MASTER SERVICES AGREEMENT

 

This MASTER SERVICES AGREEMENT (this “Agreement”) is made and entered into as of the date of acceptance by the entity agreeing to be bound by this Agreement (the “Operator”) as set forth in the “Registration Form” (as defined in section 3 below) and constitutes a binding agreement between the Operator and OOBEO, INC., a Georgia corporation with its principal office at 10502 Cypress Point, Bradenton, Florida 34202 (“Oobeo”).  Each of Oobeo and Operator are referred to as a “Party” and collectively, as the “Parties.” By clicking “I Agree” you represent and warrant that you are authorized to sign for and bind the Operator and that on behalf of the Operator, you acknowledge and agree that this Agreement constitutes a valid and binding agreement between the Operator and Oobeo.

 

W I T N E S S E T H:

WHEREAS, Oobeo is in the business of providing technology-enabled services to facilitate and enhance the provision of valet car parking services by operators (“Valet Parking”);

WHEREAS, Operator is engaged in the offer of Valet Parking (the “Operator Business”) for the vehicles (“Vehicles”) of individual customers (“Customers”) at locations and events pursuant to separate agreements with the location owner or event sponsor (the “Location/Event Sponsor”); and

WHEREAS, the Parties desire to enter into this Agreement to set forth the terms and conditions pursuant to which Oobeo shall provide certain identified applications, services and support to Operator in connection with the Operator Business during the “Term” (as hereinafter defined) for which Oobeo shall be paid the “Fees” (as hereinafter defined).

NOW, THEREFORE, incorporating the foregoing introductory language and recitals by reference and for and in consideration of the promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge and agree, the Parties agree as follows:

 

  1. General.  Oobeo owns and grants “Licenses” (as defined below) for an application called “Valetware©” (the “Application”) which can be used on any mobile device using applications obtained through Apple App or iTunes© or Google Play© stores (“Supported Devices”).  The Application is downloaded to Supported Devices for use by registered Operator personnel (“Authorized Personnel”) for use at Operator-operated locations (“Operator Locations”) to facilitate registration, tracking and payment for Valet Parking provided to Customers at an Operator Location.  As used herein, “License(s)” means one or more limited, non-exclusive, terminable, non-transferable licenses (without the right to sub-license), for use of the Application pursuant to the terms and conditions set forth in this Agreement and the End User License Agreement (“EULA”) for the Application located at https://www.oobeo.com/eula-apple/ for Apple devices and https://www.ooneo.com/eula-google/ for Google devices.
  2. Term. This Agreement and any Licenses granted hereunder shall be on a month to month basis (the “Term”) and may be terminated (a) by either Party at any time by written notice to the other Party, effective upon receipt of such notice by the non-terminating Party; and (b) otherwise as set forth in this Agreement.  
  3. Licenses and Location Personnel.  (a) Operator shall register at the Oobeo website (the “Operator Site” located at https://www.oobeo.com/login, by submitting or providing adequate information for Oobeo to prepare on behalf of Customer, a completed registration form (a “Registration Form”), with the required information, including information identifying the Authorized Personnel who will download and use the Application at Operator Locations and at all times in compliance with the EULA.  (b) Following submission and approval of a properly completed Registration Form, Oobeo shall notify Operator by email using the email address provided in the Registration Form (the “License Notice”), confirming the grant of and effective date for the License. The License Notice will also identify all Authorized Personnel. Provision of the License Notice shall constitute the grant of the License to Operator by Oobeo, in accordance with this Agreement.
  4. Fees and Payment.  (a) Oobeo currently offers the Licenses based on the number of Vehicles parked (“Parked Vehicles”) at Operator Locations during each month during the Term.  (b) Set forth on Exhibit 1, attached hereto and incorporated by reference, are the current monthly fees (the “License Fee”) to be charged based on the number of Parked Vehicles at Operator Locations under this Agreement. The License Fee can be changed by Oobeo with thirty (30) days prior written notice by Oobeo to Operator. (c) In addition to the License Fee, Operator shall pay a monthly credit card transaction fee (a “Transaction Fee” and together with the License Fee, the “Fees”) as set forth on Exhibit 1, which varies depending on whether (i) Operator utilizes its own credit card processor, or (ii) Operator utilizes Oobeo’s credit card processor. (d) Oobeo will track the number of Parked Vehicles at Operator Locations on a monthly basis and will provide Operator with a monthly report within then (10) days after the end each month during the Term (the “Monthly Statement”) identifying the number of Parked Vehicles at Operator Locations for the previous month.  (e) The License Fee will be based on the then-current License Fee schedule and the number of Parked Vehicles for the previous month and, along with the Transaction Fee for the previous month, will be deducted on the tenth (10th) day of each month during the Term from the payment account established by Operator and identified in the Registration Form (the “Operator Account”).  (f) Operator covenants and agrees to maintain an adequate balance in the Operator Account to pay all Fees and to provide Oobeo with automatic withdrawal rights for the Operator Account. (g) If Oobeo is unable to withdraw the relevant monthly Fees from the Operator Account when due and payable, it may, without liability to Operator, disable the passwords and accounts of Operator and Authorized Personnel and their access to all or part of the Applications, and Oobeo shall be under no obligation to provide any or all of use of the Applications to Operator or Authorized Personnel while Fees remain unpaid. (h) The Fees shall bear interest until paid at the lesser of (i) the maximum applicable legal rate on overdue commercial accounts on a per annum basis or (ii) eighteen percent (18%), the payment of which interest shall not foreclose Oobeo from exercising any other right or remedy that might be available.  (i) If Oobeo engages the services of any legal representation or debt collection agency in respect of any overdue Fees, Oobeo shall be entitled to recover the costs of such services and any other relevant expenses incurred recovering unpaid amounts from Operator.
  5.   Proprietary Rights.  Operator acknowledges and agrees that Oobeo owns all intellectual property rights in the Applications.  Except for the limited rights included in the License, this Agreement does not grant Operator or any Authorized Personnel any rights to or in patents, copyrights, database rights, trade secrets, trade names, trademarks (registered or unregistered), or any other rights or licenses of Oobeo.
  6. Operator Terms; Acceptance.  (a) Operator may, at its option, request that Oobeo present to the Customer the terms and conditions that govern the relationship between Operator and Customer (the “Operator Terms”). The Operator Terms shall at all times be consistent with and enable Operator to comply with its duties and obligations under this Agreement.   (b) If requested by Operator, then simultaneously with the provision to the Customer of the terms governing Oobeo’s relationship with the Customer (the “Oobeo Terms,” and together with the Operator Terms, the “Customer Terms”), Oobeo will present the Operator Terms for acceptance by each Customer. Any Customer that is either unable or unwilling to provide its mobile device number to Authorized Personnel or having provided such number fails to agree to the Customer Terms is referred to as a “Non-Oobeo Customer” and any Customer so providing and agreeing, is referred to as an “Approved Customer.”  (c) The Application shall not be used to provide Valet Parking to Non-Oobeo Customers and no Vehicle parking involving Vehicles of Non-Oobeo Customers shall be deemed a Parked Vehicle under this Agreement.
  7.   Other Operator Duties and Responsibilities. Operator shall (a) not permit any of its employees, agents or sub-contractors to use the Application unless such individual is included on a current listing of Authorized Personnel; (b) comply with all applicable laws, regulations and licensing and permit requirements with respect to its activities under this Agreement, including, without limitation, the timely payment of all federal, state and local taxes, and regulatory fees to the appropriate authorities associated with the operation of the Valet Parking at Operator Locations; (c)  ensure that Authorized Personnel use the Application in full compliance with this Agreement and the EULA; (d) use all reasonable efforts to prevent unauthorized access to, or use of, the Application, and, in the event of any such unauthorized access or use, promptly provide written notice to Oobeo; and (e) not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application or any of the intellectual property associated therewith, in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application or such intellectual property;
  8.   Customer Information.  (a) The Parties acknowledge and agree that Customer Information will be required of or obtained from or about Approved Customers by Authorized Personnel and that, as between Oobeo and Operator, the Customer Information is owned by and the property of Oobeo and that Operator has no rights in and to any Customer Information, except as may be expressly set forth in this Agreement. (b) As used herein, “Customer Information” includes “Personal Information,” “Public Information” and “Card Information” as those terms are defined in Oobeo’s Privacy Policy (the “Privacy Policy”), incorporated by reference, which is available at https://oobeo.com/privacy-policy/. (c) Oobeo shall not be responsible for any collection, loss, destruction, alteration or disclosure of Customer Information caused by any third party, including, but not limited to Operator, Authorized Personnel or any Location/Event Sponsor. (d) Operator acknowledges and agrees that no Customer Information will be obtained and recorded, unless and until a Customer has become an Approved Customer by acceptance of the Customer Terms, as set forth in this Agreement. (e) Operator shall be entitled to receipt of reports, results and other documentation containing Customer Information as may be made available by Oobeo under this Agreement.  Operator covenants and agrees to use, maintain and disclose any Customer Information in a manner consistent with and as contemplated in this Agreement and in the Privacy Policy. Without limiting any other provision of this Agreement, Operator covenants and agrees to (and to ensure that all Authorized Personnel) disclose, share, use and protect all Customer Information in a manner as described in and in full compliance with, the Privacy Policy. (f) Oobeo shall have no duty or obligation with respect to any use, disclosure or dissemination of Customer Information by Operator, Authorized Personnel or any Location/Event Sponsor, and Operator hereby indemnifies and holds harmless Oobeo, its affiliates and the employees, officers, shareholders and representatives of each (the “Oobeo Indemnities”) from and against any claim or liability by any third party arising out of use, disclosure, or dissemination of any Customer Information by Operator, any Authorized Personnel or any Location/Event Sponsor. (g) The Parties acknowledge and agree that, consistent with the Privacy Policy, each shall be entitled to utilize Customer Information on an aggregated and anonymized basis (with the ability to associate any particular Customer Information, whether Personal Information, Public Information or Card Information, with any particular entity or individual being eliminated) for analytical or other legitimate business purposes.  (h) The Parties acknowledge and agree that in the event of a “data security breach” (as that or analogous terms are defined in applicable law) involving the Customer Information, the discovering Party shall promptly provide written notice of such event to the other Party. The Parties shall cooperate, in good faith, in investigating such breach and in providing any notice that may be required under applicable law.
  9. Confidentiality.  (a) “Confidential Information” means any confidential, proprietary and/or trade secret information heretofore disclosed concerning the disclosing Party’s products, technology, services, finances, personnel, marketing or business practices, policies or plans, business or operations including, without limitation, information relating to research and development, know-how, inventions, specifications, software, hardware, pricing and market analyses, research strategies, intellectual property protection strategies, projections or forecasts, which, if disclosed in writing or in another tangible form is identified in writing at the time of disclosure as “Confidential Information” of the disclosing Party or, if disclosed orally should be reasonably understood by the receiving Party from the nature of the information or the circumstances of the disclosure to be Confidential Information. (b) Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party’s Confidential Information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving Party; (ii) was in the other Party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving Party, which independent development can be shown by written evidence.  (c) Notwithstanding the foregoing, a Party may disclose the Confidential Information of the other Party as required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. The disclosing Party must provide the other prompt notice of the disclosure request. (d) Each Party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. (e) Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of this Agreement.
  10. Indemnity.  (a) Each Party shall defend, indemnify and hold harmless the other Party and its affiliates, and the officers, directors, agents, affiliates, representatives and employees of each against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with breach of this Agreement, or the indemnifying Party’s grossly negligent performance or nonperformance.  Nothing contained in this section shall limit or otherwise affect any other indemnity provisions of this Agreement. (b) Operator hereby defends, indemnifies and holds harmless the Oobeo Indemnitees against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) by any Authorized Personnel, Location/Event Sponsor, Customer or any third party, arising out of or in connection with  the activities contemplated by this Agreement, including without limitation, any failure to fully comply with the Privacy Policy, the Operator Terms and any agreement with a Location/Event Sponsor.
  11. Liability.  (a) Subject to subsection (c) below, the maximum liability of Oobeo to Operator for breach of this Agreement and for any indemnity obligations, whether or not Operator terminates this Agreement, shall be the amount of the Fees actually received by Oobeo during the three (3) month period immediately preceding the date on which the events occurred giving rise to such liability.   (b) In no event shall either Party be liable to the other Party or any third party for consequential or indirect damages or lost profits. (c) Nothing in this Agreement shall exclude liability for (i) gross negligence or willful malicious misconduct; or (ii) any other liability which may not be excluded by law. (c) Without limitation of the foregoing, the Parties acknowledge and agree that each Party shall be entitled to written notice of any alleged breach of this Agreement and the opportunity to cure any such alleged breach within fifteen (15) calendar days of such notice.
  12. Non-Compete. (a) Due to Oobeo’s legitimate time, money and effort involved in the development of the Application and the good and valuable consideration offered to Operator through the Application, Operator covenants and agrees not to engage in the “Prohibited Activity” during the “Restricted Period” as those terms are hereinafter defined.  (b) As used herein, “Prohibited Activity” is the development and marketing of a software capability and services substantially the same as the Application and supporting services for use by Operator or its affiliates or by third parties with which Operator or its affiliates contracts for use in connection with provision of Valet Parking, whether directly or indirectly, in whole or in part, as an owner, operator, partner, stockholder, or any other similar capacity to an entity engaged in the Prohibited Activity.(c) As used herein, the “Restricted Period” means for a period of eighteen (18) months following the end of the Term of this Agreement.
  13. Waiver. (a) A waiver of any right under this Agreement is only effective if it is in writing and applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.  (b) Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
  14.   General. (a)  If any court or administrative body of competent jurisdiction finds any provision (or part thereof) of this Agreement invalid, unenforceable or illegal, that provision or part thereof shall be deemed deleted and the remaining provisions shall continue in full force and effect. (b)  This Agreement and any documents referenced herein constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. (c) Operator shall not, without the prior written consent of Oobeo, assign, transfer, or subcontract all or any of its rights or obligations under this Agreement. (d)  Oobeo may at any time assign, transfer, charge or sub-contract all or any of its rights or obligations under this Agreement. (e) Each Party acknowledges and agrees that in agreeing to this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement. (f) Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorize either Party to act as agent for the other, and operate to create a partnership between the Parties, or authorize either Party to act as agent for the other  (unless expressly set forth in this Agreement), and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). (g) This Agreement does not confer any rights on any person or party other than the Parties and, where applicable, their successors and permitted assigns. (h) This Agreement has been negotiated and prepared by the Parties and their respective counsel, and should any provision require judicial interpretation, the court interpreting or construing the provision shall not apply any rule of construction that a document is to be construed more strictly against one party.  (i) This Agreement and any disputes or claims arising out of or in connection with the subject matter or formation of this Agreement (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of the State of Florida and the Parties submit to the nonexclusive jurisdiction of the courts of Manatee County, Florida.
  15.   Exhibits.  Exhibit 1 is incorporated by reference and forms a part of this Agreement and shall govern the relationship of the Parties.  To the extent there exists any conflict between the Terms and the body of this Agreement, the provisions of the body of this Agreement shall govern.

 

Exhibit 1

 

First Month is $99.00, every subsequent month will be based on previous month usage.  

 

Pricing for subsequent months will be based off the pricing table below.

Vehicle Allowance                                           Vehicle Allowance

                Per/Mo                Cost/Mo                                    Per/Mo                Cost/Mo

                   500                     $99.00                                    30,000                $3,000.00

                  1,500                   $199.00                                  40,000                $3,800.00

                  2,500                   $324.00                                50,000                $4,750.00

                  4,000                   $499.00                                60,000                $5,400.00

                  6,000                   $724.00                                70,000                $6,300.00

                  9,000                  $1,049.00                              80,000                $7,200.00

                12,500                  $1,399.00                               90,000                $8,100.00

                15,000                 $1,650.00                              100,000                $8,500.00

                20,000                $2,000.00                             110,000                $9,350.00

Optional SMS broadcast fee of $0.05 per message, outside the standard welcome message

Credit Card Processing – If necessary

Gateway Only

$25/Mo         $0.12 Per Transaction                $0.05 Daily Batch

Merchant Processing

$25/Mo        3.25%                $.30 Per Transaction                $0.05 Daily Batch

 

Optional SMS broadcast fee of $0.05 per message, outside the standard welcome message

 

Credit Card Processing – If necessary

 

Gateway Only

$25/Mo $0.12 Per Transaction $0.05 Daily Batch

 

Merchant Processing

$25/Mo 3.25% $.30 Per Transaction $0.05 Daily Batch