Merchant WiFi Terms of Service
Last updated June 2, 2021
Hownd, Inc. & Poweredlocal Australia Pty. Ltd. (“Hownd” or “we”) provides a WiFi solution consisting of WiFi access points and related services to Merchants for use by their customers, data collection services, and Hownd Platform for accessing that data. Use of the Hownd WiFi solution is subject to these Terms of Service.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
ABN means Australian Business Number.
Agreement means the agreement formed between the Merchant and Hownd under, and on the terms of, these Terms of Service.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business.
Company means Hownd, Inc and Poweredlocal Australia Pty. Ltd..
Device means the WiFi device(s) (whether supplied by Hownd or the Customer) that;
Collects User Data.
Device Replacement Fee means the Fee of US$300 charged by Hownd to the Merchant in the event that the Device is not returned to Hownd on Termination of this Agreement.
End User means a user that accesses the internet via the Device.
Fee means a fee charged by Hownd for use of the Service.
GST has the meaning given by the Australian A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hownd Platform means the web service operated by Hownd where the Merchant can manage its account, available at hownd.com
Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
Merchant means a registered user of the Service, that connects a Device to their Modem and uses the features associated with a Merchant account
Modem means the Merchants modem or router through which the Device will provide access to the internet.
PPSR means the Australian Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
Privacy Act means the Australian Privacy Act 1988 (Cth).
Terms of Service means the Hownd Terms of Service, as updated from time-to-time, which can be found at https://hownd.com/terms-of-service/
Service means the use of the Device, Hownd Platform and the licence of the User Data provided to the Merchant on the terms of this Agreement.
TPS means an online third-party service provider with whom a User holds an account.
User means any registered Merchant or End User that uses any part of the Service.
User Data means data collected via the Device by Hownd from an End User and accessible via the Hownd Platform.
Merchant means a registered user of the Service, that connects a Device to their Modem and uses the features associated with a Merchant account
WiFi Terms of Service means these Terms of Service, as updated from time-to-time.
1 USING THE SERVICE
To use the Service, the Merchant must log into the Service and have set up their account.
Each person that registers as a Merchant agrees and warrants that they are:
Duly authorised by the owner of the Modem and holder of the internet account accessed by that Modem, to register the Merchant account; and
18 years of age or older.
The Service is only available to persons over the age of 18.
The Merchant agrees that all use of the Service is subject to these Terms of Service.
The Merchant shall be responsible for each End User’s use of the Service that accesses the Internet via the Device connected to the Merchant’s Modem.
Hownd may repossess the Device, suspend the account or restrict the access of any Merchant to the Hownd Platform that breaches the terms of this Agreement.
By accepting the terms of this Agreement the Merchant also accepts:
1.2 Merchant Features
The Service shall enable a Merchant to:
Create a Hownd Platform account as a Merchant;
Use a Device to provide End Users with access to the internet via the Merchant’s Modem; and
Access User Data collected from End User’s by the Device via the Hownd Platform.
1.3 Use of the Device
Hownd provides Devices to Merchants either:
Free of charge, in which case the Merchant generally has no access to premium marketing features; or
For a fee, in which case the Merchant generally has access to premium marketing features, as advertised by Hownd from time-to-time.
The Merchant agrees that part of the consideration for its use of a Device shall be the User Data collected by Hownd via the Device.
Before the Merchant can use the Device, the Merchant must activate it by:
Connecting the Device to the Merchant’s Modem connected to the internet, and powering it on; and
Accepting this Agreement.
By activating the Device and accepting these Terms, Hownd grants the Merchant a licence to use the Device and any User Data provided by Hownd to the Merchant, for the term of this Agreement. The Device shall remain the property of Hownd at all times, and the Merchant may only use the Device in accordance with this Agreement.
The Merchant is responsible for ensuring that:
The Device is correctly connected to the Modem;
The Modem remains connected to the internet;
Both the Modem and the Device remain connected to a power source; and
The Device and Modem remain subject to sufficient operating conditions in accordance with any manufacturer documentation.
The Merchant shall bear all costs associated with the internet access that the Device provides to End Users including:
Internet service costs; and
Hownd shall not be responsible to the Merchant or any End User whatsoever, in the event that the Device ceases operation for any period of time due to:
Power to the device being interrupted for any reason;
Internet service being restricted or disconnected for any reason;
Device malfunction; or
Any other reason beyond Hownd’s control.
In no event will Hownd be liable to the Merchant or any End User for an End User being unable to access the internet via the Device.
Hownd may register its interest in the Device on the PPSR.
The Merchant shall return the Device to Hownd on termination of this Agreement or incur a Device Replacement Fee.
The Merchant acknowledges that the internet may be accessed by End Users outside of the premises operated by the Merchant where the Device is Located, and that Hownd bears no responsibility for such an End User’s use of the Merchant’s internet connection via the Device.
1.4 User Data
Hownd shall collect User Data from the Device subject to:
The Device remaining operational and connected to the internet;
The Device remaining connected to the Hownd Platform and/or servers;
Hownd complying with the Privacy Act 1988 (Cth) (if applicable); and
Hownd complying with such other laws or regulations as Hownd may be required to.
Hownd shall supply the User Data to the Merchant in the form that it appears in the Hownd Platform. In no event will Hownd perform any additional services of editing or formatting the User Data for the Merchant.
The Merchant’s access to the User Data via the Hownd Platform may be subject to any terms of service that apply to the Hownd Platform.
Hownd shall provide the User Data to the Merchant in accordance with this Agreement but makes no warranty or representation as to the content, quality or usefulness of the User Data.
For the avoidance of doubt, under no circumstance shall Hownd be liable to the Merchant for failure to collect User Data due the Device or the Hownd Platform not functioning correctly. The licence to User Data provided to the Merchant under this agreement only applies to User Data that is collected and made available by Hownd.
User Data may only be used by the Merchant for the purposes of marketing the Merchant’s business. In no event may the Merchant:
Sell or sublicense the User Data; or
Use the User Data contrary to this Agreement.
Hownd is under no obligation to provide the Merchant with access or a licence to user data collected for Hownd’s other Merchants.
Hownd shall not be liable to the Merchant in relation to any User Data, including:
The content of the User Data; or
The Merchants use of the User Data.
The licence or use of User Data by the Merchant under this Agreement is limited to the duration of this Agreement only, and the Merchant may not use any User Data for any purpose after the termination of this Agreement.
1.5 Network Data
As a necessary part of providing the Service, the User agrees Hownd may scan for and collect information about the User’s network, internet connection, device type and location, including (without limitation) MAC addresses and IP addresses, and may access the Device via the User’s network.
1.6 Device Replacement Fee
The Merchant shall return the Device to Hownd on termination of this Agreement, or must pay Hownd a Device Replacement Fee.
2 THIRD PARTY LOGIN AND INTEGRATION
2.1 Registration & Login.
A User may be able to register as a User, access the Service and use integrated features by connecting their account with certain third party services (TPS) (e.g, Facebook, Twitter etc).
As part of the functionality of the Service the User may connect their profile with a TPS by:
Providing their TPS login information to Hownd through the Service; or
Allowing Hownd to access their TPS in accordance with its terms & conditions of service.
When connecting to the Service using a TPS the User warrants that they are not in breach of any of the TPS’ terms & conditions of service.
2.2 Ongoing Availability.
The Merchant agrees that User access to the Service may be unavailable if the TPS becomes unavailable, and that the User may lose functionality or content that is shared between the TPS and the Service.
The User may disconnect the connection between the Service and the TPS at any time.
Hownd has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.
2.3 Data from TPS.
Where a User connects and or registers their account using a TPS, the User authorises Hownd to use data from that TPS to create the User’s profile within the Service.
3 GENERAL CONDITIONS
By accepting the terms and conditions of this Agreement, the Merchant is granted a limited, non-exclusive and revocable licence to access and use the Service for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
Hownd may issue the licence to the Merchant on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
Hownd may revoke or suspend the Merchant’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the Merchant.
3.2 Modification of Terms
The terms of this Agreement may be updated by Hownd from time-to-time.
Where Hownd modifies the terms, it will provide the Merchant with written notice, and the Merchant will be required to accept the modified terms in order to continue using the Service.
3.3 The Hownd Platform
The Merchant agrees and accepts that the Hownd Platform is:
Hosted by Hownd and shall only be installed, accessed and maintained by Hownd, accessed using the internet or other connection to Hownd servers and is not available ‘locally’ from the Merchant’s systems; and
Managed and supported exclusively by Hownd from Hownd servers and that no ‘back-end’ access to the Hownd Platform is available to the Merchant unless expressly agreed in writing.
As a hosted and managed service, Hownd reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Hownd Platform.
Hownd provides Merchant support for the Service via the email address email@example.com.
Hownd provides End User support for the Service via the email address firstname.lastname@example.org
Hownd shall endeavour to respond to all support requests within one Business Day.
The Merchant authorises Hownd to access the Merchant’s premises, Modem and the Device for the purposes of providing support.
Hownd may charge a Fee for any support services provided to a Merchant. Hownd shall advise the Merchant of the cost of these support services prior to the costs being incurred.
3.5 Use and Availability
The Merchant agrees that it shall only use the Service for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by Hownd in its discretion.
The Merchant is solely responsible for the security of its username and password for access to the Service. The Merchant shall notify Hownd as soon as it becomes aware of any unauthorised access of its Service account.
The Merchant agrees that Hownd shall provide access to the Service to the best of its abilities, however:
Access to the Service may be prevented by issues outside of its control; and
It accepts no responsibility for ongoing access to the Service.
Hownd makes no warranty as to the suitability of Service in regards to the Merchant’s privacy obligations at law or contract, and it is the Merchant’s responsibility to determine whether the Service is appropriate for the Merchant’s circumstances.
The Merchant agrees to not use any personal information contained in the User Data (such as email addresses) for any purpose other than for which the information was submitted. This includes, but is not limited to:
Providing third-party access to personal information;
Selling personal information; and
Unsolicited communications (SPAM).
Security. Hownd takes the security of the Service and the privacy of its Users very seriously. The Merchant agrees that the Merchant shall not do anything to prejudice the security or privacy of Hownd’s systems or the information on them.
Transmission. Hownd shall do all things reasonable to ensure that the transmission of data occurs according to acceptable industry standards. It is up to the Merchant to ensure that any transmission standards meet the Merchant’s operating and legal requirements.
Storage. Hownd stores data on cloud servers based in Australia and the USA according to accepted industry standards.
Backup. Hownd shall perform backups of its entire systems in a reasonable manner at such times and intervals as is reasonable for its business purposes. Hownd does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by Hownd.
3.8 Intellectual Property
Trademarks. Hownd has moral and registered rights in its trademarks and the Merchant shall not copy, alter, use or otherwise deal in the marks without the prior written consent of Hownd.
Proprietary Information. Hownd may use software and other proprietary systems and Intellectual Property for which Hownd has appropriate authority to use, and the Merchant agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Merchant warrants that it shall not infringe on any third-party rights through the use of the Service.
The Service. The Merchant agrees and accepts that the Service is the Intellectual Property of Hownd and the Merchant further warrants that by using the Service the Merchant will not:
Copy the Service or the services that it provides for the Merchant’s own commercial purposes; and
Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Service or any documentation associated with it.
Content. All data submitted to Hownd, whether via the Service or directly by other means, becomes and remains the Intellectual Property of Hownd, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the Merchant or any other party with respect to the Service.
3.9 Disclaimer of Third Party Services & Information
The Merchant acknowledges that the Service is dependent on third-party services, including but not limited to:
Email services; and
The Merchant agrees that Hownd shall not be responsible or liable in any way for:
Interruptions to the availability of the Service due to third-party services; or
Information contained on any linked third party website.
3.10 Liability & Indemnity
The Merchant agrees that it uses the Service at its own risk.
The Merchant agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
The Merchant indemnifies Hownd for any claim arising from the Merchant’s use of the Service including, but not limited to:
The Merchant’s use of User Data; and
An End User’s access to the internet via the Device, including any act the End User may perform.
The Merchant acknowledges that Hownd is not responsible for the conduct or activities of any End User, and that Hownd is not liable for such under any circumstances.
The Merchant indemnifies Hownd from any claim that may arise in relation to the Merchant’s use of the solution by:
The Merchant’s internet service provider; or
Any third-party that may be harmed by the Merchant’s, or End User’s use of the Service.
In no circumstances will Hownd be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Merchant’s or any End User’s access to, or use of, or inability to use the Service or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not Hownd knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, Hownd and Hownd’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, Hownd’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at Hownd’s option to:
The re-supply of services or payment of the cost of re-supply of services; or
The replacement or repair of goods or payment of the cost of replacement or repair.
Either party may terminate this Agreement by giving the other party written notice.
Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
Upon Termination the Merchant shall promptly return the Device to Hownd, or permit Hownd access to the Merchant’s premises to retrieve the Device. Failure to comply shall incur a Device Replacement Fee.
Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 3.9, 3.12 and 3.13 survive termination of this Agreement.
3.12 Dispute Resolution
If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
Includes or is accompanied by full and detailed particulars of the Dispute; and
Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
3.13 Electronic Communication, Amendment & Assignment
The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
The Merchant can direct notices, enquiries, complaints and so forth to Hownd as set out in this Agreement. Hownd will notify the Merchant of a change of details from time-to-time.
Hownd will send the Merchant notices and other correspondence to the details that the Merchant submits to Hownd, or that the Merchant notifies Hownd of from time-to-time. It is the Merchant’s responsibility to update its contact details as they change.
A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
Notices must be sent to the parties’ most recent known contact details.
The Merchant may not assign or otherwise create an interest in this Agreement.
Hownd may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Merchant.
Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
Prevalence. To the extent this Agreement is in conflict with, or inconsistent with any Special Conditions made under this Agreement, the terms of those Special Conditions shall prevail.
Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
Governing Law. This Agreement is governed by the laws of the State of Arizona in the United States of America. Each of the parties hereby submits to the exclusive jurisdiction of courts with jurisdiction there.
Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.