END CUSTOMER AGREEMENT
Last Updated: June 3, 2015
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE PLATFORM
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 22 Cleveland Street, San Francisco, 94103, California, USA (“ Cloud4Wi”, “us” or “we”) for the use of our proprietary platform (“Platform”) at one or more venues.
By clicking on 'I AGREE” (“I AGREE”) on the 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 Platform 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 the Platform.
1. DEFINITIONS
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 Platform at one or more of its venue and places a Purchase Order for the Platform, either directly to Cloud4Wi or to one of the authorized resellers.
1.3 “Customer Content” means content prepared by the Customer for use with the Platform, 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 Platform, including any Modifications.
1.5 “Feedback” has the meaning given to it in the Section 6.1, below.
1.6 “Governing Documents” has the meaning given to it in the Section 20, below.
1.7 “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, provisionals, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
1.8 “Licenses” means, collectively, the Platform License and Third Party Licenses.
1.9 “Modification” or “Modifications” means all changes incorporated into or used with the Platform or Documentation, including enhancements, standard releases, and patches.
1.10 “Personal Information” means the information that specifically identifies an individual.
1.11 “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.
1.12 “Price” means the aggregate price you paid for the Platform Licenses listed on the applicable Purchase Order.
1.13 “Privacy Policy” means Cloud4Wi policy relating to privacy that applies when using the Platform (as modified from time to time).
1.14 “Purchase Order” means a Purchase Order submitted by the Customer either directly to Cloud4Wi or to one of the authorized resellers with respect to the purchase of the Platform, and related licenses listed on such Purchase Order.
1.15 “Services” means the services provided by the Customer at one or more venues through the Platform, including mobile location detection services and guest Wi-Fi services.
1.16 “Service Level Agreement” means the Service Level Agreement provided at support.cloud4wi.com/SLA, which governs the terms of the Service Level Warranty.
1.17 “Service Level Warranty” has the meaning given to it in Section 8.2, below.
1.18 “Support Services” means the customer support services described at support.cloud4wi.com/services.
1.19 “Term” means the term of the Platform License(s) indicated on the Purchase Order or as subsequently modified in connection with the purchase of additional Platform Licenses.
1.20 “Terms of Use” means the terms that govern the use of the guest Wi-Fi services at one or more venues, which the Customer will require each User to accept prior to accessing the services.
1.21 “User” means the Customer’s patrons using the Services, provided via the Platform, pursuant to the Terms of Use.
2. SERVICES
2.2 Other than Cloud4Wi responsibilities set forth in Section 2.1 above, you are responsible for your use of the Platform in full compliance with this Agreement and for all activities engaged in by you and your Users while using your Services, including without limitation: (i) promptly updating the registration information of the primary account holder for the Platform 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 Platform, 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 Platform and for paying all third-party access charges incurred while using the Platform; (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 Platform; (vii) all applicable industry standards governing the subject matter of this Agreement.
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 our Platform via a web browser and use our Platform solely for internal business purposes.
3.2 If, during the Term, Cloud4Wi integrates any Modifications into the Platform, each such Modification and all related Documentation, will be deemed to be part of the Platform and made available to you only under the terms of the applicable Platform License.
3.4 Cloud4Wi may use aggregated information for the purpose of measuring overall industry trends and may provide them to the entire customer base.
If the Platform includes 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 Platform until the expiration of the Platform License(s), unless earlier terminated under Section 5.2.
5.2 Cloud4Wi may immediately suspend your use of the Platform at any time if Cloud4Wi reasonably believes that you have breached the terms of Section 3, 4, 6.3 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 Platform 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, 13, 15, 16, 17, 18, 19, 20, 21, and 22.
6.1 Except as provided in Section 6.2, below, as between you and Cloud4Wi, Cloud4Wi owns all right, title, and interest, including all Intellectual Property Rights therein, in and to the Platform and Documentation. Nothing in this Agreement will be construed as transferring or changing our Intellectual Property Rights or interests in the Platform 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 Platform in connection with your use of the Platform ('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.
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 Platform or breach of this Agreement; or (iii) Customer’s unauthorized modification or alteration of the Platform, including any modification or alteration in violation of Section 3.3, above; (iv) Customer’s combination of the Platform with other products, software, or services not supplied or specified by Cloud4Wi; (v) Customer’s continued use of the Platform 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.
8.3 Cloud4Wi has no obligation with respect to defects caused by or resulting from any of the following: (i) modifications or repairs to the Platform 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 Platform other than as detailed in the manual; (iv) misconfiguration of the Platform; or (v) any other causes beyond Cloud4Wi’s reasonable control.
EXCEPT AS SET FORTH IN SECTION 8, CLOUD4WI OR ITS RESELLERS 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 PLATFORM IS PROVIDED “AS IS.” CLOUD4WI MAKES NO WARRANTY THAT THE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT USE OF THE PLATFORM 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 PLATFORM, OR THAT ANY DEFECTS IN THE PLATFORM WILL BE CORRECTED. FURTHER, CLOUD4WI OR ITS RESELLERS DOES NOT WARRANT THAT THE PLATFORM 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 HARDWARE, 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.
IN NO EVENT WILL CLOUD4WI OR ITS RESELLERS 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 PLATFORM OR USE OF THE PLATFORM 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 PLATFORM 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 RESELLERS’ 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 Platform 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 Error! Reference source not found., 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, hardware, 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 Platform. 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 Platform. 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
12.1 Cloud4Wi will handle all information about Users in accordance with our Privacy Policy (available at support.cloud4wi.com/privacy). Please read our Privacy Policy carefully.
12.2 When the Customer chooses to operate the Platform entirely on its own, it is responsible for maintaining the security and privacy of Personal Information. The Customer has to declare its responsibility in its Terms of Use and privacy policies.
12.3 When the Customer requests Cloud4Wi to operate the Platform on its behalf, Cloud4Wi collects information on its behalf. The Customer has to declare its responsibility and Cloud4Wi responsibility in its Terms of Use and privacy policies. While Cloud4Wi agrees to take all necessary technical and organizational steps to ensure the security of the Platform, it is not responsible for the accidental loss or destruction of any Personal Information any User transmits using the Services provided by the Customer and Cloud4Wi excludes all liability of any kind in relation to the content or security of personal data that any User sends or receives through the Services. For the avoidance of doubt, this paragraph does not limit or exclude any liability of Cloud4Wi for a breach of Cloud4Wi’s data protection obligations in relation to the information which Cloud4Wi obtains from the Customer before or during the term of the Agreement.
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’s 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 Platform is 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 Platform, you consent to receiving electronic communications from us. These communications may include notices about your account and information concerning or related to the Platform. 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 Platform 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 Platform 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 15 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.
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 any portion of this Agreement is held invalid by a court of competent jurisdiction, 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.
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.
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.
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 headings used in this Agreement are for convenience of reference only and do not affect the meaning or construction of this Agreement.
22.2 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.
23. CONTACTS
If you have any questions or comments about this Agreement, please contact Cloud4Wi using the following contact information:
Cloud4Wi Inc.
22 Cleveland Street
San Francisco, 94103, California
United States of America
privacy@cloud4wi.com