Welcome to Parkmonkey, an application providing an efficient and user-friendly platform to facilitate the booking of, and payment for, parking spaces throughout Australia ("Services"). This Customer Agreement explains our obligations as a service provider and your obligations as a member being a sharer of a car parking space that you wish to make available for license through the Parkmonkey platform ("Sharer") or as a person seeking to license use of a car parking space made available through the Parkmonkey platform ("Parker").
1. PARTIES AND BINDING EFFECT
1.2 The Parkmonkey Platform, and the Services, are continuously evolving, with regular updates made available. Parkmonkey reserves the right to change the terms of this Customer Agreement at any time, effective upon the posting of modified terms. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you of the change. You agree that, by continuing to use or access the Parkmonkey Platform following notice of any revision, you will be deemed to have accepted any such revision. By registering as a Member, you acknowledge that you have read and understood this Customer Agreement and have the authority to act on behalf of any person for whom you are using the Service. You are deemed to have agreed to this Customer Agreement on behalf of any entity for whom you use the Service.
2. USE OF PARKMONKEY PLATFORM AND SERVICES
2.1 In consideration for Parkmonkey permitting you to access and use the Parkmonkey Platform, you hereby accept the terms of this Customer Agreement.
2.2 To use the Parkmonkey Platform, you must register as a member. By so registering you agree to the following:
2.2.2 all information you provide to Parkmonkey is accurate and complete;
2.2.3 if you register as a Sharer, you must register a valid bank account for the purpose of receiving rental payments, and authorise Parkmonkey to deduct any outstanding fees from due rental payments;
2.2.4 if you register as a Parker, you must register a valid credit or debit card, or bank, building society or credit union account (a "Finance Account"), and authorise Parkmonkey to debit, under its name, such card or account to pay all booking fees and other payments due from you in accordance with this Customer Agreement;
2.2.5 you will promptly update your Account information on the Parkmonkey Platform if it changes;
2.2.6 you will not use the Parkmonkey Platform or Services for any purposes other than those clearly contemplated by Parkmonkey in the operation of the Parkmonkey Platform;
2.2.7 it is your responsibility to ensure your own compliance with all applicable laws when using the Parkmonkey Platform and Services, and Parkmonkey disclaims any responsibility and liability for this to the full extent permitted by law;
2.2.8 when entering into a booking, and during the length of the booking, you have the correct and appropriate level of insurance in place as required by Parkmonkey;
2.2.9 you must observe all relevant local, state, territory and federal laws relating to the operation, occupation and use of the Parkmonkey Platform;
2.2.10 it is your responsibility to keep the car parking spaces in good repair and condition at all times and you must indemnify and hold harmless Parkmonkey for any loss Parkmonkey may suffer as a result of any damage to the car parking spaces, property in the car parking spaces or the building in which the car parking spaces are situated; and
2.2.11 Parkmonkey is not responsible in any way, and excludes liability, to the extent lawfully possible, for any damage, loss, liability, injury or death suffered by Parkers or Sharers within the car parking spaces or the building in which the car parking spaces are situated.
3. APPOINTMENT AS AGENT
3.1 As a Sharer, you appoint Parkmonkey as your agent for the purposes of forming binding agreements ("Car Space Licence") between you and Parkers to whom you agree to allow the use of the parking space you list as available through the Parkmonkey Platform ("Parking Space").
3.2 Each Car Space Licence will be on standard terms of Parkmonkey as set out in this Customer Agreement and in your Member application.
3.3 You may not incorporate any additional terms into the Car Space Licence.
3.4 You agree that your Parking Spaces made available through the Parkmonkey Platform will be vacant for the period of the listing notified in your Member application to Parkmonkey and that Parkmonkey is free to enter into Car Space Licences throughout that period.
3.5 The Car Space Licence and any additional restrictions included in a listing are a contract between the Sharer and the Parker. We are not a party to that agreement and we will not be liable to the Sharer, the Parker or any third party for any breach of the Car Space Licence or otherwise in relation to the Parking Space or its use by the Parker. We are not a real estate broker, agent or insurer. We have no control over the conduct of Parkers or Sharers and disclaim all liability in this regard.
3.6 At the time we confirm the Booking of the Parking Space and receive payment from the Parker, a binding Car Space Licence will be formed between the Sharer and the Parker. The Car Space Licence will be provided and attached to each Booking, and will only include any additional restrictions included during the registration process relating to the listed Parking Space.
3.7 Parkmonkey will not be liable to the Sharers or the Parkers in the event that a Sharer or Parker is not able to use the Parking Space due to matters beyond Parkmonkey's control, including where the owner of the building cancels or restricts access to the car parking area.
4. COMPLAINT PROCEDURES
4.1 If you wish to lodge a complaint about any matter in relation to the use of the Parkmonkey Platform, the Services, the operation of your Account, or Parkmonkey, you must notify Parkmonkey in writing via any of the means available to contact Parkmonkey as supplied on the Parkmonkey Platform with full details of the complaint and allow Parkmonkey a reasonable amount of time to investigate the complaint before giving you a written response.
5. FINANCIAL MATTERS
5.1 In using the Services, you agree to pay all fees, charges and other payments by the due date, without deduction, set-off or counterclaim.
5.2 If you are entitled to payment as a result of a transaction involving another Member, but that Member fails to pay the relevant amount due to Parkmonkey, you accept and agree that you may only look to such other Member to recover the amount due to you and, in no circumstances will Parkmonkey be liable to you or any other party in any respect arising out of the failure by that Member to pay such relevant amount.
5.3 Parkmonkey reserves the right to withhold payment or charge back to your account any amounts otherwise due to us under this Customer Agreement, or any amounts due as a result of a breach of this Customer Agreement by you, pending Parkmonkey's reasonable investigation of such breach. You agree that payment and / or refund requests will be subject to additional terms as outlined on the Parkmonkey Platform (and which is expressly incorporated into this Customer Agreement by this reference). You acknowledge that the FAQ section located on the site may include terms providing for the payment of administrative fees to Parkmonkey, and you agree to pay any such fees consistent with this information.
5.4 As a Sharer, you are responsible for the accuracy of all information in your listing and any information you provide to us in relation to a booking. You may be liable to a Parker if the information you provide is inaccurate, incomplete or misleading in any way. Your liability may include any reasonable losses incurred by the Parker as a result of such inaccurate, incomplete or misleading information provided by you and you may be ordered to pay reasonable damages on the basis of misrepresentation, breach of contract or otherwise.
6. WARRANTIES AND LIABILITY
6.1 Members acknowledge and accept the following:
6.1.1 Parkmonkey makes no warranties or representations as to the accuracy of the information of any kind displayed on the Parkmonkey Platform or which is available to anyone using the Parkmonkey Platform or Services, and you bear all losses and damages incurred acting in reliance on that information; r to check or otherwise verify that any User Content provided by another Member is not in breach of this Customer Agreement;
6.1.3 Parkmonkey is entitled to process all transactions using your Account and is not required to check that you have authorised such transactions. For the avoidance of any doubt, Parkmonkey will not be entitled to debit a payment account, including debit cards, credit cards, and bank accounts unless provided with this initial authorisation by you;
6.1.4 Parkmonkey does not warrant the Parkmonkey Platform and Services will be available for use free of technical or functional errors, including the presence of "viruses" "Trojans" "spyware" "adware" "bots" and other similarly harmful computer effects, nor that it will be available uninterrupted. Any losses you incur as a result, or because Parkmonkey has chosen to temporarily or permanently suspend the Services and/or the Parkmonkey Platform, is a risk borne by you;
6.1.5 you are prohibited from violating or attempting to violate any security features of the Parkmonkey Platform or Services, including, without limitation:
184.108.40.206 accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access;
220.127.116.11 attempting to probe, scan, or test the vulnerability of the Services, the Parkmonkey Platform, or any associated system or network, or to breach security or authentication measures without proper authorization;
18.104.22.168 interfering or attempting to interfere with service to any user, host or network, including, without limitation, by means of submitting a virus to the Parkmonkey Platform or Services, overloading, "flooding," "spamming," "mail bombing," "hacking," or "crashing;"
22.214.171.124 using the Parkmonkey Platform or Services to send unsolicited email, including, without limitation, promotions, or advertisements for products or services;
126.96.36.199 forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Services; or
188.8.131.52 attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human perceivable form any of the source code used by Parkmonkey in providing the Parkmonkey Platform or Services;
6.1.6 any violation of system or network security may subject you to civil and/or criminal liability;
6.1.7 Parkmonkey has no control over and does not warrant the accuracy of any third party content (including without limitation of any of Parkmonkey's partners, affiliates or sponsors), including websites that may be linked to or from the Parkmonkey Platform and has no control over the content and performance of such third party sites;
6.1.8 you bear any losses or damage however incurred for use or inability to use the Parkmonkey Platform, or in reliance on third party content on the Parkmonkey Platform or available from the Parkmonkey Platform and Parkmonkey shall not, to the maximum extent permitted by law, be liable in any circumstances for any loss or damage howsoever incurred by you, in relation to the use of the Parkmonkey Platform or the Services;
6.1.9 Parkmonkey provides the Parkmonkey Platform and Services on a purely 'as is' basis without warranty of any kind and without any express warranties and to the maximum extent permitted by law, Parkmonkey (for its own benefit and on behalf of its officers and employees) expressly disclaims any and all liability and any warranties or guarantees, express or implied, regarding the Parkmonkey Platform and Services, including, but not limited to, any implied warranties or guarantees of fitness for a purpose, fitness for a purpose made known to you or non-infringement of third party rights;
6.1.10 to the maximum extent permitted by law, in no event shall Parkmonkey be liable for any loss or damages of any kind (including, but not limited to, consequential loss) arising out of or in connection with your use of the Parkmonkey Platform or the Services and whether arising from breach of contract, tort or any other legal claim, and you agree to release Parkmonkey from any such liability; and
6.1.11 any loss that may be claimed by a Member is limited to the cost of the Services provided by Parkmonkey to that Member in the past 12 months, or the re-supply of those Services to that Member at Parkmonkey's election.
6.1.12 if you register as a Sharer, you represent and warrant that you have all necessary authority, regulatory and planning approvals to enter a Car Space Licence to use the Parking Space and that the Licence to use the Parking Space will comply with all applicable laws, tax requirements and rules and regulations that may apply to the Parking Space, including but not limited to zoning laws and laws governing rental of or licenses to use residential and other properties.
6.1.13 if you register as a Sharer, you agree to notify us immediately upon receiving any notice, correspondence or contact in any other form from any governmental authority, landlord, executive committee, or management company in connection with the use of your Parking Space for purposes envisaged by this Customer Agreement and/or your agreement with the Parker; and upon request, you agree to provide copies thereof to us. Following such notice from you we reserve the right to terminate this Customer Agreement and remove the Parking Space from the Parkmonkey Platform.
6.1.14 if you register as a Sharer, before any Booking Period you must ensure that the Parking Space is in a satisfactory condition and is able to meet the requirements of the Parker under the booking.
6.1.15 if you register as a Sharer, you represent and warrant that you own the Parking Space or that you are authorised to allow third parties to use the Parking Space and, where necessary, you have permission from your landlord, tenant, executive committee, or management company to do so. If you are in any doubt you should check the terms of your lease (or sublease), freehold title, mortgage, deed of trust, by-laws or any other documents of record to ensure that you are able to enter a Car Space Licence to allow use your Parking Space in the manner envisaged by this Customer Agreement and/or your agreement with Parkers.
6.1.16 we will not be liable to the Sharer, the Parker or any other third party (such as a landlord, tenant, executive committee or management company) if a Sharer does not have the necessary authority and you indemnify and hold harmless Parkmonkey for any loss we may suffer as a result of a breach of any representation and warranty, or breach of any other term of this Customer Agreement.
6.2 You hereby agree to release Parkmonkey and its affiliates, officers, directors, employees, consultants, agents and representatives from and against:
6.2.1 any and all third party claims, proceedings, losses, liability, damages and/or costs (including legal fees on a solicitor and own client basis) arising from your misuse of the Parkmonkey Platform and/or your breach of any warranty, representation, term or condition of this Customer Agreement; and 6.2.2 any and all claims, proceedings, losses, liability, damages and/or costs (including legal fees on a solicitor and own client basis) from another user of the Parkmonkey Platform or Services, except to the extent caused or contributed to by Parkmonkey or its employees, agents or contractors.
7. INTELLECTUAL PROPERTY AND USER CONTENT
7.1 You agree that by Parkmonkey making the Parkmonkey Platform or Services available to you:
7.1.1 any software you download from the Parkmonkey Platform, including all files and images contained in or generated by the software, and accompanying data (collectively called the "Software") is only used by you under licence from Parkmonkey for the limited purpose of enabling you to use the Services whilst you are a Member and strictly in accordance with, and subject to, this Customer Agreement;
7.1.2 you will only use the Software for personal and private use in relation to the Services, and not for any commercial gain which is not contemplated by these Terms and Conditions;
7.1.3 Parkmonkey does not in any circumstances transfer any title or intellectual property rights in or to the Software to you or any other person that has access, whether authorised or not, to the Parkmonkey Platform and the Services;
7.1.4 Parkmonkey retains full and complete title to the Software as well as all intellectual property rights therein;
7.1.5 you will not sell, redistribute, or reproduce the Software, nor may you decompile, reverse- engineer, disassemble, or otherwise convert the Software to a human-perceivable form;
7.1.6 Parkmonkey reserves all rights not expressly granted to you in this Customer Agreement; and
7.2 In relation to any information, images or any other material you make available to7.2 In relation to any information, images or any other material you make available to the Parkmonkey Platform, whether by posting, uploading, displaying, performing, transmitting or otherwise, or which you otherwise provide to Parkmonkey in respect of your use of the Parkmonkey Platform or any Services ("User Content"): 7.2.1 you hereby grant Parkmonkey, its affiliates, officers, directors, employees, consultants, agents and representatives a perpetual, royalty-free licence to use the User Content: (i) for the term of this Customer Agreement; and (ii) solely for the purpose of providing its services under this Customer Agreement.
7.2.2 you agree that Parkmonkey may disclose personal information where required to do so as a matter of law, or to assist any party in the resolution of a complaint or claim for civil relief in relation to activities by you, another Member or Parkmonkey in relation to the Parkmonkey Platform or Services;
7.2.3 you warrant and represent that you own all rights to the User Content and are entitled to provide such User Content to the Parkmonkey Platform without restriction and that Parkmonkey including its affiliates, employees, agents and representatives, may use such User Content without infringing any rights of any third party (including without limitation all intellectual property rights and rights of privacy and confidentiality) without otherwise giving rise to any risk of an adverse claim against Parkmonkey including its affiliates, employees, agents and representatives;
7.2.4 you warrant and represent that each time you provide User Content to the Parkmonkey Platform or the Services, such User Content (and every part of it) must not be:
184.108.40.206 abusive, harassing or threatening;
220.127.116.11 obscene or pornographic;
18.104.22.168 fraudulent, misleading or deceptive;
22.214.171.124 tending to be a breach of any criminal law or give rise to any civil liability; or
126.96.36.199 directly or indirectly endorse any other product or service not operated or provided by Parkmonkey;
7.2.5 you acknowledge and agree that Parkmonkey will be entitled to remove any Parker Content from the Parkmonkey Platform for any reason (and without being required to disclose that reason to you) at its sole and absolute discretion or when the Account is cancelled by the Parker or is required by the Parker to comply with relevant Laws; and
7.2.6 you acknowledge and agree to edit, remove or add, whichever the case is necessary, any information regarding the Parker Content you have made available to the Parkmonkey Platform or the Services if you become aware or have a reason to suspect the accuracy of the content in the Parker Content has changed or you have become unable to confirm the truth of the matters therein stated.
8.1 Parkmonkey respects your privacy and permits you to control the treatment of your personal information. Parkmonkey will note use your personal information for any purpose other than that for which it was provided - to be book and pay for a casual car space. We may rely on a third party service provider to match your booking request with your other private information provided at the time of registration. Any information you provide in registering an Account or in using the Parkmonkey Platform or any Services will be collected, used and treated only for the purpose of making a secure on-line car space booking.
9. ENTIRE AGREEMENT
9.1 This Customer Agreement constitutes the entire agreement between you and Parkmonkey relating to your use of the Parkmonkey Platform and any Services.
10.1 If, for whatever reason, a court of competent jurisdiction finds any term or condition in this Customer Agreement. to be prohibited, invalid or unenforceable, that term or condition will, as to that jurisdiction, be ineffective to the extent of that prohibition, invalidity or unenforceability without invalidating the remaining terms and conditions of this Customer Agreement.
11.1 Parkmonkey shall not be taken to waive the enforcement of any of its rights, whether for past, future or continuing breaches, contained under this Customer Agreement unless made in writing and signed by an authorized representative of Parkmonkey.
12.1 You agree that should a dispute arise with Parkmonkey or any other Member of the Parkmonkey Platform or the Services regarding any matter contained in this Customer Agreement, you will notify Parkmonkey as required by clause 4 above, and consent to any dispute resolution procedure that Parkmonkey, in its sole and absolute discretion, directs you to attend before you take any other action relating to such dispute, and if Parkmonkey does direct you to attend a dispute resolution procedure, you agree that you shall participate in good faith and accept that Parkmonkey may organise the conduct of such dispute resolution procedure however it believes fit regardless of whether it actively participates or not, to its sole and absolute discretion.
13. WITHDRAWAL FROM MEMBERSHIP
13.1 If you wish to cancel your registration with the Parkmonkey Platform you can email info@Parkmonkey.com.au with your details and your request.
14. MODIFICATIONS AND DISCONTINUANCE
14.1.2 discontinue the Parkmonkey Platform and/or Services at any time, without liability to you.
16. ELECTRONIC COMMUNICATIONS
16.1 To the extent that any communications between you and Parkmonkey are via electronic means, such as by emails, text messages or by other electronic messaging services, you:
16.1.1 consent to receive communications from Parkmonkey in an electronic form; and
16.1.2 agree that all notices, terms and conditions, agreements, disclosures and other communications that Parkmonkey provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
17. GOVERNING LAW
17.1 This Customer Agreement shall be construed in accordance with and governed by the laws of New South Wales, Australia, and the Federal Laws of Australia where applicable. You hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in Australia in all disputes arising out of or related to the use of the Parkmonkey Platform or Services.
Parkmonkey agrees to provide a full refund if a booking is cancelled 24 hours or more before the booking commencement time. No refund will be provided for cancellation of a booking within 24 hours of the booking commencement time.