CIRRENT TERMS OF SERVICE

Thank you for your Interest in Cirrent. Please carefully read these Cirrent Terms of Service. These Terms of Service are a legal agreement (the “Agreement”) between Cirrent, Inc. (“Cirrent”, “we”, “us” or “our”) and you and any person or organization for which you act (“You”). You represent and warrant that you are of legal age and have the right and authority to enter into this Agreement on your own behalf and on behalf of the company for which you act, if applicable.  By accepting these Terms of Service, you agree that you and the company for which you act, if applicable, will be bound by the terms of this Agreement.This Agreement is between You and Cirrent.

Cirrent is a connected-product technology provider to manufacturers, resellers, retailers, network operators, and service providers (Clients) of commercial and consumer products and services.  Our technology and services are used by Clients to connect their products to the internet so that they and their customers can monitor and control these products remotely, either directly through mobile or web based apps or in sync with other connected products from other connected product suppliers.  We provide the communications technology that is embedded in each connected product and we also run the cloud-based services that collect, hold, manage, and analyze data from the connected product and communicate between the connected product, the Client and in some cases, the network service provider that manages the public Wi-Fi service that may be available in their customer’s homes.  This Web site will give you access to documentation, the cloud platform that manages these devices (“Cloud Platform”), the ZipKey Hotspots that these devices will connect to, the Cirrent Wireless Connection Manager (“WCM”) embedded code that can be used to create device prototypes, and a sample app (“SoftAP App”) that can be used to manage the device’s connectivity functions.  The Cloud Platform, ZipKey Hotspots, WCM, and SoftAP App are referred to collectively in this Agreement as the “Services”.

THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION (“ARBITRATION AGREEMENT”). THE ARBITRATION AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.


BY CHECKING THE BOX, CLICKING “I AGREE”, OR ACCESSING OR USING THE SERVICES, YOU EXPRESSLY AGREE TO BE BOUND BY AND ABIDE BY THIS AGREEMENT, INCLUDING THE ARBITRATION AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES, AND YOU MUST IMMEDIATELY DISCONTINUE ANY AND ALL USE OF THE SERVICES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement incorporates: (i) any additional terms and conditions posted by Cirrent through the Services; (ii) the Cirrent Services Privacy Statement http://www.cirrent.com/service-privacy-policy (the “Cirrent Privacy Statement”) to our customers; and (iii) the Cirrent Website Privacy Statement http://www.cirrent.com/website-privacy-policy. It is your responsibility to read these additional terms and policies carefully. The Privacy Statement is available for viewing and download online.

YOU MAY NOT ACCESS OR USE THE SERVICES UNLESS YOU ARE AT LEAST 13 YEARS OLD. IF YOU ARE UNDER THE AGE OF 18 (OR THE LEGAL AGE TO ENTER INTO THIS AGREEMENT IN YOUR JURISDICTION), IN ORDER TO ACCESS OR USE THE SERVICES, YOU MUST HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THIS AGREEMENT AND SUCH PARENT OR GUARDIAN MUST HAVE EXPRESSLY AGREED TO BE LIABLE FOR ANY USE OF THE SERVICES BY YOU. YOU MAY NOT ACCESS OR USE THE SERVICES IF YOU ARE UNDER THE AGE OF 13, EVEN IF YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT.

This Agreement outlines the Terms of Service for the Cirrent Service. Cirrent and you may hereafter be collectively referred to as the “Parties” or individually as a “Party.” This Agreement consists of this document and the following Appendices, all of which shall be included as part of the “Agreement.”

Appendix A – Acceptable Use Policy

BACKGROUND

WHEREAS, Cirrent is building an ecosystem of individual broadband providers to allow Devices to seamlessly connect to the Internet using Cirrent’s Wireless Connection Manager;   

WHEREAS, Company is in the business of developing, manufacturing, selling and/or marketing various Devices, and consumer and commercial products, and wishes to enable such Devices to access ZipKey Hotspots using the Cirrent Wireless Connection Manager, the Cirrent Cloud Platform and the Cirrent SoftAP App (collectively, the “Service”);

WHEREAS, Cirrent and you desire to enter into this Agreement setting forth the terms pursuant to which Cirrent will offer its Cirrent Wireless Connection Manager to be preloaded on certain Company Products;

NOW, THEREFORE, subject to the terms and conditions set forth herein, the Parties intending to be mutually bound, hereby agree as follows:

  • Definitions.
      1. Company” means that Company that employs you and all of its Affiliates.
      2. Affiliates” means entities that control, are controlled by, or are under common control with a Party.
      3. Effective Date” means the date on which you accepted these terms and conditions on the Cirrent web site.
      4. Authentication” means the process of a network identifying a Device, usually based on, but not limited to, a username and password, and granting the Device access to such network based on receipt of a one or more successful and complete RADIUS AAA records indicating that such Device is authenticated by Cirrent to connect to the network.
      5. Device” means a product including, without limitation, any commercial service products or in-home consumer products that have been equipped with a WLAN card or some other form of WLAN access hardware.
      6. Device User Binding” or “DUB” means associating a specific, authenticated End User with a specific, authenticated device using Cirrent’s cloud service as further detailed in the Documentation.  
      7. Documentation” means the standard technical user manuals, implementation manuals and training material related to the Cirrent Service as published by Cirrent.
      8. End User” means an end-user (not a reseller or sub-licensor) and/or purchaser of a ZipKey-Enabled Company Product.
      9. ZipKey Hotspot” means a Wi-Fi router that allows ZipKey-Enabled Products to get internet access under contract with Cirrent.
      10. ZipKey-Enabled Company Product” means a Company’s Devices that have integrated the Cirrent WCM.
      11. Marks” means the name(s), logos, trade names, service names, trademarks, and/or service marks used by a Party to identify and/or promote their brand(s).
      12. Personal Data” means any End User information that is processed under this Agreement that may identify an individual.
      13. Secure Credential Distribution” or “SDC” means the distribution of private Wi-Fi network credentials (such as SSID and Password) via Cirrent’s cloud service as further described in the Documentation.
      14. Software” means the Cirrent WCM, SDK, APIs and any Updates thereto. The Sample Code (as defined below) shall not be considered Software for purposes of this Agreement.
      15. Term” means the duration of this Agreement, commencing on the Effective Date.
      16. Territory” means worldwide.
      17. Updates” means maintenance releases (e.g., containing bug fixes or other minor improvements) which are developed and commercially released by Cirrent or its authorized contractors during the Term.
      18. Wireless Connection Manager” or “WCM” means the source code or the machine executable version(s) of the Cirrent client software code, including any Updates thereto, that Cirrent will provide to Company under this Agreement for integration into Devices to enable the Device to connect via ZipKey Hotspots.
  • Software License.  
      1. Software. During the Term, Cirrent grants to Company, a non-exclusive, royalty-free, non-transferable license, within the Territory, to: (i) use, execute, preload, reproduce, and distribute copies of the Software solely in connection with ZipKey-Enabled Company Products and in furtherance of this Agreement.
      2. Sample Code. In order to help Company develop its wireless connectivity solutions, Cirrent has developed software code (the “Sample Code”) which it would like to share with Company to help Company further develop such connected devices. As such, Cirrent grants to Company, a non-exclusive, royalty free, non-transferable license, within the Territory, to (i) use, execute, reproduce, modify and produce derivative works of the Sample Code for incorporation into the ZipKey-Enabled Company Products.
      3. Reservation of Rights. All rights not expressly granted to Company herein are hereby reserved by Cirrent.
  • ZipKey-Enabled Company Products; Cirrent Certification and Registration.
      1. Testing.  Before releasing any ZipKey-Enabled Company Products to the public, the Company shall ensure that all ZipKey-Enabled Company Products meet Cirrent’s technical specifications as detailed in Documentation, and as updated from time to time (collectively, the “Cirrent Technical Specifications”). The Company agrees to contract with Cirrent to inspect, test and evaluate the integration of the Software with the ZipKey-Enabled Company Products prior to Company’s release of any ZipKey-Enabled Company Product to the public. For the avoidance of any doubt, Cirrent is not obligated to test any ZipKey-Enabled Company Product. If Cirrent, determines that a ZipKey-Enabled Company Product(s) does not function in accordance with the Cirrent Technical Specifications, then Cirrent will notify the Company of the deficiencies and Company will address all such deficiencies prior to providing any ZipKey-Enabled Company Products to the general public.
      2. Keys. Cirrent, if requested, may issue a variety of keys to Company, including, but not limited to, ZipKey network keys, API keys, DUB keys as well as SYS and OPS API keys (collectively “Keys”). If Company chooses to generate its own Keys, the Company must provide Cirrent with all such Keys or hashes of such Keys in a format acceptable to Cirrent prior to releasing any ZipKey-Enabled Company Products to the public. The security of all such Keys is the Company’s sole responsibility. Cirrent disclaims any and all liability for the loss and/or destruction of the Keys. The Company shall be liable for any Fees generated by lost or stolen Keys and Company must notify Cirrent of any lost Keys immediately in order to prevent further use and/or Fees.
  • Cirrent Services.
      1. APIs. Cirrent will use its commercially reasonable efforts to provide the following APIs: DEV, SYS, and OPS for use with the Company’s GCN, DUB and SCD services. The APIs may be updated from time to time in Cirrent’s sole discretion.
      2. Network Access.  Cirrent will contract directly with network suppliers in order to provide Internet access through ZipKey Hotspots.  
      3. Professional Support. Cirrent is willing, for a fee,  to provide support to Company in product development and integration.  ZipKey Hotspots may be added and removed in Cirrent’s sole discretion.
        1. Company shall ensure that all ZipKey-Enabled Company Products adhere to Cirrent’s Acceptable Use Policy, attached hereto in Appendix A, when using the Service and accessing the internet through a ZipKey Hotspot.
        2. Access to the internet through ZipKey Hotspots may be limited and/or data usage may be throttled based on the pricing selected.
        3. As further detailed in the Documentation, ZipKey-Enabled Company Products must attempt to Authenticate to a ZipKey Hotspot before any other network, except when an End User has already configured a network preference. If an End User has already configured a network, the ZipKey-Enabled Company Product will attempt to Authenticate to a ZipKey Hotspot if the Device cannot authenticate to the End User configured network.  
        4. Cirrent may, at its discretion or at the request of a ZipKey hotspot provider, reject any specific device or a group of devices from joining those specific ZipKey hotspots.
      4. Ongoing Support. Company shall be liable to provide Tier 1 and Tier 2 support. End Users should not contact Cirrent directly and any End Users that contact Cirrent shall be directed to Company. Company may contract with Cirrent to provide it with dedicated Tier 3 support.
      5. Term. Cirrent will provide API and ZipKey hotspot access to ZipKey-Enabled Company Products for a period of six (6) months from the date acceptance of this agreement.  In addition, Beyond this time, Cirrent will provide API and ZipKey access to ZipKey-Enabled Company Products at Cirrent’s sole discretion.
  • Device Data
      1. Data. Cirrent will collect a variety of data from the Company’s Products use of the Service, including, but not limited to: (i) Device type; (ii) manufacturer; (iii) Device MAC Address; (iv) Device Wi-Fi status; (v) IP Address; (vi) Device internet usage through ZipKey Hotspots; (vii) Device ID. Cirrent will handle any and all data collected in accordance with its Privacy Policy, which can be found at https://www.cirrentsystems.com/service-privacy-policy (the “Privacy Policy”), and which may be updated from time to time. Any and all data collected by Cirrent shall be owned by Cirrent.
      2. Company Data. Section 5.1 notwithstanding, data, including Personal Data, if any, which the Company can access using either the “put” data Device API or the “get” data SYS API shall belong to Company (collectively, the “Company Data”). The Company Data may be uploaded and stored on Cirrent’s cloud storage platform. Cirrent will not be responsible for the loss or destruction of any Company Data stored on Cirrent’s cloud platform and Company is responsible for ensuring that any such Company Data is properly and securely stored.      
  • Co-Marketing Activities.  Either Party may request from the other Party permission to identify the other as a partner and include the other Party’s logo, product pictures, and screenshots in marketing materials and/or in a section of its web site, such permission may be granted or withheld, in the other Party’s sole discretion, in each instance. Except for disclosures mutually approved, neither Party will disclose to any third party the existence of the relationship between the Parties, either implied or otherwise, nor will either Party publicly disclose any aspect or information in connection with such relationship or Agreement, without the prior written approval of the other Party.
    1. Fees, Payment and Reporting
      1. Pricing and Fees for Prototypes.  Cirrent will allow you to use the Services to develop and field test Device prototypes, subject to the following conditions:
        1. Maximum of five device types registered
        2. Maximum of five hundred unique devices/device IDs will be issued and allowed to be managed in the Cirrent Cloud Platform
        3. Devices may only use the ZipKey Hotspot as part of the process of connecting to an End User’s personal network.  Prototypes must not spend more than 24 continuous hours connected to a ZipKey Hotspot
        4. Devices, once connected to the internet, may only access the Cirrent domain
        5. Device data traffic will be capped at 1MB per month for each unique device ID
        6. Each unique ID must only be assigned to at most one device
      2. Additional Services.  You must email Cirrent representatives via email at sales@cirrent.com to discuss additional services not covered by this agreement, such as:
        1. Pricing for more than 500 Devices or for more than 5 Device types
        2. Non-Recurring Engineering Support
        3. Product Certification Testing
        4. Ongoing Support Services
      3. Payments. Any undisputed payments not received when due will be considered delinquent and may be subject to interest accrual at a rate of one and a half percent (1.5%) per month or the highest amount allowed by law, whichever is higher. Interest on delinquent undisputed payments will accrue from the date due until paid by Company.
      4. Taxes. All Fees stated herein exclude, and Company will pay, any legally required sales, use, property, license, value added, excise, withholding or similar tax and any related duties, tariffs, imposts and similar charges, excluding taxes based on Cirrent’s net income. If Company is required by law in Company’s respective country to withhold taxes on payments made to Cirrent, and if such country is outside the United States, Company shall gross up payments to Cirrent by the amount of tax withheld.
      5. Expenses. Except as provided in the Agreement, both Parties shall be solely responsible for their respective expenses in performing under this Agreement, which includes without limitation personnel compensation, bonuses and benefits.
  • Changes to Agreement. Cirrent reserves the right to modify the terms and conditions of this Agreement and its policies relating to the Service at any time, in its sole discretion. Cirrent will post the revised terms and conditions of the Agreement or policies on the Web Site and provide notice in advance of the effective date of such changes (“Amendment Date”). If the revised terms and conditions or policies are not acceptable, your sole and exclusive remedy shall be to stop using the Service and to cancel your account through the Web Site or by notifying Cirrent Customer Support prior to the Amendment Date. Continuing to use the Service and failing to cancel your account after the Amendment Date constitutes acceptance of the revised terms and conditions of the Agreement.
  • Intellectual Property
      1. Limitations.  Company acknowledges that all Cirrent intellectual property referenced herein, including but not limited any and all Software, contains the valuable trade secrets of Cirrent, and, with exception for the Sample Code, Company agrees not to cause or permit the reverse engineering, translation, disassembly, or decompilation of, or otherwise to attempt to derive the source code thereof, whether in whole or in part. Company will not use, reproduce, modify, prepare derivative works of, distribute, sublicense, loan, sell, or otherwise transfer any such Cirrent intellectual property except as expressly permitted herein.
      2. Ownership.  Unless expressly otherwise agreed between the Parties hereunder, Cirrent or its suppliers will retain all title, copyright and other proprietary and intellectual property rights in and to the Cirrent Software, Marks, Documentation and any other technology, services, or materials that Cirrent may provide to Company hereunder.
  • Representations and Warranties.
      1. Mutual Warranties.  Each Party hereby represents and warrants that: (a) it has full corporate power and authority to enter into and perform this Agreement, and no contract, agreement, promise, undertaking or other fact or circumstance will prevent the full execution and performance of this Agreement by it;  (b) it is duly organized and in good standing in the country or state of its formation; and (c) it will fully comply with all applicable laws, regulations and ordinances in furtherance of its obligations under this Agreement.
      2. Sample Code Warranty. Notwithstanding anything herein to the contrary, the Sample Code is provided “AS IS” with no warranties of any kind.  
      3. Disclaimer.  EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, CIRRENT HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SOFTWARE, DOCUMENTATION OR THE CIRRENT SERVICE. PARTNER SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.  EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, CIRRENT DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS THAT THE SOFTWARE OR THE ZIPKEY HOTSPOTS WILL BE ERROR-FREE OR FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED, OR REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE, OR REGARDING THE ACCURACY OR RELIABILITY OF THE SOFTWARE. NEITHER CIRRENT NOR ANY OF ITS SUPPLIERS WILL BE LIABLE FOR ANY NETWORK SERVICES FAILURE. CIRRENT AND ITS SUPPLIERS SPECIFICALLY DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, AVAILABLE ON A SPECIFIED DATE OR TIME OR WILL HAVE THE CAPACITY TO MEET COMPANY’S OR AN END USER’S DEMAND DURING SPECIFIC HOURS.
  • Indemnification.
      1. General Indemnity.  In addition to Section 11.2, Company will indemnify and hold harmless Cirrent and Cirrent’s directors, employees, customers, distributors, and service providers  from and against any and all Losses to the extent such Losses arise directly from any third party claims related to (i) breach of any of  the respective Company’s representations, obligations or warranties, or of any other term of this Agreement, (ii) personal injury, death or property damage, (iii) unlawful, unfair, or deceptive trade practices attributable to Company or its contractors, and (iv) other negligent acts or omissions by the Company or its contractors not otherwise covered by this section.
      2. Company Indemnity.  Company shall defend, indemnify and hold Cirrent and its Affiliates, along with the directors, employees, customers, distributors, and service providers of Cirrent and its Affiliates (“Cirrent Indemnitees”) harmless from and against any claims and liabilities arising out of any actual or alleged infringement of any intellectual property right by any ZipKey-Enabled Company Product. Company shall pay all damages and reasonable costs associated with such a claim, including, but not limited to, attorney fees, damage awards, settlement payments, costs of defense, and fines.
    1. Limitation on Liability.  TO THE FULLEST EXTENT PERMITTED BY LAW, AND EXCEPT FOR THE PARTIES INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, CIRRENT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE, LOST PROFITS, LOST CLIENTS OR BUSINESS INTERRUPTION) ARISING OUT OF ANY PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OR NOT OF THE POSSIBILITY OF SUCH DAMAGES.
    2. Term and Termination.
      1. Term and Termination.  You’re free to stop using our Services at any time. We also reserve the right to suspend or end the Services at any time at our discretion and without notice. For example, we may suspend or terminate your use of the Services if you’re not complying with these Terms, or use the Services in a manner that would cause us legal liability, disrupt the Services or disrupt others’ use of the Services. Except for Paid Accounts, we reserve the right to terminate and delete your account if you haven’t accessed our Services for 12 consecutive months. We’ll of course provide you with notice via the email address associated with your account before we do so.Upon any such termination, you continue to be bound by this Agreement.
      2. Effects of Termination. Upon expiration or termination of this Agreement all licenses granted in the Agreement shall immediately terminate. In addition, each Party will return or destroy all copies of the other Party’s Confidential Information.  Any terms of the Agreement that are identified as surviving termination, will survive any expiration or termination of this Agreement.
  • Miscellaneous Provisions.
    1. Prohibition Against Assignment.   Except for assignments to an Affiliate, a Party may not assign, assume, transfer or, except as permitted under Section 2 hereof, sublicense any obligations or benefit under this Agreement without the written consent of the other Party.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. The foregoing notwithstanding, a Party may, upon notice  to the other Party, assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of the assets of such Party.  
    2. Notices and Requests.  All notices, requests and other communications hereunder shall be sent via email to support@cirrent.com. Unless otherwise provided, notice shall be effective on the date it is delivered.
    3. Governing Law and Dispute Resolution.  This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions. The Parties agree that any action to enforce any provision of this Agreement or arising out of or based upon this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction in San Mateo County, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply.  
    4. Entire Agreement.  Upon acceptance of these terms, this Agreement (including its appendices) shall constitute the entire agreement between the Parties with respect to the subject matter hereof.  This Agreement shall not be modified except by a written instrument executed on behalf of each Cirrent by its respective duly authorized representative.  
    5. Severability.    In the event that any provision of this Agreement shall for any reason be held to be void, invalid, illegal, or unenforceable in any respect, such voidance, invalidity, illegality, or unenforceability shall not affect any other portion of this Agreement. In such event, the Parties agree that the invalid or unenforceable provision will be replaced by a mutually acceptable provision that comes closest to the original intent of the Parties.
    6. Relationship of the Parties.  Nothing in this Agreement will be construed to constitute either Party as the agent, employee or representative of the other Party and no joint venture or partnership will be created hereby.  Neither Party will make or have the power or authority to act for, bind or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
    7. No Waiver.  No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
    8. Arbitration. READ THE FOLLOWING ARBITRATION AGREEMENT CAREFULLY. IT LIMITS CERTAIN RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES THROUGH COURT ACTION OR AS A MEMBER OF A CLASS.
      1. As used in this Arbitration Agreement, “You” and “Your” mean the registered user(s) of the Services, and all of his/her heirs, survivors, representatives, subsidiaries , affiliates, agents, employees, predecessors in interests, successors, assigns, as well as all authorized and unauthorized users or beneficiaries of services under this or prior agreements between us. “We” and “Our” shall mean Cirrent and shall be deemed to include all of its heirs, survivors, representatives, subsidiaries, affiliates, agents, employees, directors, officers, predecessors in interests, successors, assigns.
        This Arbitration Agreement is intended to be broadly interpreted. It applies to any and all claims, disputes, or controversies of any nature whatsoever whether in contract, tort or otherwise, including but not limited to statutory, common law, fraud (whether by misrepresentation or by omission) or other intentional tort, property, or equitable claims) arising out of, relating to, or in connection with the Services or this Agreement including any claims relating to the validity, scope, interpretation, breach or enforceability of this Agreement and claims that may arise after the termination of this Agreement (all of which are collectively referred to herein as “Claims”).
        Except where prohibited by law, You and We agree that any and all Claims are to be arbitrated by a single arbitrator except that either party may bring an individual action in small claims court in the jurisdiction in which You reside for Claims that fall within that court’s jurisdiction.
      2. An arbitration commenced pursuant to this Agreement shall be administered and governed by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (the “AAA Rules”). To the extent there is any inconsistency between the terms of this Arbitration Agreement and the AAA Rules the provisions of this Agreement shall apply. The AAA Rules, forms and information are available online at www.adr.org, or can be obtained by calling the AAA at 1-800-778-7879. Unless We and You agree otherwise, any arbitration hearing(s) will take place in the province or jurisdiction in which you reside.
      3. In the event that any provision of this Arbitration Agreement is found to be invalid or unenforceable in a particular case or jurisdiction, that provision will be severable in that case or jurisdiction, as the case may be, without affecting the validity and enforceability of the remaining provisions of the Agreement, and shall not affect the validity and enforceability of the Agreement in other cases and jurisdictions.
      4. In the event that You intend to commence an arbitration or a court proceeding, You must first notify Cirrent by contacting Our Customer Support Center at info@cirrent.com (“Notice”) and attempt to resolve Your Claim. If We and You do not reach an agreement to resolve Your Claim within 30 days after Notice has been provided, You or We may commence an arbitration or a court proceeding in accordance with this Agreement.
      5. Class Action Waiver. EXCEPT WHERE PROHIBITED BY LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER, WHETHER BEFORE AN ARBITRATOR OR IN COURT, ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION LAWSUIT. You expressly waive any right you may have to bring or participate in a Claim as a class, collective or representative proceeding in court or before an arbitrator. Further, unless both You and We agree in writing, the arbitrator may not consolidate Your claim with another person’s claim, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding anything herein, either party may bring an individual action in small claims court for disputes within that court’s jurisdiction.
    9. Section Headings.  The section headings used in this Agreement and the attached Appendices are intended for convenience only and shall not be deemed to supersede or modify any provisions.

 

APPENDIX A

ACCEPTABLE USE POLICY

Cirrent customers (each a “Customer”) are responsible for ensuring that their end users (“End Users”) are advised of, and comply with, Cirrent’s acceptable use policy, which may be revised from time to time by Cirrent (the “Acceptable Use Policy”), when using Cirrent’s services (the “Service”).  Customer expressly authorizes Cirrent to accept service terms and conditions on behalf of Customer and its End Users at open networks where service terms and the acceptance of such terms may be bypassed.  Customer and its End Users agree to be bound by such service terms and conditions.  This Acceptable Use Policy is expressly incorporated into and made a part of the agreement between Cirrent and Customer regarding the Service (the “Agreement”).  Without limiting any of its rights or remedies under the Agreement, Cirrent reserves the right to suspend Customer’s or its End Users’ use of the Services in the event Customer or its End Users do not comply with this Acceptable Use Policy.  Customer and each End User will:

  1. Not attempt to gain unauthorized access to, or attempt to interfere with or compromise the normal functioning, operation, or security of any network, system, computing facility, equipment, data, or information.
  2. Not attempt to gain unauthorized access to, or use, data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network. This includes using sniffers or SNMP tools to gain such unauthorized access.
  3. Not attempt to circumvent user authentication or security of any host, network or account (“cracking”). This includes, but is not limited to, accessing data not intended for End Users, logging into or making use of a server or account End Users are not expressly authorized to access, or probing the security of other networks.
  4. Not engage in any act of a malicious nature which may reasonably result in harm or damage to another user’s service, equipment, or privacy.   This includes Syn-flood attacks, or any attempt to overburden a recipient’s computer system by sending a high volume of spurious data with the intent to impede functionality, or totally disable recipient system(s), and any other methods of denial of service.  Examples of disruptions include but are not limited to port scans, flood pings, packet spoofing and forged routing information.
  5. Not interfere with service to any user, host or network with the intent to render said system dysfunctional.
  6. Not use the Service to intentionally transmit files containing a computer virus or corrupted data, or post or transmit any information or software which contains a virus, cancelbot, trojan horse, worm or other harmful component.
  7. Not attempt to intercept, redirect, or otherwise interfere with communications intended for others.
  8. Not use the Service to transmit excessive volumes of unsolicited commercial e-mail messages including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material (e.g., E-mail “Spam”); or distribute, advertise or promote software or services that have the primary purpose of encouraging or facilitating unsolicited commercial E-mail (e.g., email “Spam”).  
  9. Not alter, add, remove or modify a source IP address information or by using forged headers (a.k.a. “spoofing”) in an effort to deceive or mislead.
  10. Not attempt to fraudulently conceal, forge, or otherwise falsify a End User’s identity in connection with use of the Service.
  11. Not use the Service to transmit, distribute, retrieve, or store any information, data, or other material in violation of any applicable law or regulation (including, where applicable any tariff or treaty).  This includes, without limitation, the use or transmission of any data or material protected by copyright, trademark, trade secret, patent, or other intellectual property right without proper authorization and the transmission of any material that constitutes an illegal threat, violates export control laws, or is obscene, defamatory, or otherwise unlawful.
  12. Not use the Service to knowingly commit verbal or written threats towards another person.   This may include posting or transmitting a person’s real life information (name/address/phone number) in a malicious manner.   
  13. Not use the Service to send threatening or harassing messages which suggest that the sender is planning to engage in some type of criminal activity.  Generally threats to public officials, references to bombings, bank heists, and activities that threaten national security, are considered serious violations.
  14. Not attempt to defeat any idle timer or system tool intended to enforce the part-time and personal nature of End User’s connection, including the use of pingbots and other methods of avoiding timing disconnection.