Terms of Service (Canada)
These HONK Terms of Service (“Terms of Service”) govern use of the HONK Services and are effective contemporaneous with the Order Form (the “Effective Date”).
Unless otherwise defined in these Terms of Service, capitalized terms will have the meaning given to them in the Order Form.
If you are agreeing to these Terms and Conditions and, if applicable, the HONK Merchant Of Record Service Terms and Conditions, for use of the HONK Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for the HONK Services.
1. SERVICES
1.1 Terms of Service. These Terms of Service provide the terms under which the Operator obtains the HONK Services, as set out in the Order Form.
1.2 Obligation to Provide. HONK shall provide the HONK Services subject to and in accordance with the terms set forth herein.
1.3 Services. In accordance with these Terms of Service, HONK will:
a) provide the HONK Services to Operator and End-Users; and
b) provide training, service and assistance to the Operator and End-Users with respect to technical and/or transaction questions related to the HONK Services.
1.4 Deposits. HONK will deposit the Net Receipts to a bank account designated by Operator within 15 days of the end of each calendar month.
1.5 Reporting. HONK will make available to Operator records of all transactions undertaken through the HONK Software via ControlCentre and will comply with all reasonable requests for clarification to validate any information provided.
1.6 Internet, Card Issuers, Acquirers and Financial Institutions and Payment Card Associations. The Parties expressly recognize and acknowledge that some of the HONK Services may be dependent upon the cooperation and continued operation of various Issuers, Internet Payment Service Providers, Acquirers (including acquiring banks and financial institutions), Gateway Service Providers and Payment Card Associations. The compatibility and/or availability of any particular Issuer, Internet Payment Service Provider, Acquirer (including any acquiring bank or financial institution) or Gateway Service Provider with the HONK Services is subject to modification without notice. The Operator also acknowledges that the HONK Software depends on the internet which is not perfect, and which does not operate without interruption.
1.7 Service Blocking. HONK reserves the right in its sole discretion to block use of the HONK Services to any End-User at any time, acting reasonably.
1.8 End-User Orders. Under no circumstances shall these Terms of Service be considered as making HONK responsible for the fulfillment of any End-User orders or guarantee the contractual obligation of End-Users, nor does HONK take responsibility for any goods or services provided by the Operator.
1.9 PCI DSS and SOC 2.
a) HONK will at all times during the Term deliver the HONK Services in accordance with SOC 2 and will inform Operator immediately if SOC 2 is revoked, expires, or if there is any material adverse change to HONK’s compliance with SOC 2;
b) HONK will at all times during the Term deliver the HONK Services in accordance with PCI DSS and will (i) provide Operator with a copy of its Attestation of Compliance (“AoC”) and (ii) inform Operator immediately if the AoC is revoked, expires, or if there is any material adverse change to HONK’s compliance with PCI DSS;
c) HONK has established and will maintain safeguards against the destruction, loss, or alteration of, or unauthorized disclosure of or access to data in its possession, including while in transport, which safeguards include the PCI DSS requirements and other reasonable security devices to ensure the confidentiality and integrity of data and information processing systems; and
d) HONK will notify Operator of any breach or suspected breach of systems involved in the transmission, processing or storage of Cardholder Data within 48 hours, and where a known loss of Cardholder Data occurs, HONK will notify Operator forthwith and provide the Operator with information regarding remediation/recovery strategies.
2. HONK SOFTWARE; INTELLECTUAL PROPERTY
2.1 Software Terms.
a) HONK Software is made available to the Operator solely in connection with and for the sole purpose of the provision of the HONK Services and all other uses are expressly prohibited. Nothing in these Terms of Service convey, transfer or grant to the Operator any right, title, or interest in or to any HONK Software; as between the Parties, all such rights, title and interests are retained exclusively by HONK;
b) Operator shall not modify, reverse engineer, disassemble or decompile the HONK Software, in whole or in part, or otherwise attempt to discover any source or object code or trade secret related thereto, and may not disclose any API to a third party or permit a third party to use same without the explicit permission of HONK; and
c) in the event of any unauthorized use of the HONK Software (including the API) by or through the Operator, HONK may, without prejudice to any other rights, immediately terminate the Operator’s access to and use thereof, which may result in the cessation of the HONK Services.
2.2 Intellectual Property Rights.
a) HONK retains all rights to its system, software, all of its products, applications, and services to which the Operator is exposed to or is able to access;
b) Operator retains all rights to all of its systems, applications, and services which HONK is exposed to or is able to access; and
c) unless expressly stated otherwise, a Party has no right to the other Party’s intellectual property rights, know-how or concepts.
2.3 Upgrades/Changes/Updates. From time-to-time HONK may make upgrades or enhancements available in connection with the HONK Services. Any additional features offered, which are not required for normal use of the HONK Services may be subject to additional terms conditions and Fees if used by the Operator.
2.4 Notification of Updates. In the event that:
a) any critical update or fix to the HONK Software or any API should become available that requires action on the part of the Operator, HONK shall notify the Operator of such update or fix, and the Operator shall perform or process such update or fix within 30 days of notification;
b) any non-critical update or fix to the HONK Software or any API should become available that requires action on the part of the Operator, HONK shall notify the Operator of such update or fix, and the Operator shall perform or process such update or fix within 90 days of notification; and
c) the Operator fails to so update or fix the HONK Software or API(s) in accordance with this Section 2.4, HONK accepts no liability for and provides no warranty or representation, whether regarding the performance, availability or otherwise, with respect to the HONK Software or API(s) and makes no guarantee that same will comply with any applicable service levels.
2.5 Changes or Updates. HONK will use reasonable commercial efforts to ensure that any changes or updates implemented by HONK will not materially reduce the functionality of the HONK Services. HONK reserves the right to change or remove any of the functionality or features of the HONK Services, in whole or in part, at its sole discretion, at any time, provided that the Operator may, within 30 days of such change or removal, terminate the Agreement without penalty.
3. OPERATOR’S COVENANTS AND OBLIGATIONS
3.1 Representations and Warranties. The Operator represents, warrants, and covenants to HONK that it will:
a) at all times comply with applicable law (including, but not limited to, consumer privacy and data security) and will promptly notify HONK if the Operator cannot so comply;
b) provide HONK with the information required for the provision of the HONK Services;
c) pay or allow HONK to set-off any Fees owing in connection with the provision of the HONK Services;
d) provide accurate banking information in order to facilitate the deposit of the Net Receipts or payment of Fees, as applicable;
e) only use the HONK Services with respect to sales by the Operator of its products and services, and it will not rent, lease, or resell the HONK Services or submit any payment transactions that violate applicable laws or Rules; and
f) promptly notify HONK if the Operator becomes aware of any misuse of the HONK Services or any error in any information that has been provided by the Operator or a Cardholder to HONK.
4. FEES
4.1 Invoicing. Fees owing to HONK, if any, will be invoiced to the Operator on a monthly basis.
4.2 Payment. Unless set-off against Base Prices and Operator Surcharges, payment of invoices for Fees is due within thirty (30) days of receipt of the applicable invoice.
4.3 Disputed Amounts. If the Operator does not object in writing to an invoiced amount within ninety (90) days of receipt, the Operator shall be deemed to have acknowledged the correctness of that invoice and to have waived its right to dispute that invoice.
4.4 Taxes on Parking Charges. Base Prices and Operator Surcharges are deemed inclusive of applicable taxes unless otherwise explicitly stated. The Operator is responsible for the collection, reporting, and remittance of all applicable taxes, duties, levies, or charges imposed by federal, provincial, state, or local government entities. HONK bears no responsibility for the calculation, collection, or remittance of such taxes related to Base Prices or Operator Surcharges.
4.5 Taxes on Transaction Fees. All Transaction Fees and Card Processing Fees are exclusive of applicable taxes. The Operator is responsible for remitting any and all applicable taxes required by law on the Transaction Fees [and Card Processing Fees] paid to HONK, such as value-added taxes (VAT), goods and services taxes (GST), or sales taxes, where applicable. All payments to HONK for Transaction Fees [and Card Processing Fees] must be made in full, without deduction, withholding, set-off, or other adjustments for taxes, unless required by law.
4.6 Late Payment and NSF fees. HONK has the right to charge (i) interest on any unpaid amounts at the rate of 18% per annum until HONK has received payment in full; (ii) NSF fees incurred by it for payments which are dishonoured; and (iii) reasonable legal fees and costs associated with the collection or enforcement of debt arising from unpaid amounts.
4.7 Currency. Fees for transactions processed (i) in U.S. Dollars will be payable in U.S. currency; and (ii) in Canadian Dollars will be payable in Canadian currency.
5. AMENDMENTS
5.1 Amendments. HONK may amend the terms and conditions of these Terms of Service upon thirty (30) calendar days prior written notice to the Operator, but in no instance may HONK increase any one Fee more than ten (10%) percent per calendar year.
5.2 Deemed Acceptance. If the Operator does not give notice of termination in accordance with Section 6.1 within thirty (30) calendar days of receipt of notice in accordance with Section 5.1, HONK may accept such non-termination as the Operator’s acceptance of same.
6. TERM AND TERMINATION
6.1 Term and Termination. The Agreement is entered into for an indefinite term and may be terminated by either Party upon providing the other Party with notice of termination at least thirty (30) calendar days in advance of the proposed termination date.
6.2 Early Termination by HONK. HONK has the right to terminate or suspend the Agreement immediately upon providing written notice to the Operator, that:
a) such termination or suspension is required under the any applicable law or Rules;
b) such termination or suspension is required or requested by the HONK Acquirer; or
c) the banking information supplied by the Operator cannot be verified.
6.3 Termination by Either Party. Either Party (for the purposes of this Section, the Non-Defaulting Party) shall be entitled to terminate the Agreement with written notice and immediate effect upon the occurrence of any of the following events (each of which is an “Event of Default”) in respect of the other Party (for the purposes of this Section, the “Defaulting Party”) if the Defaulting Party:
a) is in breach of any of its obligations or covenants under these Terms of Service or any Schedule and fails to remedy said breach within ten (10) calendar days of receiving notice of breach;
b) becomes insolvent;
c) is unable to pay its debts, or fails or admits in writing its inability to pay its debts, generally as they become due;
d) is dissolved (other than pursuant to a consolidation, amalgamation, or merger);
e) makes a general assignment, arrangement, or composition with or for the benefit of its creditor(s);
f) institutes, or has instituted against it, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditor’s rights;
g) has a petition presented for its winding up or liquidation;
h) enters into, or proposes, any composition or arrangement with its creditors generally; or
i) is subject to anything analogous to the foregoing in any jurisdiction.
6.4 Upon Termination. Upon termination:
a) the Operator shall promptly:
i. cease all use of the HONK Services;
ii. return or securely destroy, as directed by and in the sole discretion of HONK, any documentation, data, or material related to the HONK Services or HONK Software;
iii. cease identifying HONK as its service provider; and
iv. uninstall the HONK Software, at its sole responsibility and cost.
b) HONK shall promptly pay to the Operator any Net Receipts owed to the Operator as of the date of termination.
6.5 Survival. Both Parties hereto agree that Section 2.2, Section 4 this Section 6.5, Section 7, Section 8, Section 9, Section 10, and any other provisions of these Terms of Service which, by their terms, require performance after the termination of the Agreement, or have application to events that may occur after such termination, shall survive the termination of the Agreement. Termination of the Agreement for any reason shall not relieve either of the Parties of its liability for the payment or performance of any obligation already accrued or resulting from acts, omissions or events occurring prior to the effective date of termination.
7. DISCLAIMER AND LIMITATION OF LIABILITY
7.1 Disclaimer. HONK warrants and represents that the HONK Software and HONK Services supplied to Operator under the Agreement are reasonably fit for their intended purpose(s) but otherwise are provided without representation, warranty or guarantee of any kind. Other than as expressly set forth herein, HONK expressly disclaims all representations, warranties, and conditions, express or implied.
7.2 Exclusion of Consequential Damages. In no event shall HONK or its directors, officers, employees or agents be liable for any incidental, indirect, special, punitive or consequential damages, loss of sales or profits, business interruption, loss of business information or data loss in connection with or arising out of the performance, non-performance, repudiation or termination of the Agreement, or the Operator’s use of the HONK Services and HONK Software, unless caused by HONK’s negligence or willful misconduct.
7.3 Limitation of Liability. To the maximum extent permitted by law, in no event shall the cumulative liability of HONK, its directors, officers, employees, or agents for any damages or losses that arise out of or relate to the Agreement exceed, in the aggregate in respect of all incidents or occurrences to which any claim(s) relate, Fees actually paid to HONK in the three (3) month period immediately preceding the date on which the event giving rise to the first claim occurred.
7.4 Additional Exclusions. HONK shall not be liable for damages or losses, of any kind, which arise due to: (a) a mistake in the transmission of electronically stored information, such as delays, mistaken transmissions, distortions, or the disappearance of such information, provided such mistake is not caused by the negligence or willful misconduct of HONK; or (b) any disturbance or interruption in operation of the HONK Services or inability to access or limited access to the Services. HONK shall have the right to take reasonable measures, based on its reasonable assessment of a situation of potential security risk, to avert, minimize or mitigate any potential loss, corruption, theft of data or other security risk, including but not limited to the limitation or temporary suspension of the provision of the HONK Services, without any liability to the Operator.
7.5 Tort Liability. The Parties irrevocably agree that this Section is intended to exclude tort liability including, without limitation, liability for representations and/or misrepresentations that may otherwise have given rise to a claim under tort law independent of the Agreement.
8. INDEMNIFICATION
8.1 Indemnification by HONK. HONK agrees to defend, indemnify, and hold harmless Operator, its directors, officers, employees, and agents from any and all third-party claims, demands, and liabilities, including reasonable attorney’s fees, resulting or arising from: (a) actual or alleged infringement or violation of any patents, copyrights, trade secrets, licenses, or other intellectual property rights by the HONK Services provided under these Terms of Service; (b) any breach of HONK’s representations and warranties in these Terms of Service; (c) HONK’s failure to comply with its obligations under the Rules or any applicable laws, rules, or regulations related to HONK or the Services provided under these Terms of Service.
8.2 Indemnification by Operator. Operator agrees to defend, indemnify, and hold harmless HONK, its affiliates, and their respective directors, officers, employees, and agents from any and all third-party claims, demands, and liabilities, including reasonable attorney’s fees, resulting or arising from: (a) any transaction between the Operator and any Cardholder and/or End-User, provided such claim is not as a result of HONK’s action or inaction; (b) any breach of Operator’s representations and warranties in these Terms of Service; (c) Operator’s failure to comply with its obligations under the Rules or any applicable laws, rules, or regulations related to the Operator under these Terms of Service; (d) any death, injury, loss, or damage to property suffered by a relevant third party.
8.3 Procedure. A party seeking indemnification (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) of any claim for indemnification. However, the failure to give notice will not relieve the Indemnifying Party of liability unless it suffers actual material prejudice due to the failure. The Indemnified Party will tender sole defense and control of the claim to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Party will provide reasonable assistance in defense. The Indemnifying Party will reimburse the Indemnified Party for any reasonable legal expenses directly incurred from providing such assistance. The Indemnifying Party can only settle an indemnified claim or consent to a judgment with the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, unless such settlement or judgment imposes unreimbursed monetary or continuing non-monetary obligations on the Indemnified Party or does not include an unconditional release of the Indemnified Party and its affiliates from all liability related to the claims covered by the indemnification.
9. CONFIDENTiality
9.1 Confidential Information” means, in respect of a Party, information concerning the affairs of the Party or any information to which the other Party may have access by virtue of the implementation of the Agreement or otherwise which may be communicated to such other Party at any time, provided that “Confidential Information” shall be deemed not to include information which:
a) is now, or hereafter becomes, through no act or failure to act on the part of the receiving Party, generally known or available to the public;
b) is known by the receiving Party at the time of receiving such information as evidenced by its records;
c) is hereafter furnished to the receiving Party by a third party, as a matter of right and without restriction on disclosure; and
d) is independently acquired or developed by the receiving Party without any breach of the Agreement.
9.2 Each Party shall hold in trust and confidence and shall not, without the prior written consent of the other Party, directly or indirectly disclose or otherwise make available to any third party any Confidential Information, except as required to: (a) carry out the terms of these Terms of Service; or (b) be disclosed by law or court order or by order of a competent regulatory body (provided that the receiving Party has given the disclosing Party prior written notice (unless such notice is legally prohibited) so that the disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the obligations set forth in this Section 9.2). In fulfilling the immediately foregoing obligations, each Party shall exercise the same degree of care in maintaining the confidentiality of the Confidential Information of the other Party as it exercises with respect to its own Confidential Information of like character. For the avoidance of doubt the terms of the Agreement shall be considered Confidential Information.
9.3 Each Party will only disclose Confidential Information to its employees or subcontractors on a “need to know” basis only. In any event, prior to disclosing or otherwise making available any Confidential Information to a subcontractor, the Party making the disclosure shall obtain the subcontractor’s agreement in writing to be bound by obligations of confidentiality no less stringent than those provided for in this Section 9. Each Party shall be liable for any misuse, misappropriation, or improper disclosure of Confidential Information by any of its employees, contractors, agents, and professional advisers to whom it discloses or makes the Confidential Information available.
9.4 Section 9 shall not apply to any transfer, disclosure or use by HONK of Cardholder Data or other transaction data for the purposes of providing the HONK Services. The Operator expressly acknowledges that although HONK’s systems employ safeguards as required by PCI DSS to protect the security and integrity of such data, such safeguards may not be effective and unauthorized access to, use of and manipulation of such data is possible. HONK will not be liable for any such unauthorized access, use or manipulation.
10. GENERAL TERMS
10.1 Interpretation. The following extended meanings shall, where the context permits or requires, apply to the terms used in these Terms of Service:
a) words importing the singular number include the plural and vice versa;
b) words importing gender include all genders;
c) the word “person” includes all forms of business organization; and
d) a reference to a “Section” of these Terms of Service means those sections and/or paragraphs that appear together in the same numerical grouping.
10.2 Notices. Any notice required or permitted to be given under these Terms of Service shall be in writing and may be given to the Party for whom it is intended by: (a) delivery by hand; (b) registered mail (except in the event of a postal strike) to the address set out immediately below; or (c) electronic mail to the e-mail address (if any) set out immediately below. Notice may only be given by e-mail if the sender has configured their e-mail software so that a receipt confirming that the e-mail has been delivered to and opened by the recipient may be requested from the recipient’s e-mail program and the sender requests such confirmation(s). Any notice given under: (i) item (a) immediately preceding shall be deemed to have been received by the addressee on the day of delivery or transmission, as the case may be; (ii) item (b) immediately preceding shall be deemed to have been received by the addressee on the sixth day (excluding Saturdays, Sundays and statutory holidays) following the date of mailing; and (iii) item (c) immediately preceding shall be deemed to have been received by the addressee only if the sender has received an e-mail receipt from the recipient’s e-mail program verifying that the sender’s e-mail has been received and opened and, in that case, the notice shall be deemed to have been received on the date shown on the e-mail receipt. Either Party may at any time give notice to the other Party of any change of address, telephone number or e-mail address. Notices shall be addressed as follows:
If to HONK:
Honk Mobile Inc.
90 Eglinton Ave. E., Suite 600
Toronto, ON M4P 2Y3
Email: [email protected]
If to the Operator, to the person named in the Order Form.
10.3 Assignment. The Operator may not assign the Agreement, in whole or in part, without the prior written consent of HONK. Any sale, transfer, reorganization, merger or change in control of all or substantially all of the Operator’s assets shall be deemed to be an assignment for the purposes of this Section. Any purported assignment by the Operator without the prior written consent of HONK shall be deemed null, void, and unenforceable. The rights and obligations of HONK under the Agreement are freely assignable upon reasonable prior notice to Operator. The Agreement shall enure to the benefit of and be binding upon the Parties and their respective heirs, personal representatives, successors and permitted assigns.
10.4 Entire Agreement.
The Agreement:
a) constitutes the entire Agreement with respect to its subject matter and supersedes all prior agreements, understandings, negotiations, and discussions, written or oral, with respect to that subject matter;
b) may not be amended or modified in any respect except by further agreement in writing, except as provided in Section 5.
c) shall not be supplemented or otherwise affected by any:
i) prior dealings between the Parties;
ii) usage of the HONK Software; or
iii) any purchase order or like document of the Operator,
unless expressly referred to in the Agreement.
10.5 Waiver. No waiver of any provision or breach of these Terms of Service (a) shall be effective unless made in writing, or (b) shall operate as or be construed to be a continuing waiver of such provision or breach. No failure or delay by either Party in exercising any right under these Terms of Service shall operate as a waiver thereof.
10.6 Severability. In the event any portion of these Terms of Service is held to be invalid or unenforceable, such portion shall be construed as nearly as possible to reflect the original intent of the Parties, or if such construction cannot be made, such provision or portion thereof shall be severable from these Terms of Service (as appropriate), provided that the same shall not affect in any respect whatsoever the remainder of these Terms of Service (as appropriate).
10.7 Relationship of the Parties. Each Party is an independent contractor of, and is not an employee, agent, or authorized representative of, the other Party. The provisions of the Agreement shall not, in any respect or manner whatsoever, be construed as to create a partnership, joint venture, or other business combination between HONK and the Operator.
10.8 Force Majeure. HONK shall not be liable to the Operator or any third party for any delay in or failure of its performance under the Agreement (including, any disruption in the HONK Services) resulting from any act of God, fire flood, explosion or other natural disaster, severe weather, actions or imposition by governmental, administrative or judicial authorities, phone or Internet outage or disruption, power outage or disruption, computer malfunction, communication failure or labour dispute, vandalism, theft, riot, commotion, act of public enemies, blockage or embargo or any other cause beyond the reasonable control of HONK.
10.9 Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada which apply within the Province of Ontario, without reference to or use of any conflicts of laws provisions therein. Any proceedings relating to or arising out of the Agreement shall be brought in the City of Toronto.
10.10 Counterparts. The Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall be one and the same document. A copy (including PDF) or facsimile of a signature shall be binding upon the signatory as if it were an original signature.
10.11 Language. The Parties require that the Agreement and all related documents be drawn up in the English language. Les parties exigent que cette convention et tous les documents qui s’y rattachent soient rédigés en langue anglaise.
11. DEFINITIONS
11.2 The following capitalized terms, when used in these Terms of Service, unless expressly stated otherwise, shall have the meanings set forth below:
a) “Acquirer” means an entity that initiates and maintains relationships with companies for the acceptance of Payment Cards and includes the HONK Acquirer;
b) “API” means HONK’s Application Programming Interface;
c) “Base Price” means the price, exclusive of Fees, set by the Operator and paid by End-User for parking or parking related products and services;
d) “Card Processing Fees” means fees charged for processing Payment Cards;
e) “Cardholder” means a Person to whom a Payment Card is issued to or any individual authorized to use the Payment Card;
f) “Cardholder Data” means, in respect of a Cardholder, the full primary account number plus any of the following: cardholder name, expiration date and/or service code;
g) “Confidential Information” has the meaning set forth in Section 9;
h) “ControlCentre” means the online portal that provides real-time usage data, financial reporting, and allows the Operator to self-manage rate configuration, promotional codes, event rates, validation management, permits and passes;
i) “Device” means a smartphone or other electronic device of the End-User using the HONK Software;
j) “End-User” means any person that utilizes the HONK Software to acquire goods and/or services from the Operator;
k) “Fees” means any and all fees, including Transaction Fees and Card Processing Fees, that are charged by HONK for the HONK Services, as set forth in the Order Form;
l) “Gateway Fee” means the fee for utilizing the Gateway Service Provider, if any, as set forth in the Order Form;
m) “Gateway Service Provider” means the gateway service provider selected by HONK;
n) “HONK” means Honk Mobile Inc., a Canada corporation;
o) “HONK Acquirer” means the Acquirer that provides the Processing Services to the Operator pursuant to a merchant agreement between the Operator and the HONK Acquirer;
p) “HONK Merchant Services” means services that may be provided by HONK whereby HONK acts as the “merchant of record” for Payment Card transactions undertaken using the HONK Software;
q) “HONK Services” means the functionality provided by the HONK Software which enable transactions to be executed on Devices and which send transaction information to Operator, HONK, the HONK Acquirer, or the Gateway Services Provider, as applicable, so as to enable End-User to purchase parking related goods and/or services, as set forth in the Order Form;
r) “HONK Software” all software provided or made available by HONK to the Operator and its End-Users in connection with the HONK Services, and includes any software made available on a “software as a service” basis and any required application programming interfaces specified by HONK;
s) “Internet Payment Service Provider” means a third party that has direct or indirect access to the Payment Card Association networks;
t) “Issuer” means an entity that issues Payment Cards or performs, facilitates, or supports issuing services, including issuing banks and issuing processors;
u) “Loss” or “Losses” means all losses, claims, breaches, suits, damages, liabilities, costs, charges, reasonable legal fees, judgements, fines, court costs and expenses, amounts paid in settlement, penalties, and all other liabilities of every nature, kind, and description whatsoever;
v) “Net Receipts” means the sum of all Base Prices and Operator Surcharges collected by HONK, less Transaction Fees, Card Processing Fees, refunds, discounts, chargebacks or allowances;
w) “Operator” means the corporate entity having its head or registered address set out in the Order Form;
x) “Operator Surcharge” means fees charged to the End-User by the Operator over and above the Base Price for the provision of the HONK Services;
y) “Order Form” means the order form executed by the Operator containing the hyperlink to these Terms of Service.
z) “Parking Transaction Fees” means fees charged over and above the Base Price for the provision of the HONK Services, including the Transaction Fee and the Operator Surcharge, if any;
aa) “Party” means either HONK or the Operator and “Parties” means HONK and the Operator, collectively;
bb) “Payment Card” means any payment card that bears the logo of any Payment Card Association;
cc) “Payment Card Association” means the payment network that is operated by or for the applicable Payment Card association to route and process payment card transactions;
dd) “PCI DSS” means the Payment Card Industry (PCI) Data Security Standard (DSS) as defined by the PCI Security Standards Council;
ee) “Processing Services” means the payment processing services provided to the Operator by the HONK Acquirer which enable the Operator to accept Payment Cards for goods and services sold using the HONK Software;
ff) “Rules” means guidelines and rules of financial institutions involved in payment processing of transactions and/or Payment Card Associations; and
gg) “SOC 2” means Service Organization Control 2, the auditing procedure developed by the Association of International Certified Professional Accountants that verifies internal controls to protect sensitive data are in place and operating continuously.
hh) “Transaction Fees” means fees charged by HONK over and above the Base Price for the provision of the HONK Services;
Version dated 2025-01-15