TERMS AND CONDITIONS

1.1  These Terms and Conditions describe what Pygg Pty Ltd (ABN 67 152 027 319), trading as Spot (“Spot”, “we”, “our” or “us”) does for you (“you” or “your”), and what we kindly request of you in return as a user of the Spot Services (“User”). You should also read our Privacy Policy as this is also important in understanding the agreement between Spot and you when you use the Spot service.

1.2.  The Terms and Conditions is a contract between you and us and governs the use of the Spot Services. Your registration to use the Spot Services or the use of the Spot Services constitutes your acceptance to these Terms and Conditions. If you let another person use your Spot Account, you must inform that person that they will be bound by these terms and conditions.

1.3.  Important details:

(a)  Spot may vary these Terms and Conditions from time to time (including to new introduce new fees or vary existing fees). You can get a copy of the latest Terms and Conditions by visiting Spot’s Website, www.spotparking.com.au.
(b)  There is no expiry date on your Spot account.
(c)  We charge a convenience fees for some parking transactions. Spot may introduce new fees or change the existing fees. Any change in fees will be detailed in the latest Terms and Conditions and you can obtain these by visiting Spot's Website www.spotparking.com.au.

2.  SCOPE OF TERM AND CONDITIONS

2.1.  These Terms and Conditions apply to your use of all of the sites and Services owned or operated by Pygg Pty Ltd trading as Spot (“Spot”) (“we” and “us”), for the benefit of users in Australia and any other site that we may own or operate in the future (collectively, the “Site”). Unless we say otherwise, all references to the Site in these Terms and Conditions include all such sites. Please note that this Site is intended for use in Australia only and these Terms and Conditions apply only to use in Australia. Spot agrees to provide the Services that you register for through this Site and mobile application (as defined in clause 5.1 below). You agree to perform the obligations set forth in these Terms and Conditions that are required to allow Spot to deliver the Services.

2.2.  The contents of this Site are protected by national and international copyright and trademark laws and are the property of Spot. You may not change or delete any author credit, trademark, legend, proprietary or copyright notice. You must follow and observe all additional copyright notices or other restrictions contained in any parts of the Site.

2.3.  Spot hereby grants you a non-exclusive, non-transferable, limited right to access and use the Site and the Services for your own personal or your internal commercial use only. You agree not to interrupt, or attempt to interrupt, the operation of the Site in any way. We reserve the right to restrict your access to part or all of the Site (including any password protected areas) at any time without notice or liability.

3.  YOUR USE OF THE SPOT SERVICES

3.1.  You are responsible for providing Spot with the correct information about you when you register for the Spot Service. Required details may include, without limitation:

(a)  your name;
(b)  license plate number;
(c)  mobile telephone number;
(d)  business details (if relevant);
(e)  email address and method of payment details.

3.2.  Account details may be updated via the mobile application or on the Spot website.

3.3.  You are responsible for keeping your password and login information for our website secret so that only you can access your account’s personal pages on our website.

3.4.  Notwithstanding your creation of an Account, you only engage Spot to provide the Services when you have input the necessary details required to activate your parking session into the Site and parked in the applicable Parking Space.

3.5.  You activate the Services by either:

(a)  using the Spot app on your smart phone device;
(b)  using the Spot website; or
(c)  parking your vehicle in a Parking Space designated by Spot following your use of the Spot app or website.

3.6.  While Spot will provide you with all information available to Spot as part of your use of the Services, you acknowledge and agree that you are solely responsible for providing correct information to Spot in order to facilitate the Services. Accordingly, you warrant that you will correctly identify the following when using the Services:

(a)  the license plate number of the vehicle you are parking;
(b)  your Parking Space/zone number (where applicable).

3.7.  The Parking Space you select (the “Parking Space”) informs us of the rate to charge you for your parking and of any time restrictions on the amount of time you are permitted to park your vehicle in that zone.

3.8.  You acknowledge and agree that all notices and signs or directions made by relevant government authorities, traffic attendants or authorised persons shall take precedence over any information that you receive from Spot. You are solely responsible for ensuring that you are compliant with the relevant laws of the Parking Space and reliance on the information provided by Spot through the Site will not act as a defence to any liability you may incur as a result of your failure to comply with this clause 3.9.

3.9.  Any parking garage or parking lot owner’s parking regulations apply to you and your use of the Services does not exempt you from following their rules. Parking rates can be changed by the parking garage or parking lot owner at any time. Increases or modifications to parking fees are beyond Spot’s control. We pass the fees through to you and we are not responsible for any fee increases.

3.10.  You are responsible for ensuring that you have properly activated the Services for the relevant Parking Space before you leave your vehicle unattended. You are responsible for any fine, ticket or penalty charge issued between the time of parking the vehicle and the notification via mobile telephone or internet that the vehicle is validly parked.

3.11.  We attempt to be as accurate as possible when describing our Services, however, we do not warrant that the service descriptions are complete, reliable, current or error-free. If a service offered on the Site is not as described, your sole remedy is to cancel the Services.

4.  COMPLIANCE AND OWNERSHIP OF THE SPOT WEBSITE

4.1.  You are responsible for your own continuous compliance with these Terms and Conditions and other guidelines released by us from time to time. You shall not, and shall not permit others to, engage in activities prohibited by us, including, without limitation:

(a)  intentionally accessing data not intended for your use;
(b)  attempting to breach security or authentication measures without proper authorisation, or interfere with this Site and any products or Services offered on the Site;
(c)  taking any action to obtain Services to which you are not entitled; or
(d)  assisting or permitting any persons in engaging in any of the activities described above.

4.2.  We own and shall retain all rights and interest in the intellectual property rights in the Site content, Services, and our proprietary information, which includes without limitation, all software, source and object code, specifications, metrics, customisations, designs, processes, techniques, concepts, improvements, discoveries and inventions, including, without limitation, any modifications, improvements or derivative works thereof and all works of authorship or inventions created, invented, reduced to practice or delivered by us or any third party either solely or jointly with others, arising from these Terms and Conditions, including all copies and portions thereto, whether made by or under the direction of us or you.

5.  SMS MESSAGES, MOBILE APPLICATION PUSH AND EMAIL NOTIFICATIONS

5.1.  As part of the Services, Spot may send reminders, alerts (further referred to as ‘notifications’), or critical service-related notifications via SMS text message, (“Mobile Application”) push or email to its users, and you acknowledge and consent to the receipt of such messages. In using the Services you provide Spot with your express permission to send the notifications to you.

5.2.  You may select to receive SMS text messages, push or email notifications via your use of the Mobile Application and agreeing to these Terms and Conditions, you certify that you are the account holder of the mobile phone number provided to Spot or that you have the account holder’s express permission to use the specified phone to receive text messages about your account from Spot.

5.3.  With each parking session, you may receive standard SMS messages, push or emails relating to your parking session or Spot service communications. In all cases, standard messaging and data charges assessed by your carrier will apply.

5.4.  You acknowledge and agree that the reception of SMS messages, push and emails is not 100% guaranteed and that you are responsible for the timely activation or extension of a parking transaction. You further acknowledge and agree that the reception of SMS messages, push notifications and emails is dependent on the operation of your mobile phone provider and/or internet service provider and the service of the mobile phone company and/or internet service provider with which you have an account. Spot shall have no responsibility or liability for the damages and costs incurred by your not receiving an SMS message, push or email on time or by the insufficient operation of your mobile network, mobile phone company and/or internet service provider.

6.  FEES

6.1.  You agree to pay all fees for Services provided to you pursuant to these Terms and Conditions.

6.2.  All payments made in the course of using the Website Services are made using Stripe Australia Pty Limited (“Stripe”). In using the Site, the Services or when making any payment in relation to same, you warrant that you have read, understood and agree to be bound by the terms and conditions that are available on the Stripe website.

6.3.  At the time of your parking transaction, Stripe shall process the parking fee and other Services by charging one of the following payment facilities:

(a)  credit card;
(b)  debit card, or
(c)  PayPal account.

6.4.  If your credit card or debit card is declined your Spot account may be blocked or terminated. Additionally, Spot reserves the right to transfer the claims for unpaid parking fees to third parties at their sole discretion.

6.5.  A history of your parking transactions, indicating the parking locations, times and costs is accessible by you from Your Account section in the Site. If you require a printed invoice, you can print it from your Parking History section. Additionally you may elect to receive an emailed version by clicking the email PDF button where that service is made available to you.

6.6.  If in good faith you dispute any amount billed to you, you must provide us written notice of the dispute, and the applicable parking authority (if any) within thirty (30) days of receipt of such invoice. You agree to pay any undisputed portion of such invoice when due. Your failure to comply with this procedure shall constitute your approval of such amounts billed to you. You will reimburse us for all costs of collection, including reasonable attorneys’ fees. You will pay interest on all amounts not paid when due at the rate of 1.5% per month, or the highest lawful rate, whichever is less.

7.  TERMINATION AND REMEDIES

7.1.  The Terms will continue to apply until terminated by either you or by Spot as set out below.
7.2.  If you want to terminate the Terms, you may do so by:

(a)  notifying Spot at any time; and
(b)  closing your accounts for all of the services which you use, where Spot has made this option available to you.

7.3.  Without limiting other rights or remedies set forth in these Terms and Conditions or as otherwise available by law or in equity, Spot may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your access to this website and the Services, in whole or in part:

(a)  if you breach these Terms and Conditions;
(b)  if we are unable to verify or authenticate any information you provide to us, should we elect to engage in such verification; or
(c)  if we believe, in our sole discretion, that your actions may cause legal liability for you, other users, us or third parties.

8.  WARRANTY DISCLAIMER; LIMITATION OF LIABILITY

8.1.  Except as expressly provided otherwise, all Services sold, licensed or provided through this website are governed by these terms and conditions and are provided on an “AS IS” basis. Spot does not make any express or implied warranties, conditions or representations to you with respect to the Services, third party work provided hereunder or otherwise regarding these terms and conditions, whether oral or written, express, implied or statutory. No representation or other affirmation of facts, including, but not limited to, statements regarding the performance of the Services, that is not contained in these terms and conditions, shall be binding on Spot. You acknowledge and agree that Spot shall not be liable for any error, omissions, defect, deficiency or nonconformity in the Services. Without limiting the foregoing, Spot expressly excludes and disclaims any implied warranty or condition of merchantability, accuracy or fitness for a particular purpose or that the Services (or your use here of) will be error free or uninterrupted. You assume all risks associated with the Services.

8.2.  Spot total liability arising out of or in connection with the Services or these Terms and Conditions, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase, then the total liability of Spot is the resupply of information or Services to you.

8.3. Neither Spot nor its officers, directors, employees, shareholders, agents, or representatives shall be liable for any incidental, indirect, special, exemplary, consequential or punitive damage or other similar type of damages, including, but not limited to, damages or costs incurred as a result of loss of time, loss of savings, loss of data, loss of profits, loss of goodwill, loss of business opportunities or software error, whether foreseeable or unforeseeable, that may arise out of or in connection with these terms and conditions, including but not limited to, damages or costs resulting from the use of or inability to use the Services, even if Spot has been notified of the possibility or likelihood of such damages or costs occurring, and whether such liability is based on contract, tort, warranty, negligence, strict liability, products liability or otherwise. Spot’s total liability for any and all losses and damages arising out of any cause whatsoever (whether such cause be based in contract, negligence, strict liability, other tort or otherwise) shall in no event exceed an amount equal to the total amount paid for Services purchased by you hereunder.

8.4.  Spot is not responsible for any loss or damage that you may suffer as a result of you not using the Services correctly or if you fail to comply with these Terms and Conditions or any other instructions given to you by Spot.

8.5.  Spot is not liable for any fines, parking tickets, penalty notices and the enforcement of vehicle parking related offenses you incur or receive in your use of the Services. You are solely responsible for resolving with the relevant authorities any issues that you may have regarding the issuance of fines, parking tickets, penalty notices or your vehicle being impounded. You acknowledge and agree that where Spot is found to be liable for any fines, parking tickets, penalty notices and the enforcement of vehicle parking related offenses you incur or receive in your use of the Services, this liability will be limited to the value of the value of any fee paid for the Parking Space.

9.  INDEMNIFICATION

9.1.  You agree to indemnify, defend and hold us, our subsidiaries and affiliates and each of our respective officers, directors, agents, employees, independent contractors and suppliers, harmless from any claim, demand, action, cost and expense, including reasonable attorneys’ fees, due to or arising out of the following events:

(a)  your giving us any information which is inaccurate;
(b)  your breach of any warranty, representation or other obligation set forth in these Terms and Conditions;
(c)  your negligence or willful misconduct;
(d)  your violation of any law, regulation or right of any third party;
(e)  any dispute or action between you and any third party, including parties selling or advertising goods or Services on this website; and
(f)  your use of this website or the products or Services of Spot or any third party.

10.  DISPUTE RESOLUTION

10.1.  Compulsory:
If a dispute arises out of or relates to the Terms, no party may commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sort).

10.2.  Notice:
A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

10.3.  Resolution:
On receipt of that notice (“Notice”) by that other party, the parties to the Terms (“Parties”) must:
Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Institute of New South Wales or his or her nominee;
The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
The mediation will be held in Sydney, Australia.

10.4.  Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.

10.5.  Termination of Mediation:
If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

10.6.  Legal Proceedings:
In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.

11.  MISCELLANEOUS

11.1.  Privacy. Our current Privacy Policy is available on this website and is incorporated in these Terms and Conditions by reference. We may change our Privacy Policy from time to time, as stated therein. Please see our Privacy Policy at www.spotparking.com.au/privacy.

11.2.  Miscellaneous. If any provision of these Terms and Conditions are found unlawful, void or for any reason unenforceable, then that provision will be considered severable from the remaining Terms and Conditions, and will not affect the validity and enforceability of the remaining provisions. These Terms and Conditions are the entire agreement between you and us relating to the subject matter hereof. These Terms and Conditions may be modified only by our posting of changes to these Terms and Conditions, or in writing signed by both parties. Any inquiries concerning these Terms and Conditions should be directed to support@spotparking.com.au

11.3.  This agreement is governed by the laws of New South Wales, Australia.  Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to this agreement and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. This agreement shall be binding to the benefit of the parties hereto and their successors and assigns.