IMPORTANT - PLEASE READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT") CAREFULLY. BY INSTALLING OR USING THE WEFI SOFTWARE, (1) YOU ACKNOWLEDGE THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT YOU SHOULD DISCONTINUE THE DOWNLOAD AND USE OF THE WEFI SOFTWARE.
This Agreement is a legal agreement between you, the end user ("End User" or "you") and WeFi, Inc., located at 24 Arista Dr., Dix Hills, NY 11746 ("WeFi", "us", "we" or "our"), for WeFi Software, which includes computer software, including Beta WeFi Software (as defined below) and "online" or electronic documentation (collectively, the "WeFi Software"). By downloading or using the WeFi Software you agree to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, do not download or use the WeFi Software.
WITH RESPECT TO BETA OR OTHER PRE-PRODUCTION VERSIONS OF THE WEFI SOFTWARE (THE "BETA WEFI SOFTWARE"), YOU UNDERSTAND THAT THE BETA WEFI SOFTWARE MIGHT HAVE BUGS AND/OR LIMITED FUNCTIONALITY AND THAT ONE OF THE PURPOSES OF THE PRE-RELEASE BETA TEST IS TO RECEIVE FEEDBACK FROM END USERS REGARDING THE BETA WEFI SOFTWARE AND LIMITATIONS AND PROBLEMS THEY MAY ENCOUNTER TO HELP US TO FURTHER DEVELOP THE BETA WEFI SOFTWARE AND YOU ARE WILLING TO PARTICIPATE IN THE PRE-RELEASE BETA TEST OF THE WEFI SOFTWARE.
License - License - Subject to the terms of this Agreement and limited to the duration of the pre-release beta test, as applicable and as designated on the webpage where you downloaded the Beta WeFi Software (the "Beta Test Period"), we grant you a non-transferable, non-exclusive, non-sublicensable, royalty-free and fully paid, worldwide right and license to install one (1) copy of the WeFi Software on one (1) computer or mobile device, as applicable, in executable object code format only, solely for your own private use or internal business operations. The WeFi Software is licensed, not sold, for your use. Your license confers no title or ownership in the WeFi Software and should not be construed as any sale of any rights in the WeFi Software.
During the Beta Test Period, we may, in our sole discretion, notify you, either by sending you an e-mail or by a notice on the WeFi website, that we have released an updated version of the Beta WeFi Software. Upon your receipt of such notification, you agree to download the updated version of the Beta WeFi Software and to use such version instead of the prior version. Any updated version of the Beta WeFi Software will be considered "Beta WeFi Software" for purposes of this Agreement.
Term - The term (the "Term") of this Agreement shall commence upon your acceptance of the terms of this Agreement through your installation or first use of the Software and shall either continue until terminated, or, in the case of Beta WeFi Software, until expiration of the Beta Test Period (unless earlier terminated in accordance with the terms and conditions of this Agreement).
Restrictions - The rights granted to you in this Agreement are subject to the following restrictions: (a) You shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the WeFi Software available to any third party; (b) You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the WeFi Software; (c) You shall not access the WeFi Software in order to build a similar or competitive product or service or to publish any performance or benchmark test or analyses relating to the WeFi Software; (d) and except as expressly stated herein, no part of the WeFi Software may be copied, reproduced, distributed, republished, downloaded, displayed, translated, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means. You may not separate the component parts of the WeFi Software for use on more than one (1) computer or mobile device, as applicable. You shall be solely responsible for the storage of any and all data and information with respect to the WeFi Software. It is your sole responsibility to back-up to another secure location, on a regular basis, any data files concerning your use of the WeFi Software. WeFi is in no way responsible for protecting and/or backing-up such information and shall have no liability for lost or corrupt data.
Charges and Billing - WeFi may charge subscription or other fees to access certain WeFi services. If you must pay a subscription or other fee to access a WeFi service, this information will be posted on the Website established for such WeFi service or the distribution of such WeFi service. YOU ACKNOWLEDGE THAT SUCH FEES ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU AGREE THAT YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES. You agree to reimburse WeFi for all costs and expenses incurred by WeFi in connection with the collection of payments, including bank or service charges and attorney fees, if any. If your use of the WeFi services is subject to use or sales tax, you agree that WeFi may also charge you for any such taxes, in addition to other applicable fees. By purchasing a WeFi service, you represent that you are at least the age of majority in your place of residence (e.g., 18 years of age in the United States).
Carrier Charges - You acknowledge that (i) the WeFi Software will facilitate the exchange of information to and from your mobile device using both wi-fi signals as well as cellular wireless standards (e.g. 2G/3G/4G) and (ii) WeFi and/or its service partners reserve the right to change how you connect, and stay connected, to Access Point through the WeFi Software utilizing the WeFi Software’s proprietary decision making algorithms, which in turn may result in your connection changing to and form wi-fi and available cellular wireless standards, including, without, limitation, roaming onto various carrier networks. When using the WeFi Software, you may be subject to, and WeFi is not responsible for, your mobile carrier's roaming, access, airtime minutes and surcharges associated with your mobile carrier and applicable data plan. You are solely liable for any applicable carrier charges and must consult your carrier for such information. WeFi recommends that you confirm that you have an unlimited mobile-data plan with your mobile carrier before accessing and using the WeFi Software.
Proprietary Rights - The WeFi Software is licensed, not sold. We and our licensors retain exclusive ownership of all worldwide copyrights, trade secrets, patents, and all other intellectual property rights (including, but not limited to, any titles, computer code, themes, objects, characters, character names, stories, text, dialog, catch phrases, locations, concepts, artwork, images, photographs, animations, video, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, and "applets" incorporated into the WeFi Software) throughout the world and all applications and registrations therefore, in and to the WeFi Software, any full or partial copies thereof, including any additions or modifications thereto and any accompanying materials, electronic or otherwise. This Agreement grants you no right to use such content other than as part of the WeFi Software. The WeFi Software is protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. You acknowledge that, except for the limited license rights expressly provided in this Agreement, no right, title, or interest to the intellectual property in the WeFi Software is provided to you, and that you do not obtain any rights, express or implied, in the WeFi Software. All rights in and to the WeFi Software not expressly granted to you in this Agreement are expressly reserved to us and our licensors. The WeFi Software may contain certain licensed materials and WeFi’s licensors may act to protect their rights in the event of any violation of this Agreement.
Sharing of Access Points - When you decide to share an Access Point using the WeFi service, you enable other end users of the WeFi Software and grant them the right, to access and use such shared Access Point in connection with their use of the WeFi Software. You hereby represent and warrant that (a) you have full authority to grant such access and use rights to any Access Point that you share; (b) your sharing of an Access Point will not breach any agreement or violate any law or regulation or proprietary rights of others, and you agree to defend, indemnify, and hold us, our subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of your sharing of an Access Point. An "Access Point" means a computer network device that is used to establish an online connection, such as, but not limited to, a wireless router (Wi-Fi router).
Disclaimer of Warranties - YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE WEFI SOFTWARE IS AT YOUR SOLE RISK. THE WEFI SOFTWARE IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. IN THE EVENT THAT YOU ARE INSTALLING OR USING THE BETA WEFI SOFTWARE, YOU FURTHER ACKNOWLEDGE THAT THE WEFI SOFTWARE IS PRE-PRODUCTION AND HAS NOT BEEN COMPLETELY TESTED IN ALL SITUATIONS. WE PROVIDE NO TECHNICAL SUPPORT, WARRANTIES OR REMEDIES FOR THE BETA WEFI SOFTWARE. WE DO NOT WARRANT THAT THE BETA WEFI SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT DEFECTS WILL BE CORRECTED. WEFI DOES NOT WARRANT THAT USE OF THE WEFI SOFTWARE WILL BE UNINTERRUPTED, OR ERROR-FREE. WEFI AND ITS LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, REGARDING THE WEFI SOFTWARE. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED. WEFI AND ITS LICENSORS ASSUME NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, ITEMS OR OTHER MATERIALS FROM ERRORS OR OTHER MALFUNCTIONS CAUSED BY WEFI, ITS LICENSORS, LICENSEE AND/OR SUBCONTRACTORS, OR BY YOUR OR ANY OTHER PARTICIPANT’S OWN ERRORS AND/OR OMISSIONS. YOU ASSUME ALL RISKS ASSOCIATED WITH THE WEFI SOFTWARE. WIRELESS INTERNET ACCESS PRESENTS CHALLENGES FOR PROTECTING YOUR INFORMATION FROM ILLEGAL DATA INTERCEPTION BY THIRD PARTIES. YOU SHOULD CONSULT WITH A COMPUTER TECHNICIAN TO ENSURE YOUR COMPUTER OR MOBILE DEVICE IS CONFIGURED CORRECTLY FOR SECURE WIRELESS ACCESS TO THE INTERNET AND THAT YOU HAVE THE LATEST SECURITY SOFTWARE AND HARDWARE INSTALLED. IN NO EVENT WILL WEFI BE OBLIGATED, CONTRACTUALLY OR OTHERWISE, TO INDEMNIFY YOU, OR OTHERWISE REIMBURSE YOU, FOR ANY LOSSES THAT YOU MAY INCUR IN CONNECTION WITH THE WEFI SOFTWARE OR THE SITES YOU MAY VISIT AND PRODUCTS YOU MAY USE WHEN CONNECTED TO AN ACCESS POINT THROUGH THE WEFI SOFTWARE. Neither WeFi nor its parent, subsidiaries, affiliates, licensors and/or its suppliers are responsible for interrupted or unavailable network server or other connections, miscommunications, failed telephone or computer transmissions, or technical failure, jumbled, scrambled or misdirected transmissions, or other errors of any kind whether human, mechanical or electronic or for phone, electrical, network, computer hardware or software program malfunctions, failures or difficulties, or for ISP/network/Web site accessibility or unavailability. You are responsible for assessing your own computer or mobile device, as applicable, and the results to be obtained therefrom. The entire risk arising out of use or performance of the WeFi Software remains with you.
Limitation of Remedies and Damages - YOU ACKNOWLEDGE AND AGREE THAT WEFI, ITS LICENSORS AND SUPPLIERS SHALL NOT ASSUME OR HAVE ANY LIABILITY FOR ANY ACTION BY WEFI, OTHER PARTICIPANTS, OR OTHER LICENSORS WITH RESPECT TO CONDUCT, COMMUNICATION, OR CONTENT OF THE WEFI SOFTWARE. NEITHER WE NOR OUR LICENSORS AND SUPPLIERS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS OR CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. OUR AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNTS PAID BY YOU FOR THE WEFI SOFTWARE (IF ANY) DURING THE TERM. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
Basis of Bargain - The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between us and you. We would not be able to provide the WeFi Software on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of our suppliers.
Confidentiality - The Beta WeFi Software is unannounced and not available to the public. Providing the Beta WeFi Software to you does not constitute a sale or an announcement that the Beta WeFi Software, or that any other software of a similar design and/or functionality, will be available from us. We consider the Beta WeFi Software and any technical information, evaluation or reports supplied to you (the "Confidential Information") to be proprietary, and you agree to not share any Confidential Information with any other third party and not to permit any third party access to the Confidential Information and to take all reasonable steps to secure and protect the Confidential Information from any disclosure or third party access.
Feedback - In the event that you provide us with feedback ("Feedback") regarding the use, operation or functionality of the WeFi Software, including but not limited to information about operating results, known or suspected bugs, errors or compatibility problems, or desired features, you hereby assign to us all rights in the Feedback. You acknowledge and agree that all Feedback is the sole and exclusive property of WeFi and may be used by WeFi (or its affiliates, publishing partners, distributors, licensors and licensees) for any purpose. If and to the extent you are deemed to have retained, under applicable law, any right, title or interest in or to any portion of your Feedback, you hereby transfer, grant, convey, assign and relinquish solely and exclusively to WeFi all of your right, title and interest in and to the Feedback, without reservation and without additional consideration, under applicable patent, copyright, trade secret, trademark and other similar laws or rights, in perpetuity, and in the alternative to the extent such assignment is ineffective under applicable law, you hereby grant to WeFi the sole and exclusive, irrevocable, sublicensable, transferable, worldwide, paid-up license to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, provide access to electronically, broadcast, communicate to the public by telecommunication, display, enter into computer memory, and use and practice the Feedback all modified and derivative works thereof, all portions and copies thereof in any form, all inventions, designs, and marks embodied therein, and all patent, copyright, trade secret, trademark and other intellectual property rights thereto, or to incorporate the same in other works in any form, media, or technology now known or later developed. To the extent permitted by applicable laws, you hereby waive any moral rights or rights of publicity or privacy you may have in the Feedback.
Consumer End Users Only - The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than for use by a business. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to you only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
Termination - We may terminate this Agreement at any time, with or without cause. You may terminate this Agreement at any time, with or without cause by sending either an e-mail to firstname.lastname@example.org with your name and the subject "REMOVE"" or a letter by United States mail to: WeFi, Inc., 24 Arista Dr., Dix Hills, NY 11746, or to such other address as we may specify in writing by posting the new address on the WeFi website. Upon expiration or termination, the license granted hereunder shall terminate and you shall immediately destroy any copies of the WeFi Software in your possession, but the terms of this Agreement which are intended to survive termination will remain in effect.
Modifications - We reserve the right to change the terms and conditions of this Agreement or our policies relating to the WeFi Software at any time, and such changes will be effective upon notice to you. Your continued use of the WeFi Software after any such changes shall constitute your consent to such changes.
Export - The WeFi Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the WeFi Software and related technology, as may be required. You will indemnify and hold us harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney's fees) arising from or relating to any breach by you of your obligations under this section. Your obligations under this section shall survive the expiration or termination of this Agreement.
Equitable Remedies - You hereby agree that WeFi would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that WeFi shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as WeFi may otherwise have available to it under applicable laws.
Indemnity - At our request, you agree to defend, indemnify and hold harmless WeFi, its affiliates and licensors from all damages, losses, liabilities, claims and expenses, including attorneys’ fees, arising directly or indirectly from your acts and omissions to act in using the WeFi Software pursuant to the terms of this Agreement or any breach of this Agreement by you.
U.S. Government Restricted Rights - WeFi Software and documentation have been developed entirely at private expense and are provided as "Commercial Computer Software" or "restricted computer software." Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable. The Manufacturer is WeFi, Inc., 24 Arista Dr., Dix Hills, NY 11746.
Miscellaneous - You may not use, copy, modify, sublicense, rent, sell, assign or transfer the rights or obligations granted to you in this Agreement, except as expressly provided in this Agreement. Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment or transfer shall be void and without effect. WeFi’s failure to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by WeFi of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of WeFi shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of WeFi. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect. Any notice to you may be provided by e-mail. In the event that any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect.
Governing Law and Arbitration - This Agreement shall be governed by the laws of the State of Delaware without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. Any claim or dispute in connection with this Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. If you would like more information about the Commercial Arbitration Rules of the American Arbitration Association, please click here http://www.adr.org/sp.asp?id=22440. The arbitration shall be initiated through an established alternative dispute resolution provider mutually agreed upon by the parties. The arbitrator and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. THE ARBITRATOR(S) SHALL NOT HAVE THE AUTHORITY, POWER, OR RIGHT TO ALTER, CHANGE, AMEND, MODIFY, ADD, OR SUBTRACT FROM ANY PROVISION OF THIS AGREEMENT OR TO AWARD PUNITIVE DAMAGES. THE ARBITRATOR SHALL HAVE THE POWER TO ISSUE MANDATORY ORDERS AND RESTRAINING ORDERS IN CONNECTION WITH THE ARBITRATION. THE AWARD RENDERED BY THE ARBITRATOR SHALL BE FINAL AND BINDING ON THE PARTIES, AND JUDGMENT MAY BE ENTERED THEREON IN ANY COURT OF COMPETENT JURISDICTION. DURING THE CONTINUANCE OF ANY ARBITRATION PROCEEDING, THE PARTIES SHALL CONTINUE TO PERFORM THEIR RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT, WHICH ARE NOT AFFECTED BY THE DISPUTE. You agree that notwithstanding anything to the contrary contained herein, in the event WeFi wishes to pursue injunctive or other equitable relief, it may do so in a court of competent jurisdiction in New York, and you agree to submit to the personal jurisdiction of any such court.
Entire Agreement - This Agreement, including the WeFi Terms of Service (http://www.wefi.com/terms/) which are hereby incorporated by reference, constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements between the parties pertaining to the subject matter hereof. To the extent that there is a conflict between the terms of this Agreement and the terms of the WeFi Terms of Service, this Agreement shall have precedence as to the subject matter of this Agreement. Except as otherwise provided in Section #16, any modifications of this Agreement must be in writing and agreed to by both parties.
Questions Or Additional Information - If you have questions regarding this Agreement, or wish to obtain additional information, please send an e-mail to email@example.com.