Florida Statute 119.0701 requires government records provision in every contract, left out of the draft contract for a smartphone parking app for the itty-bit City on St. Augustine Beach:
ROYLE's draft PASSPORT LABS, INC. violates Florida Statute 119.0701 by failing to require that the contractor records are public records. It does just the reverse, containing an illegally confidentiality clause contemplating evidence destruction. What do you expect from a pig but a grunt? This company is controlled by BAIN CAPITAL, ruthless former employer of Mitt Romney.
The PASSPORT LABS, INC. contract must be stopped -- it was just featured on the Jacksonville NPR affiliate, WJCT, which is finally covering local news here (perhaps as a result of my December 2018 FCC complaint against WJCT, whose FCC license will either be renewed or rejected in 2019).
Here's my e-mail to ROYLE, the City Attorney, City Commissioners and PASSPORT:
-----Original Message-----
From: Ed Slavin
To: khristian.gutierrez
Cc: kelsey
Sent: Tue, Jan 8, 2019 4:29 am
Subject: PASSPORT LABS, INC. illegal, unconscionable contract of adhesion with City of St. Augustine Beach, Florida?
Dear Messrs. Gutierrez, Branam, Royle, Johns and Wilson, Mayor George, Vice Mayor England, Commissioners Kostka, O'Brien and Samora of the City of St. Augustine Beach, Florida:
Is the enclosed proposed "Confidential" PASSPORT LABS, INC. "contract of adhesion" with City of St. Augustine Beach, Florida an illegal, unenforceable contract violation of public policy, which:
No model of government contract legal draftsmanship, this deeply flawed vendor-drafted "contract of adhesion" appears to be unenforceable and unconscionable, as it appears that it is:
1. Fails to protect citizens' rights to access our government contractor public records, violating F.S. 119.0701 and violating Article I, Section 24 of our Florida Constitution, adopted by vote of 83% of Florida voters (3.8 million people) in 1992? Yes.2. Omits mandatory Florida statutory contract language on public records, violating F.S. 119.0701? Yes.3. Fails to protect disabled persons' human rights to some twelve (12) free Americans with Disabilities Act wheelchair van accessible parking spaces out of the 300 proposed paid-for spaces? Yes.
4. Fails to provide adequate procedural safeguards to prevent overcharges, privacy violations, consumer fraud and elder financial abuse in violation of Florida and federal law? Yes.
- unadorned by any nondiscrimination or ADA/504 provisions,
- not Florida-specific,
- not drafted by any Florida lawyer,
- not drafted by the City Attorney,
- not a true bargained-for exchange,
- a standard-form, cookie-cutter, take-it-or-leave it, PASSPORT cramdown contract,
- written in opaque language, disproportionately benefiting the vendor,
- totally one-sided,
- lacking in any realistic options for parking customers who don't choose to use a smartphone app,
- lacking disclosures about the profits to be made by PASSPORT, Bain Capital's favorite monopolist in this new industry,
- excessively deferential in giving unbridled discretion to PASSPORT to draft its own contract and to make decisions and make extra money,
- misleadingly labelled "CONFIDENTIAL," in violation of F.S.119.0701,
- drafted to destroy or conceal government contractor records that are required to be accessible to the public under F.S. 119.0701. and
- intended to conceal details of this PASSPORT LABS, Inc. scheme from public view. See Section 19 (Confidentiality), at pp. 9-10, stating:
19. Confidentiality
A. Provider and Passport agree to treat this Agreement and all information furnished, or to be
furnished, by or on behalf of the other party and information analyses, summaries and other work product
derived from such information (collectively, the “Confidential Information”) in accordance with the
provisions of this section and to take, or abstain from taking, all actions set forth herein. Each party, as a
receiving party, will do the following things with regard to the Confidential Information of the other party:
i. Prevent the disclosure of the Confidential Information by the receiving party and each of the
receiving party’s employees, agents, and/or professionals to any third party other than as
permitted under this Agreement;
ii. Use, and permit the use of, the Confidential Information only for the purposes of providing, or
enjoying the benefit of, the goods, services, and/or software provided for in this Agreement
(the “Purpose”);
iii. Disclose the Confidential Information only to such of the receiving party’s employees, agents,
and professionals as have a bona fide need to possess or know the Confidential Information in
the course of accomplishing, or advising the disclosing party with regard to, the Purpose;
iv. Cause each employee, agent, or professional to whom the receiving party discloses the
Confidential Information to be bound by an obligation of confidentiality that is at least as
rigorous as the obligations contained in this Agreement; and
Passport SLSA (November 2017)
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10
v. Return or destroy all written or other tangible copies of Confidential Information in the
receiving party’s possession or direct or indirect control, including all extracts and copies
thereof, within a reasonable time after, and in accordance with, the disclosing party’s request.
B. Nothing in this Agreement will prevent the receiving party from disclosing or using Confidential
Information to the extent that:
i. It is or becomes readily ascertainable by proper means by the public without any breach of a
confidentiality obligation of the receiving party;
ii. It is received from a third party that is not under an obligation of confidentiality of which the
receiving party knew or had reason to know;
iii. It was independently developed by the receiving party without use of the Confidential
Information; or
iv. It is required by law to be disclosed, provided that the receiving party provides to the disclosing
party as much notice as is practicable under the circumstances of such requirement prior to
disclosure and provides to the disclosing party, at the disclosing party’s expense, such
reasonable assistance as the disclosing party requests in seeking confidential treatment,
protective orders, nondisclosure, and/or similar measures.
For the avoidance of doubt, none of the requirements of this Section shall prohibit Provider from disclosing
Confidential Information to the extent that such information is required to be disclosed pursuant to any
open records law, open meetings law, or any other local public disclosure law applicable to Provider.
PASSPORT is seeking to pocket 35 cents for a "convenience fee" every time someone parks in 300 spaces in St. Augustine Beach, which has no City-owned paid parking now.
The City of St. Augustine Beach's paid parking scheme has no business plan, only a timeline. The City Manager's breach of fiduciary duty and harebrained scheme invites litigation and invites profiteering.
The City of St. Augustine Beach and PASSPORT are slow-dancing together, insouciant to the public interest.
This abuse of Florida residents' and visitors' rights is indefensible, and must be ended at once.
Please cease and desist from your misguided efforts to approve this unconscionable contract of adhesion in violation of public policy. See Restatement of Contracts, 2d, Sec. 178 (Contract Violations of Public Policy).
Please delete PASSPORT's unconscionable contract from the Tuesday, January 8, 2019 St. Augustine Beach City Commission meeting agenda.
Thank you.
With kindest regards, I am,
Passport SLSA (November 2017)
Confidential
1
SOFTWARE LICENSE AND SERVICE AGREEMENT
This Software License and Service Agreement (the “Agreement”) is entered into as of the Effective Date
set forth below by and between Passport Labs, Inc. (“Passport”) and the party named below (“Provider”).
This Agreement includes and incorporates the terms and conditions found in this document, the Terms and
Conditions found in Exhibit A, and the terms and conditions found in all other Exhibits hereto, which
represent the full and complete understanding and agreement of Passport and Provider with respect to the
subject matter hereof. In exchange for the mutual covenants herein and other good and valuable
consideration, the Parties agree and intend to be bound as follows:
I. GENERAL TERMS
Provider Legal Name: City of St. Augustine Beach, FL Contact: Anthony Johns
Email: ajohns@cityofsab.org Phone: (904) 471-2122
Provider Contact Address
2200 A1A South
St. Augustine Beach, FL 32080
Provider Billing Contact Address
2200 A1A South
St. Augustine Beach, FL 32080
Effective Date:
Services:
Passport will provide services (the “Services”) and license all software, including all web and mobile
applications and related documentation, (the “Software”) necessary for Provider to operate (1) a
mobile payment for parking program (“MPP”) which allows all parking customers in any parking
facilities owned or managed by Provider the ability to pay for parking using a smartphone application
or mobile web application; and (2) a citation management platform (“CMP”) which allows Provider’s
parking enforcement officers in any or all parking facilities owned or managed by Provider the ability
to issue parking citations that may be paid online through Passport’s payment portal.
Governing State Law: Florida
Term:
This Agreement shall commence on the Effective Date and continue until it is terminated (the
“Term”). Either Party may terminate this Agreement by providing sixty (60) days’ written notice to
the non-terminating Party.
(continued on next page)
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2
II. MOBILE PAYMENT FOR PARKING TERMS
Equipment Provided by Passport: Initial Signs
One (1) sign per block
face for on-street
parking; one (1) sign
per fifty (50) spaces
for off-street parking
Initial Decals
One (1) decal
per hardware
unit
Installation:
Provider will be solely responsible for installing all signs and decals in the Premises. This obligation
includes the responsibility to provide all hardware necessary to affix and display signs and decals,
including without limitation, all hooks, poles, posts, brackets, screws, bolts, and nuts.
Ancillary Fees:
a) Zone setup fees of three dollars ($3.00) per space - WAIVED
b) Initial Signs and Stickers – WAIVED
(unit prices of twenty dollars ($20.00) per sign and three dollars ($3.00) per decal will apply
to additional or replacement orders)
c) Provider will pay a ten dollar ($10.00) administrative fee in addition to sign and shipping
costs per sign for any additional or replacement signs purchased through Passport
d) Provider will pay a one dollar ($1.00) administrative fee in addition to decal and shipping
costs per decal for any additional or replacement decals purchased through Passport
e) Passport will provide a design file to allow Provider to print replacement signs and decals
f) Provider will reimburse Passport for any and all reasonable travel, lodging, and food expenses
incurred by Passport employees while traveling at Provider’s request.
(continued on next page)
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3
III. CITATION MANAGEMENT PLATFORM TERMS
Equipment:
a) Provider must purchase a sufficient number of Android-based handheld devices for each parking
enforcement officer to have access to one device while conducting parking enforcement activities
b) Passport will provide custom setup for Android devices, including installing and configuring the
Software and pairing the device with a Bluetooth-enabled printer for an additional fee of $300.00
c) Provider must maintain at its sole cost one wireless data plan for each Android device
d) Provider must possess at least one Bluetooth-enabled printer per Android device described above
e) If Provider chooses to purchase additional Bluetooth-enabled printers through Passport, the price
for a Zebra zq320 (or substantial equivalent) is $600.00 with charger
f) In addition to the unit costs per Bluetooth-enabled printer above, Provider will be responsible for
paying all shipping costs and printer paper costs
g) If Provider orders custom printer paper through Passport, Provider will be responsible for paying
the costs of creating, printing, and shipping such custom paper plus a 12% service fee to Passport.
Passport is unable to provide estimated costs until specific details of Provider’s order have been
confirmed due to the variable costs of its 3rd party.
Collections Support:
a) Passport will provide an online payment portal through which parking violators may pay
outstanding parking citations
b) After thirty (30) days parking citations issued by Provider will escalate in price and Passport will
automatically generate and send a letter to each parking citation owner for which Passport has
necessary state licensure authorization to perform a driver record lookup informing such parking
violator that they have an outstanding parking citation and that the citation amount has increased
(continued on next page)
Passport SLSA (November 2017)
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4
IV. FEES
Per Transaction MPP Service and License Fee* $0.35
Maximum Convenience Fee Passed through to Parking Customers $0.35
CMP Service and License Fee Per Ticket Paid $3.00
Additional CMP Service and License Fee Per Ticket Paid After Citation
Amount Escalation
35%
Cost Per Notification Letter Sent by Passport $1.50
Merchant Processing Costs:
Provider will be responsible for paying all merchant processing costs, including, without limitation,
settlement fees, payment gateway fees, chargeback fees, and interchange reimbursement fees.
Merchant of Record for Transactions:
X Passport Provider
Passport Merchant Processing Rate Per Transaction: 2.9% + $0.30
Payment Gateway Provider: X Passport Other
Passport Gateway Fee Per Transaction: $0.05
*An MPP “transaction” is a single session lasting less than twenty-four (24) hours in duration.
Passport Labs, Inc: Provider:
By: __________________________ By: __________________________
Name: __________________________ Name: __________________________
Title: __________________________ Title: __________________________
Passport SLSA (November 2017)
Confidential
5
Exhibit A
Terms and Conditions
1. Services
Passport shall perform the services in a competent, professional, and workmanlike manner consistent with
industry practices. Passport will maintain all permits, certificates and licenses required by applicable law
and Passport’s employees performing the services will be fully qualified, licensed as required, and skilled
to perform the services. Passport warrants that it has the power to enter into and perform this Agreement
and that it will at all times during the term of this Agreement be, duly organized, validly existing and in
good standing under the laws of the state of Delaware.
2. Compliance with Laws and Codes
In providing the services under this Agreement, Passport will comply at its sole cost and expense with all
applicable federal, state, county, and municipal laws, statutes, rules, regulations and ordinances. If
requested by Provider while performing services at Provider’s place of business, Passport will comply with
Provider’s dress and conduct codes and security protocols.
3. PCI Certification
For the duration of the term of this Agreement, Passport will maintain Payment Card Industry – Data
Security Standard certification.
4. Product Updates
Any system-wide improvements or modifications made by Passport to the Software will, when available,
be provided to Provider at no charge to Provider and will automatically be subject to the terms of this
Agreement.
Provider may request new features or functionality to be built into the system, and, to the extent that
Passport plans to incorporate such requested new features or functionality into the Software, Passport will
develop such features and functionality at no cost to the Provider pursuant to Passport’s development
timeline. If the Provider desires to expedite such development, Passport may, in its sole discretion, charge
Provider an expedite fee of two hundred dollars ($200.00) per development hour necessary to develop the
requested features or functionality, provided, however, that Passport shall first notify Provider and receive
written approval from Provider to proceed. If the Provider’s requested features or functionality are created
for the Provider’s use and Passport does not plan to incorporate such requested features into the Software,
Passport may, in its sole discretion, charge Provider a custom development fee of two hundred and fifty
dollars ($250.00) per hour for the development of such features or functionality, provided, however, that
Passport shall first notify Provider and receive written approval from Provider to proceed.
In addition to or in lieu of the fees set forth in this section, the parties may establish a monthly software
license or maintenance fee that will be mutually agreed between the parties in a separate written addendum
to this Agreement.
5. Changes
Any changes to the scope of services provided under this Agreement shall be set forth in a written change
order or amendment signed by both parties setting forth the scope of the change(s) and any applicable fees.
Passport SLSA (November 2017)
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6
6. Additional Passport Services
Passport provides all of the following software platforms as part of its overall technology portfolio: mobile
payments for parking, citation management, digital permits, and mobile payments for transit. Provider may
request the addition of any of these platforms to the extent not provided by Passport to Provider as of the
Effective Date, and any additional platforms developed by Passport from and after the Effective Date, which
shall be memorialized in an addendum to this Agreement including the fees applicable to such platform(s)
and any additional applicable service or legal terms.
7. Scheduled Maintenance
If Passport plans to perform any scheduled maintenance during business hours, Passport will provide notice
to Provider at least twenty-four (24) hours in advance of the commencement of such scheduled
maintenance. For the purpose of this section, “business hours” means Monday through Friday between 9
am 5 pm EDT. In the event that Passport determines that unscheduled maintenance is necessary, Passport
will give Provider as much advance notice as is reasonably practicable, unless such unscheduled
maintenance is necessitated by emergency circumstances for which it would be unfeasible or impossible to
notify Provider in advance.
8. System Uptime; Billing Credits
Passport will provide the Software with uptime of at least ninety-nine percent (99.0%) calculated over a
rolling six-month period (“Uptime Guarantee”). For any month during which system uptime drops below
the Uptime Guarantee, Passport will provide a billing credit in an amount equal to the percentage difference
between a) the lowest uptime reached at any point during the month (calculated on a rolling six month
period) and b) the Uptime Guarantee, multiplied by the total fees payable to Passport for such month. For
example, if during a given month the software uptime falls to ninety-five percent (95.0%) and if during that
month the fees payable to Passport were one hundred dollars ($100.00), Passport will issue a billing credit
of four dollars ($4.00). For the purposes of this agreement, uptime is defined as any period of time during
which end users of the Software can use the Software.
9. Service Levels
Subject to the uptime guarantee set forth in Section 8, Passport’s sole and exclusive obligation in the event
of an error or interruption of the Software is to use its best efforts to restore or repair the Software as quickly
as practicable.
10. Technical Support
A. Passport will provide telephone and email support to Provider’s staff
from Monday to Friday between the hours of 8:00 a.m to 7:00 p.m. EST to address technical and operating
setting issues. Passport will provide "after-hours emergency telephone support" available 24/7.
Monday-Friday 8AM - 7PM EST
o (US) 980-939-0990
o Help@passportinc.com
After-Hours Emergency Support
o 866.815.3043
Passport SLSA (November 2017)
Confidential
7
B. Provider will provide initial support, including inquires via telephone and email, for end-users
("parkers"). If the Provider is unable to address the parkers technical questions, Provider may escalate endusers
to Passport’s End-User Support Team for technical issues from Monday to Saturday between the
hours of 8:00 a.m to 9:00 p.m. EST at (US) 704-817-2500 or Support@passportinc.com. Provider may not
display Passport’s phone number (or other direct contact information for Passport) on any marketing or
signage visible by parkers.
11. Data Rights
This Section shall govern the rights of Passport and Provider, as the case may be, with respect to the data
that is subject to this Agreement. Passport will, by provisions in its Privacy Policy or otherwise, procure
from such end users all such lawful consents and rights necessary to grant to Provider the rights in such
data as stated in this Section. Passport’s Privacy Policy, as it may be amended from time to time in
Passport’s sole discretion, can be viewed at https://www.passportinc.com/privacy-policy.
A. Operational data is data specific to the Provider’s operation that is provided by Provider to Passport
to be used in the providing of services. Operational data is specific to the Provider’s operation, which is
not available to Passport publicly or by other means. Operational data may include, but is not limited to,
zone information, rate information, operational schedules, business metrics, relevant details of partner
agreements. In each case, Operational data may refer to past, present, or future states of such items.
Operational data is the sole and exclusive property of the Provider. The Provider grants Passport a
perpetual, irrevocable, royalty-free, non-exclusive, non-assignable, and non-transferrable license to
Operational data, provided that, Passport may assign or transfer such license to a successor in connection
with the transfer or sale of all or substantially all of its assets or business related to this agreement, or in the
event of its merger, consolidation, change in control or similar transaction.
B. Payment Card Industry-Data Security Standard Information (“PCI-DSS
Information”) consists of the following items, each as defined by the then-current Payment Card Industry
Data Security Standards (“PCI-DSS”): Account Data; Cardholder Data; Primary Account Number; and
Sensitive Authentication Data.
Passport acquires a license or sublicense to the PCI-DSS Information from end users who share such data
with Passport in connection with their use of the Software. Passport must secure such data in accordance
with PCI-DSS. As such, Passport may not grant Provider derivative rights to such PCI-DSS Information
and Passport shall not be required to disclose such PCI-DSS Information to Provider.
C. Personal identifiable information (“PII”) is any representation of information that permits the
identity of an individual to whom the information applies to be reasonably determined or inferred by either
direct or indirect means. Name, address, social security number or other identifying number or code,
telephone number, or email address directly identify individuals. Certain data elements—including gender,
race, birth date, geographic indicator (such as zip code or postal code), and other descriptors—can be used
in conjunction or with other data elements to indirectly identify individuals. Information permitting the
physical or online contacting of a specific individual (e.g., IP address) is also personally identifiable
information. End users of Passport’s Software own PII and license it to Passport pursuant to Passport’s
Privacy Policy, as it may be amended from time to time in Passport’s sole discretion. Passport may
sublicense PII to the Provider under certain conditions (including but not limited to the Provider’s
compliance with information security controls and applicable regulations) that shall be memorialized
separately if and when applicable.
Passport SLSA (November 2017)
Confidential
8
D. Activity data is any data generated in the providing of services under this agreement by Passport to
Provider and by end users’ interactions with the services or with Passport directly that is not otherwise PCIDSS
information or PII as defined above. Activity data may include, but is not limited to, user interaction
data, geolocation data, opt-in/opt-out status (including compliance logs), purchase and session data,
application diagnostic data, service performance data, and support data. Data that is derived from Activity
data is also Activity data.
Activity data is the sole and exclusive property of Passport. Passport grants the Provider an irrevocable,
royalty-free, non-exclusive, non-assignable, and non-transferrable license to Activity data for the duration
of the term of this Agreement and only to the extent and in the format that Passport chooses in its sole
discretion to expose such data through its administrative portal or as otherwise agreed upon with the
Provider and only for the Provider’s internal use in connection with the services provided under this
agreement.
12. Privacy Policy; Terms of Use
End users’ use of the Services shall at all times be governed by (a) Passport’s Privacy Policy, as it may be
amended from time to time in Passport’s sole discretion, which can be viewed at
https://passportinc.com/privacy-policy/, and (b) Passport’s Terms and Conditions, as they may be amended
from time to time in Passport’s sole discretion, which can be viewed at https://passportinc.com/terms-andconditions/.
13. Intellectual Property
A. Passport grants Provider a revocable, non-exclusive, non-assignable, non-transferrable, and nonsubleaseable
right and license to use and access the Software only for its internal business purposes for the
duration of the Term. All intellectual property rights including, without limitation, trade names, source
code, trademarks, copyrights, patents, and trade secrets, not explicitly granted to Provider in this agreement
are reserved to Passport.
B. Provider will not, directly, indirectly, alone, or with another party, (I) copy, disassemble, reverse
engineer, or decompile the software or any subpart thereof; (ii) modify, create derivative works based upon,
or translate the software or source code; (iii) transfer or otherwise grant any rights in the software or source
code in any form to any other party; (iv) attempt to do any of the foregoing or cause or permit any third
party to do or attempt to do any of the foregoing, except as expressly permitted hereunder.
14. Publicity; Use of Names and Marks
Subject to the provisions of Section 19 (Confidentiality) below, the parties will have the right to publicly
disclose that Passport is Provider’s provider of the Software as set forth herein by means of, by way of
illustration and not limitation, news releases, public announcements, or other forms of publicity.
Passport may use the name or marks of Provider, or reference the fact that Provider is a client of Passport,
for business development purposes, as part of a portfolio or work, or in an illustrative list of clients.
15. Payment Gateway
Provider must supply a payment gateway for the payment of all fees by end users. Passport can provide
payment gateway services and Exhibit B contains a list of other payment gateways supported by Passport.
For any unsupported payment gateway selected by Provider, Passport will charge a two hundred and fifty
dollar ($250.00) per development hour necessary to perform necessary integrations. Provider will bear all
Passport SLSA (November 2017)
Confidential
9
costs associated with payment gateway services, including all per transaction costs. Provider may elect to
use Passport’s payment gateway at any time (which shall be reflected in a written amendment to this
Agreement) at the rate of $0.05 per transaction.
16. Payment Terms
If Passport is the Merchant of Record (“MOR”), Passport will remit the funds to Provider from the
preceding month within fifteen (15) days of the conclusion of the month after netting out Passport’s fees
and merchant processing fees.
If Provider is the MOR, Passport will send monthly invoices to Provider for all fees payable to Passport
that accrued during the preceding month. If Provider fails to remit payment according to such invoices
within thirty (30) days after the date on the invoice, Passport will have the right to suspend Provider’s
access to the software and/or assess interest at the rate of 18% per annum on the delinquent balance, or the
maximum rate permitted by state law, if lower, until such delinquent balance is paid.
17. Refunds
Passport agrees to forgo or return, as applicable, its per transaction fees for any refund granted by Provider.
Provider will be responsible for reimbursing Passport for all merchant processing fees, including without
limitation payment gateway fees, settlement fees, and interchange reimbursement fees, if any, incurred by
Passport for all transactions, including refunded transactions.
18. Capacity
Provider represents and warrants that it has obtained or will obtain all applicable governmental approvals,
authorizations, or licenses necessary to enter into this Agreement. Provider further represents and warrants
its signatory is duly authorized to bind Provider to the terms herein.
19. Confidentiality
A. Provider and Passport agree to treat this Agreement and all information furnished, or to be
furnished, by or on behalf of the other party and information analyses, summaries and other work product
derived from such information (collectively, the “Confidential Information”) in accordance with the
provisions of this section and to take, or abstain from taking, all actions set forth herein. Each party, as a
receiving party, will do the following things with regard to the Confidential Information of the other party:
i. Prevent the disclosure of the Confidential Information by the receiving party and each of the
receiving party’s employees, agents, and/or professionals to any third party other than as
permitted under this Agreement;
ii. Use, and permit the use of, the Confidential Information only for the purposes of providing, or
enjoying the benefit of, the goods, services, and/or software provided for in this Agreement
(the “Purpose”);
iii. Disclose the Confidential Information only to such of the receiving party’s employees, agents,
and professionals as have a bona fide need to possess or know the Confidential Information in
the course of accomplishing, or advising the disclosing party with regard to, the Purpose;
iv. Cause each employee, agent, or professional to whom the receiving party discloses the
Confidential Information to be bound by an obligation of confidentiality that is at least as
rigorous as the obligations contained in this Agreement; and
Passport SLSA (November 2017)
Confidential
10
v. Return or destroy all written or other tangible copies of Confidential Information in the
receiving party’s possession or direct or indirect control, including all extracts and copies
thereof, within a reasonable time after, and in accordance with, the disclosing party’s request.
B. Nothing in this Agreement will prevent the receiving party from disclosing or using Confidential
Information to the extent that:
i. It is or becomes readily ascertainable by proper means by the public without any breach of a
confidentiality obligation of the receiving party;
ii. It is received from a third party that is not under an obligation of confidentiality of which the
receiving party knew or had reason to know;
iii. It was independently developed by the receiving party without use of the Confidential
Information; or
iv. It is required by law to be disclosed, provided that the receiving party provides to the disclosing
party as much notice as is practicable under the circumstances of such requirement prior to
disclosure and provides to the disclosing party, at the disclosing party’s expense, such
reasonable assistance as the disclosing party requests in seeking confidential treatment,
protective orders, nondisclosure, and/or similar measures.
For the avoidance of doubt, none of the requirements of this Section shall prohibit Provider from disclosing
Confidential Information to the extent that such information is required to be disclosed pursuant to any
open records law, open meetings law, or any other local public disclosure law applicable to Provider.
20. Wallet Services
Provider may elect to provide parking customers with a virtual wallet (a “wallet program”). With a wallet
program, parking customers would be required to prepay funds into a wallet account for the payment of
future parking fees and/or transit ticket fares. Provider and Passport shall agree in advance on the minimum
amount required to fund the wallet.
21. Marketing and Design Services
At Provider’s request, Passport may provide marketing and design services to Provider as value-added
services to Provider in connection with the services provided under this Agreement. Provider should
contact its Passport sales associate for additional details pertaining to these services. Any services selected
and any applicable fees and terms will be memorialized in a written addendum to this Agreement and shall
be incorporated herein by reference.
22. Cooperative Purchasing
Provider will allow any public agency located in the United States to purchase, and Passport to offer to such
public agency or agencies, the Software at the same price and under the same conditions agreed upon in
this Agreement without any competitive bidding on the part of such public agency or agencies, to the extent
permitted by law. Each such public agency will execute its own contract directly with Passport and Provider
shall not incur any responsibility—financial or otherwise—in connection therewith.
23. Force Majeure
Neither Passport nor Provider will be held liable for any delay or omission in performance of their duties
under this Agreement resulting from causes beyond their reasonable control, including, for the sake of
illustration and not limitation, delays or omissions attributable to third-party vendors, suppliers, or
Passport SLSA (November 2017)
Confidential
11
integration partners, labor strikes, acts of god, acts of the public enemy, fires, natural disasters, wars, or
riots.
24. Disclaimer of Warranties
The Software is provided to Provider by Passport “as is” and with all faults. Provider acknowledges and
agrees that Passport bears no liability for any error, omission, defect, deficiency, or nonconformity within
the Software except as expressly provided in this Agreement. Other than as specifically set forth herein,
Passport does not make any representations, warranties, or guarantees, express or implied, directly or
indirectly, including, without limitation, any warranty of condition, merchantability, or fitness for a
particular purpose or use, with respect to, arising out of, or in connection with the Software and related
services to be performed pursuant to this Agreement.
25. Severability
If any provision of the agreement is found to violate applicable law, the violating provision will be
ineffective only to the extent that it violates the law, without invalidating the remainder of the section
containing the violating provision or any other provisions or sections of this Agreement. Any court or
arbitrator adjudicating the matter of the invalidity of a provision shall, to the extent permitted by law, reform
any such illegal or unenforceable provision such as to give it the maximum effect.
26. Assignment
This Agreement and all of its provisions will be binding upon and inure to the benefit of the parties and
their respective permitted successors and assignees. Neither Passport nor Provider may assign any rights,
interests, or obligations hereunder without prior written consent of the other party, provided, however, that
Passport may, without such written consent, assign this agreement and its rights and delegate its obligations
hereunder in connection with the transfer or sale of all or substantially all of its assets or business related
to this agreement, or in the event of its merger, consolidation, change in control or similar transaction. Any
permitted assignee shall assume all assigned obligations of its assignor under this agreement. Any purported
assignment in violation of this section shall be void and of no effect.
27. Contractual Silence
To the extent this Agreement fails to address a condition, obligation, benefit, or other term necessary to
sufficiently define the relationship between the parties or a disagreement or conflict regarding the
interpretation or construction of this Agreement arises, the parties agree to reasonably cooperate to draft a
mutually agreeable amendment that clarifies the duties, rights, and obligations of the parties under this
Agreement.
28. Amendments
The parties may not amend or modify this agreement except by a written instrument signed by an authorized
signatory of each party.
29. Currency
Unless otherwise specified in the Agreement, all fees and other monetary amounts are in U.S. Dollars. If a
currency other than the U.S. Dollar is specified, the exchange rate will be fixed at the foreign exchange rate
published by the United States Federal Reserve on the date the payment of remittance is transmitted from
Provider to Passport, or vice versa, as the case may be.
Passport SLSA (November 2017)
Confidential
12
30. Cooperate
If either Provider or Passport has a claim, dispute, or other matter in question for breach of duty, obligations,
services rendered or any warranty that arises under this agreement, the parties agree to cooperate in good
faith to achieve a satisfactory resolution of such matter. If after sixty (60) days the dispute remains
unresolved, the parties may pursue other remedies available at law or in equity. Notwithstanding the
foregoing, either party shall have the right to immediately seek any applicable remedies available at law or
in equity for a breach or threatened breach of the confidentiality obligations as set forth in Section 19.
31. Independent Contractor
Passport is an independent contractor and not an agent or employee of Provider. No agency, partnership,
franchise, joint venture, or employment relationship exists between Passport and Provider. Passport’s
employees and agents will not be employees or agents of Provider. Passport shall be fully and solely
responsible for the supervision, control, performance, compensation, benefits (including, without
limitation, all forms of insurance) withholdings, health and safety of all of its employees and agents.
Provider will not be responsible or liable for any withholding taxes or contributions to state worker’s
compensation, unemployment or other funds or programs.
32. Limitation of Liability
In no event will Passport be liable to Provider for any lost profits, lost savings, or punitive, incidental,
indirect, special, or consequential damages arising out of Provider’s use or inability to use the Software or
the breach of this agreement, even if Passport has been advised of the possibility of such damages.
33. Notices
All notices, consents, and communications required hereunder shall be given in writing and delivered via
electronic mail or mail, shall be deemed to be given upon receipt thereof, and shall be sent to the address
below:
If to Passport:
Passport Labs, Inc.
Attn: Khristian Gutierrez
128 S. Tryon St., Suite 2200
Charlotte, NC 28202
Fax: (888) 804-1783
khristian.gutierrez@passportinc.com
With a hard copy to General Counsel and by email to jason.Idilbi@passportinc.com
If to Provider at the contact information provided on the “General Terms” page.
34. Construction
No rule of law that requires that any part of the Agreement be construed against the party drafting the
language will be used in interpreting this Agreement.
Passport SLSA (November 2017)
Confidential
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35. Waiver
Any failure or delay by Passport to enforce the provisions of this Agreement shall in no way constitute a
waiver by Passport of any contractual right hereunder, unless such waiver is in writing and signed by
Passport.
36. Entire Agreement
This Agreement contains the entire agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior or contemporaneous communications, representations or agreements
between the parties, whether verbal or written, including any printed terms and conditions which may
appear on either Party’s purchase orders, releases, invoices or other forms to the extent such terms are
different from or inconsistent with this Agreement.
Passport SLSA (November 2017)
Confidential
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