Validation Parking Application

This Master Parking Validation Agreement (the or this “Agreement”), dated as of the date of last signature hereto (the “Effective Date”), is entered into by and between Buffalo Niagara Medical Campus, Inc. (the “BNMC”) and the undersigned individual or entity agreeing to these terms and conditions (the “Account Manager”). For the purposes of clarity, any and all references to “affiliates” of BNMC herein shall include the following BNMC affiliates and/or subsidiaries: 134 High Street, LLC; 854 Ellicott St., LLC; 589 Ellicott Street, LLC; 73 High Street, LLC; BNMC Parking LLC, Innovation Center Annex LLC, and 927-937 Washington LLC.
WHEREAS, BNMC is the owner and operator of certain parking lots and spaces located throughout the certain area referred to as the “Buffalo Niagara Medical Campus” (the “Campus”); and
WHEREAS, the Account Manager operates one or more businesses on and within the Campus; and
WHEREAS, the Account Manager desires to receive access to the certain parking validation system (the “System”) licensed by BNMC for Account Manager’s business purposes; and
WHEREAS, upon the terms and conditions set forth below, BNMC desires to grant Account Manager access to the System for Account Manager’s business purposes.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. RESPONSIBILITIES
1.1 Account Security: In consideration of the remuneration set forth herein and subject to the terms and conditions hereof, BNMC agrees to grant Account Manager access to the System, and to provide Account Manager with certain Account(s) (defined below) designated to and for the Account Manager. The Account Manager shall, at all times, remain solely responsible for maintaining, securing, and monitoring: (i) the security of their respective parking validation account(s) as provided by BNMC (each an “Account”) as provided pursuant hereto, including, but not limited to, the confidentiality of the login credentials for each Account, together with (ii) any and all activities that occur on, under or within each Account, for which Account Manager shall be solely liable.
1.2 User Management: The Account Manager is solely responsible for managing, monitoring, and controlling access to each Account, including adding and removing any personnel, employee, agent or representative of Account Manager who have been authorized by Account Manager to access and/or utilize an Account (each an “Authorized User” and collectively, the “Authorized Users”), and ensuring that Authorized Users comply with this Agreement. Account Manager shall provide, on an ongoing basis, a comprehensive list of all Authorized Users which have access to one or more Accounts designated for Account Manager. The Account Manager agrees to manage, monitor, control and oversee all Authorized Users under each Account. The Account Manager is responsible for approving all Authorized Users, and granting corresponding Account access to each applicable Authorized User. Each Authorized User must submit a written request to the Account Manager to be added to the applicable Account and, upon approval by the Account Manager, the Account Manager shall notify BNMC of said new Authorized User(s).
1.3 Payment of Validation Charges: The Account Manager agrees to pay, and remain solely liable for, any and all validation charges incurred through each Account, with payment to be made in accordance Section 2 of this Agreement.
2. BILLING AND PAYMENTS
2.1 Monthly Billing: BNMC shall charge each Account of the Account Manager on a monthly basis based on validation usage during each monthly billing cycle.
2.2 Payment Terms: The Account Manager must deliver payment for each invoice submitted to it by BNMC within fifteen (15) business days from the date of the invoice issued by BNMC. If payment is not received within this period, a late fee may be applied at the discretion of BNMC.
3. TERM AND TERMINATION
3.1 Term: This Agreement shall enter into force and become effective as of the Effective Date and remain in effect until terminated in accordance with Section 3.2 of this Agreement. Notwithstanding the termination of this Agreement, the Account Manager shall remain liable for any and all charges incurred under each of its Account(s) as of or prior to the date of termination, with the same due and payable to BNMC in accordance with the terms and conditions hereof.
3.2 Termination: Either party may terminate this Agreement at any time with or without cause by providing thirty (30) days’ prior written notice to the other party.
4. INSURANCE
4.1 Account Manager Insurance Obligations: Unless otherwise waived by BNMC in writing, for so long as Account Manager retains access to one or more Accounts, Account Manager shall keep and maintain the following insurance coverage types and corresponding limits: (i) commercial general liability insurance, with coverage for claims of property damage, bodily injury, including death, personal and advertising injury, products/completed operations, and contractual liability, with coverage limits of no less than One Million U.S. Dollars ($1,000,000.00) per occurrence, Three Million U.S. Dollars ($3,000,000.00) annual aggregate; and (ii) network risk and cyber liability coverage (including coverage for unauthorized access, failure of security, breach of privacy protocols, as well as notification costs and regulatory defenses) with coverage limits no less than Five Million U.S. Dollars ($5,000,000.00) per occurrence and annual aggregate (with Section 4.1(i)-(ii) to be collectively referred to as the “Account Manager Insurance”). The Account Manager Insurance shall name BNMC, together with its affiliates, as additional insured under the Account Manager Insurance. The Account Manager Insurance shall apply on a primary and non-contributory basis and may not be amended, cancelled or allowed to lapse without thirty (30) days’ prior written notice to BNMC. Account Manager shall provide certificate(s) or binders evidencing its procurement of the Account Manager Insurance to BNMC upon its request from time to time.
5. INDEMNIFICATION
5.1 Account Manager shall indemnify, defend and hold harmless BNMC, its affiliates, and their respective officers, directors, managers, members, employees, agents and representatives thereof, from and against any and all actions, claims, suits, proceedings, investigations, damages, liabilities, judgments, fines, fees, penalties, settlements, costs and expenses (including, but not limited to, reasonable attorney’s fees and expenses) arising from or relating to the acts or omissions, negligence, willful misconduct, breach of contract and/or access to or use of one or more Accounts of or by Account Manager, or its officers, directors, managers, members, employees, agents, representatives and/or Authorized Users in connection with this Agreement.
6. LIMITATION OF LIABILITY
6.1 To the maximum extent permitted by applicable law, in no event shall BNMC, its affiliates or their respective officers, directors, managers, members, employees, agents and representatives, be liable for any special, indirect, incidental, punitive or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information or any other pecuniary loss) however caused and on any legal or equitable theory of liability, and whether or not for breach of contract, negligence or otherwise, even if BNMC has been advised of the possibility of such damages.
7. DISCLAIMER OF WARRANTY AND RELEASE
7.1 To the greatest extent permitted by applicable law: (i) BNMC is providing Account Manager with access to the System, together with one or more Accounts pursuant to this Agreement, and Account Manager accepts the same, “as-is” and with all faults, without any representation or warranty of any kind, whether express or implied; and (ii) Account Manager does hereby waive, release, discharge and covenant not to sue BNMC, its affiliates and their respective officers, directors, managers, members, employees, agents and representatives, for any claims, demands or damages, of every kind and nature, known or unknown, arising out of in anyway connected with this Agreement and Account Manager’s access to and use of any Accounts.
8. ENTIRE AGREEMENT
8.1 This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof, and shall supersede all prior agreements and understandings, oral or written, with respect to the subject matter hereof.
9. GOVERNING LAW; JURISDICTION; VENUE
9.1 This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Any and all claims arising from or related to this Agreement shall be heard in a federal or state court of competent jurisdiction located in Erie County, New York and each party hereto consents to the jurisdiction of such courts.
10. AMENDMENT; WAIVER
10.1 The provisions of this Agreement may be amended or waived only with the prior written consent of the parties hereto, and no course of action or conduct, or failure to enforce the provisions of this Agreement, shall affect the validity, binding effect or enforceability of this Agreement.
11. BINDING AGREEMENT; ASSIGNMENT
11.1 By signing below, the parties hereto acknowledge and agree that this Agreement is legally binding and shall inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns. Account Manager shall not assign this Agreement or its obligations and duties hereunder without the prior express written consent of BNMC, and any attempted assignment in contravention of this section shall be of no effect and void ab initio. BNMC may assign this Agreement in its sole discretion.
12. SEVERANCE
12.1 In the event any term, condition, clause or provision of this Agreement shall be found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of said invalidity, illegality or unenforceability.
13. COUNTERPARTS; ELECTRONIC SIGNATURES
13.1 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original agreement, and when taken together, all of which shall constitute one and the same agreement. This Agreement may be executed by hand or electronically, and any electronic signatures shall be considered the same as handwritten for the purposes of validity, enforceability and admissibility.