END CUSTOMER AGREEMENT
Last Updated: October 8th, 2015
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE PRODUCTS
This End Customer Agreement (“Agreement”) forms a legally binding agreement between you or the entity that you represent (“Customer” or “you”) and Cloud4Wi Inc. located at 363 Clementina Street, San Francisco, 94103, California, USA (“ Cloud4Wi”, “us” or “we”) for the use of our proprietary products (“Products”) at one or more venues.
By clicking on "I AGREE” (“I AGREE”) on the platform (“Platform”) when logging in for the first time, you represent that you have read, understood, and agree to be bound by this Agreement and to use the Products in compliance with this Agreement. The effective date of this Agreement is the date that you click on "I AGREE".
If you do not agree to this Agreement, please do not click “I AGREE” but “I REJECT” and you are not permitted to access or use our Products.
For purposes of this Agreement, the following terms have the corresponding definitions listed below:
1.1 “Aggregated Information” means the information collected about a group of category of users, services, or devices that is not personally identifiable or from which individual identifies are removed.
1.2 “Customer” means the entity that wishes to make use of the Products at one or more of its venue and places a Purchase Order for the Products, either directly to Cloud4Wi or to one of the authorized channel partner.
1.3 “Customer Content” means content prepared by the Customer for use with the Products, whether or not provided to Cloud4Wi, including logos, splash portal, and preferences.
1.4 “Documentation” means any user instructions, manuals, specifications, or other documentation provided by Cloud4Wi at support.cloud4wi.com that relates to the use of the Products, including any Modifications.
1.5 “Feedback” has meaning given to it in the Section 1, below.
1.6 “Governing Documents” has meaning given to it in the Section 21, below.
1.7 “Hardware” means the proprietary hardware products included in the Product Licenses listed on a Purchase Order.
1.8 “Intellectual Property Rights” means all (a) rights associated with works of authorship throughout the world, including but not limited to copyrights and moral rights, (b) trademarks, service marks, trade name and logo rights, and similar rights, (c) trade secret rights and other rights in inventions, know-how and confidential or proprietary information, (d) patent rights, (e) domain names and Internet keywords, (f) other intellectual property or other proprietary rights, whether arising by operation of law, contract, license, or otherwise, and (g) registrations, initial applications, renewals, extensions, provisional, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
1.9 “Licenses” means, collectively, the Product License and Third Party Licenses.
1.10 “Modification” or “Modifications” means all changes incorporated into or used with the Products or Documentation, including enhancements, standard releases, and patches.
1.11 “Personal Information” means the information that specifically identifies an individual.
1.12 “Platform” means the proprietary cloud-based open Wi-Fi engagement platform, accessible via web and mobile applications, which enhances Guest Wi-Fi access at venues.
1.13 “Price” means the aggregate price you paid for the Product License(s) listed on the applicable Purchase Order.
1.15 “Products” means, collectively, the Platform, the Hardware, the Documentation, and the Support Services.
1.16 “Purchase Order” means a Purchase Order submitted by the Customer either directly to Cloud4Wi or to one of the authorized channel partner with respect to the purchase of the Products, and related licenses listed on such Purchase Order.
1.17 “RMA” has meaning given to it in Section 3, below.
1.18 “Services” means the services provided by the Customer at one or more venues through the Products, including mobile location detection services and guest Wi-Fi services.
1.19 “Service Level Agreement” means the Service Level Agreement provided at support.cloud4wi.com/SLA, which governs the terms of the Service Level Warranty.
1.20 “Service Level Warranty” has meaning given to it in Section 2, below.
1.21 “Support Services” means the customer support services described at cloud4wi.com/services.
1.22 “Term” means the term of the Product License(s) indicated on the Purchase Order or as subsequently modified in connection with the purchase of additional Product Licenses.
1.24 “Warranty Period” means, with respect to any item of Hardware, the related Term.
2.1 Subject to your payment to Cloud4Wi or the authorized channel partner, as applicable, commencement date will be when you first use the Products through the expiration of the Term, subject to the terms of this Agreement. We also provide you with the Support Services and warranty services as described in detail below.
2.2 Other than Cloud4Wi responsibilities set forth in Section 1 above, you are responsible for your use of the Products in full compliance with this Agreement and for all activities you and your Users engage in while using your Service, including without limitation: (i) promptly updating the registration information of the primary account holder for the Products if it changes or is no longer current, accurate and complete; (ii) using commercially reasonable efforts to prevent unauthorized access to, or use of, the Products, and notifying Cloud4Wi promptly of such unauthorized access or use; (iii) being responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all activities of your Users and providing any support services your Users may need; (iv) being responsible for obtaining and maintaining all hardware and other communications equipment needed to access the Products and for paying all third-party access charges incurred while using the Products; (v) being responsible for, and assuming the risk of, any problems resulting from the content, completeness, accuracy, and consistency of all Customer Content; (vi) complying with all applicable local, state, federal, and foreign laws in using the Products; (vii) all applicable industry standards governing the subject matter of this Agreement.
3. PRODUCT LICENSE
3.1 Subject to the terms and conditions of this Agreement and your submission of a properly completed Purchase Order and full payment of the applicable Price, Cloud4Wi grants you an individual, personal, non-sublicensable, non-transferable (except as otherwise provided herein) and non-exclusive license, for the duration of the Term, to access and use the Products (that is only the Platform or the Platform plus the Hardware) solely for internal business purposes.
3.2 If, during the Term, Cloud4Wi integrates any Modifications into the Products each such Modification and all related Documentation, will be deemed to be part of the Products and made available to you only under the terms of the applicable Product License.
3.3 In exchange for the grant of the applicable license or licenses set forth above, you agree you will not, and will not permit others to, whether directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Products; (ii) modify, translate, or create derivative works based on the Products; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Products; or (iv) remove any proprietary notices or labels on the Products.
If any alterations, updates, enhancements, additions or improvements interfere with the normal operation, maintenance, or support of the Products, you will promptly remove the same and restore the Products to its normal condition.
3.4 Cloud4Wi may use aggregated information for the purpose of measuring overall industry trends and may provide them to the entire customer base.
4. THIRD PARTY LICENSES
If the Products include software provided by a third party, the terms under which that software are provided to you may be found at support.cloud4wi.com/third-party-licenses.
5. TERM AND TERMINATION
5.1 This Agreement will be effective with respect to your use of the Products until the expiration of the Product License(s), unless earlier terminated under Section 2.
5.2 Cloud4Wi may immediately suspend your use of the Products at any time if Cloud4Wi reasonably believes that you have breached the terms of Section 3, 4, 3 and 11. If such breach by you remains uncured for five days following receipt of notice from Cloud4Wi, then Cloud4Wi may terminate this Agreement effective immediately. You may terminate this Agreement for cause if we breach any material obligation of ours under this Agreement and fail to cure such breach within 10 business days of our receipt of written notice from you of such breach.
5.3 Upon the termination of this Agreement for any reason, your access to and right to use the Products will terminate, and all Licenses will terminate. Upon termination of this Agreement, each party will return (or destroy) any Confidential Information of the other party in its possession. The following provisions of this Agreement will survive any termination of the Agreement: Section 5, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 18, 19, 20, 21 and 22.
6. INTELLECTUAL PROPERTY
6.1 Except as provided in Section 2, below, Cloud4Wi owns all right, title, and interest, including all Intellectual Property Rights therein, in and to the Products and Documentation. Nothing in this Agreement will be construed as transferring or changing our Intellectual Property Rights or interests in the Products in any respect. In addition, we will own any and all right, title, and interest in and to any feedback, suggestions, information, or materials you convey to us related to the Products in connection with your use of the Products ("Feedback"). You hereby assign to Cloud4Wi all right, title, and interest in such Feedback and will execute any documents and take any additional actions Cloud4Wi deems necessary to evidence, record, or perfect the foregoing assignment.
6.2 Other than the rights expressly granted to you in this Agreement, we reserve all rights with respect to the Products and any and all related rights, including any derivative works and any media, mode, or method of distribution or transmission of the Products, whether available now or developed in the future.
6.3 Neither party will use the other’s name, trademark, or trade name without prior written consent, except in the instance of Cloud4Wi using your name and logo on our website or in connection with our other customer listings.
The Customer will defend, indemnify, and hold Cloud4Wi, its affiliates, and their employees, officers, directors, successors, assigns, agents, and customers harmless from and against any and all liabilities, damages, losses, costs, and expenses, including reasonable attorneys’ fees arising out of or in connection with any and all claims, demands, actions, or proceedings brought by a third party to the extent based upon: (i) any grossly negligent, reckless, or intentionally wrongful act of the Customer or Customer’s assistants, employees, agents, or Users; (ii) Customer’s or its Users’ misuse of the Products or breach of this Agreement; or (iii) Customer’s unauthorized modification or alteration of the Products, including any modification or alteration in violation of Section 3.3, above; (iv) Customer’s combination of the Products with other products, software, or services not supplied or specified by Cloud4Wi; (v) Customer’s continued use of the Products without implementation within a reasonable time period of modifications provided by Cloud4Wi; and (vi) any grossly negligent, reckless, or intentionally wrongful act of the Customer in privacy and data protection.
8.1 Each party hereby represents and warrants to the other that it has all necessary corporate power and authority to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement constitutes legal, valid, and binding obligations of the warranting party enforceable against the non-warranting party in accordance with its terms.
8.2 Cloud4Wi will make reasonable efforts to provide the Platform in accordance with the Service Level Warranty set forth in the Service Level Agreement (the "Service Level Warranty"), subject to the terms and conditions of the Service Level Agreement. The remedy set forth in the Service Level Agreement is your sole and exclusive remedy with respect to the subject matter of the Service Level Agreement, and our sole and exclusive liability, in contract or tort, for any breach of the Service Level Warranty.
8.3 Cloud4Wi represents and warrants to you, the individual or entity who obtained the Hardware from Cloud4Wi or its authorized channel partner, but not to any Users or other third parties, as follows: (i) for the Warranty Period the Hardware will be free from material defects in materials and workmanship; (ii) the Hardware is new unless otherwise indicated on the face of the Order; and (iii) we have good title to the Hardware, free and clear of any liens, claims, or encumbrances. Hardware not meeting the warranties set forth above will be replaced. All Hardware replaced under warranty will be warranted for the remainder of the Warranty Period. For any return permitted under Cloud4Wi’s return policy, you will request a Return Materials Authorization ("RMA") number in writing with the reasons for the return request. The remedies described above are our sole liability and your sole remedy for any breach of the warranties contained in this Section 3. Cloud4Wi is not responsible for any non-Cloud4Wi data or information stored on any Hardware returned to Cloud4Wi for repair, whether under warranty or not.
8.4 Cloud4Wi has no obligation with respect to defects caused by or resulting from any of the following: (i) modifications or repairs to the Products made by you or any third party; (ii) damage or defects resulting from misuse, accident, neglect, abuse, catastrophe, negligence, improper storage, testing, or connection, or other improper treatment; (iii) your use or operation of the Products other than as detailed in the manual; (iv) misconfiguration of the Products; or (v) any other causes beyond Cloud4Wi’s reasonable control.
9. DISCLAIMER OF WARRANTIES
EXCEPT AS SET FORTH IN SECTION 8, CLOUD4WI OR ITS CHANNEL PARTNERS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE, AND THE CUSTOMER UNDERSTANDS AND AGREES THAT THE PRODUCTS ARE PROVIDED “AS IS.” CLOUD4WI MAKES NO WARRANTY THAT THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES CLOUD4WI MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED BY MEANS OF THE PRODUCTS, OR THAT ANY DEFECTS IN THE PRODUCTS WILL BE CORRECTED. FURTHER, CLOUD4WI OR ITS CHANNEL PARTNERS DOES NOT WARRANT THAT THE PRODUCTS OR THE CLOUD4WI SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CLOUD4WI ALSO ASSUMES NO RESPONSIBILITY, AND IS NOT LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, CUSTOMER’S SOFTWARE, OR OTHER MATERIALS. Because some jurisdictions do not permit the exclusion of implied warranties, portions of this Section may not apply to the Customer.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL CLOUD4WI OR ITS CHANNEL PARTNERS BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES OF ANY NATURE (INCLUDING LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING FROM OR RELATING TO CUSTOMER’S USE OF THE PRODUCTS OR USE OF THE PRODUCTS THROUGH CUSTOMER’S ACCOUNT BY ANYONE ELSE, EVEN IF CLOUD4WI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CLOUD4WI’S TOTAL CUMULATIVE LIABILITY TO THE CUSTOMER AND ANYONE WHO USES THE PRODUCTS THROUGH CUSTOMER’S ACCOUNT, FOR ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW OR EQUITY, EXCEED THE AGGREGATE PRICE ACROSS ALL PURCHASE ORDERS SUBMITTED BY THE CUSTOMER. THE CUSTOMER UNDERSTANDS THAT THESE LIMITATIONS OF CLOUD4WI’S AND CLOUD4WI’S CHANNEL PARTNERS’ LIABILITY ARE A FUNDAMENTAL PART OF THIS AGREEMENT. The provisions of this Section 10 allocate risks under this Agreement between Cloud4Wi and the Customer. Cloud4Wi’s pricing of the Products reflects this allocation of risks and limitation of liability. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to the Customer, in which case Cloud4Wi’s liabilities will be limited to the maximum extent allowed by law.
Except as described in Section 6.3 , any and all information provided directly or indirectly by one party (the “Disclosing Party”) to the other party (the "Receiving Party"), including, but not limited to, any software, inventions, processes, designs, drawings, specifications, blueprints, technical information, know-how, trade secrets, product, marketing, business, or financial information related to the Disclosing Party (collectively, "Confidential Information"), will be kept confidential by the Receiving Party and may not be used, communicated, disclosed, or divulged, except as necessary in the performance of the Receiving Party’s obligations under this Agreement or otherwise in connection with the deployment, operation, and maintenance of the Products. The Receiving Party agrees to limit access to the Confidential Information to those of its employees or contractors as are reasonably required for the purpose of performing the Receiving Party’s obligations under this Agreement or otherwise in connection with the deployment, operation, and maintenance of the Products. Prior to disclosing any Confidential Information to any of its employees or contractors, the Receiving Party will obtain from each such employee or contractor an agreement substantially as protective of the Disclosing Party’s Confidential Information as the provisions hereof and each employee or contractor agrees not to use such information except in the performance of obligations hereunder. Notwithstanding the foregoing, Confidential Information does not include any information that the Receiving Party can verify based on its written records was (a) already lawfully in the Receiving Party's possession without confidentiality obligations prior to receiving it from the Disclosing Party, (b) independently received from a third party without an accompanying duty of confidentiality and without breach of such third party’s obligations of confidentiality, (c) becomes available in the public domain through no action or inaction of the Receiving Party, or (d) developed independently by the Receiving Party without use of or reference to Disclosing Party’s Confidential Information. If Receiving Party becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Receiving Party will provide Disclosing Party prompt written notice, if legally permissible, and will use its best efforts to assist Disclosing Party in seeking a protective order or another appropriate remedy.
12. PRIVACY AND DATA PROTECTION
12.4 The Customer agrees and acknowledges, and warrants that all Users agree and acknowledge, that Cloud4Wi may be required by law to provide assistance to law enforcement, governmental agencies and other authorities. Accordingly, the Customer agrees, and will procure that all Users agree that Cloud4Wi may implement and maintain an interception capability suitable to meet these requirements where Cloud4Wi is obliged by law to ensure or procure that such a capability is implemented and maintained; that Cloud4Wi may implement and maintain a data retention capability for the service to meet requirements where Cloud4Wi is obliged by law to ensure or procure that data is retained; and Cloud4Wi may at times co-operate with law enforcement authorities and rights-holders in the investigation of any suspected or alleged illegal activity by the Customer or Users. If Cloud4Wi is required to do so by law, this may include but is not limited to, disclosure of the Customer or Users’ contact information to law enforcement authorities or rights-holders.
12.5 Cloud4Wi, in common with all companies that are members of the Future of Privacy Forum (a Washington DC based think tank that seeks to advance responsible data practices, is led by Internet privacy experts, and includes an advisory board comprised of leading figures from industry, academia, law and advocacy groups) recommends and strongly encourages the Customer to post notices to Users at each venue where the Products are used, informing them about the collection and use of all mobile location analytics data. This data shall not be collected or used in an adverse manner for the following purposes: employment eligibility, promotion, or retention; credit eligibility; health care treatment eligibility; and insurance eligibility, pricing, or terms. The Future of Privacy Forum guidelines can be obtained at support.cloud4wi.com/MLA-guidelines. If you are unsure of how best to inform Users of the collection and use of mobile location analytics data, or for guidance on the placement of notices to consumers, please click on support.cloud4wi.com/MLA-guidelines for more information.
13. CONSENT TO ELECTRONIC COMMUNICATIONS; NOTICE.
By using the Products, you consent to receiving electronic communications from us. These communications may include notices about your account and information concerning or related to the Products. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Any notice that you provide to us under this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to Cloud4Wi at the address set forth above and with the appropriate postage affixed.
14. AMENDMENTS TO THIS AGREEMENT
We may periodically make changes to this Agreement. It is your responsibility to review the most recent version of this Agreement frequently and remain informed of any changes to it. You agree that your continued use of the Products after such changes have been published to our website at support.cloud4wi.com/customer-agreement will constitute your acceptance of such revised Agreement. For any material modifications to this Agreement, such modifications will automatically be effective 30 days after they are initially posted on or through our website. In the event that such modifications materially alter your rights or obligations hereunder, such modifications will become effective upon the earlier of (i) your continued use of the Products with actual knowledge of such modifications, or (ii) 30 days from publication of such modifications on or through our website.
Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part, without the prior written consent of the other party, except in the event of a change of control. Any attempted assignment in violation of this Section 16 will be void and without effect. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
16. FORCE MAJEURE
Neither the Customer nor Cloud4Wi will be liable under this Agreement by reason of any failure or delay in the performance of its obligations (except for payment obligations) on account of strikes (other than strikes of a party’s own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions (other than with respect to a party’s own employees), earthquakes, material shortages or any other causes that are beyond the reasonable control of such party so long as the parties will use commercially reasonable efforts, including the implementation of business continuity measures, to mitigate the effects of such force majeure.
No failure or delay by you or by us to exercise any right under this Agreement will constitute a waiver of that right.
If a court of competent jurisdiction holds any portion of this Agreement invalid, then such portion will be deemed to be of no force or effect, and this Agreement will be construed as if such portion had not been included herein. If the deletion of such provision materially impairs the commercial value of this Agreement, then the Customer and Cloud4Wi will attempt to renegotiate such provision in good faith.
19. INDEPENDENT CONTRACTORS
The Customer and Cloud4Wi are independent contractors. Neither of you, nor Cloud4Wi, nor any of your or our respective employees, customers or agents, will be deemed to be the representative, agent, or employee of the other for any purpose whatsoever, and none of them have the right or authority to assume or create an obligation of any kind or nature, express or implied, on behalf of the other, or to accept service of any legal claims or notices addressed to or intended for the other.
20. ENTIRE AGREEMENT
This Agreement and any documents referred to in it (collectively, the "Governing Documents") constitute the entire agreement between Cloud4Wi and the Customer with respect to the subject matter of the Governing Documents and supersede all prior agreements, understandings, and arrangements, oral or written, between Cloud4Wi and the Customer. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter of the Governing Documents have been made either by Cloud4Wi or the Customer which is not expressly set forth in the Governing Documents.
21. JURISDICTION AND LAW
This Agreement will be governed by and construed in accordance with the laws of the state of California, USA. The Customer and Cloud4Wi both agree to submit to the non-exclusive jurisdiction of the courts located in San Francisco, California.
22.1 The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions will be in English. Any attachments or amendments to this Agreement will be in English. Translations of any of these documents will not be construed as official or original versions of such documents.
If you have any questions or comments about this Agreement, please contact Cloud4Wi using the following contact information:
363 Clementina Street
San Francisco, CA 94103 USA