This Host Agreement (this “Agreement”) is a legally binding agreement between you and Emrit, Inc. (“Emrit”) governing your agreement to be a host for Emrit’s CoolSpots under the terms of this Agreement. For purposes of this Agreement, the term “Products” may include but is not limited to (i) Emrit CoolSpot and other devices or any accessories and related applications, (ii) the remote monitoring, notifications services and other applications or other services provided by Emrit under this Agreement (the “Service”).
WHEN YOU CLICK “I AGREE”, CHECK A BOX OR OTHERWISE PROVIDE CONSENT DURING THE ORDERING PROCESS, YOU AND WE ARE AGREEING TO BE BOUND BY THIS AGREEMENT TO THE SAME EXTENT AS IF YOU AND WE HAD MANUALLY EXECUTED A PAPER COPY OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD NOT PROCEED WITH THE REGISTRATION PROCESS OR PURCHASE PRODUCTS OR SERVICES.
SYSTEM AND SERVICES
- Use Restrictions. You will not, directly or indirectly, (a) sell, lend, rent, distribute, resell, lease, assign, license, sublicense or otherwise transfer to any third party any Product and/or Service, or the rights granted to you with respect to any Product and/or Service, (b) translate, port, modify, reproduce, distribute, republish, frame, download, cache, or make or create derivative works based on any Product and/or Service, (c) access or use the Products and/or Services in a way that implicates illegal or illicit activities or any other purpose other than to be a host, (d) derive or attempt to derive the source code, source files, or any component or structure of all or any portion of any Product and/or Service by reverse engineering, disassembly, decompilation, or any other means (the foregoing prohibitions include review of data structures or similar materials produced by programs), or access or use any Service in order to build or support or assist a third party in building or supporting, products or services competitive to Emrit or its products and services, (e) remove, obscure or alter any proprietary notice on Products, (g) use the Service to collect, process or store financial or personal information, (h) use or permit the access to or use of any Product, including the Service, for any unlawful activity, including exporting in violation of applicable law, or (i) access or use the Products, Service or any other deliverable for any use other than the those authorized in this Agreement. You acknowledge and agree that, except as set forth in this Agreement, Emrit does not provide support for the Products and/or Services. Without limiting our other remedies, we may (but are not required to) remotely suspend or disable Products and/or Services that we believe have been transferred or are being used in violation of this Agreement or for any other reason.
- Installation. You are responsible for installing and activating the Product in accordance with the instructions we provide. It is your responsibility to obtain and keep in effect all consents, authorizations, permits or licenses that may be required for the installation and operation of the Products and/or Services on the premises, and you hereby represent and warrant that you have and will at all times continue to have the rights to use the Products and/or Services at the applicable location.
- Ownership. As between you and Emrit, all content, hardware, software or data made available to you through access or use of the Products or Service or otherwise provided by Emrit (“Emrit Content”), is and will remain the exclusive property of Emrit and its licensors. You may only use the Emrit Content for your own internal use in connection with a Product or Service.
- Electrical and Internet Requirements. In order to use the Products and/or Services, the CoolSpot must be plugged into an object that provides electrical power and Internet provided by independent and third-party companies. The electric power and/or Internet may have outages from time to time, and during any such outage the Products and/or Service will be unable to operate, and Emrit is not obligated to provide Services during any such outages and neither Emrit nor any of its affiliates, suppliers or agents shall have any liability whatsoever for any such failure.
- Responsibility for Customer Equipment. Emrit has no responsibility for the operation or support, maintenance or repair of any equipment, software or services that you elect to use in connection with the Products and/or Services (the “Customer Equipment”). CUSTOMER EQUIPMENT MAY BE DAMAGED OR SUFFER SERVICE OUTAGES AS A RESULT OF THE INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, AND REMOVAL OF PRODUCTS. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER EMRIT NOR ANY OF ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY EMRIT, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS, WE SHALL PAY AT OUR SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF $100 (U.S. Dollars). THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY.
TERMINATION AND MODIFICATION OF THIS AGREEMENT, PRODUCTS AND SERVICES
- Modifications of Terms of this Agreement, Products and Service. Emrit may, from time to time and without prior notice, modify the terms of this Agreement or, add, wholly discontinue, delete or change the features or functionality of the Products or Service.
- Termination of Agreement. Emrit or You may terminate this Agreement at any time subject to the terms hereof. All terms that by their nature would survive the termination of this Agreement shall survive such termination (including, for example and without limitation, all return obligations, limits of liabilities and indemnities, and other provisions).
PAYMENT; TAXES AND DISCONTINUATION
- Compensation and Wallet Creation. In exchange for your agreement to host a CoolSpot, Emrit will compensate you monthly. In order to receive compensation from Emrit, you must establish a secure wallet (“Your Wallet”) for your Helium Network Tokens (“HNT”). At the end of each month, Emrit will deposit into Your Wallet an amount equal to twenty percent (20%) of HNT actually received by Emrit as a direct result of the mining done by your specific CoolSpot that you host. You acknowledge and agree that you only earn HNT when the Product is powered on, connected to the Internet, and mining HNT. Likewise, moving or obstructing the Products and/or Services may make it more difficult for third-party devices to connect to the Products which can reduce earnings. Emrit does not guarantee any Products and/or Services will earn HNT. Furthermore, HNT may have no value, and Emrit makes no promises or warranties as to the value of HNT.
- Compensation in Local Fiat. You may choose to be paid in local fiat. In such event, Emrit will choose the appropriate fiat and pay you at the end of each month, which may be made through a third party.
- Taxes; Independent Contractor. You acknowledge and agree that the receipt of HNT into Your Wallet may constitute a taxable event and that the HNTs deposited into Your Wallet do not include any reduction for taxes. You acknowledge and agree that you are solely responsible and liable for the withholding and payment of all applicable federal, state and local taxes. You agree to and will file in a timely manner all returns and reports in relation to your relationship with Emrit as may be required by applicable law. You agree to defend, indemnify and hold Emrit harmless from and against all damages resulting from any alleged failure by you to withhold or pay any applicable federal, state or local taxes. You acknowledge and agree that you are an independent contractor with respect to Emrit, and that this Agreement does not form a partnership, joint venture or employment relationship between you and Emrit. You acknowledge and agree that you are not and will not be considered employees of Emrit for any purpose.
- Cancellations and Returns. You may decide at any time to stop using the Products and Service by notifying Emrit at email@example.com or other or alternative email address or method as provided by Emrit from time to time. Upon receipt of your notice, we will provide you instructions on discontinuing your use of the Product and Service and your cancellation or decision to stop using the Products will be deemed a termination of this Agreement under the terms hereof.
Emrit, in its sole discretion, may offer a referral program (“Referral Program”), allowing you to earn 5% of the HNT earned by the referral for the applicable CoolSpot for the first 12 (twelve) months, paid monthly by inviting your eligible friends, family or other persons to register as new Emrit users. Referred friends, family or other persons will be disqualified if Emrit already has them with an existing active or inactive Emrit account or Emrit has reason to believe it is not a bona fide referral. HNTs earned through referrals will be deposited into Your Wallet or account that you have for you Coolspots you are hosting. You agree Emrit may change the terms and conditions of the Referral Program, terminate the Referral Program, or expire, deduct, limit, or modify your Referral Program Rewards at any time for any reason, including but not limited to, if Emrit determines or believes that your participation in the Referral Program is in error, fraudulent, illegal, or otherwise in violation of this Agreement or the spirit of this Agreement.
- Account Registration. In order to sign up to use the Products and Service, you must provide certain personal information about you to set up an account, a social security number or EIN, as applicable, solely for Emrit to comply with its tax obligations relating to your status as an independent contractor, the public key to Your Wallet to send you HNT, or your account information to receive a deposit of local fiat. During the registration process, you will be redirected to a secure partner(s) where you will enter the required tax and banking related information. You must provide complete and accurate registration and account information when you perform this registration. You must promptly notify us of any updates to this information.
- Account Access. After the completion of the registration process, Emrit will provide you the opportunity to create a password-protected online account through which you can manage your account. You are responsible for maintaining the confidentiality of your user login, password and user codes, and you are responsible for all uses of your login, password and user codes, and any related changes, whether or not authorized by you. You are also responsible for keeping all contact information current and accurate. Emirt does not take any responsibility or liability for any use or misuse of the login IDs, passwords or user codes.
DISCLAIMERS OF WARRANTIES; LIMITED SUPPORT SERVICES
- YOUR USE OF THE PRODUCTS AND SERVICE IS AT YOUR SOLE RISK. THE PRODUCTS AND SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. ALL 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 BY EMRIT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EMRIT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PRODUCTS AND SERVICE. EMRIT DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE PRODUCTS AND SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; THAT THE PRODUCTS AND SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR THAT THE PRODUCTS AND SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EMRIT’S PRODUCTS AND SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THE OPEN SOURCE ENVIRONMENT AND THIRD PARTIES INCLUDING PRODUCTS SUPPLIED BY EMRIT. EMRIT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Limited Support Services. Please contact our service department in the manner prescribed by Emrit. If the problem with the Product and/or Service cannot be resolved remotely, we will send you instructions on how to obtain a replacement Product and return the non-working Product to us. You are obligated to return the non-working Product to us within thirty (30) days of receiving a return shipment label. If you fail to do so, we may charge you our prevailing price for the Product.
LIMITATIONS ON LIABILITY
- NO INDIRECT DAMAGES. UNDER, NO CIRCUMSTANCES SHALL WE OR OUR OFFICERS, DIRECTORS, VENDORS, CONTRACTORS, EMPLOYEES OR AFFILIATES BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR INDIRECT, INCIDENTAL CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY DAMAGES, COST OF SECURITY AND DATA BREACHES OR OTHER DAMAGES OF ANY TYPE OF KIND, INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, PROPERTY DAMAGE, USE OR OTHER ECONOMIC ADVANTAGE (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED FOR HEREIN. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS DEEMED UNCONSCIONABLE.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL EMRIT’S AGGREGATE LIABILITY EXCEED FIFTY US DOLLARS ($50.00) FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
You shall indemnify and hold harmless Emrit , and its officers, directors, vendors, contractors, employees, or affiliates from and against any claims, causes of action, proceedings, losses, damages, costs, expenses (including, without limitation, attorneys’ fees), liabilities, and settlements to the extent they arise out of or in connection with or resulting from your actions or inactions, or the use of the Product or Services.
SECURITY AND PRIVACY
- SECURITY. YOU ARE SOLELY RESPONSIBLE FOR APPLYING APPROPRIATE SECURITY MEASURES TO YOUR DATA AND YOUR USE OF THE PRODUCTS AND SERVICES. Notwithstanding the foregoing, Emrit will use commercially reasonable efforts to maintain industry standard safeguards reasonably designed to protect the confidentiality and integrity of, and to prevent unauthorized access to or use of the Products. SECURITY THIRD PARTY PROVIDER PRODUCTS OR SERVICES ARE BETWEEN YOU AND THOSE THIRD PARTIES AND NOT EMRIT. IF YOU ARE NOT COMFORTABLE WITH ANY THIRD PARTY PROVIDER OR DISAGREE WITH THEIR USE, WE RESPECT THAT AND YOU SHOULD NOT BE A HOST.
- Promotional Third Party Products. Emrit may send you promotional products from third parties. If you choose to accept or use such products, your use of those products and any and all issues relating thereto are between you and the third party and not Emrit.
- Severability. If a court of competent jurisdiction finds any provision of this Agreement unlawful or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. You and Emrit intend that all restrictions on use, disclaimers of warranties, limitations of responsibility and liability, exclusions of damages or other remedies, and indemnification rights of Emrit in this Agreement shall be upheld and applied to the maximum extent permitted by law.
- Entire Agreement. This Agreement constitutes the entire agreement between you and Emrit. By entering into this Agreement, you affirm that you are not relying on our advice, advertisements, or any other representation, promise, condition, inducement, or warranty, express or implied, from any person that is not expressly and specifically set forth in writing in this Agreement. In the event of a conflict between this Agreement and any other communication, request, agreement or order, the terms of this Agreement shall prevail.
- Assignment. We reserve the right to assign this Agreement or to subcontract any of our obligations hereunder without notifying you and without obtaining your consent. You may not transfer this Agreement to anyone else unless we approve the transfer in writing.
- Governing Law and Venue. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Georgia, as if performed wholly within the state and without giving effect to the principles of conflicts of laws. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Any dispute between the parties regarding this Agreement will be subject to the exclusive venue and applicable laws of the state and federal courts located in Fulton County, Georgia.
- Notices. If you or we wish to give the other party written notices under this Agreement, the notice must be (a) in writing, (b) if to you, sent to your email address on file with us (or posted in your account if no email address is on file), (c) if to us, sent to our email address at firstname.lastname@example.org. Notices will be effective upon delivery.
- Force Majeure and Third Parties. To the extent that either party’s performance is prevented or delayed, either totally or in part, for reasons beyond that party’s reasonable control, then that party will not be liable for not performing, so long as it resumes performance as soon as practicable after the reason delaying performance no longer exists. The ability of Emrit to continue to maintain and support the Products or Services depend on third parties and Emrit is not liable in any way for the failure of those third parties to continue to perform or provide any products, services, or maintenance related thereto.