Service Agreement

Yelp WiFi Service Agreement Terms and Conditions

These Terms and Conditions are effective immediately for those creating accounts on or after August 27, 2018.

 

The following represents the Yelp WiFi Service Agreement Terms and Conditions (the “Terms and Conditions”) between you, the customer (“Customer”) as the party agreeing to these Terms and Conditions and the Order Details form or forms (if multiple Order Detail forms have been agreed upon), which link to and incorporate these Terms and Conditions (and any other references and incorporated agreement between the parties) (collectively the “Agreement”), and Yelp Inc., the provider of the Yelp WiFi  Services (“Yelp WiFi”). Yelp WiFi offers a web-based service which provides WiFi connectivity to Company’s visitors, as well as captive portal customization, data collection, aggregation, processing, campaign management and visualization as further set forth in description and pricing in the Agreement, collectively referred to as the “Services”. The Agreement governs the use of these Services. In the event of a conflict between the terms of these Terms and Conditions and the Order Details form, the terms of the Order Details form shall control. In the event of a conflict between several Order Details forms, then the most recent Order Details will control over all prior Order Details.

 

Customer and Yelp WiFi  agree that any calls with Yelp WiFi , whether or not initiated by Yelp WiFi , may be monitored and recorded for quality purposes.

1. DEFINITIONS

(a) “Device” means a WiFi enabled access point that is configured to facilitate the technical processing and transmission of Customer Data required to perform the Services.

(b) “Subscription Account” means a subscription account issued by Yelp WiFi to Customer.

(c) “Subscription Fee” means the total fees and charges in the amount and the frequency indicated in the Order Details in connection with Customer’s ongoing access to and use of the Services.

(d) “Term” means the term of these Terms and Conditions set forth in the Agreement and includes any subsequent renewals also set forth in the Agreement or as or as may be agreed to by the Parties in writing.

2. PROVISION OF THE SERVICES

(a) Setup of the Services. Subject to  Customer making commercially reasonable efforts to cooperate with the reasonable requests of Yelp WiFi , including providing Yelp WiFi required information and access to Customer Device and third party systems in order for Yelp WiFi to configure and integrate the Device with the Yelp WiFi system, as required to provide the Services. Yelp WiFi will issue a Subscription Account to Customer and allow Customer to use the Services in accordance with these Terms and Conditions..

(b) Customer Obligations in Respect of the Device. Customer will not, and will not permit any other person to: (i) interfere with or prevent the operation of the Device, (ii) remove the Device from the location where it is installed, or (iii) modify, tamper with or disassemble the Device, or attempt to do any of the above, without providing prior warning to Yelp WiFi.

(c) Provision of the Services. During the Term, Yelp WiFi will: (i) provide to Customer basic support through the Yelp WiFi website for the purchased Services at no additional charge as described more fully in Section 10 (Customer Support) below; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, with minimal downtime, except for: (a) planned downtime and scheduled upgrades (as described more fully in Section 10 (Customer Support) below), or (b) any unavailability caused by circumstances beyond Yelp WiFi ’ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Yelp WiFi employees), Internet service provider failures or delays, or the unavailability or modification by third parties of third party sites.

(d) Provisioning of the Services. Yelp WiFi may update the functionality and user interface of the Services from time to time in its sole discretion as part of its ongoing mission to improve the Services and Customers’ use of the Services.

3. LICENSE GRANTS

(a) License Grant by Yelp WiFi. Subject to these Terms and Conditions, Yelp WiFi grants to Customer a revocable, limited, non-exclusive and non-transferable license during the Term to permit Customer to access the Services over the Internet and through the then available standard interface for the Services.

(b) License Grant by Customer. Subject to the terms and conditions of these Terms and Conditions, including Yelp WiFi ’s confidentiality obligations, Customer grants to Yelp WiFi a royalty-free, fully paid-up, worldwide license to host, copy, transmit, access, collect, store, display and use the Collected Data solely to provide the Services to Customer. Customer grants to Yelp WiFi a perpetual, irrevocable right to maintain, access and use the Collected Data for its internal and commercial purposes in order to improve our Services.

4. PRIVACY POLICY; DISCLAIMER; SUSPENSION OF ACCESS

(a) Privacy Policy. To the extent that Collected Data may contain any personally-identifiable data, Customer agrees to Yelp WiFi ’s use, collection and disclosure of such personally identifiable information for the purposes authorized under these Terms and Conditions and in accordance with Yelp WiFi ’ privacy policy located at: https://yelpwifi.com/privacy-policy (the “Privacy Policy“). The Privacy Policy is hereby incorporated by reference and forms a part of these Terms and Conditions.

(b) Disclaimer. As between Yelp WiFi and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer understands that the uninterrupted operation of the Device and the technical processing and transmission of Customer Data is fundamentally necessary to use of the Services. Therefore, Customer expressly consents to Yelp WiFi ’s storage of Customer Data, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Yelp WiFi . Customer acknowledges and understands that Customer Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Yelp WiFi is not responsible for any Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned and/or operated by Yelp WiFi , including, but not limited to, the Internet, third party websites, and Company’s local network. Customer agrees that Yelp WiFi is not in any way responsible for any interference with Customer’s use of or access to the Services or security breaches arising from or attributable to the Internet and Customer waives any and all claims against Yelp WiFi in connection therewith.

(c) Suspension of Access. In addition to any other suspension or termination rights of Yelp WiFi pursuant to these Terms and Conditions, certain extraordinary circumstances may require Yelp WiFi to suspend or terminate (where appropriate), as determined in Yelp WiFi ’s discretion, Customer’s access to and/or use of, or otherwise modify, the Services and/or any component thereof, without notice in order to: (a) prevent damages to, or degradation of the integrity of, Yelp WiFi ’s network; (b) comply with any law, regulation, court order, or other governmental request or order; or (c) otherwise protect Yelp WiFi from potential legal liability or harm to its reputation or business. Yelp WiFi will use commercially reasonable efforts to notify Customer of the reason(s) for such suspension or termination action as soon as reasonably practicable. In the event of a suspension, Yelp WiFi will promptly restore Customer’s access to the Services as soon as the event giving rise to the suspension has been resolved as determined in Yelp WiFi ’s discretion. Nothing contained in these Terms and Conditions will be construed to limit Yelp WiFi ’s actions or remedies or act as a waiver of Yelp WiFi ’s rights in any way with respect to any of the foregoing activities. Yelp WiFi will not be responsible for any loss or damages incurred by Customer as a result of any termination or suspension of access to or use of the Services under this provision.

5. CUSTOMER ID; LIMITATIONS; CUSTOMER RESPONSIBILITIES

(a) Customer ID. Upon Customer’s request, but subject to any limitations associated with Customer’s Subscription Account, Yelp WiFi will issue user identification and password (“User ID“) to Customer for each individual Customer wishes to have access to and use of the Services (each, a “User“) through the Customer’s online management account, which is used by Customer to manage promotion campaigns, customize the Services, track activity, etc. (“Management Account”). Customer may only identify its partners, employees and contractors who, in each case, are bound by confidentiality restrictions at least as restrictive as these Terms and Conditions as Users. Users may only access and use the Management Account through their particular User ID. Customer will not allow Users to share their User ID with any other person. Customer is responsible for all activity occurring under its User IDs. Customer is responsible for all use of the Services by Users and for maintaining the confidentiality of its User ID and will promptly notify Yelp WiFi of any actual or suspected unauthorized use of the Services. Yelp WiFi reserves the right to replace any User ID if it determines it may have been used for an unauthorized purpose.

(b) Limitations. Customer agrees that it will not permit any Users or any other person to: (a) permit any person to access or use the Management Account other than the End Users authorized under these Terms and Conditions; (b) modify, adapt, alter or translate any software underlying the Services or the Management Account (including the Management Account), except as expressly allowed hereunder; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Service to any other person; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software underlying the Services (including the Management Account); or (e) use or copy the any software underlying the Services (including the Management Account) except as expressly allowed hereunder.

(c) Customer Responsibilities. Customer agrees to install visible WiFi signage indicating the use of location based marketing technology through its WiFi platform, both within the major entry ways to the store, and within all major trafficked areas. For a template please contact support@yelpwifi.com. For greater certainty but without limiting the generality of the foregoing, Customer agrees that Customer will not:

(i) use or permit the Users to use the Services except as permitted by these Terms and Conditions;

(ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than to the Users except as expressly contemplated by these Terms and Conditions;

(iii) use or permit the Users to use the Services to collect, transmit or process: (A) infringing, obscene, threatening, offensive, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (B) any non-public or personally-identifiable data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity;

(iv) use or permit the Users to use the Services to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;

(v) continue to use the Services in a manner that interferes with or disrupts the integrity or performance of the Services following a notice from Yelp WiFi  of such use;

(vi) attempt to gain unauthorized access to the Services, the Management Account or its related systems or networks;

(vii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services;

(viii) use any data mining, robots or similar data gathering or extraction methods of the Services, or the online content of Yelp Inc. which are in violation of Yelp or Yelp WiFi’s online terms of service;

(ix) access the Services for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; or

(x) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services.

6. RESERVATION OF RIGHTS

(a) Rights Reserved by Yelp WiFi . Other than the limited license and rights expressly granted by Yelp WiFi  to Customer under these Terms and Conditions, Yelp WiFi expressly reserves all right, title and interest in and to (i) the Services and all materials provided by Yelp WiFi hereunder;(ii) any and all data or information collected through the Device(s) under these Terms and Conditions (the “Collected Data“)(iii) any update, adaptation, translation, customization or derivative work in respect of any of the foregoing subject matter in Section 6(a)(i) and Section 6(a)(ii), and (iv) any and all intellectual property related to or associated with the subject matter described in Section 6(a)(i), Section 6(a)(ii) and Section 6(a)(iii) (other than, if applicable, any intellectual property is licensed by Yelp WiFi from third party suppliers). that the Services and all materials.

(b) Rights Reserved by Customer. Customer expressly reserves all rights in any data, information records and files that Customer (or the Users) loads, transmits to or enters into the Service, and including all results from processing such data, including compilations, and derivative works thereof, but excluding, for greater certainty, the Collected Data (the “Customer Data”), subject to the license that Customer grants Yelp WiFi in accordance with the provisions of these Terms and Conditions, and provided that Customer does not acquire any intellectual property rights in the Services or any elements thereof.

(c) Confirmation. Customer acknowledges and agrees that the Services and all materials provided by Yelp WiFi hereunder are licensed on a subscription basis and not “sold” to Customer.

7. CUSTOMER DATA

(a) Responsibility. Customer has sole responsibility for the accuracy, appropriateness and completeness of all Customer Data. Yelp WiFi will use the Customer Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data.

(b) Third-Party Disclosures and Consents. Customer is solely responsible for obtaining all necessary third party consents and making all required third party disclosures in accordance with applicable law (including applicable provincial and federal privacy laws) regarding data or information (including any personally-identifiable information) collected by Yelp WiFi through the Device from third parties.

(c) Restrictions. Customer agrees not to upload or transmit any Customer Data: (i) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (ii) for which Customer does not have the consent or permission from the owner of any personally identifiable information contained in the Customer Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third party (including, without limitation, any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; or (vi) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability.

(d) Indemnity. Customer agrees to defend, indemnify and hold harmless Yelp WiFi , its employees, officers, directors and affiliates against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) to third parties relating to: (a) Customer Data, (b) Customer’s responsibilities and obligations under Section 7(b), (c) Customer’s breach of any of its obligations, representations or warranties under these Terms and Conditions; or (d) the unauthorized operation or misuse of the Device while on Customer’s premises..

 

In connection with the Services, Yelp WiFi may collect certain personally identifiable information about or related to Customer’s end users of the Service (“End Users”) on Customer’s behalf in performance of the Services. Customer represents and warrants that it will (a) use the End User Data in accordance with all applicable laws, including privacy, data protection, and data security laws, and (b) make available a privacy policy to End Users that is in compliance with all applicable laws, including privacy, data protection, and data security laws and that describes Company’s practices related to the collection, use, and sharing of End User Data and Yelp WiFi’s collection of and access to End User Data as a third party service provider to Customer. Customer acknowledges and agrees that it is solely responsible for the contents of and Company’s compliance with the privacy policy.

 

8. DEVICE MAINTENANCE AND RETURN

This section is applicable in the event that Customer has not purchased the Device(s). A “Device” means a WiFi enabled access point that is configured to facilitate the technical processing and transmission of Customer Data required to perform the Services.

(a) Use. During the Term, Customer may use the Device on its premises as long as it continues to actively use the Services under the Agreement, until Yelp WiFi replaces it with another Device or either party terminates Customer’s use of the Device. Yelp WiFi shall at all times retain ownership of the Device, unless otherwise specifically itemized in the Order Details.

(b) Returning the Device. Customer may return the Device back to Yelp WiFi at any time in the same condition as the Device was when Yelp WiFi provided it to Customer, less reasonable wear from usage.

(c) Damage to the Device. If the Device becomes damaged or malfunctions, Customer will need to call Customer’s Account Manager who can try to resolve the issue with Customer. If necessary, Customer’s Account Manager can arrange to have another Device expedited to the Customer within a target of 2 to 4 business days for $250.00 (plus any requisite sales tax). Customer’s Account Manager will also arrange to have Customer’s old Device sent back to our warehouse. If it turns out the damage or malfunction is covered under a warranty, then Yelp WiFi will refund Customer’s $250.00 (plus any requisite sales tax collected).

(d) Stolen or misplaced Devices. If the Device is stolen or lost, then Customer is financially responsible for replacing the Device for $250.00, plus any applicable sales taxes. Yelp WiFi will assess the $250.00 against the Customer’s credit card on file, or recover the cost in another manner. For a replacement Device, Yelp WiFi will arrange with the Customer to send the Customer a preloaded replacement Device. Yelp WiFi will aim to deliver the Device to Customer within 2 to 4 business days, and upon termination of the subscription that relates to that Device, Customer must either return the Device to Yelp WiFi or purchase it as set forth below.

(e) Keeping the Device. Unless otherwise prohibited by Yelp WiFi, Customer will be allowed to keep the Device if and when Yelp WiFi is able to collect $250.00 (plus any requisite sales tax) as authorized by the Customer from its credit card for each Device the Customer wants to keep. But please note, the Device may not function correctly without the Service. Yelp WiFi still retains the right to wipe all of the software on the Device and reset the Device to its factory settings.

 

(f) Return of Device after Termination. Upon termination of these Terms and Conditions, Yelp WiFi will send Customer a pre-paid and pre-addressed shipping label to use in returning the Device to Yelp WiFi, or as otherwise required by Yelp WiFi. Customer must ship the Device to Yelp WiFi to the pre-addressed location within 7 days after the termination of its Yelp WiFi these Terms and Conditions. The date of shipment is the date that the Customer hand over the boxed and pre-addressed Device to the shipper/carrier designated on the pre-addressed shipping label, as indicated in the carrier’s shipping document.

PLEASE NOTE: IF CUSTOMER DOES NOT SHIP THE DEVICE TO YELP WIFI BY THE END OF THE 7TH DAY AFTER THE TERMINATION OF THEAGREEMENT, CUSTOMER AUTHORIZES YELP WIFI TO CHARGE $250.00 AGAINST ITS SUBMITTED PAYMENT CARD (PLUS ANY REQUIRED SALES TAX, IF APPLICABLE), AND CUSTOMER WILL RETAIN POSSESSION AND OWNERSHIP OF THE DEVICE ONCE THE CHARGE HAS FINALLY BEEN FINALIZED BY THE CUSTOMER’S PAYMENT CARD PROCESSOR.

(g) Monitoring Software. In addition to the Software used to perform the Services, Yelp WiFi uses software to monitor the Device through the CloudTrax network (or similar service in the future) and the Yelp WiFi database (“monitoring software”) on the Device in order to keep the software up to date so Customer don’t have to worry about that, help keep it secure, and provide us information on how to improve the Yelp WiFi software.

9. TERM AND TERMINATION

(a) The Agreement will commence on date Customer agrees to the Agreement and will continue in duration until terminated as set forth below.

 

(b) Either Party may, in addition to other relief, suspend or terminate these Terms and Conditions if the other Party breaches any material provision thereof and fails within fifteen (15) days after receipt of notice of default to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion. Either Party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days.

 

(c) Yelp WiFi may terminate these Terms and Conditions, along with the Agreement, at any time and for any reason by providing Customer with no less than fifteen (15) days prior written notice. Customer may terminate these Terms and Conditions on any day of the month by providing thirty (30) days written notice, including email, to Customer’s account management contact for Yelp. If Customer pays monthly, then Yelp will prorate the invoice amount to reflect the partial termination month.

 

(d) Refund or Payment upon Termination. If these Terms and Conditions are terminated by Customer in accordance with this Section 9 (Term and Termination), Yelp WiFi  will refund Customer any prepaid fees for Services not performed by Yelp WiFi after the effective date of termination. If these Terms and Conditions are terminated by Yelp WiFi  in accordance with this Section 9, Customer will pay any unpaid and outstanding fees owed to Yelp WiFi within thirty (30) days of the effective date of termination. In no event will termination relieve Customer of its obligation to pay any fees payable to Yelp WiFi  for the period prior to the effective date of termination.

 

(c) Survival. Upon termination or expiration of these Terms and Conditions for any reason: (a) all rights and obligations of both Parties (except for Customer’s payment of all sums then owing, including any Subscription Fees), including all licenses granted hereunder, shall immediately terminate except as provided below; (b) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth Section 12 (Confidential & Proprietary Information). The following Sections will survive expiration or termination of these Terms and Conditions for any reason: Section 6 (Reservation of Rights), Section 7 (Customer Data), Section 8 (Device Maintenance and Return, if applicable), this Section 9(c) (Survival), Section 12 (Confidential & Proprietary Information), Section 13 (Warranties and Disclaimers), Section 14 (Limitation of Liabilities), and Section 17 (General Provisions).

 

10. CUSTOMER SUPPORT

Yelp WiFi will provide the following standard customer support to Customer:

(a) Web Support. Customer will have access to Yelp WiFi ’s technical support web site and may use the web site to submit service requests. Web support will not include, and Yelp WiFi will not provide, any professional or expert advice of any kind. Yelp WiFi will use commercially reasonable efforts to correct any reproducible failure of the Services to substantially conform to its expected operation; provided, however, that Yelp WiFi will not be required to provide a correction for all such nonconformities.

(b) Service Upgrades and Scheduled Downtime. Yelp WiFi may update the Services in its sole discretion. Yelp WiFi may from time to time schedule downtime for maintenance and upgrades.

11. FEES & PAYMENT

(a) Subscription Fee. Customer will pay to Yelp WiFi the Subscription Fee each period during the Term as outlined in the Order Details.

(b) Invoices. From time to time, Yelp WiFi may prepare and send to the Customer, at the contact information on file with Yelp WiFi , invoices for any fees and charges that have become due and payable under the Agreement (including the Subscription Fee). Unless otherwise expressly stipulated in an invoice, Customer agrees to pay all invoiced amounts within thirty (30) business days of the invoice date.

(c) Late Payment. Customer will not withhold or “setoff” any amounts due under these Terms and Conditions, for any reason. Yelp WiFi reserves the right to suspend Customer’s access to the Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly, or the maximum legal rate (if less) per month or fraction thereof until fully paid.

(d) The Subscription Fees for the Services do not include any excise, sales, use, value added or other taxes, personal property or other taxes, assessments, tariffs, fines, penalties or duties that may be required by federal, provincial, state, local, provincial or foreign jurisdictions (collectively, “Taxes“). In jurisdictions where Yelp has the legal obligation to collect such Taxes, the amount of such Taxes will be invoiced to Customer, and Customer will pay such amount unless Customer provides Yelp with a valid tax exemption certificate authorized by the appropriate taxing authority. Any taxes which are otherwise imposed on payments to Yelp will be Customer‘s sole responsibility. Customer will provide Yelp with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Yelp to establish that such taxes have been paid. Customer shall pay promptly and before delinquency all Taxes imposed under current or subsequent law upon sales of taxable goods or services in the performance of these Terms.

(e) Company agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Yelp WiFi regarding future functionality or features.

12. CONFIDENTIAL & PROPRIETARY INFORMATION

Definitions. For purposes of this section, Customer will be the “Recipient“, Yelp WiFi will be the “Discloser“, and “Confidential & Proprietary Information” includes all information disclosed by Discloser to Recipient during the Term of these Terms and Conditions and marked as “confidential” or “proprietary” or which a reasonable person would understand to be confidential or proprietary; provided that (i) all parts of the Service, whether marked as “confidential” or “proprietary” or not, and (ii) the terms of these Terms and Conditions will be considered to be Yelp WiFi Confidential & Proprietary Information; provided, however, that Discloser’s Confidential & Proprietary Information does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (ii) information that is publicly available through no wrongful act of Recipient, or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

(a) Covenant. Recipient hereby agrees that during the Term and at all times thereafter it shall not (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under these Terms and Conditions; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient shall use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event shall less than due diligence and reasonable care be exercised. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 12 (Confidential & Proprietary Information ) if it affords the other party’s Confidential & Proprietary Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care). Upon the earlier of Discloser’s written request or termination or expiration of these Terms and Conditions, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under these Terms and Conditions or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.

(b) Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.

13. WARRANTIES & DISCLAIMERS

(a) Customer Warranty. Customer represents and warrants that Customer will use and receive the Services in accordance with applicable law, including applicable provincial and federal privacy legislation.

(b) Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 13 (WARRANTIES AND DISCLAIMERS) THE SERVICES, THE DEVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY YELP WIFI   TO CUSTOMER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. YELP WIFI HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. YELP WIFI  DOES NOT WARRANT THAT THE SERVICE OR THE DEVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.

14. LIMITATION OF LIABILITIES

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

(a) Amount. EXCEPT FOR INDEMNITIES EXPRESSLY PROVIDED FOR IN THESE TERMS AND CONDITIONS AND SUBJECT TO SECTION 14(c), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF YELP WIFI  IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE GREATER OF TOTAL AMOUNT OF FEES AND CHARGES COLLECTED BY YELP WIFI UNDER THESE TERMS AND CONDITIONS OR AMOUNTS PAYABLE FOR THE DURATION OF THE TERM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL YELP WIFI ’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS AND CONDITIONS. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS.

(b) Type. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL YELP WIFI  BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

(c) THE PROVISIONS OF SECTIONS 14(a) AND 14(b) SHALL NOT BE APPLICABLE TO THE EXTENT THAT THE CAUSE OF ACTION GIVING RISE TO THE CLAIM ARISES DIRECTLY FROM:

(i) EACH PARTY’S INDEMNITY OBLIGATIONS UNDER THESE TERMS AND CONDITIONS; OR

(ii) A BREACH OF CUSTOMER’S OBLIGATIONS UNDER SECTION 12.

15. NOTICES

Notices sent to either Party shall be effective when delivered in person or by email, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by the other party’s server. Notices must be in writing and sent to the respective email or postal address set out in the chart in the Agreement. Yelp WiFi may change its contact information by giving notice of such change to the Customer. Customer may change its contact information by giving notice of such change to Yelp WiFi .

 

16. GENERAL PROVISIONS

(a) Assignment. Neither Party may assign this Agreement to any third party without the other Party’s prior written consent, except the Agreement may be assigned by either Party (i) to any party that controls, is controlled by, or is under common control with such Party, or (ii) pursuant to a transfer of all or substantially all of such Party’s business or assets, whether by merger, sale of assets, sale of stock, or otherwise. Any assignment in violation of this section shall be void. The terms of the Agreement shall be binding upon permitted assignees.

(a) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof (“Claim“), shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will issue a ruling in writing, and will detail all findings of fact and law upon which the ruling was made. The arbitrator will not have the power to commit errors of law or legal reasoning, and the ruling may be vacated or corrected through judicial review by a court of competent jurisdiction under the California Arbitration Act.

(b) Claims shall be heard by a single arbitrator. Arbitrations will be held in San Francisco, California, but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents.  The arbitration shall be governed by the laws of the State of California. The award of the arbitrators shall be accompanied by a reasoned opinion. The prevailing party shall be entitled to an award of reasonable attorney fees for any action under these Terms.

(c) NOTWITHSTANDING THE FOREGOING, FOR ANY CLAIM THAT IS NOT SUBJECT TO ARBITRATION, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA, WHICH IS THE PLACE OF PERFORMANCE OF THIS AGREEMENT.

(d) CUSTOMER AND YELP WIFI AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH CUSTOMER AND YELP WIFI AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SUBSECTION (d), AND THIS SUBSECTION (d) IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.

(c) Right to List As A Customer. Customer agrees that Yelp WiFi may utilize Customer’s entity name in listings of current customers. Use of Customer’s name in any other marketing materials or press announcements will be submitted to Customer in advance for approval, and such approval will not be unreasonably withheld.

(d) Compliance with Export Regulations. Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Yelp WiFi harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Customer shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.

(e) Construction. Except as otherwise provided herein, the Parties rights and remedies under these Terms and Conditions are cumulative. The term “including” means “including without limitation.” The headings of sections of these Terms and Conditions are for reference purposes only and have no substantive effect.

(f) Force Majeure. Neither Party shall be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder shall not be excused by this provision.

(g) Severable. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect.

(h) Waiver. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions.

(i) Independent Contractors. Customer’s relationship to Yelp WiFi is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Yelp WiFi .

(j) Entire Agreement. These Terms and Conditions constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. These Terms and Conditions may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

(k) Amendments. No amendment, supplement, modification, waiver or termination of these Terms and Conditions and, unless otherwise specified, no consent or approval by any Party, shall be binding unless executed in writing by the Party or Parties to be bound thereby. Any waiver by one Party of any default by the other Party will not affect or impair any rights of the first Party arising from any subsequent default by that other Party.

(l) English Language. It is the express wish of the parties that these Terms and Conditions and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui.

 

Version: 08-27-18

 

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