READ THESE TERMS CAREFULY BEFORE ORDERING ANY THE SERVICES DESCRIBED BELOW. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE THESE SERVICES. YOUR CLICKING ON THE BUTTON MARKED "I ACCEPT" AND YOUR CONTINUED USE OF THE SERVICES INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS AND CONDITIONS.
PARTNER AGREEMENT FOR WIRELESS INTERNET ACCESS SERVICE
This Partner Agreement for Wireless Internet Access Service (the "Agreement") is entered into between ViaSat, Inc., ("goWiFi"), and the party identified in the Company Information section on the Sign Up page of the goWiFi.com web site ("Partner") as of the date Partner accepts these terms and conditions (the "Effective Date") for the installation, operation and maintenance of wireless Internet access points ("APs") at location(s) ("the Location(s)"), pursuant to the terms and conditions set forth herein.
1.0 goWiFi Responsibilities
1.1 goWiFi, either itself or through subcontractor(s) of goWiFi's sole choosing, agrees to provide APs and other equipment ("goWiFi Equipment") required to provide service (the "Service") to Partner customers and patrons ("Customers") at the Locations identified by Partner in the Location Information section on the Sign Up page of the goWiFi.com web site. Title to goWiFi Equipment shall remain at all times in goWiFi's name and title to Partner Equipment shall remain at all times in Partner's name. Partner shall not create or permit to be created any liens or encumbrances on such equipment. No equipment or information shall be affixed or attached to goWiFi Equipment unless previously authorized in writing by goWiFi. The quantity of APs, the type(s), and specific AP Locations will be mutually agreed to by both goWiFi and Partner.
1.2 Partner shall provide information on the Location(s) in the Location Information section on the Sign Up page of the goWiFi.com web site including: (1) the name of the Partner location and the names and telephone numbers of contacts at each site and (2) the full address of the Partner facility. Location information may be amended at any time to add or delete Locations by written agreement signed by the parties. Partner may delete a Location from the Exhibit without goWiFi's approval or agreement if a Location is being closed.
1.3 goWiFi shall, at its sole expense:
a. provide to Partner monthly reports of the revenues generated and collected for each Location, if any; b. incur all credit card fees;
c. provide user name and password to access the goWiFi management system; and
d. provide the features purchased by the Partner.
1.4 The parties agree that subscribers of third-party network providers ("Out of Network Providers") with which goWiFi has entered into roaming agreements shall be authorized to access the Services at all Partner Locations. goWiFi has the right to terminate Internet access at any or all Locations from such subscribers without notice to Partner. In addition, goWiFi shall incur all fees and/or receive all revenues associated with access related to third-party network providers and their users. goWiFi shall have the sole right to manage and configure signals, frequencies and channels broadcast by the Equipment.
1.5 A commission payable to Partner shall be calculated for each "Commission Cycle," which shall begin on the 1st day of each month and end on the last day of the same month. For each Commission Cycle, goWiFi shall calculate a commission equal to 80% of all usage revenues of Customers who subscribe and pay for service at Partner locations. goWiFi will retain the balance. All revenues shall be accounted for in U.S. dollars. Foreign currencies shall be converted into U.S. dollars based upon the exchange rates used by goWiFi's credit card merchant services provider. Commission payments shall be made to Partner monthly within thirty (30) days following the end of each Commission Cycle and issued to Partner.
1.6 goWiFi reserves the right, in its sole discretion, to establish the usage fee for which the public is charged to access the Internet from the AP and to modify or adjust usage fees at any time. Partner and goWiFi may agree to run promotions from time to time at usage fees approved in advance by goWiFi.
2.0 Partner Responsibilities
2.1 Partner represents and warrants that it has the authority to enter into this Agreement, is not contractually prohibited from entering into this Agreement and is presently not a party to any exclusive Agreement with another service provider to provide similar services. Partner further represents and warrants that it is authorized to make decisions concerning the placement of the AP and supporting connections, and agrees to permit the operation of such AP at the Locations for use by the public to use the Service.
2.2 Partner shall, at its sole expense:
a. provide adequate space at each Location such as to make the Services available to the general public and take no action which prevents or adversely affects the use of the AP;
b. provide, maintain and pay recurring utility service bills for grounded 110 electrical outlets sufficient to operate all required AP and related equipment;
c. take reasonable precautions to protect goWiFi Equipment and Partner Equipment from damage, vandalism, theft or hazardous conditions and promptly report any damage, vandalism, theft, service failure or hazardous condition to goWiFi;
d. provide goWiFi, its subcontractors or representatives with access to the APs;
e. permit goWiFi to communicate with the contact provided by Partner at each Location on an as needed basis to enable goWiFi to fulfill its responsibilities under this Agreement;
f. incur all monthly operating costs to provide the high-speed telecommunications access line that will be used to connect the APs to the Internet;
g. display marketing materials promoting the service;
h. assist goWiFi in evaluating the use of the APs;
i. permit goWiFi to survey Customers and observe Customer activity with respect to the APs; and
j. install and maintain in good working order the goWiFi Equipment and Partner Equipment at the Locations enumerated in Exhibit A. Partner shall incur all costs associated with installation and ongoing maintenance of APs including costs of dispatching repair services and repairing or replacing AP equipment.
3.0 Fees, Invoicing and Payment
3.1 Upon execution of this Agreement, Partner shall select one of the following pricing plans. One-time setup and monthly service fees apply to each WiFi controller installed at each Location.
Pricing plan A (month to month term):
a. One-time setup fee - $99
b. Monthly service fee - $35 (billed monthly in advance)
Pricing plan B (2-year term):
a. One-time setup fee - $49
b. Monthly service fee - $25 (initial 3 months billed in advance, then billed monthly in advance)
Pricing plan C (3-year term):
a. One-time setup fee - None
b. Monthly service fee - $20 (initial 6 months billed in advance, then billed monthly in advance)
Partner may switch from pricing plan A to pricing plan B or C upon 30 days written notice, payment of applicable fees and payment of any past due amounts.
3.2 One-time setup fees will be invoiced by goWiFi at the time Partner orders each controller. Setup fees are due and payable by Partner prior to shipment of the ordered controller(s).
3.3 Monthly service fees will be invoiced by goWiFi in advance of the month of service. For billing purposes, the initial month of service for each controller shall be the first full month following the date Partner orders a controller. Monthly service fees are billed in full month increments only (no partial month prorations). Monthly service fees shall be billed and are due as follows:
Pricing plan A - the fee applicable to the initial month of service will be invoiced at the time Partner orders each controller. The invoice is due and payable by Partner prior to shipment of the ordered controller(s). Subsequent monthly service fees will be invoiced prior to the month of service and are due prior to the first day of the service month. [Example: If Partner orders one controller on July 15, 2010, the initial month of service will be August. Within several days after receiving the Partner order, goWiFi will issue an invoice to the Partner for the August service month. Upon receipt of payment, goWiFi will ship the controller. The September monthly service fee will be invoiced within the first 10 days of August and is due by August 31st].
Pricing plan B - the fee applicable to the first three months of service will be invoiced at the time Partner orders each controller. The invoice is due and payable by Partner prior to shipment of the ordered controller(s). Fees applicable to subsequent monthly service periods will be invoiced prior to the month of service and are due prior to the first day of the service month. [Example: If Partner orders one controller on July 15, 2014, the initial month of service will be August. Within several days after receiving the Partner order, goWiFi will issue an invoice to the Partner for the monthly service fees applicable to the months of August 2014 through the October 2014. Upon receipt of payment, goWiFi will ship the controller. The November 2014 monthly service fee will be invoiced within the first 10 days of November 2014 and is due by November 30th].
Pricing plan C - the fee applicable to the first 6 months of service will be invoiced at the time Partner orders each controller. The invoice is due and payable by Partner prior to shipment of the ordered controller(s). Fees applicable to subsequent monthly service periods will be invoiced prior to the month of service and are due prior to the first day of the service month. [Example: If Partner orders one controller on July 15, 2014, the initial month of service will be August. Within several days after receiving the Partner order, goWiFi will issue an invoice to the Partner for the monthly service fees applicable to the months of August 2014 through January 2015. Upon receipt of payment, goWiFi will ship the controller. The February 2015 monthly service fee will be invoiced within the first 10 days of February 2015 and is due by February 28, 2015].
3.4 Optional services may be ordered at any time. Optional services are applicable to all Partner controllers. For billing purposes, the initial month of service for each service shall be the first full month following the date the Services are first provided by goWiFi. Optional service fees are billed in full monthly increments only. Optional service fees will be invoiced on a basis consistent with the pricing plan selected by Partner and as discussed in Section 3.3. Fees for optional services are as follows:
Content Filtering - $7 per month
24/7 unlimited end-user telephone support - $20 per month
Secure private wireless network for internal use - $5 per month
3.5 All goWiFi invoices are due upon receipt or otherwise as provided by the terms of this Agreement. At goWiFi's sole discretion, fees owed to goWiFi may be deducted by goWiFi from commissions and/or any other amounts owed by goWiFi to Partner. goWiFi may require payment of fees by any reasonable method including Partner credit card, check, electronic, or via PayPal.
4.1 Except for those Locations where goWiFi elects to remove all goWiFi Equipment and/or discontinue the Service pursuant to Section 5.2, Partner hereby appoints goWiFi as its exclusive provider of wireless Internet access services in all common areas of the Location(s) over which Partner has rights to deploy wireless services.
5.0 Other Business Terms
5.1 Partner shall be permitted to enter into agreements with any service providers that are involved in providing service under the terms of this Agreement provided that such agreements do not conflict with the terms and conditions of this Agreement. Partner shall inform goWiFi of the nature of any such agreements prior to their execution.
5.2 goWiFi may terminate Service at any Location at goWiFi's sole discretion at any time for any reason. Should goWiFi elect to terminate the Service at a Location during the initial term of this Agreement, goWiFi will refund the setup fee paid by the Partner for each controller installed at the terminated Location(s).
5.3 Each Location shall display window stickers, table tents and posters that advertise the availability of the Service. goWiFi will make available marketing materials upon reasonable request by Partner.
6.0 General Provisions
6.1 Term and Termination
6.1.1 This Agreement will commence upon execution of this Agreement by both parties ("Effective Date") and shall continue until terminated in accordance with this Section 6.1.
6.1.2 Pricing plan A has a month-to-month term. Partner may terminate this Agreement upon 30 days advance written notice to goWiFi.
6.1.3 Pricing plan B has a two-year initial term and renews automatically for additional two-year terms. Partner may terminate the Agreement only upon written notice provided to goWiFi at least 60 days prior to the end of the initial or any renewal term.
6.1.4 Pricing plan C has a three-year initial term and renews automatically for additional three-year terms. Partner may terminate the Agreement only upon written notice provided to goWiFi at least 60 days prior to the end of the initial or any renewal term. If Partner terminates this Agreement or ceases payment of monthly fees prior to the end of the Term, Partner shall be assessed a “Termination Fee” in the amount of (i) $175 if there are less than two (2) years remaining in the Term or (ii) $200 if there are less than three (3) years but more than two (2) years remaining in the Term.
6.1.5 Either party may terminate this Agreement with respect to any or all Locations if the Federal Communications Commission, a State Public Utilities Commission or a court of competent jurisdiction issues an order or ruling that materially and adversely affects this Agreement or a party's ability to perform its responsibilities set forth herein. Such termination shall not give rise to any claims for damages, provided, however, that the parties shall comply with their obligations hereunder up to the date of termination.
6.1.6 If either party shall default in the performance of any of its obligations hereunder and fails to cure such default within thirty (30) days of written notice describing the alleged default, the non-defaulting party shall have the right to terminate this Agreement, upon or after the expiration of the thirty (30) day period, by subsequent written notice of termination. Should Partner be the defaulting party, (i) goWiFi shall have the right to modify or disable the Service and (ii) fees owed to goWiFi to provide the Service, if any, beginning on the date of default through the date the service is terminated, including any penalties resulting from the termination of service, shall be the responsibility of Partner. Should goWiFi so modify or disable the Service, such modification shall not constitute a waiver of goWiFi's rights hereunder, and goWiFi shall retain the right to subsequently terminate this Agreement at any time by reason of the default.
6.1.7 This Agreement may be assigned by goWiFi without the consent of the Partner. This Agreement may not be assigned by Partner without the advance written consent of goWiFi, which may not be unreasonably withheld.
6.1.8 Upon termination of this Agreement, Partner shall return all goWiFi Equipment to goWiFi. If Equipment is not returned, goWiFi shall charge a $500 Equipment Return fee to the Partner for each piece of Equipment not returned. All Equipment Return fees are due upon receipt of an invoice from goWiFi.
6.2 Limitation of Liability; Warranties
6.2.1 goWiFi's liability to Partner shall be limited to its obligations to pay commissions, if any, as set forth above. goWiFi shall not be liable for interruption of service for any cause or for any indirect, special, incidental, consequential or punitive loss or damage of any kind, including lost revenues or profits (whether or not goWiFi had been advised of the possibility of such loss or damage), by reason of any act or omission in its performance under this Agreement. goWiFi shall meet a network uptime objective of 95% during the Term of this Agreement. Failure to meet the network uptime objective at any time during the Term shall be an event of default under the Agreement. goWiFi is not responsible for failure to meet the network uptime objective if such failure is based, in whole or in significant part, on one or more of the following factors:
a. the network experiences interruptions or failures due to ISP availability, RF interference, and power outages, or failure due to access technologies such as DSL, cable modem or wireless, any of which are not within the control of goWiFi;
b. scheduled network upgrade and maintenance activities for which advance notice was provided to Partner;
c. Partner's failure to provide timely installation and/or maintenance of the equipment;
d. acts outside goWiFi's control, including, but not limited to, natural disasters, changes resulting from government, political, or other regulatory actions, strikes or labor disputes (including carriers and other vendors to goWiFi or Partner), acts of civil disobedience, acts of war or terrorism, acts against parties (including carriers and other goWiFi contractors), and other force majeure events whether or not they are similar to the foregoing (however, this exclusion shall not apply with respect to failures at goWiFi's data center, unless the same force majeure event affects both the goWiFi data center and the goWiFi back-up data center);
e. local or international regulatory or legal issues that limit or prevent goWiFi's ability to offer or comply with service level objectives; and
f. Partner's lack of availability to respond to incidents which require Partner's participation for resolution (for example during times outside Partner's normal business hours).
6.2.2 In no event shall goWiFi or Partner be responsible for any failure or delay in performing this Agreement if such failure or delay arises from causes beyond its reasonable control.
6.2.3 THERE ARE NO AGREEMENTS, WARRANTIES, OR REPRESENTATIONS, EXPRESS OR IMPLIED EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN.
6.3.1 Except as otherwise provided herein, Partner, for itself and its successors and assigns, shall defend, indemnify and hold goWiFi and its corporate affiliates and their respective officers, directors, stockholders, employees, agents, successors and assigns harmless from and against, and shall promptly reimburse them for, any and all losses, claims, damages, settlements, costs, and liabilities of any nature whatsoever (including reasonable attorneys' fees) to which any of them may become subject arising out of, based upon, as a result of, or in any way connected with, the operations of or performance by Partner under this Agreement or any breach by Partner of this Agreement.
6.3.2 Except as otherwise provided herein, goWiFi for itself and its successors and assigns, shall defend, indemnify and hold Partner and its corporate affiliates and their respective officers, directors, stockholders, employees, agents, successors and assigns harmless from and against, and shall promptly reimburse them for, any and all losses, claims, damages, settlements, costs, and liabilities of any nature whatsoever (including reasonable attorneys' fees) to which any of them may become subject arising out of, based upon, as a result of, or in any way connected with, any infringement claim relating to goWiFi's software (not including any modifications made by goWiFi at the request of Partner), other than claims based upon the use of goWiFi's software in combination with other software, hardware or systems not provided by goWiFi. goWiFi shall be relieved of the foregoing obligation unless Partner promptly notifies goWiFi of any such claim and, at goWiFi's option, permits goWiFi to control the defense and settlement thereof. In the event of such infringement, goWiFi may either use commercially reasonable efforts to obtain a license under the rights that are infringed, or modify the software to be non-infringing; provided that if in goWiFi 's judgment such remedies are not reasonably available, goWiFi may terminate this Agreement.
6.3.3 The obligations of this Section 6.3 shall survive termination of this Agreement.
6.4 Proprietary Information. Any technical or business information or data disclosed or furnished to Partner by goWiFi ("Information"), including all Information relating to access to the Internet from an AP, shall remain the property of goWiFi and when in tangible form shall be returned upon request. All Information shall be kept confidential by Partner and shall be used only in connection with Partner's performance hereunder, unless such information was previously known to Partner free of any obligation of confidentiality or is made public by goWiFi.
6.5 Independent Contractor. It is expressly understood and acknowledged that the parties are entering into this Agreement as independent contractors and that this Agreement is not intended to create, nor shall it be construed as creating, any type of partnership, joint venture, or franchise relationship between goWiFi and Partner. Neither party shall use, without the prior written consent of the other party, the trade names, copyrighted materials, trademarks or service marks of the other party or its affiliated companies, including in any advertising, publicity, press release, or promotion or to express or imply any endorsement.
6.6 No Third Party Beneficiaries. This Agreement shall not provide any person not a party to this Agreement with any remedy, claim, liability, reimbursement, commission, cause of action or other right in excess of those existing without reference to this Agreement.
6.7 Governing Law. This Agreement shall be governed by and interpreted according to the domestic laws of the State of Texas without regard to choice of law rules of Texas. All suits concerning any and all matters related to or arising under or by virtue of this Agreement shall be commenced exclusively in the state or federal courts located in Travis County, Texas and venue of such action shall rest exclusively in Travis County, Texas.
6.8 Entire Agreement; Amendments. This Agreement and any Exhibits constitute the entire understanding between the parties and supersede all prior understandings, oral or written representations, statements, negotiations, proposals and undertakings with respect to the subject matter hereof. No amendment to this Agreement shall be valid except if it is in writing, refers specifically to this Agreement, recites that it is an amendment hereto, and is subscribed by authorized representatives of the parties.
6.9 Notices. All notices which may be given by any party to the other party shall be in writing and shall be deemed to have been duly given on the date delivered in person or deposited, postage prepaid, in the United States mail via certified mail, or an authorized overnight carrier, return receipt requested, to the addresses listed herein.
6.10 Taxes. Partner shall be solely responsible for all state, local or federal taxes imposed as a result of the existence or operation of this Agreement or based on any charges relating to products and services procured by Partner hereunder including, but not limited to, state and local privilege and excise taxes based on gross revenue, and any sales taxes paid or payable by goWiFi in respect of the foregoing. Partner shall pay any such taxes to goWiFi or to any governmental agency as directed by goWiFi. Partner hereby indemnifies and holds goWiFi harmless from and against the payment of any and all sales or similar taxes, including any penalties or interest thereon. Partner’s obligations pursuant to this section 6.10 shall survive any termination or expiration of this Agreement.