other is in material breach of its obligations hereunder or in its representations and warranties and such breach continues for thirty (30) days following written notice from you or us of the breach. This License shall automatically terminate if you or we shall institute or have instituted against it bankruptcy, receivership, insolvency, reorganization or other similar proceedings under any section or chapter of the Federal Bankruptcy Code, as amended, or under any similar laws, if such proceedings have not been dismissed or discharged within sixty (60) days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admittance by a party of any involuntary debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of a party not involving the Federal Bankruptcy Code; or any corporate action taken by a party in furtherance of any of the above actions or the appointment of a receiver for all or substantially all of a party’s assets. We may terminate this License without any further liability at any time following the Effective Date upon thirty (30) days prior written notice.
The Company will set the prices for the use of the Spaces by its Customers from time to time as it shall determine in its sole an absolute discretion (as such price shall be set from time to time, the “Daily License Fee”).
The Company shall take payment from Customers for the Spaces. Any payment shall be net of any expenses associated with receipt of payment (e.g., credit card or bank fees) and uncollectible amounts. For the use of the Spaces, we agree to pay you seventy percent (70%) of the Daily License Fee paid by our Customers and such payment shall accrue when both of the following have occurred: (a) we have received payment from the Customer for the use of the Space and (b) the date and time that the Customer has reserved the Space has expired; provided, however, that if this License has been procured from Licensor for the Company by an agent of the Company, Licensor shall receive no Daily License Fee for the first sixty (60) days after the Effective Date (such payment by the Company for the use of the Spaces, the “License Payment”). The Company shall aggregate all net License Payments made by Customers during a month and shall pay you the aggregate License Payment for the month within thirty (30) days following the end of the month in which payments were received less any chargebacks for amounts paid in prior months which were refunded. The Company shall have the right to set off any undisputed amounts owed to you against any amounts, credits, damages or charges assessed by us against you.
During the Term of this License, you shall:
During the Term of this License, we shall:
In consideration of our obligations hereunder, during the Term of this License and for one (1) year following the expiration or termination of this License (“Exclusivity Period”), you shall not (a) directly or indirectly, license, lease, sublease, grant an easement, or otherwise grant, any third party any right to the Property to park any semi-truck on the Property for a fee, or (b) negotiate, make arrangements with, or otherwise enter into any agreement, contract or arrangement, with any third party to market the Property for the parking of vehicles.
You and we will hold all confidential and/or proprietary information received from the other in confidence during the Term of this License using the same degree of care it affords our own confidential information of like importance, but in no event less than reasonable care, and will not disclose any of the confidential or proprietary information to any third party without the disclosing party’s prior written consent, except as otherwise permitted herein. For the avoidance of doubt, the following shall be deemed the confidential and proprietary information of the Company: all confidential and proprietary information disclosed or to which Licensor becomes aware as a result of this License, including, but not limited to, the terms of this License, the names and companies of the customers for the Spaces, and any amount received under this License. We each agree to use the confidential or proprietary information solely for the purpose of performing our obligations under this License. A receiving party will return or delete, at the disclosing party’s option, all copies of confidential or proprietary information upon (i) the termination or expiration of this License or (ii) the earlier written request of the disclosing party. Notwithstanding the foregoing, confidential and proprietary information does not include any information to the extent it (i) is or becomes a part of the public domain through no act or omission on the part of the receiving party; (ii) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under this License; (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (iv) is released from confidential treatment by written consent of the disclosing party. We each acknowledge that a breach or threatened breach of this confidentiality obligation could cause the disclosing party irreparable damage and injury that would not be compensable by monetary damages alone and, accordingly, such disclosing party, in addition to all other available legal or equitable remedies, is entitled to seek injunctive relief against such breach or threatened breach by the receiving party, without the requirement of posting a bond or other security.
You and we, each at own sole cost and expense, shall indemnify, hold harmless and pay all sums of the other and the other’s affiliates, and their respective members, directors, officers, managers, shareholders, employees, representatives, agents, dealers, attorneys, successors and assigns (collectively, the “Indemnified Parties“), from and against any and all notices, charges, claims, demands, liabilities, damages, proceedings, obligations, judgments, actions, causes of action, suits, complaints, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs and fees, including costs of appeal) (collectively, “Losses“) arising out of, in connection with, or relating to: (a) personal injury, including death, and/or tangible property damage caused by the acts or omissions (including, without limitation, willful, negligent (active or passive), reckless or otherwise) of the Indemnifying Party or its Personnel; or (b) an action that arises out of, in connection with, or relating to, (i) a breach of the warranties and representation of the Indemnifying Party or (ii) a failure by the Indemnifying party or its personnel to comply with the terms of this License (each (a) or (b), a “General Claim”); provided, however, that the Indemnifying Party shall not be obligated to indemnify or hold harmless or pay sums of the Indemnified Parties for the Indemnified Parties’ own gross negligence or willful misconduct.
EXCEPT FOR A EACH PARTY’S OBLIGATIONS TO INDEMNIFY, DEFEND AND HOLD THE OTHER PARTY HARMLESS UNDER THE SECTION “INDEMNIFICATION”, EACH PARTY’S CUMULATIVE LIABILITY FOR ALL CLAIMS, CAUSES OF ACTION, LIABILITIES, DAMAGES AND LOSSES ARISING OUT OF OR RELATING TO THIS LICENSE (INCLUDING ANY PROCUREMENT DOCUMENT OR PURCHASE ORDER HEREUNDER), REGARDLESS OF THE FORM IN WHICH ANY ACTION IS BROUGHT (E.G., CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE), SHALL NOT EXCEED AMOUNTS DUE AND OWING FOR A PARTY’S REVENUE SHARE.
We each agree that, except as provided below, any and all claims or Disputes between you and us, in any way related to or concerning the website, apps, License or our services will be resolved by binding arbitration. This includes any claims against other parties relating to this License, the apps or services provided, licensed or billed to you. “Dispute” shall be given the broadest possible meaning and shall include any dispute, claim, or controversy arising from or relating to your use or access to the website, this License, or the license or use of the apps, including but not limited to: (1) all claims for relief and all theories of liability, whether based in contract, tort, statute, regulation, ordinance, fraud, or misrepresentation; (2) all disputes regarding the validity, enforceability or scope of this arbitration agreement (with the exception of its class action waiver); (3) all disputes that arose before this License; (4) all disputes that arise after the termination of this License; and (5) all disputes that are the subject of a putative class action in which no class has been certified. References in this provision to “us” include our parents, subsidiaries, affiliates, predecessors, successors, and assigns and our and their directors, officers, employees and agents. References in this provision to “you” include all beneficiaries of this Sublicense and all users of the apps.
If you do not wish to be bound by this arbitration agreement, you must notify us via electronic mail at email@example.com within 30 days of first accessing this Website, entering into the License, or downloading an app. Your written notification to us must include your full name and must clearly state that you do not wish to be bound by this arbitration agreement. Your decision to opt out of this arbitration agreement will not adversely affect your license of or your ability to use this Website, apps or our services or your ability to enter into the License.
For all disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve your claim by sending a written description of your claim via electronic mail to firstname.lastname@example.org. We each agree to negotiate your claim in good faith. If we are unable to resolve the claim within 60 days after we receive your claim description, you may pursue your claim in arbitration.
Notwithstanding any provision in this License to the contrary, if we change this arbitration agreement, you may reject the change without terminating or adversely affecting your ability to use or access this website, your entry into the License or the apps by notifying us via electronic mail to email@example.com within 30 days of the date of the change notice. If you do, you shall arbitrate any Dispute in accordance with the terms of this arbitration agreement. If you do not, you will be bound by the changes.
Because this License and your use of the Website, the apps and our services concern interstate commerce, this arbitration agreement shall be governed by the Federal Arbitration Act (“FAA”).
The party initiating arbitration must use:
American Arbitration Association (“AAA”)
335 Madison Avenue,
New York, NY 10017
Copies of their respective rules for consumer disputes and forms and instructions for initiating arbitration may be obtained by contacting them or visiting their websites. Any arbitration shall be conducted pursuant to the arbitration administrator’s rules for consumer disputes in effect when the arbitration is initiated except to the extent they are inconsistent with this arbitration agreement. If the arbitration administrator will not enforce this arbitration agreement as written, the parties shall agree on or mutually petition a court of competent jurisdiction to appoint a substitute arbitration administrator who will do so. The arbitrator shall enforce contractual, statutory and other limitation periods and shall honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered in any court having jurisdiction.
If we initiate the arbitration, we will notify you at any electronic e-mail address we may have for you. If you initiate the arbitration, you must notify us via electronic mail at firstname.lastname@example.org.
If your Dispute does not exceed $10,000, we will promptly reimburse your filing fee and will pay the arbitrator’s other fees, costs and expenses. (If you cannot pay the filing fee, you may request that we pay the filing fee directly.) If, however, the arbitrator finds that your Dispute is frivolous or brought for an improper purpose, you shall reimburse the filing fee to us and the payment of the arbitrator’s others fees, costs and expenses shall be governed by the arbitration administrator’s rules.
You may hire an attorney to represent you in the arbitration proceeding and may recover your reasonable attorneys’ fees and costs in arbitration to the same extent as you could in court if the arbitration proceeding is decided in your favor. We may hire an attorney to represent us in the arbitration proceeding but waive any right to recover our attorneys’ fees and costs if the arbitration proceeding is decided in our favor.
Unless you and we agree otherwise in writing, any arbitration hearings will be held in the county of your then-current account address or (if your account is closed) the last address at which we contacted you.
If the arbitration provision applies or you choose arbitration to resolve your disputes, then either you or the Company may start arbitration proceedings. You must send a letter requesting arbitration and describing your claim to our electronic mail address of email@example.com to begin arbitration. For claims less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Upon filing of the arbitration demand, we will pay all filing, administration and arbitrator fees for claims that total less than $75,000. For claims that total more than $75,000, the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, we agree not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law.
ARBITRATION INVOLVES A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR RATHER THAN A JUDGE OR JURY. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY NAMED IN THE ARBITRATION PROCEEDING AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, RELATING TO, ARISING OUT OF, OR IN CONNECTION WITH , THIS LICENSE WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER OF A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If a court or arbitrator determines in an action between you and us that this Class Action Waiver is unenforceable, the arbitration agreement will be void as to you. If you choose to pursue your claim in court by opting out of the arbitration provision as specified above, this Class Action Waiver provision will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt out requirements above.
If a claim proceeds in court rather than in arbitration, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Any written notice required or permitted to be delivered pursuant to this License shall be in writing and shall be deemed delivered: (a) upon delivery if delivered in person; (b) five (5) days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; or (c) one (1) business day after deposit with a national overnight courier, provided that confirmation of such overnight delivery is received by the sender, in each case addressed to the party on the first page of this License. This License shall be binding on the parties and their successors and permitted assigns. Except as provided in this Section, you shall not assign or otherwise transfer this License, or any part hereof, nor delegate any of its duties hereunder, to any third party without our prior written consent, which consent may be withheld in our sole and absolute discretion. This License may be assigned without your consent by us. Any assignments not permitted hereunder shall be void ab initio. If any provision of this License is found by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable any other part of this License, but the License shall be construed as not containing the particular provision or provisions held to be invalid or unenforceable. No delay or omission by either party to exercise any right occurring upon any noncompliance or default by the other party with respect to any of the terms of this License shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained. The laws of the State of Georgia will govern the construction and enforcement of all of the rights, duties, and obligations arising under, or relating in any manner to, the subject matter of this License, notwithstanding any conflicts of law principles that would apply the laws of another jurisdiction. EXCEPT AS PROVIDED BELOW IN THIS SECTION, ANY ACTION, SUIT OR PROCEEDING BROUGHT BY A PARTY THAT IN ANY WAY ARISES OUT OF, IN CONNECTION WITH, OR RELATES TO THIS LICENSE SHALL BE BROUGHT SOLELY AND EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN ATLANTA, GEORGIA, AND EACH PARTY IRREVOCABLY ACCEPTS AND SUBMITS TO THE SOLE AND EXCLUSIVE PERSONAL JURISDICTION OF SUCH COURTS IN PERSONUM, GENERALLY AND UNCONDITIONALLY WITH RESPECT TO ANY ACTION, SUIT OR PROCEEDING BROUGHT BY OR AGAINST IT BY THE OTHER PARTY. The parties agree and acknowledge that this License was the subject of negotiation and each party had an equal hand in drafting this License. The parties further agree any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this License. The parties acknowledge that they are independent contractors, and nothing set forth in this License shall be deemed or construed to render the parties as joint venturers, partners or employer and employee. Time is of the essence with regard to each of Licensor’s obligations hereunder. The division of this License into Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this License. The terms “this License,” “hereof,” “hereunder” and similar expressions refer to this License and not to any particular Section or other portion hereof and include any supplemental agreement. Unless something in the subject matter or context is inconsistent therewith, references herein to Sections are to Sections of this License.
This License sets forth the entire, final and exclusive agreement between the parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, arrangements, offers, negotiations and discussions, whether oral or written, between the parties. The parties hereby agree that email, electronic or any other similar non-physical signature methods (including, without limitation pursuant to “clickwrap”, “webwrap” or “shrinkwrap” agreements) will not constitute a “writing” under this Section and shall accordingly not constitute a valid means to effect an amendment to this License. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to this Agreement that are not executed by a duly authorized representative of a party; (b) any oral modifications to this License; and (c) any other amendments that are based on course of dealing, waiver, reliance, estoppel or other similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section.