PLATFORM LICENSE AGREEMENT
This License Agreement (this “Agreement”) is between Fulcrum WiFi (“Fulcrum WiFi”) and you, (“Channel Partner”).
BY ACCEPTING THIS AGREEMENT, BY COMPLETING THE ONLINE APPLICATION PROCESS OR BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY ELECTRONICALLY SIGNING THIS AGREEMENT, CHANNEL PARTNER AGREES TO BE BOUND BY THE FOLLOWING AGREEMENT.
If Channel Partner is entering into this Agreement on behalf of a company or other legal entity, Channel Partner represents that it has the authority to bind such entity to these terms and conditions. If Channel Partner does not have such authority, or if Channel Partner does not agree with the terms of this Agreement, Channel Partner must not accept this Agreement.
WHEREAS Fulcrum WiFi has developed a proprietary Wi-Fi hotspot management, advertising and analytics platform, and provides certain related hardware (routers and gateways) and services including training, technical support, marketing materials, and a web-based knowledge repository, all as further described and defined in this Agreement;
AND WHEREAS Channel Partner wishes to obtain from Fulcrum WiFi, and Fulcrum WiFi desires to provide Channel Partner access to and use of the Wi-Fi hotspot management, advertising and analytics platform, and to provide the related routers and services, all as further described and defined in this Agreement;
NOW THEREFORE, in consideration for the premises and mutual covenants and agreements herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Definitions. As used in this Agreement, the following capitalized terms shall have the meaning set out in this Section 1. Other capitalized terms used in this Agreement are defined where used.
“Applicable Privacy Laws” means any federal, state or provincial legislation now in force or that may in the future come into force governing (i) the collection, use, disclosure and management of Personal Information, or (ii) the sending of commercial electronic messages or spam, applicable to either party or to the Services;
“Client Content” means any Client content that is input into any Marketing Templates by Channel Partner on behalf of Client, or that otherwise constitutes Client–branded or Client-selected (third party) marketing and promotional material such as Client Marks, Facebook notifications, mobile coupons, vouchers, offers, promotions, banner ads, videos, lotteries, and event notifications;
“Client Information” means any Client information, including referral information generated by, or delivered by, Channel Partner to Fulcrum WiFi pursuant to activities contemplated under this Agreement
“Client License Agreement” means an executed, binding agreement between Channel Partner and any Client that governs Channel Partner’s provision of the Fulcrum WiFi Wi-Fi Service (including all components thereof) to Clients that (a) includes industry standard terms and conditions; (b) ensures that Fulcrum WiFi is not liable to Client or any End User; and (c) requires Clients to comply with applicable laws (including Applicable Privacy Laws);
“Client Location” means a physical location owned or leased by Client and where Client is offering Fulcrum WiFi Wi-Fi Service;
“Client” means a Person that has entered into a Client License Agreement to offer Fulcrum WiFi Wi-Fi Service at a Client Location (whether or not using Fulcrum WiFi Routers), and that is part of the Channel Partner Wi-Fi Network;
“Effective Date” means the date upon which the Channel Partner (or its agent) agrees to be bound by its terms and conditions by completing the online application process or by clicking a box indicating acceptance of this Agreement.
“End User Data” means information about End Users’ and their use of the Fulcrum WiFi Wi-Fi Service, including names, email addresses and social networking information of users, data relating to the End User’s device (such as MAC address) usage analytics, social activity, patronage of Client Location, location of device, advertising performance, and Client coupon redemptions, all as input into or collected through the Fulcrum WiFi Control Panel. End User Data includes End User Personal Information;
“End User Personal Information” means Personal Information of End Users;
“End User” means an individual that uses the Fulcrum WiFi Wi-Fi Service at a Client Location or whose device exchanges information with the Fulcrum WiFi Wi-Fi Service;
“including” means including without limitation and “includes” means includes without limitation;
“Landing Page” means the web page that first appears when an End User connects to the Platform, and which includes a portal enabling the End User to access the internet;
“Channel Partner Content” means any Channel Partner content that is input into any Marketing Templates by Channel Partner, or that otherwise constitutes Channel Partner–branded or Channel Partner-selected (third party) marketing and promotional material such as Channel Partner Marks, Facebook notifications, mobile coupons, vouchers, offers, promotions, banner ads, videos, lotteries, event notifications;
“Channel Partner Wi-Fi Network” means the Channel Partner’s aggregate network of Clients;
“Look and Feel” means the characteristics and visual appearance of the Landing Page as customized with the Client Content and/or the Channel Partner Content, as applicable, and shall specifically exclude the Fulcrum WiFi Technology;
“Marketing Templates” means the downloadable, editable marketing templates made available by Fulcrum WiFi to the Channel Partner and which include templates that Channel Partner can use to market the Fulcrum WiFi Wi-Fi Service and related services to potential Clients, and templates that Channel Partner can provide to Clients to assist Clients in marketing the Fulcrum WiFi Wi-Fi Service to End Users;
“Marks” means trade-marks, trade names, logos and designs;
“Fulcrum WiFi Control Panel” means the Fulcrum WiFi proprietary real-time reporting and management software application with integrated ad server hosted by Fulcrum WiFi and running on the Platform;
“Fulcrum WiFi Knowledge Repository” means a generic help page residing on the Platform and accessible to Channel Partners for purposes of assisting with troubleshooting Routers;
“Fulcrum WiFi Members Area” means a generic page residing on the Platform that serves as a repository for Marketing Templates and Training Materials;
“Fulcrum WiFi Platform” or the “Platform” means the software services that are owned and operated by Fulcrum WiFi: (i) upon which Channel Partner will access and use the Fulcrum WiFi Control Panel; and (ii) to which End Users will connect (initially to the Landing Page) using the Fulcrum WiFi Wi-Fi Service;
“Fulcrum WiFi Router” means a wireless router or a gateway (as applicable) configured to function only with the Fulcrum WiFi Control Panel, all associated router hardware such as antennae and power supply unit, and installation guides and other related material;
“Fulcrum WiFi Technology” means, whether licensed, acquired or developed by Fulcrum WiFi, and as may be modified, enhanced or updated during the Term, all information, materials, know-how or technology, elements, data, graphics, programming and coding (including all interfaces, navigational devices, menus, menu structures or arrangements, icons, help and other operational instructions, and all other components of any source or object computer code) that comprise the Platform (and the Look and Feel thereof), the Fulcrum WiFi Control Panel, the Marketing Templates, the Fulcrum WiFi Marks, and the Fulcrum WiFi Knowledge Repository, and all literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Platform (and the Look and Feel thereof), the Fulcrum WiFi Control Panel, the Marketing Templates, the Fulcrum WiFi Marks, and the Fulcrum WiFi Knowledge Repository, and design elements;
“Fulcrum WiFi Wi-Fi Service” means wireless internet access provided at a Client Location through the Platform;
“Person” means an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity;
“Personal Information” means information about an identifiable individual, and includes any information that is “personal information” within the meaning of one or more Applicable Privacy Laws;
“Processing” or “Process” means the collection, use, modification, retrieval, disclosure, storage, anonymization, deletion, and/or management of Personal Information.
“Services” means the provision of the Fulcrum WiFi Control Panel as a service for access and use by Channel Partner, the provisions of the Fulcrum WiFi Wi-Fi Service offering for provision to Clients, and the hosting, marketing and branding, training, and support services as described in Article 2;
“Training Materials” means training materials and content, including videos, such as getting started checklists, Platform configuration, sales training techniques, and sales strategy blueprints.
FULCRUM WIFI SERVICES
Platform. Fulcrum WiFi shall, during the Term, operate the Platform for access by the Channel Partner as contemplated in this Agreement.
Fulcrum WiFi Control Panel – Software as a Service. Fulcrum WiFi shall, during the Term, host the Fulcrum WiFi Control Panel on the Platform. In connection therewith, Fulcrum WiFi hereby grants Channel Partner a license to remotely access and use the Fulcrum WiFi Control Panel and the Platform during the Term on a non-exclusive, world-wide, royalty-free basis (other than the fees payable hereunder) for the purpose of managing the Channel Partner Network, including collecting, organizing and generating reports using End User Data and providing same to Clients, conducting marketing and promotional activities (including using the Marketing Templates as contemplated below), and using other Fulcrum WiFi Control Panel functionality as may be added from time to time. For greater certainty, Channel Partner may also provide access to the Platform to its Clients in order to use the Fulcrum WiFi Wi-Fi Service.
Firmware, Equipment and Cloud Controllers.
Routers. Fulcrum WiFi may, during the Term, make available to Channel Partner certain types of Routers for purchase by Channel Partner as set forth on the Platform. Channel Partner may in turn resell or rent such Routers to Clients for the sole purpose of enabling Clients to offer the Fulcrum WiFi Wi-Fi Service to End Users. Channel Partner may purchase Routers from Fulcrum WiFi by completing a purchase order in the form as may be required by Fulcrum WiFi and posted on the Platform from time to time during the Term. All Routers shall be subject to the applicable manufacturer’s standard limited warranty in force at the time of sale of such Routers (the “Manufacturer Warranty”). Fulcrum WiFi does not make (and Channel Partner shall not make to any potential or actual Client) any representation or warranty in respect of the Routers, and shall not be responsible for any Manufacturer Warranty or representations related to their products, nor for the specific performance of the terms and conditions of any Manufacturer Warranty. Fulcrum WiFi’s obligation in respect of the functioning of the Routers is limited to posting selected information on the Fulcrum WiFi Knowledge Repository.
Fulcrum WiFi Firmware. Fulcrum WiFi may, during the Term, make available to Channel Partner certain firmware (i) on the Routers purchased from Fulcrum WiFi, or (ii) for separate download and use on Channel Partner’s existing equipment. In each case, Fulcrum WiFi hereby grants Channel Partner a license to remotely access and use the Fulcrum WiFi firmware during the Term on a non-exclusive, world-wide, royalty-free basis (other than the fees payable hereunder) for the purpose of enabling the Fulcrum WiFi Wi-Fi Service. Fulcrum WiFi does not make (and Channel Partner shall not make to any potential or actual Client) any representation or warranty in respect of the firmware, and Fulcrum WiFi’s obligation in respect of the functioning of the firmware is limited to posting selected information on the Fulcrum WiFi Knowledge Repository.
Remote Access. For certain implementations Channel Partner or the Client may ask Fulcrum WiFi to manage the implementation and provision of the Fulcrum WiFi Wi-Fi Service remotely by directly accessing Channel Partner or the Client’s existing equipment (in each case where such equipment is supported by Fulcrum WiFi). In doing so, Channel Partner shall, and shall ensure Client (i) grants Fulcrum WiFi all rights necessary to remotely access, use and modify such equipment without any further consent from or notice to Channel Partner or Client; and (ii) agrees that, where Channel Partner or Client provides Fulcrum WiFi with login credentials in order to access such equipment, all such access is done at Channel Partner or Client’s own risk, as applicable.
Branding and Marketing Services.
Information shared in the Fulcrum WiFi Members Area is the intellectual property of Fulcrum WiFi and must be kept confidential at all times and not used in any manner other than as authorized by Fulcrum WiFi. Channel Partner may not share or sell any information to Clients or others, package or offer this information as a bonus, add this information to membership sites, or otherwise distribute this information without written consent from Fulcrum WiFi or pursuant to Fulcrum WiFi’s express written instructions. The Marks that are displayed in Members Area information are the property of their respective owners.
Fulcrum WiFi reserves the right to revoke Channel Partner’s or any other Person’s access to the Fulcrum WiFi Members Area at any time if any misuse or foul play occurs, or if unauthorized file sharing or multiple-IP logins are detected.
Fulcrum WiFi may, during the Term, make available to Channel Partners a private members area accessible only to Channel Partner and other Channel Partners of Fulcrum WiFi, and localwifi network partners, which area shall serve as a resource to learn, brainstorm, share and exchange ideas about promoting and selling the Fulcrum WiFi Wi-Fi Service.
Fulcrum WiFi shall, during the Term, for each Client make available an editable Landing Page that may be customized by Channel Partner to incorporate Channel Partner Content and / or Client Content, as applicable.
Hosting Services. The Platform shall be hosted by a third party hosting provider selected by Fulcrum WiFi for access by Channel Partner and End Users as contemplated under this Agreement. Fulcrum WiFi will make reasonable efforts to monitor the up-time of the hosting services, but does not guarantee or warrant its availability due to various external internet factors. Furthermore, the availability of the Platform may be interrupted in order to provide planned maintenance and upgrades to the Platform, the Server, the Fulcrum WiFi Control Panel, or any and all hardware or software required for the hosting, operation or transmission of the Platform and provision of the Fulcrum WiFi Wi-Fi Service.
Training Services. Fulcrum WiFi shall, during the Term, offer certain training to Channel Partner in respect of marketing, setting up, pricing, and operating the Fulcrum WiFi Wi-Fi Service, and using the Fulcrum WiFi Control Panel, as such training is posted on the Platform from time to time during the Term. Fulcrum WiFi shall also, during the Term, make Training Materials available to Channel Partner in the Members Area.
Support Services. Fulcrum WiFi shall, during the Term: (a) make reasonable email and online chat support available to Channel Partner on a 24 hour per day basis in respect of the functioning of the Fulcrum WiFi Wi-Fi Service (and the components thereof), and in respect of the Fulcrum WiFi Control Panel, (b) use commercially reasonable efforts to provide solutions, changes and corrections as are required to keep the Fulcrum WiFi Wi-Fi Service (and the components thereof) and the Fulcrum WiFi Control Panel operating; and (c) provide Channel Partner with access to the Fulcrum WiFi Knowledge Repository. Fulcrum WiFi shall not, and shall have no obligation to provide support of any kind directly to Clients or End Users. It shall be the responsibility of Channel Partner to provide support services to Clients in respect of the functioning of the Fulcrum WiFi Wi-Fi Service (and the components thereof), as contemplated in Section 1 below.
CHANNEL PARTNER RESPONSIBILITIES.
Channel Partner shall use commercially reasonable efforts to market the Fulcrum WiFi Wi-Fi Service to potential Clients, including using the Marketing Templates. Channel Partner shall make no false or misleading representations or warranties with regard to Fulcrum WiFi or the Fulcrum WiFi Wi-Fi Service (or the components thereof), or engage in deceptive business practices. Channel Partner shall refrain from communicating any information with respect to guarantees or warranties regarding the Fulcrum WiFi Wi-Fi Service, except such as are expressly authorized by Fulcrum WiFi or are set forth in Fulcrum WiFi’s literature or other promotional materials.
Channel Partner will deliver all Client Information to Fulcrum WiFi. Fulcrum WiFi shall maintain records of Client Information delivered by Channel Partner to Fulcrum WiFi as a result of Channel Partner’s performance pursuant to this Agreement. All Customer Information delivered by Channel Partner shall be jointly owned by Channel Partner and Fulcrum WiFi and, pursuant to such ownership, may be used by either Party in any manner deemed appropriate subject to (i) each party’s published privacy policies then in effect, and (ii) all privacy and data protection laws and regulations applicable to the gathering, processing, storage and transmission of the Customer Information.
Channel Partner must purchase all Routers from Fulcrum WiFi. Channel Partner may in turn resell or rent such Routers to Clients for the sole purpose of enabling Clients to offer the Fulcrum WiFi Wi-Fi Service to End Users, provided that such resale or lease will be on the applicable terms and conditions set forth in the Client License Agreement.
Channel Partner shall administer the marketing and promotional activities for Client, including customizing the Landing Page to incorporate Client Content, as applicable. Channel Partner shall conduct itself in a manner consistent with the professional image, reputation and credibility of Fulcrum WiFi, and shall not engage in activities that reflect adversely on Fulcrum WiFi.
Channel Partner shall not: (i) decompile, transform, modify, translate, disassemble, reverse engineer or otherwise attempt to decrypt or derive the source code, any trade secrets, or any sensitive or proprietary information of, or included in or related to the Fulcrum WiFi Control Panel or other Fulcrum WiFi software provided hereunder; (ii) modify, merge, alter, copy, or otherwise reproduce or tamper with the Fulcrum WiFi Control Panel or any components of the Fulcrum WiFi Wi-Fi Service, or produce or create any derivative works of the Fulcrum WiFi Control Panel; (iii) rent, share, lend or operate the Fulcrum WiFi Control Panel on a time share or service bureau basis, or offer any services that would compete with or replace the Fulcrum WiFi Wi-Fi Service, (iv) use or access the Fulcrum WiFi Control Panel or Platform to publish, transfer, display, store, distribute or disseminate or otherwise transmit, load upon or make available anything (including information, files, software, data or other content) that is infringing of a third party’s intellectual property or other rights, inappropriate, inaccurate, illegal, profane, defamatory, obscene or indecent, or any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software, program or device that may be damaging, or to damage, misappropriate, hack into or misuse the Fulcrum WiFi Control Panel, the Platform, or any components of the Fulcrum WiFi Wi-Fi Service; or (v) otherwise use the Fulcrum WiFi Control Panel, Platform, or the Fulcrum WiFi Wi-Fi Service for unlawful, prohibited, illegal, inappropriate, offensive, damaging or otherwise unsuitable purposes, including in connection with activities involving junk email, spamming, hacking, defamation, abuse, harassment, stalking, threatening or otherwise violating the rights of any person. Channel Partner is responsible for all Channel Partner Content, whether posted on the Landing Page, used in the Marketing Templates, or otherwise. Fulcrum WiFi does not pre-screen Channel Partner Content, but Fulcrum WiFi has the right (but not the obligation) in its sole discretion to refuse or remove any Channel Partner Content.
Channel Partner shall provide support services to Client in respect of the operation and functioning of the Fulcrum WiFi Wi-Fi Service (and the components thereof). To the extent Channel Partner cannot resolve the particular issue affecting the Fulcrum WiFi Wi-Fi Service, Channel Partner may contact Fulcrum WiFi for assistance as contemplated in Section 8.
Channel Partner will provide training to Clients as required to enable them to offer the Fulcrum WiFi Wi-Fi Service at the applicable Client Location.
Fulcrum WiFi may provide Channel Partner with a password to access and use the Platform and the Fulcrum WiFi Control Panel; Channel Partners may also change their passwords directly. Channel Partner is responsible for maintaining the confidentiality of Channel Partner’s password, and is responsible for all activities that occur under Channel Partner’s password. Channel Partner agrees to immediately notify Fulcrum WiFi of any unauthorized use of Channel Partner’s password or any other breach of security, which includes but is not limited to computer viruses, trojan horses, spyware, malware, adware, hacking, and other malicious or unwanted means expressly or impliedly prohibited by, or inconsistent with, any provision of this Agreement. Fulcrum WiFi reserves the right to revoke Channel Partner’s access to and use of the Platform and the Fulcrum WiFi Control Panel, at its sole option and discretion and without notice to Channel Partner, if any misuse or foul play occurs or is suspected in respect thereof. Fulcrum WiFi will not be liable for any loss or damage arising from Channel Partner’s failure to provide Fulcrum WiFi with accurate information or to keep Channel Partner’s password secure.
Channel Partner shall not appoint any independent agent, representative, distributor, OEM, value-added reseller, systems integrator, service provider or other third party to market the Products without the prior written consent of Fulcrum WiFi (which may be withheld, in its sole discretion for any reason).
OWNERSHIP OF INTELLECTUAL PROPERTY
Fulcrum WiFi Background Technology. As between the parties, Fulcrum WiFi owns and shall continue to own all right, title and interest including intellectual property and proprietary rights in and to the Fulcrum WiFi Technology. In addition to the rights granted to the Fulcrum WiFi Control Panel in Section 2, to the extent required to enable Channel Partner to provide the Fulcrum WiFi Wi-Fi Service offering and related service to Clients, Fulcrum WiFi hereby grants to Channel Partner a non-exclusive, limited license during the Term to use, install, load, access, view, store, display, produce, reproduce, and communicate to the public the Fulcrum WiFi Technology.
Channel Partner Content. As between the parties, Channel Partner owns and shall continue to own all right, title and interest including intellectual property and proprietary rights in and to the Channel Partner Content. Channel Partner hereby grants to Fulcrum WiFi a non-exclusive, limited license during the Term to use the Channel Partner Content solely for the purposes of providing the Services under this Agreement. Channel Partner is solely responsible for securing and paying for all digital content licenses and any other Marks or copyright licenses from third party content owners (or their agents) to the extent such content forms part of the Channel Partner Content.
Channel Partner agrees to pay Fulcrum WiFi compensation for services and equipment rendered to Channel Partner pursuant to this Agreement in accordance with the fees and pay schedule set out in Exhibit 1 Fulcrum WiFi may change the fees and pay schedule set out in Exhibit 1 hereto as contemplated at Section 11.
Channel Partner hereby authorizes Fulcrum WiFi to draw monthly automatic recurring payments from Visa, MasterCard or PayPal, covering the initial setup fee, all monthly dues and all other applicable payments to Channel Partner’s service and equipment as stated in a monthly invoice that shall be e-mailed by Fulcrum WiFi. Channel Partner shall pay this invoice via an automated electronic transaction.
The fees will renew automatically on a month-to-month basis, and monthly recurring payments, where applicable, will continue until notice of cancellation is received by Fulcrum WiFi.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Channel Partner shall be responsible for payment of all such taxes, levies, or duties.
Fulcrum WiFi reserves the right to revoke access to services if Channel Partner’s balance is overdue or invoices are not paid in full. At a minimum, Fulcrum WiFi will give 7 days’ notice to Channel Partner before terminating this Agreement unless immediate termination is required due to a risk to the security or integrity of the Platform.
If for whatever reason, Channel Partner defaults on payment or its invoices are not paid in full Channel Partner hereby authorizes Fulcrum WiFi or its assignee to collect the outstanding monies, plus service charges and interest, in any method available to Fulcrum WiFi. Channel Partner shall indemnify Fulcrum WiFi for all collection or legal fees incurred by Fulcrum WiFi in order to satisfy Channel Partner’s payment defaults.
There will be no refunds or credits for setup fees, partial months of service, upgrade/downgrade refunds, or refunds for months unused with any service. Where Channel Partner terminates this Agreement pursuant to Section 10, Channel Partner shall also pay to Fulcrum WiFi the termination charges specified in Exhibit 1, or if not specified, an amount equal to 50% of the remaining monthly fees that would have been payable to the end of the Term (collectively, the “Termination Fees”). Channel Partner acknowledges that the Termination Fees are a reasonable estimate of Fulcrum WiFi’s liquidated damages and represent consideration for the Services, and are not a penalty.
Channel Partner shall be responsible for all expenses resulting from its own business operations and/or incurred by Channel Partner in connection with this Agreement, including, but not limited to, all expenses incurred in the promotion, demonstration, installation, and/or marketing of the Fulcrum WiFi Wi-Fi Service or otherwise performing its obligations under this Agreement.
DISCLAIMER OF WARRANTIES AND LIMITATIONS ON LIABILITY
EXCEPT TO THE EXTENT NOT ALLOWED BY APPLICABLE LAW, FULCRUM WIFI HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PLATFORM, THE FULCRUM WIFI APPLICATION, AND SERVICES AND THEIR PERFORMANCE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NON-INFRINGEMENT, OR THOSE ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FULCRUM WIFI DOES NOT WARRANT AND THERE IS NO CONDITION THAT (A) THE SERVICES WILL MEET CHANNEL PARTNER’S SPECIFIC REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (D) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. THE SERVICES AND THE FULCRUM WIFI TECHNOLOGY ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS.
IN NO EVENT SHALL FULCRUM WIFI BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, WHETHER DIRECT OR INDIRECT, LOSS OF BUSINESS, LOST REVENUE, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF OTHER ECONOMIC ADVANTAGE) HOWEVER THEY ARISE, WHETHER FOR BREACH OR IN TORT, AND EVEN IF FULCRUM WIFI HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED AT LAW, FULCRUM WIFI’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF MONEY PAID TO FULCRUM WIFI BY CHANNEL PARTNER UNDER THIS AGREEMENT IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
Channel Partner shall indemnify and hold Fulcrum WiFi and its officers, directors, employees, agents, representatives, contractors, successors and assigns harmless from and against any and all Losses arising out of or attributable to its (a) fraud, willful misconduct or gross negligence, (b) breach of its confidentiality obligations under this Agreement, (c) breach of Section 1 or use of the Fulcrum WiFi Control Panel in a manner beyond the scope of use contemplated in Section 2, (d) its infringement, misappropriation or violation of third party intellectual property rights due to Channel Partner Content, and (e) misuse of End User Data or breach of any Applicable Privacy Laws, including in each case where such Losses are caused by those whom such party is responsible for at law. For purposes of this Agreement, the term “Losses” means all losses, liabilities and damages (including taxes and related penalties) and all related costs and expenses, including reasonable legal fees on a full indemnity basis, and expenses and costs of litigation, settlement, judgment, appeal, interest and penalties.
Restriction on Use of Confidential Information. Channel Partner acknowledges that in connection with this Agreement it may have access to proprietary information of Fulcrum WiFi, including but not limited to trade secrets, data, processes, technical information, business knowledge, pricing, service providers, hosting providers, technology partners, research and development and marketing strategies (hereinafter collectively referred to as “Confidential Information”). Channel Partner acknowledges that the disclosure of Confidential Information in any manner would be highly detrimental to the interest of Fulcrum WiFi. Channel Partner agrees that the right to maintain such Confidential Information constitutes a proprietary right, which Fulcrum WiFi is entitled to protect. Accordingly, Channel Partner shall not disclose or permit (either during this Agreement or thereafter) the disclosure of any Confidential Information to any person, or use or permit the use of same, for any purposes other than those of the owner of such information. Channel Partner shall not use any Confidential Information of Fulcrum WiFi except as may be necessary to perform its obligations under this Agreement.
Disclosures Required by Law. Channel Partner may disclose Confidential Information in response to a valid court order, law, rule, regulation (including without limitation any securities exchange regulation), or other governmental action provided that (a) Fulcrum WiFi is notified in writing prior to disclosure of the information, and (b) Channel Partner assists Fulcrum WiFi, at Fulcrum WiFi’s expense, in any attempt by the other to limit or prevent the disclosure of the Confidential Information.
Remedies Upon Breach. Channel Partner agrees that Fulcrum WiFi shall have no adequate remedy at law if there is a breach or threatened breach of this Article 8 and, accordingly, that Fulcrum WiFi shall be entitled (in addition to any legal remedies available) to injunctive or other equitable relief to prevent or remedy such breach.
Return or Destruction. Upon the termination or expiration of this Agreement or upon the earlier request of Fulcrum WiFi, the Channel Partner shall (a) at its own expense, (i) promptly return to Fulcrum WiFi all information that is in tangible form (and all copies thereof) that is the property of Fulcrum WiFi (including pursuant to this Agreement) or that contains any Confidential Information (collectively, the “Material Information”), or (ii) upon written request from Fulcrum WiFi, destroy such Material Information and provide Fulcrum WiFi with written certification of such destruction, and (b) cease all further use of any Material Information, whether in tangible or intangible form.
Ownership. The Confidential Information of Fulcrum WiFi is, and will remain, the property of Fulcrum WiFi. Channel Partner obtains no right, title, interest or license in or to any of the Confidential Information of Fulcrum WiFi except for the rights expressly set forth in this Agreement.
Channel Partner shall comply with all Applicable Privacy Laws when using the Services. Without limiting the foregoing, Channel Partner shall only Process Personal Information for the purposes of rendering the services to Client, and shall not disclose any Personal Information, in any manner whatsoever, to any third party other than Client.
Fulcrum WiFi reserves the right to audit Channel Partner’s use of the Fulcrum WiFi Control Panel, including access logs and activities.
To the extent Fulcrum WiFi is a processor or subprocessor of personal data subject to the GDPR, the Data Processing Addendum governs that processing. “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
TERM AND TERMINATION
Term. This Agreement will commence on the Effective Date and shall continue for the period of time set out in Exhibit 1 and thereafter will renew on a month-to-month basis unless otherwise provided in Exhibit 1 (the “Term”), in each case unless it is terminated earlier in accordance with this Article 10.
Termination for Cause. If either party materially breaches this Agreement, and such default is not cured within thirty (30) days after written notice is given to the defaulting party specifying the default, then the party not in default may, by giving written notice thereof to the defaulting party, terminate this Agreement as of a date specified in such notice of termination.
Termination for Insolvency or Bankruptcy. Either party may immediately terminate this Agreement by giving written notice to the other party in the event of (a) the liquidation or insolvency of the other party, (b) the appointment of a receiver or similar officer for the other party, (c) an assignment by the other party for the benefit of all or substantially all of its creditors, or (d) the filing of a meritorious petition in bankruptcy by or against the other party under any applicable bankruptcy or debtors’ legislation for its relief or reorganization.
Termination for Convenience. Either party may terminate this Agreement at any time for any reason by providing written notice to the other party indicating such termination.
Assignment. Fulcrum WiFi may assign any of its rights or obligations under this Agreement, without the prior express written consent of Channel Partner. Channel Partner may not assign this Agreement without the prior express written consent of Fulcrum WiFi.
Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
Severability. If any provision of this Agreement or part thereof is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not affect: (a) the legality, validity or enforceability of the remainder of the provision or remaining provisions of this Agreement, as the case may be, or (b) the legality, validity or enforceability of that provision or part thereof in any other jurisdiction.
Independent Contractor. Channel Partner and Fulcrum WiFi are independent contractors, and nothing herein shall at any time be construed to create the relationship of employer and employee, partners, principal and agent, or joint venturers between Channel Partner and Fulcrum WiFi. Fulcrum WiFi shall have no right or authority, and shall not attempt to enter into any contract, commitment or agreement, otherwise bind Channel Partner or incur any debt or liability of any nature in the name of or on behalf of Channel Partner.
Survival. Those provisions that by their nature are intended to survive the termination or expiration of this Agreement shall so survive, unless stated otherwise herein.
Further Assurances. Each party shall at any time and from time to time, upon each request by the other party, execute and deliver such further documents and do such further acts and things as the other party may reasonably request to evidence, carry out and give full effect to the terms, conditions, intent and meaning of this Agreement.
Changes. Fulcrum WiFi may change the terms and conditions or pricing under this Agreement at any time by posting the changes to this page. Fulcrum WiFi will use reasonable efforts to notify Channel Partner, including by way of email, of such changes that will materially affect the scope of the services provided, or of any material price increase. Notwithstanding the foregoing, Channel Partner accepts responsibility for being fully informed of the changes posted to this page. If Fulcrum WiFi makes changes that are not acceptable to Channel Partner, Channel Partner may terminate the Agreement without charge by giving written notice of cancellation to Fulcrum WiFi within forty-five (45) days after the date the unacceptable change was posted. If Channel Partner does not give written notice to Fulcrum WiFi of such termination within such forty-five (45) day period, Channel Partner shall be deemed to have accepted the change, effective on the date of its posting. Channel Partner may not change this Agreement. No statement or representation (oral or written) of any sales agent, distributor, representative or employee of Fulcrum WiFi made to Channel Partner can change this Agreement.
Force Majeure. Fulcrum WiFi will not be liable for any delay or failure to perform our obligations if such delay or non-performance arises in connection with any cause or causes beyond its reasonable control. Such causes shall include, without limitation, any act of God, fire, flood, natural disaster, strike (or other labor dispute), unusually severe weather, vandalism, terrorism, or any act, law regulation or request of any governmental body.
Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements, understandings, negotiations, memoranda and representations both written and oral between the parties.
Cumulative Remedies. All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law or in equity.
Governing Law. This Agreement shall be governed by the laws of Ontario, Canada, and the federal laws of Canada applicable therein, and the Parties agree to the exclusive jurisdiction of the courts situated in Toronto, Ontario, Canada. No action, arising out of the transactions under this Agreement may be brought by either Party more than two years after the cause of action has accrued.
EXHIBIT 1: [TO BE PROVIDED SPECIFIC TO EACH CHANNEL PARTNER]
Last Updated: May 25, 2018