JiWire Inc.

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. Services and Access.

 

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.  Term and Termination.

 

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. Intellectual Property; Confidential Information.

 

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. Indemnification.

 

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. Miscellaneous.

 

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.