DEFINITIONS. The capitalized terms set forth below shall have the following meanings throughout the entire Agreement:
“AAA” means Authentication, Authorization, and Accounting, a RADIUS based system which controls the networks that End-Users have access to.
“Accounting” means the process of logging and storing a RADIUS accounting packet.
“Advertiser” means a company that purchases Advertising Services from Symban.
“Advertising” or “Advertisement” means any digital advertising content that is presented or sent to an End-User using End-User Data on a Hotspot or using Symban Technology including, but not limited to banner advertisements, video advertisements, brand advertisements, e-mail and/or SMS advertisements.
“Client” means a customer of Symban that has contracted Symban WiFi Services.
“Symban” means Symban Services, LLC, a Florida Limited Liability Company, having its principal place of business at 6815 Biscayne Boulevard, Suite 103-170, Miami, FL 33138;
“Symban NOC” is defined as any Network Operations Center in which Symban servers or contracted servers are located that contain the systems and Software to perform the Services under this agreement.
“Symban Technology” and/or “Dashboard” means all of Symban’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, Intellectual Property, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you or any other Client of Symban in providing the Service;
“Authentication” means the process of identifying an End User usually based on, but not limited to, a username, password, realm, e-mail address, MAC address or any other unique information supplied by End-User.
“Authorization” means the process of granting or denying (a) an End-User access to the Symban Network once the End User has been Authenticated.
“Symban Services” or “Services” means any services that Symban agrees to provide to a Client, and which Services are described in the Master Services Agreement and related addenda, exhibits and related documentation.
“Billing Period” means the period of service as identified by a Symban generated Invoice.
“Confidential Information” means all information or material of either party, whether marked confidential or otherwise, regardless of form, that is proprietary or maintained in confidence by either party, which is disclosed by either party or on its behalf, whether before, on or after the date hereof, directly or indirectly, in writing, orally, electronically or by drawings or inspection of equipment or software, or through fulfillment of the duties and obligations of the Agreement, to the other party or any of its employees or agents. Confidential Information specifically includes the Agreement, business and technical information concerning the services, Clients, Clients Data, marketing and business plans, all technical information concerning any Symban Intellectual Property; and the proprietary equipment or processes used with respect such Services. Confidential Information shall not include End-User Data and information which: (a) becomes publicly known through no act or failure to act on the part of the receiving party; (b) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; (c) became rightfully known to the receiving party, without confidential or proprietary restrictions, from a source other than the disclosing party; or (iv) is approved by the disclosing party for disclosure without restriction, in a written document that is signed by a duly authorized officer of that party.
“Contractor” or “Partner” means a third party that has partnered with or is contracted by Symban to perform functions on Symban’s behalf to fulfill any of the obligations in connection with Symban Services.
“End-User” is defined as a retail customer that desires to gain access to a Hotspot for the purposes of accessing the Internet in a Venue.
“End-User Data” means the AAA information or any other personal information related to an End-User, including but not limited to e-mail address, demographics, device MAC address and/or usage information.
“Force Majeure” means an unforeseen event or occurrence beyond the reasonable control and without the fault or negligence of the affected party including, but not limited to, power blackouts, floods, acts of God, earthquakes, severe weather, fire, explosions, vandalism, the severing of a communications line by a third party, insurrection, riot, strikes, lockouts, boycotts, picketing, labor disputes or disturbances causing cessation, slowdown or interruption of Symban Services, acts of the public enemy, terrorism, war (declared or undeclared), compliance with any order or directive of any governmental agencies or authorities or representatives of any government acting under claim or color of authority, substantial loss of telecommunications facilities ordinarily available to and used by a party in the performance of the obligations imposed by this Agreement; where such event, occurrence or compliance would render the affected party’s performance illegal or physically impossible.
“Hotspot” means a specific geographic location equipped with a public Local Area Network or WLAN in which End-Users can access the Internet through a RADIUS-based server or public access gateway controller.
“Hotspot Network” means the Hotspots that are owned and operated by Symban or are using Symban Technology.
“Intellectual Property ” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Login ID” is used to identify an End-User based on Authentication information.
“RADIUS” An Authentication, Authorization and Accounting protocol as defined by the IETF [RFC2865,RFC2866].
“Venue” means a specific geographic location that has a publicly accessible Hotspot using Symban Technology and is available for use by End-Users.
“WLAN” refers to a Wireless LAN in which data is transmitted from point to point without the use of wires. WLANs are also known as Wi-Fi networks, or Hotspots and for this Agreement will be confined to specifically mean networks that adhere to the Institute of Electrical and Electronics Engineers (IEEE) 802.11(x) standards.
TECHNICAL INFORMATION. Both parties agree to provide the other on a timely basis all technical information requested by the other in order to fulfill the party’s obligations of this agreement. Both parties agree to notify the other promptly about changes to such technical information, in order for the other to fulfill its obligations on a smooth and coordinated basis.
FORCE MAJEURE. Neither party shall be under any obligations or subject to any liability for failure to carry out respectively the terms and provisions of the Agreement during the time and to the extent that such failure is due solely to Force Majeure. The party affected by Force Majeure must give notice stating the time of occurrence and full particulars of the Force Majeure, in writing, to the other party as soon as possible after the occurrence of the Force Majeure. The obligation of the party giving notice of Force Majeure shall be suspended during the continuance of the Force Majeure event. Nothing in this section shall be construed to relieve either party of its obligation to pay fees for services under this agreement.
NO WARRANTY. Symban makes no warranty or condition, express or implied, written, oral or statutory, regarding the provision of any Services pursuant to the Agreement, including without limitation any implied warranty of merchantability or fitness for a particular purpose, regarding the any Basic Service unless such warranty is specifically set forth in the applicable agreement for such Service.
CONFIDENTIALITY. If Confidential Information of either party is exchanged pursuant to the Agreement, each party shall (a) hold in confidence and treat all Confidential Information of the other party with the same level of care as such party maintains its own most sensitive information; (b) not disclose or reveal to any person or entity, any Confidential Information of the other party disclosed under or in connection with the Agreement without the clear and express prior written consent of a duly authorized representative of the disclosing party; (c) not use or disclose any of the Confidential Information for any purpose whatsoever at any time other than for the limited purpose of performance under the Agreement; (d) to disclose Confidential Information only to such of its employees and agents who reasonably have a reasonable need to know the Confidential Information and who have been advised of the confidentiality requirements of the Agreement (“Permitted Recipients”); and (e) not use the Confidential Information in a manner competitive with the other party. The obligations contained in this shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of the Agreement with respect to Confidential Information that does not rise to the level of a trade secret. After the termination of the Agreement, and unless the parties mutually agree otherwise in writing, each party shall destroy or return and deliver to the other party the Confidential Information, any written or electronic copies thereof, and all written or electronic notes, extracts, compilations, correspondence, documents or other records then in the party’s possession furnished by the party or developed by it in connection with the Services to be rendered hereunder, except to the extent that such Confidential Information has subsequently been publicly disseminated. Additionally, upon termination of the Agreement, each party shall copy to an acceptable electronic format, all Confidential Information of the other party on its computer hard drives or diskettes, including but not limited to computer notebooks, personal computers, computer networks, and mainframes, and deliver such diskettes to the other party; immediately thereafter, the party shall cause to be deleted all such Confidential Information from its computer system and the equipment of all Permitted Recipients, and such party shall deliver a certificate to the other party as to such deletion.
INDEMNIFICATION. Each party shall indemnify, defend and hold harmless one another, and their affiliates, directors, officers, agents, and employees (“Indemnitees”) from and against all claims, damages, losses, liabilities, obligations, judgments, costs, expenses and reasonable attorney’s fees (collectively, “Damages”) arising out of a claim by a third party against a party’s Indemnitees: (a) for injury to persons (including libel, slander or death) or loss of or damage to tangible or intangible property to the extent resulting from any gross negligence or willful misconduct of the party under the Agreement, and (b) for violations of applicable laws, including employment taxation laws. Additionally, each party shall indemnify and hold harmless the Indemnitees for any loss, fine, penalty, damage or expense arising from any breach of the Agreement by such party or its Permitted Recipients. In view of the difficulties of placing a monetary value on certain Confidential Information covered hereby, it is agreed and understood that the Indemnitee, in addition to any other remedies which may be available, shall be entitled to injunctive and other equitable relief as provided in the Section.
COMPLIANCE WITH LAWS. Both parties shall perform their respective obligations under the Agreement in a manner that complies with all applicable laws of applicable jurisdictions.
ENFORCEABILITY. In the event any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect.
WAIVER. The waiver by either party of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach.
ASSIGNMENT. The Agreement may not be transferred or assigned by either party without the prior written consent of the other party which consent shall not be unreasonably withheld or delayed; provided that the Agreement may be transferred or assigned in connection with a merger or acquisition or the sale of all or substantially all of the assets of either party or by operation of law or to an affiliate of either party without prior consent. The Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
INDEPENDENT CONTRACTORS. In all matters relating to the Agreement, the parties are and shall act as independent contractors towards each other and not as partners or joint venturers. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity unless otherwise agreed to elsewhere in this Agreement. Each party shall continue to own all right, title and interest in and to its property and equipment, including all of its Confidential Information, proprietary rights, trade secrets, and Intellectual Property.
NO THIRD-PARTY BENEFICIARIES. Nothing in the Agreement shall confer any rights or remedies on any persons other than the parties and their respective successors and assigns; relieve or discharge the obligation of any third person to any party; or give any third person any right of subrogation or action against any other party.
GOVERNING LAW. The rights and obligations of the parties shall be governed by, and the Agreement shall be construed and enforced in accordance with, the laws of the State of Florida.
WAIVER OF JURY TRIAL. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT ACTION ARISING AMONG THE PARTIES, WHETHER UNDER THE AGREEMENT OR OTHERWISE RELATED TO THE AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE. The agreement of each party to waive its right to a jury trial will be binding on its successors and assignees.
DISPUTE RESOLUTION. If any dispute arises between the parties under the Agreement that cannot be resolved in the ordinary course of business, the parties shall first make a good faith effort to resolve the dispute through a meeting of duly authorized representatives of each party. Any court proceeding that is brought by either party must be brought, as appropriate in a court of competent jurisdiction in Broward County, Florida. Each party agrees to personal jurisdiction of all federal and state courts in Florida, and agrees that venue shall lie exclusively in Broward County, Florida. If for any reason the jury waiver is held to be unenforceable, the parties agree to binding arbitration for any dispute arising out of the Agreement or any claim arising under any federal, state or local statutes, laws or regulations, under the applicable commercial rules of the American Arbitration Association and 9 U.S.C. § 1, et seq. Any arbitration will be held in the Fort Lauderdale, Florida metropolitan area and be subject to Florida law. Discovery in the arbitration will be governed by the local rules applicable in the United States District Court for the Southern District of Florida.
TAXES. All charges for Services hereunder are exclusive of federal, state, local and foreign sales, use, excise, utility, gross receipts and value added (VAT) taxes and other similar tax-like charges, including tax-related surcharges or applicable tariffs, which you agree to pay. In the event that you provides us with a duly authorized exemption certificate, we agrees to exempt you in accordance with the law, effective on the date the exemption certificate is received by us.
MARK/LOGOS. You hereby grant Symban a non-exclusive, worldwide license to use your name, logo, likeness, and or mark for Symban’s marketing or purposes announcing that you use our Services.
NOTICES. Any notice, demand or other communication required or permitted to be given under the Agreement shall be given in writing and shall be deemed to have been given when delivered by courier service, certified or registered mail, return receipt requested, sent by facsimile with delivery acknowledgment, or e-mail with delivery confirmation or acknowledgment, to the address for such party set forth on the appropriate Master Services Agreement, unless either party advises the other of a change in address.
MUTUAL INDEMNIFICATION. You shall indemnify and hold Symban, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Symban (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Symban of all liability and such settlement does not affect Symban’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Symban shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Symban of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Symban; provided that you (a) promptly give written notice of the claim to Symban; (b) give Symban sole control of the defense and settlement of the claim (provided that Symban may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Symban all available information and assistance; and (d) have not compromised or settled such claim. Symban shall have no indemnification obligation, and you shall indemnify Symban pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, and hardware or business process(es).
REPRESENTATIONS AND WARRANTIES. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Symban represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with this agreement under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
DISCLAIMER OF WARRANTIES. SYMBAN, ITS LICENSORS, OR CONTRACTORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. SYMBAN, ITS LICENSORS OR CONTACTORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SYMBAN AND ITS LICENSORS.
INTERNET DELAYS. SYMBAN’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SYMBAN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
LIMITATION OF LIABILITY. IN NO EVENT SHALL OUR AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL SYMBAN AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ADDITIONAL RIGHTS. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
MODIFICATION TO TERMS. Symban reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on it’s website at symbanservices.com/smart-wifi-terms/. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
TERMINATION FOR CAUSE. Any breach of your payment obligations or unauthorized use of the Software or any other Symban Agreements will be deemed a material breach of this Agreement and Symban, in its sole discretion, may suspend or terminate your password, account, use of the Software and demand return of any Symban Technology.