This document describes the Terms and Conditions under which Motis Tolls Limited (Registered Office at 9 Downshire Place, Newry, Northern Ireland. Registration Number: NI627289 and T/A M-Park) conducts business with you (The Supplier) for the use of the HGV parking and associated services including payment facilities and cashless payment via our (M-Park) Web and mobile application(s).
1.1 Within this agreement M-Park is acting as an agent, and does not accept any primary liability for the services provided
1.2 The Terms are accepted by the Supplier upon registration or ordering of the Service or renewal of any such subscription.
1.3 The Service is available for Commercial Suppliers
By accepting the Terms and Conditions, you (the Supplier) are in an agreement with Motis Tolls Limited (Trading as M-Park) for the provision (via access to Software provided by M-Park) of receiving and accepting payment for bookings for parking and other associated services and facilities. These current consolidated Terms and Conditions were published on 28th February 2023.
1.4 DEFINITIONS AND INTERPRETATION
2 PARKING AND ASSOCIATED SERVICES
2.1 Subject to the Supplier granting to Motis Tolls Limited (T/A M-Park) credit facilities and accounts in accordance with the terms and conditions of this Agreement, M-Park hereby grants to the Supplier a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to make bookings and/or pay for parking and associated services (the “Service”).
2.2 The Supplier shall:
2.2.1 Be responsible for self-populating all data correctly to enable a transaction to be conducted via the Service.
2.2.2 be liable for the acts and omissions of his Authorised Users as if they were its own; and
2.2.3 procure that each Authorised User is aware of, and complies with, the obligations and restrictions imposed on the Supplier under our Agreement.
2.3 The Supplier warrants and represents that it shall keep confidential and not share with any third party (or with other individuals except those with administration rights at the Supplier organisation as necessary for use of the Service) their password or access details for any Software Service.
2.4 The Supplier shall remain liable for all actions of its Authorised Users and shall be responsible for any Authorised User’s breach of this Agreement shall indemnify, keep indemnified and hold harmless M-Park from and against any losses, claims, damages, liability, Data Protection Losses, costs (including legal and other professional fees) and expenses incurred by it as a result of the Supplier’s breach of our Agreement.
2.5 The Supplier shall be solely responsible for ensuring its access, importation and use of the Service complies with all laws. Any financial, criminal, civil liability caused by incorrect or false information inputted lies solely with the Client
2.6 M-Park shall use commercially reasonable endeavours to make the Services available, except for:
2.6.1 planned maintenance the timing of which shall be notified to the Supplier from time to time; and
2.6.2 unscheduled maintenance performed outside Normal Business Hours, provided that M-Park has used reasonable endeavours to give the Supplier at least 3 Normal Business hours notice in advance and shall not include inter alia.
2.7 M-Park accepts no financial liability generated by delays caused by usage of our system.
3 The Supplier shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.1.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.1.2 facilitates illegal activity;
3.1.3 depicts sexually explicit images;
3.1.4 promotes unlawful violence;
3.1.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or is otherwise illegal or causes damage or injury to any person or property;
and M-Park reserves the right, without liability or prejudice to its other rights to the Supplier, to disable the Supplier’s access to any material that breaches the provisions of this clause.
3.2 The Supplier shall not:
3.2.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.2.2 access all or any part of the Services in order to build a product or service which competes with the Services; or
3.2.3 use the Services to provide services to third parties; or
3.2.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
3.2.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Clause 2; or
3.2.6 introduce or permit the introduction of, any Virus into the M-Park network and information systems.
3.3 The Supplier shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify M-Park.
3.4 It is the responsibility of Site Operators to ensure that all information, displayed within M-Park, for their site(s) remains relevant and up to date.
3.5 It is the responsibility of Site Operators to ensure that all content within M-Park, relating to their site, is legal and appropriate and M-Park accepts no liability of any errors
4 SUPPLIER DATA
4.1 The Supplier shall own all right, title and interest in and to all of the Supplier Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Supplier Data. Backups are the responsibility of the Supplier. They are essential to reconstitute information that could have been destroyed. M-Park cannot be responsible for the impossibility of recovering information that may result from the absence of backups.
4.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
4.3 The parties acknowledge that:
4.3.1 if M-Park processes any personal data on the Supplier’s behalf when performing its obligations under this Agreement, the Supplier is the controller and M-Park is the processor for the purposes of the Data Protection Legislation.
4.3.2 the personal data may be transferred or stored outside the EEA or the country where the Supplier and the Authorised Users are located in order to carry out the Services and M-Park other obligations under this Agreement.
5 CHARGES AND PAYMENT
5.1 The Supplier shall be paid a Fee for each parking or associated service procured via the Software. The payment will be in accordance with the fees stated in the site price list valid at the time of the transaction, and shall be determined by agreement between both Parties. Commission fees for parking spaces sold by M-Park may be determined by a “lump sum” per transaction or as a percentage of the transaction charge. These fees can be set by each product/service to be sold via the M-Park system, and will be stated in the “Supplier Application Form”, which forms the basis of the agreement between us.
5.2 Site operators may transfer regular account customers, with specific negotiated parking rates, to payment via the M-Park Application if they wish, though they should not open separate credit accounts for Customers who have been introduced to them via M-Park.
5.3 All card payment and processing fees incurred during booking/payment process, will be recharged to Suppliers at cost
Fees for any M-Park Marketing site rental or marketing activity may not be offset against fees owed for parking charges5.4 If a Site Operator accepts ‘advance bookings’ these must be approved via M-Park, within a reasonable time scale once each request is received by the Supplier.
5.5 For any advance bookings, the Customer fee shall be payable regardless of whether the parking space or service is used or not, though once an advanced booking has been accepted it is the responsibility of the Supplier to ensure that there is a space available for that customer.
5.6 M-Park shall send self billed invoices to the Supplier in arrears for the parking Fees due.
5.7 The M-Park shall pay each invoice in accordance with the payment terms and deduction of commissions as agreed.
5.8 The Supplier shall receive payment within 30 days after the due date, and without prejudice to any other rights and remedies of M-Park.
5.8.1 M-Park may, without liability to the Supplier, disable the Supplier’s password, account and access to all or part of the Services and M-Park shall be under no obligation to provide any or all of the Services while any service invoice(s) concerned remain unpaid; and
5.8.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of Bank of Ireland from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.9 All amounts and fees stated or referred to in this Agreement:
5.9.1 shall be payable in pounds sterling or Euro dependent on the Supplier’s account set up with M-Park;
5.9.2 are non-cancellable and non-refundable;
5.9.3 are exclusive of value added tax. Value Added Tax applicable at the location at which the transaction occurred shall be added to any M-Park Customer invoice(s) at the appropriate local rate.
5.10 The Supplier shall be entitled to increase the Fees upon 30 days’ prior notice to M-Park.
6 INTELLECTUAL PROPERTY
6.1 The Supplier acknowledges and agrees that M-Park and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant the Supplier any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Service provided.
6.2 M-Park confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
7 CONFIDENTIALITY AND COMPLIANCE WITH POLICIES
7.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement.
7.2 Subject to clause 7.3 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.
7.3 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 7.3 it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
8 LIMITATION OF LIABILITY
8.1 Except as expressly and specifically provided in this Agreement:
8.1.1 the Supplier assumes sole responsibility for costs accumulated by use of the Service by the Supplier, and authorised users and for conclusions drawn from such use. M-Park shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by M-Park in connection with the Services, or any actions taken by the Supplier at the direction of M-Park
8.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
8.1.3 the Services are provided by the Supplier on an “as is” basis.
8.2 In no event shall M-Park, its employees, agents and sub-contractors be liable to the Supplier for any alleged or actual infringement of third-party intellectual property rights to the extent that the alleged or actual infringement is based on:
8.2.1 An error in inputting data when using the Service; or
8.2.2 the Supplier’s use of the Services in a manner contrary to the instructions given to M-Park by the Supplier; or
8.2.3 M-Parks’ use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
8.3 Nothing in this Agreement excludes the liability of the Supplier:
8.3.1 for death or personal injury caused by M-Park negligence; or
8.3.2 for fraud or fraudulent misrepresentation.
8.4 Subject to clause 8.1 and clause 8.2;
8.4.1 M-Park shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
(a) loss of profits;
(b) loss of business;
(c) depletion of goodwill and/or similar losses;
(d) loss or corruption of data or information;
(e) pure economic loss; or
(f) for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
8.4.2 The total M-Park aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid to the Supplier during the1 month immediately preceding the date on which the claim arose.
9 TERM AND TERMINATION
9.1 This Agreement shall, unless otherwise terminated as provided in this clause 9 commence on the Effective Date and shall continue for 12 months thereafter. This Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
9.1.1 either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
9.1.2 otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
9.2 Without affecting any other right or remedy available to it, M-Park may terminate this Agreement with immediate effect by giving written notice to the Supplier if:
9.2.1 the Supplier, or Supplier user, commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
9.2.2 the Supplier suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
9.2.3 there is a Change of Control of the Supplier.
9.3 M-Park may terminate this Agreement for convenience on thirty days written notice to the Supplier.
9.4 On termination of this Agreement for any reason:
9.4.1 all licences granted under this Agreement shall immediately terminate and the Supplier shall immediately cease all use of the Services;
9.4.2 each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;
9.4.3 M-Park may destroy or otherwise dispose of any of the Supplier Data in its possession unless M-Park receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Supplier of the then most recent back-up of the Supplier Data. M-Park shall use reasonable commercial endeavours to deliver the back-up to the Supplier within 30 days of its receipt of such a written request, provided that the Supplier has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Supplier shall pay all reasonable expenses incurred by M-Park in returning or disposing of Supplier Data; and
9.4.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
10 FORCE MAJEURE
10.1 M-Park shall have no liability to the Supplier under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of M-Park or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of M-Park or sub-contractors, provided that the Supplier is notified of such an event and its expected duration.
11.1 Nothing in this Agreement and no action taken by the parties in connection with it shall create a partnership or joint venture between the parties or give either party the right or authority to act as agent, representative or principal for the other. Neither party shall have the power to bind the other party in any manner whatsoever or to take any action or to do any act or thing in the name of the other party, except in the case of M-park acting as an agent for the Supplier in the course of normal business on the M-Park application.
11.2 Neither party shall be entitled to assign or transfer the benefit of this Agreement without obtaining the prior written consent of the other Party.
11.3 Save as expressly provided in this Agreement, no variation to this Agreement shall be effective unless it is in writing and signed by a duly authorised representative on behalf of each of the parties.
11.4 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute an original of this Agreement, but all the counterparts together constitute the same Agreement. No counterpart shall be effective until each Party has executed at least one counterpart.
11.5 Any notice required to be given for the purposes of this Agreement must be given by sending it by pre-paid first-class post or by delivery by hand at the registered address of the other Party as set out in this Agreement. Any notice sent by post shall be deemed to have been served two (2) days after posting. In proving service, it shall be sufficient to prove that a notice was properly addressed and stamped and posted. Any notice delivered by hand shall be deemed to have been served when physically delivered at the relevant address.
11.6 If a provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provisions shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.7 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
11.8 The parties acknowledge that this Agreement has not been entered into wholly or partly in reliance on, nor has either Party been given, any warranty, statement, promise or representation by the other or on its behalf other than as expressly set out in this Agreement.
11.9 All warranties, conditions, terms and representations not set out in this Agreement whether implied by statute or otherwise are excluded to the extent permitted by law.
11.10 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. No waiver shall be effective unless in writing.
11.11 The parties do not intend that any term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 or otherwise by any person other than the parties.
11.12 Disputes: If the parties are unable to reach in good faith an agreement on any issue concerning this Agreement within 14 days after one party has notified the other in writing of that issue, they will refer the matter to the Commercial Director in the case of M-Park, and to a Company Director in the case of the Supplier in an attempt in good faith to resolve the issue within 14 days of the referral. Either Party may bring proceedings in accordance with clause 11.13 if the matter has not been resolved within that 14 day period, and either Party may apply to the court for an injunction, whether or not any issue has been escalated under this clause.
11.13 Governing Law & Jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Northern Ireland. The parties irrevocably agree that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
12)This agreement is deemed valid from the first date that it is accepted by the Supplier on completion of the Supplier application form, within which it is contained.
DEFINITIONS AND INTERPRETATION
1 In our Agreement:
Authorised Users: those employees, and independent contractors of the Supplier who are authorised by the Supplier to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in Northern Ireland when banks in Belfast are open for business.
Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Supplier Data: the data inputted by the Supplier, Authorised Users, or M-Park on the Supplier’s behalf for the purpose of using the Services or facilitating the Supplier’s use of the Services.
Data Protection Legislation: Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications)
Effective Date: the date of this Agreement.
Fee: means the following:
The parking fee for each parking site, or fee for other related services as published, or the agreed ‘specific parking fee’ for the Supplier
Initial Subscription Term: twelve months.
Subscription Term: has the meaning given in clause 9.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
M-Park Account: means an account registered with Motis Tolls Limited for use of M-Park.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Period: the period described in clause 9.1.
Service: means the provision (via access to Software provided by M-Park) of making and paying for bookings and for parking and associated services
Software: the online software application (Web or Mobile application) provided by M-Park as part of the Service.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time, in the jurisdiction in which srvices are being provided, including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
VAT: value added tax or any equivalent tax chargeable in the country in which a transaction, under this agreement, takes place.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2 In our Agreement, unless otherwise stated:
2.1 the table of contents, background section and the clause, paragraph, schedule or other headings in our Agreement are included for convenience only and shall have no effect on interpretation;
2.2 the Supplier and the Supplier are together the parties and each a party, and a reference to a party includes that party’s successors and permitted assigns;
2.3 words in the singular include the plural and vice versa;
2.4 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
2.5 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);