These terms and conditions (these “Terms”) apply to the use of the WiFi testing service for hotels (herein referred as the “Service”) provided by Hotel WiFi Test Inc., a Delaware Corporation (the “Company”) by end users, whether a hospitality company or other user (the “Customer” or “you”). Use of the Service is based on your acceptance of these Terms. The Company may change these Terms at any time, without prior written notice or consent, and your continued use of the Service will constitute acceptance of the updated Terms.
1. Description of the Service.
(a) The Company provides its Customers with the use of an online toolkit for testing quality of WiFi (the “Toolkit”). The Toolkit tests the quality of the Customer’s WiFi network, and sends the resulting data to the Company’s servers; such data may include information related to up/down bandwidth, network stability, latency, traffic shaping, and VPN support, among other characteristics.
(b) The Customer distributes a link to the Toolkit to hotel guests and encourages guests to use the Toolkit to test Customer’s WiFi network
(c) After installation, the Company may immediately include data obtained from the Toolkit in public reviews and rankings published by the Company or third parties. The Customer has a period of 30 days from Toolkit installation in which it may choose to opt out of continued publishing of information collected by the Toolkit by email, or by opting out within the Company’s account management software. After an effective and timely opt-out, the Company will cease publishing any data it collected from the Toolkit. The Customer cannot opt to un-publish the results selectively, and cannot opt to hide information submitted by third parties such as hotel guests that have not used the Toolkit to run the tests. After 30 days from registration for the service, if the Customer has not opted out of publishing, the Company will be free to continue to publish it and include such information within reviews and rankings published by the Company or third parties. The Company may, but is not required to, provide the Customer with another opt-out period, or with more fine-grained controls over the display and publishing of WiFi quality data relating to the Customer.
(d) The Company maintains a set of criteria for evaluating and ranking hotel WiFi quality, which criteria may or may not be disclosed, and which criteria may be updated from time to time by the Company in its discretion. The Company may provide a certification such as a “WiFi Excellence Certificate” to Customers and non-Customers as the Company deems appropriate in its discretion. The Company does not guarantee certification, and does not make any representation as to the placement that a Customer will receive in the Company’s web pages if the Customer does win such an award.
(e) The Company may request additional non-confidential information from the Customer pertaining to its WiFi services, and the Customer agrees to provide accurate responses to such questions from time to time, including: price structure for network guests, the price and other limitations of the monitored network, bandwidth throttling or other technical limitations imposed based on pricing tiers, and other technical details. The Company may request this information via e-mail to the address used to register for the Service, and the Customer agrees to provide a response within 10 business days of receipt. The Company may publish such information as part of its ratings product, including via the Company’s website.
2 . Acceptance: By using the Services from the Company, Customer agrees to be bound and to accept these terms and conditions.
3. Official Notices.
The Customer agrees that all notices to the Company must be sent via http://www.hotelwifitest.com/support
All notices by the Customer must be given in the English language, unless the Company notifies the Customer that another language may be used. The Company may give any and all notices to the Customer in the English language, or in the Customer’s local language, in the Company’s discretion.
4. Limitation of Warranty and Remedies.
THE WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY APPLICABLE TO SERVICES USED BY CUSTOMER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. COMPANY'S LIABIITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE SERVICE.
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE SERVICES IS A CONSIDERATION IN LIMITING COMPANY'S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
IN ADDITION TO THE WARRANTIES DISCLAIMED ABOVE, COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, EXPRESS OR IMPLIED, FOR USES REQUIRING FAIL-SAFE PERFORMANCE IN WHICH FAILURE OF A SERVICE COULD LEAD TO DEATH, SERIOUS PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE SUCH AS, BUT NOT LIMITED TO, LIFE SUPPORT OR MEDICAL DEVICES OR NUCLEAR APPLICATIONS. SERVICES ARE NOT DESIGNED FOR AND SHOULD NOT BE USED IN ANY OF THESE APPLICATIONS.
The Customer agrees to defend, indemnify, and hold harmless Company and its manager, members, employees, agents, contractors, officers, directors, attorneys and successors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including reasonable attorney’s fees and costs) that arise from or relate to the Customer’s use or misuse of the Service, violation of these Terms, or violation of any rights (including, but not limited to intellectual property rights, right of privacy, and right of publicity) of a third party. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Customer, in which event the Customer agrees to cooperate at the Customer’s own expense in asserting any available defenses.
All protectable intellectual property rights (including any trade secrets, copyrights, patentable inventions, trademarks, and any other intangible rights, whether or not registered) contained in or related to the Service, and any hardware, software, or other aspects of the Toolkit, and the data acquired during performance of the Service, are owned by the Company. To the extent that the Customer is deemed to own the copyright in the data collected by the Toolkit or otherwise in performance of the Services, you hereby assign all such rights to the Company. You agree not to infringe on the Company’s protected intellectual property rights, and you agree not to attempt to reverse-engineer the Toolkit or the Service. The Customer is granted a limited, personal, non-exclusive license, without the right to sublicense, to use the Service only with the specific Toolkit that such Service is intended to operate with and otherwise as intended by the Service specification, and only during the term of the Service.
7. Intellectual Property Rights. Should the Service be found to infringe any intellectual property rights of a third party, the Customer’s
sole remedies are to cease using the Service or to use a non-infringing version of the Service, should the Company choose to provide the Customer with such
a non-infringing version.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK without regard to any conflict of laws principle that would apply the laws of another jurisdiction.
9. Compliance with Laws. The Customer agrees to comply with all applicable laws and regulations applicable to it, regardless of where it is located, including any privacy laws, and any laws concerning export or re-export of Services and related technology and documentation, including without limitation, the laws and regulations administered by the United States Department of Commerce and the United States Department of State.
10. Agreement to Arbitration . The Company and the Customer agree that any controversy arising under, or in relation to, their relationship including these Terms shall be submitted to binding arbitration. If the parties are unable to agree respecting the time, place, method or rules of the arbitration, then such arbitration shall be held in the City of New York, in accordance with the laws of the State of New York and the rules of the American Arbitration Association. The prevailing party in any such action shall be entitled to recoup its reasonable legal fees and costs related to the arbitration from the losing party. The Customer and the Company agree that they shall pursue any claims arising from or related to their relationship, including these Terms, as individual claims, and shall not attempt to sue as part of a class.
11. Service Interruptions; Service Credit. The Company shall not be liable for any damages or penalty for delay in delivery or for any other failure to perform in accordance with these Terms. In the event of Service interruption, or unsatisfactory Service quality, the Company will not be required to provide a monetary refund.
12. Severability. Any waiver of or modification to the terms of this Agreement will not be effective unless executed in writing and signed by the Company. If any provision of these Terms is held to be unenforceable, in whole or in part, such holding shall not affect the validity of the other provisions of this document (in the event of any inconsistency between these Terms and any other related agreements between Customer and Company, the terms of this document shall prevail unless any other agreement(s) are signed by both parties and state its/their terms and conditions control).
13. Entire Agreement; Translations. The terms and conditions set forth herein constitute the entire agreement between the Company and the Customer. The Company shall not be bound by any terms of the Customer's order which add to, modify, or are in any way different from the terms set forth in this document. If there are multiple translations of this document, then the English-language version will prevail to the extent of any conflict.
© 2013-2016 Hotel WiFi Test Inc.