JiWire Data Management Terms of
Service Agreement
This JiWire Data Management Terms of Service
Agreement is entered into between you ("Company," "you" or
"your") and JiWire, Inc. ("JiWire," "we" or
"us") for the provision of the Service (as defined below).
1. Acceptance of Agreement by Use. BY USING THIS ONLINE DATA MANAGEMENT SERVICE
(THE "SERVICE") YOU REPRESENT THAT YOU ARE OF LEGAL AGE AND AGREE TO BE BOUND
BY THIS AGREEMENT. Your use or
electronic acceptance of the Service constitutes your acceptance of this
Agreement, and your use or electronic acceptance of the Service constitutes a
digital signature under United States and California law (including 15 U.S.C. §7001)
and has the same force and effect as if you had physically signed this
Agreement.
2.1.
Services.
JiWire shall allow Company to upload data and information related to wireless
internet access points owned or controlled by Company ("Company Hotspots"). Company shall furnish JiWire with Company
Hotspot information ("Information") as described in the JiWire Submission
Guideline, and shall update such Information in accordance with the
requirements described in the JiWire Submission Guidelines. JiWire shall process, index, catalog
and maintain the Information (the resulting data collectively, the "Processed
Data"), and shall make the Processed Data available through the JiWire site,
JiWire licensee sites, and in other locations and formats as JiWire determines.
2.2.
Use
of Service. Company shall not use the Service, or any derivative of the
Service, except as specified in this Agreement. Company is responsible for all activity occurring under Company
accounts and is solely responsible for compliance with all applicable local,
state, national and foreign laws, treaties and regulations relating to Company's
use of the Service, including those related to the protection of intellectual
property, data privacy, international communications and the transmission of
technical or personal data. Company shall notify JiWire immediately of any
unauthorized use of any password or account or any other known or suspected
breach of security. Company is responsible for obtaining and maintaining any
equipment and ancillary services needed to connect to, access or otherwise use
the Service, including, without limitation, modems, hardware, server, software,
Internet browsers, operating system, networking, web servers, long distance and
local telephone service.
2.3.
Data
Input and Deletion. Company is
responsible for inputting and maintaining its Information on the Service. Company must not (a) input or maintain
information related to HotSpots not owned or controlled by Company, (b)
knowingly input inaccurate or false data or information into the Service, or
(c) delete Information, except to replace it with Information that is accurate
and complete. Company will be
responsible for all costs and expenses incurred by JiWire in repairing,
updating or restoring the Service due to Company engaging in any such prohibited
conduct.
2.4.
Password. Company must safeguard the user ID(s)
and password(s) Company uses to access the Service. Company authorizes JiWire to assume that any person using
the Service with Company's user ID and password either is the Company or is
authorized to act for Company. It
is Company's responsibility to notify JiWire if Company needs to change or
discontinue Company's user ID and password. As between Company and JiWire, Company is responsible for
the actions of anyone with whom Company shares its user ID and password,
including Company's employees or customers. Should JiWire have any suspicion that that Company's account
has been used for unauthorized access to the Service, JiWire may, in its sole discretion,
immediately suspend the account until the matter is resolved.
3. Fees.
JiWire does not charge a fee to access the Service or use the basic
functionality included in the Service.
JiWire may charge fees for certain premium or enhanced features and
functions that are part of the Service.
JiWire will make Company aware of such charges, and Company may elect to
pay the fees and receive the additional features or not.
4.1.
Term.
This Agreement will remain in effect until terminated by either party pursuant
to the terms of this Agreement.
4.2.
Termination.
Either party may terminate this Agreement for any reason or no reason upon
written notice to the other.
4.3.
Consequences
of Termination. Upon
termination or expiration of this Agreement, all rights granted by either party
to the other party hereunder shall immediately cease.
4.4.
Waivers.
Waiver by a party of any breach by the other party shall not be deemed a waiver
of any other or subsequent breach.
4.5.
Survive
Termination. The following Sections of this Agreement shall survive
termination: this Section 4.6 (Survive Termination), Section 5 (Intellectual
Property; Confidential Information), Section 7 (Limitation of Liability),
Section 8 (Indemnification) and Section 9 (Miscellaneous).
5.1.
Generally. Company acknowledges and agrees that
all right, title and interest in the Services, including all JiWire software
and any other software, documentation or technology embodied therein, including
all copyrights, patents, trade secrets, trade dress and other proprietary
rights, and any derivative works thereof, belong solely and exclusively to
JiWire or its licensors.
5.2.
Ownership
of Processed Data. Company
acknowledges and agrees that JiWire owns all right, title and interest in and
to the Processed Data, which remains the sole property of JiWire. Company further agrees that it will not
use, sell, assign, transfer or license such Processed Data, or any portion
thereof, without the prior written consent of JiWire. Company covenants and
agrees not to take any action that might affect in any manner JiWire's
exclusive ownership of the Processed Data.
5.3.
Confidential
Information. Each party
receiving information from the other (the "Receiving Party") undertakes to
retain in confidence the terms of this Agreement and all other non-public
information and know-how of the other party disclosed to or acquired by the
Receiving Party pursuant to or in connection with this Agreement which is
either designated as proprietary and/or confidential or by the nature of the
circumstances surrounding disclosure, ought in good faith to be treated as
proprietary and/or confidential ("Confidential Information"); provided that
each party may disclose the terms and conditions of this Agreement to its
immediate legal and financial consultants in the ordinary course of its
business. Each party agrees to use
commercially reasonable efforts to protect Confidential Information of the
other party, and in any event, to take precautions at least as great as those
taken to protect its own confidential information of a similar nature. Without limiting the foregoing, Company
acknowledges that the Service interface, data management process, and Processed
Data is the Confidential Information of JiWire.
5.4.
Exceptions. The foregoing restrictions shall not
apply to any information that: (a) was known by the Receiving Party prior to
disclosure thereof by the other party; (b) was in or entered the public domain
through no fault of the Receiving Party; (c) is disclosed to the Receiving
Party by a third party legally entitled to make such disclosure without
violation of any obligation of confidentiality; (d) is required to be disclosed
by applicable laws or regulations (but in such event, only to the extent
required to be disclosed); or (e) is independently developed by the Receiving
Party without reference to any Confidential Information of the other
party.
5.5.
Judicial
Disclosure. If the Receiving Party
becomes legally compelled to disclose Confidential Information pursuant to a
subpoena, civil investigative demand, or similar judicial process, it must
first notify the disclosing party and, if so requested, provide reasonable
cooperation to the disclosing party (at the disclosing party's expense) to
prevent or limit such disclosure.
5.6.
Return
of Confidential Information.
Upon request of the other party, or in any event upon any termination or
expiration of the Term, each party shall return to the other all materials, in
any medium, which contain, embody, reflect or reference all or any part of any
Confidential Information of the other party.
5.7.
Injunctive
Relief. Each party
acknowledges that breach of this provision by it would result in irreparable
harm to the other party, for which money damages would be an insufficient
remedy, and therefore that the other party shall be entitled to seek injunctive
relief to enforce the provisions of this Section.
6.
Warranties.
6.1. Legal
Rights. Each party to this
Agreement represents and warrants to the other party that the entry into this
Agreement by such party, and the performance
by such party of its obligations and duties hereunder, do not and will not
violate any agreement of such party or by which such party is bound. Company warrants that it has all rights
necessary to deliver the Information to JiWire on the terms described herein,
and that such delivery does not violate any third party's rights.
6.2.
Claims
and Losses. Company
acknowledges and agrees that, as between Company and JiWire, Company is solely
responsible for any claims or other losses associated with, or resulting from,
the Company Hotspots or the Information, including without limitation, any
warranty or support obligations related to any products or services provided at
the Company Hotspots.
6.3.
Verification. Company acknowledges and agrees that
JiWire does not intend to, and will not be required to, edit or review for
accuracy any of the data or information provided by Company to JiWire
hereunder. Notwithstanding the
foregoing, JiWire may test the Company Hotspots and, in JiWire's sole
discretion, may remove any Company Hotspots Information at any time that is
inaccurate or misleading.
6.4.
Computer
Viruses. Prior to delivering any Information to JiWire, Company shall use
industry standard virus-checking software (updated with the then-current virus
definitions) to check for, and eliminate, any computer viruses in the
Information.
6.5.
LIMITATION. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER HAS NOT MADE ANY
REPRESENTATIONS, WARRANTIES OR AGREEMENTS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. FURTHER, EXCEPT AS
EXPRESSLY SET FORTH HEREIN, COMPANY ACKNOWLEDGES THAT THE PROCESSED DATA AND
SERVICE PROVIDED HEREIN ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. JIWIRE DOES NOT WARRANT THAT THE
SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICE WILL BE UNINTERRUPTED
OR ERROR FREE INCLUDING ANY ERRORS OR OMISSIONS IN THE RESULTS OBTAINED THROUGH
USE OF THE SERVICE.
7.
Limitation of Liability.
7.1.
LIMITATION
OF LIABILITY. EXCEPT FOR
PAYMENTS REQUIRED UNDER SECTION 8.1 OR 8.2, OR DAMAGES ARISING FROM A BREACH OF
SECTION 5 (INTELLECTUAL PROPERTY; CONFIDENTIAL INFORMATION) OR SECTION 6
(WARRANTIES), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING
FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION,
DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF
WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2.
DAMAGES
CAP. EXCEPT FOR PAYMENTS
REQUIRED UNDER SECTION 8.1 OR 8.2 OR DAMAGES ARISING FROM A BREACH OF SECTION 5
(INTELLECTUAL PROPERTY; CONFIDENTIAL INFORMATION) OR SECTION 6 (WARRANTIES), IN
NO EVENT WILL JIWIRE'S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT
EXCEED $500.
7.3.
Force
Majeure. Neither party shall
be liable for any delay or failure to perform its obligations pursuant to this
Agreement if such delay is caused by any act of God, any governmental
authority, war, civil disturbance, labor dispute, third party non-performance
caused by an act of Force Majeure as defined in this clause, or any other cause
beyond its reasonable control which prevents or hinders in any material way the
carrying out by either party of its obligations under this Agreement, including
without limitation failures in telecommunications equipment or lines, Internet
connections, or other equipment ("Force Majeure"). If a delay or failure of a party to perform its obligations
is caused by Force Majeure, the performance of the parties' obligations will be
suspended for the period during which the Force Majeure continues.
8.1.
Indemnity
by Company. Company agrees
unconditionally to indemnify and hold harmless JiWire and its affiliates, and
their respective officers, agents and employees, from and against any and all
loss, liability and expense (including reasonable attorneys' fees) suffered or
incurred by reason of any claims, proceedings or suits based on or arising out
of (i) any breach or alleged breach of the Company representations and
warranties set forth in Section 5, or (ii) any third party claim that the
Information delivered by Company infringes a patent, copyright, trademark,
trade secret, or other intellectual property or proprietary right of such third
party.
8.2.
Indemnity
by JiWire. JiWire agrees
unconditionally to indemnify and hold harmless Company and its affiliates, and
their respective officers, agents and employees, from and against any and all
loss, liability and expense (including reasonable attorneys' fees) suffered or
incurred by reason of any claims, proceedings or suits based on or arising out
of (i) any breach or alleged breach of the representations and warranties set
forth in Section 5 (Warranties), or (ii) any third party claim that the Service
infringes a patent, copyright, trademark, trade secret, or other intellectual
property or proprietary right of such third party, except to the extent such
infringement is related to the Information delivered by Company.
9.1
Assignment.
Neither party may assign this Agreement, except (a) upon the transfer of
substantially all of the business operations of such party (whether by asset
sale, stock sale, merger or otherwise); (b) to an affiliate of such party
operating that portion of the business to which this Agreement pertains; or (c)
with the written permission of the other party, which will not be unreasonably
withheld, delayed or conditioned.
Notwithstanding the foregoing, if Company's acquirer is reasonably
deemed by JiWire to be a JiWire competitor, then JiWire may terminate this
Agreement upon ten days written notice to Company or the acquirer. Further, written notice is required for
any valid assignment under this Agreement.
9.2
Mandatory
Arbitration; Jurisdiction. This Agreement is governed by California law
without regard to conflict of law provisions. Company and JiWire each agree to attempt in good faith to
resolve any bona fide controversy or claim arising out of or relating to this
Agreement by confidential mediation under the then-current CPR Mediation
Procedure before resorting to arbitration. Mediation of the controversy or claim will be conducted on
an agreed date by a single, agreed upon, independent mediator in San Francisco,
California, or another agreed location.
Any bona fide controversy or claim not resolved within a reasonable
period of time by discussion or mediation will be finally resolved by
confidential, binding arbitration in accordance with the CPR Institute for
Dispute Resolution Rules for Non-Administered Arbitration by a sole arbitrator
appointed in accordance with those rules.
Any such controversy or claim shall be arbitrated on an individual
basis, and will not be consolidated in any arbitration with any claim or
controversy of any other party.
The place of the arbitration will be San Francisco County, California
(unless Company and JiWire otherwise agree prior to the initiation of the
arbitration). The arbitration will
be governed by the Federal Arbitration Act, 9 U.S.C. Section 1-16, and judgment
on the arbitration award may be entered into by any court having jurisdiction thereof. The award of the arbitrator will be final
and binding upon the parties without appeal or review except as permitted by
California law. The arbitrator
will not be empowered to award damages in excess of compensatory damages, and
no arbitrator has the authority to order consolidation or class
arbitration. Any claim by either
party will be time-barred unless that party commences the arbitration within
one year after the claim arises, provided that this time limit shall be tolled
during any discussion or mediation of the claim. Notwithstanding the foregoing, either party may seek any
interim or preliminary relief from a court of competent jurisdiction in San
Francisco County, California as necessary to protect the party's rights or
property pending the completion of arbitration. By using the Service, Company consents and submits to the
exclusive jurisdiction and venue of the state and federal courts located in San
Francisco County, California. Company
hereby waives all rights to removal or consent to removal. Except as otherwise provided in this
Agreement, and unless prohibited by law, any controversy, claim, or dispute
must be brought by Customer within one (1) year of the date Customer is
entitled to assert any such claim.
9.3
Entire
Agreement. This Agreement
constitutes and contains the entire agreement between the parties with respect
to the subject matter hereof and supersedes any prior oral or written
agreements. This Agreement may not
be amended except in writing signed by both parties. Nothing in this Agreement will be deemed to constitute
either party as the other's partner, joint venturer, representative, agent or
employee for any purpose.
9.4
Employees;
Customers. During the Term of
this Agreement and for a period of two years thereafter, Company covenants and
agrees not to (i) induce or attempt to influence any employee of JiWire to
terminate his or her employment with JiWire, or (ii) solicit anywhere in the
United States any person, firm, corporation or enterprise who is, or at any
time during the term of this Agreement, shall have been, a customer of JiWire,
to use competitive services or information of Company or any person, firm,
corporation or enterprise with which Company may become associated.
9.5
Notices. Notices required under this Agreement
shall be deemed given (i) when delivered in writing personally, (ii) when sent
by confirmed telex or facsimile, (iii) five days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or
(iv) one (1) day after deposit with a commercial overnight carrier, with
written verification of receipt, or (v) when sent "receipt acknowledge
requested" via Electronic mail and acknowledgement is received. All
communications to JiWire will be sent to the following address, or such other
address as JiWire may subsequently designate in writing:
JiWire, Inc.
Customer Service
____________________________________
____________________________________
9.6
Binding
Effect. Use of the Service is
governed by the terms of this Data Management Terms of Service Agreement, the
JiWire Submission Guidelines, Terms of Service, and Privacy Policy (each of
which is incorporated herein by reference, and are, collectively, the
"Agreement"). Customer
may view the JiWire Submission Guidelines at http://datatool.jiwire.com/format.jsp, the Terms of Service
at http://www.jiwire.com/terms-of-service.htm, and the Privacy Policy at
http://www.jiwire.com/privacy-policy.htm.
Subject to the limitations hereinbefore expressed, this Agreement will
inure to the benefit of and shall be binding upon the parties, their
successors, administrators, heirs, and assigns. If any term or provision of this Agreement is illegal or
invalid for any reason, such illegality or invalidity shall not affect the validity
or enforceability of the remainder of this Agreement. Should any of the terms of this Data Management Terms of
Service Agreement conflict with any of the terms of the JiWire Submission
Guidelines, Terms of Service, Privacy Policy, or Rate Plan, then the terms of
this Data Management Terms of Service Agreement shall control.