GATEWISE SUBSCRIPTION AGREEMENT

TERMS AND CONDITIONS

THESE GATEWISE SUBSCRIPTION AGREEMENT TERMS AND CONDITIONS govern the Subscription Agreement executed between the Customer and GateWise, Inc. (“GateWise”), and are made a part thereof.

WHEREAS, GateWise is engaged in the business of providing “smart” gate opening services to gated communities; and

WHEREAS, the Customer is the lawful manager of a gated community facility and desires to retain the services of GateWise at that facility, as more fully described below; and

NOW THEREFORE, upon the mutual promises and such other good and valuation consideration, the receipt of which is hereby acknowledges, the parties agree as follows:

  1. General
  • The Customer agrees to be bound by these GateWise Subscription Agreement Terms and Conditions (the “Terms”), which are an integral part of the Subscription Agreement executed and any of its supplements executed between the Customer and GateWise (the “Subscription Agreement”). These Terms expressly supersede prior agreements or arrangements with the Customer in connection to the facility.
  • GateWise reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms, at any time. Amendments will be effective upon GateWise’s posting of such updated Terms at GateWise.com/________. It is Customer’s responsibility to check these Terms periodically for changes. GateWise may (but is not obligated) to send a notice whenever changes are made. Customer’s continued subscription and use of the Services after such posting of changes confirms Customer’s consent to be bound by the Terms, as amended.
  • If the Customer intends to use the App (as defined below), Customer acknowledges and agrees that it has thoroughly reviewed the General GateWise Terms and Conditions of Use posted at GateWise.com/terms-of-use (the “General Terms”), as well as the GateWise Management Console Terms and Conditions of Use posted at www.GateWise.com/console-terms (the “Console Terms”), and they are incorporated herein by reference.
  • GateWise’s collection and use of personal information in connection with the Services is described in GateWise’s Privacy Policy located at GateWise.com/privacy-policy (the “Privacy Policy”)
  • It is hereby clarified, and Customer expressly agrees, that these Terms, as well as General Terms, the Console Terms, and the Privacy Policy, are supplementary to the Subscription Agreement, and are not to be interpreted in any manner which derogates from GateWise’s rights and/or Customer’s obligations pursuant to the Subscription Agreement.
  1. Description of the Services
  • GateWise installs “smart” Hardware on existing access points (gates, amenity doors, garages, etc.) (the “Hardware”), which allows such access points to be opened using the GateWise Mobile App (the “App”), all pursuant to the permission rights granted by the Customer to the App user in relation to the specific access point (the “Permissions”). For the purposes of these Terms, an access point with an installed GateWise Hardware shall be referred to as a “Wise Gate”.
  • So long as the Customer is under a valid, non-defaulting, Subscription Agreement with GateWise in relation to a given Wise Gate, the Customer shall be able to control the Permissions granted to any given App user to open such Wise Gate, by using the GateWise Management Console (the “Console”).
  • GateWise shall install the Hardware in the locations described in the Subscription Agreement (each, a “Facility”) made a part thereof, for use at such locations and at such rates for such time as is therein The cost of installation of the Hardware at the Facility shall be as specified in the Subscription Agreement. GateWise shall furnish such Hardware, in operative condition. Any unique specifications that the Customer requires for the Hardware shall be listed in the Subscription Agreement. The Hardware shall be and remain the property of GateWise. The Hardware may display GateWise trademarks, and Customer shall not alter or remove such trademarks, or affix any additional trademarks, tradenames or logos to the Hardware, without GateWise’s prior written approval.
  • Prior to coordinating any technician visit by a GateWise technician for an installation and/or maintenance and/or service call, the Customer shall take all measures necessary to ensure that the Facility is fully fit and prepared for the service call (i.e. the access points where Hardware is to be installed are in full working order, the Facilities are connected to internet, cellular, and electricity services as needed and such connections are in full working order, the necessary agents and/or representatives of Customer are on site, etc.). In the event that a GateWise technician arrives in the Facility and finds that the Facility is not in a condition which reasonably allows the technician to perform the duties set out to be completed during the technician’s call, then the Customer shall pay GateWise a $250 charge for the futile technician’s visit, and a new technician call date will be scheduled after the Facility is made ready for such a call.
  • As long as the Customer fully complies with the Subscription Agreement, these Terms, and the Console Terms, GateWise grants the Customer a personal, limited, non-exclusive, non-transferable, non-sublicensable, revocable, limited scope license to access and use the GateWise Management Console, solely in connection with Customer’s use of the Services pursuant to the Subscription Agreement and for no other purpose, at such rates and for such time as is therein stated in the Subscription Agreement.
  • As long as the Customer fully complies with the Subscription Agreement and these Terms, and as long as the lawful users of the Facility fully comply with the General Terms, GateWise grants the lawful users of the Facility a personal, limited, non-exclusive, non-transferable, non-sublicensable, revocable, limited scope license to access and use the GateWise Mobile App on the user’s personal device, solely in connection with the user’s lawful personal use of the Services pursuant to the Subscription Agreement and for no other purpose, at such rates and for such time as is therein stated in the Subscription Agreement.
  • GateWise shall provide Customer with training with respect to the Console, Hardware maintenance, as well as service calls and technical support (collectively, with the installation of the Hardware and the granting of the App and Console licenses listed above, the “Services”).
  • The Customer is responsible for obtaining the data network access necessary to use the Services. Customer is responsible for acquiring and updating compatible Hardware or devices necessary to access and use the Services, the Console, and the App and any updates thereto. GateWise does not guarantee that the Services, or any portion thereof, will function on any particular access point, Hardware or devices. In addition, the Services, the App, and the Console may be subject to bugs, malfunctions and delays inherent in the use of the machinery, components of the Hardware, the internet and electronic communications, as well as with issues related to the access points to which the Hardware is to be installed. GateWise shall have no liability to the Customer and/or any other person (including end-users of the App) for any delay, loss or damages occurring as a result of the failure of the App, except where such failure is the direct result of GateWise’s willful misconduct or gross negligence.
  • In connection with the installation of the Hardware and the provision of the Services hereunder, Customer hereby agrees to:
  • Grant GateWise, its agents and/or employees access to the Facility for the purpose of completing the installation and providing the Services during the Term of this Agreement, during regular business hours and upon reasonable prior notice;
  • Keep all entrances, exits, and passageways in the Facility marked and maintained in a manner that is prescribed by GateWise, as is reasonably necessary to ensure the proper function of the Hardware and/or the software and/or to perform the Services hereunder, at Customer’s sole expense.
  • Other than ordinary maintenance (not otherwise covered by the Services), refrain from handling any of the Hardware without the prior consent of GateWise.
  • Take reasonable measures necessary to ensure the safety and proper care of the Hardware while in the Customer’s Facility.
  • Supply the Facility, at its sole expense, with ongoing electricity and cellular/wifi connections necessary ensure the proper function of the Hardware, as is specified by GateWise.
  • In connection with the Hardware to be installed on the access point, Customer hereby agrees as follows:
  • The Hardware may only be used and operated in a careful and proper manner and at the locations installed by GateWise as set forth herein.
  • Customer shall handle and maintain the Hardware and its appurtenances in good condition, and shall see that the Hardware is not subjected to careless, unusual or needless rough usage.
  • Customer is solely responsible for the condition and the proper functioning of the access points onto which the Hardware shall be installed, and undertakes to properly maintain and repair the access points during the entire duration of the Subscription Agreement, at its sole expense. Customer assumes all liability and any risk of injury of any person, as well as for any loss or damage to the Hardware, the access point, the Facility, or any other property. For the avoidance of doubt, GateWise’s maintenance servicing of a “Wise Gate” shall be limited to the Hardware installed by GateWise, and not to any other part of the access point. Customer is responsible to perform any maintenance, servicing, repairs, or installation in connection to the access points by a certified technician, and in accordance to the relevant access point’s manufacturer’s instructions, at its sole expense.
  • Customer assumes all risk of loss or damage to the Hardware from any cause, and agrees to return it to GateWise in the condition received from GateWise, with the exception of normal wear and tear. If the Hardware is for any reason not returned to GateWise in the same condition as received, ordinary and reasonable wear and tear resulting from proper use thereof excepted, Customer shall pay to GateWise the actual cost of replacing the Hardware at the time of replacement.
  • Customer hereby acknowledges that the use of the Services, including by the Customer and/or a user of the Facility and/or a user of the Console and/or a user of the App, does not impose any liability on GateWise for the condition, proper functioning or safety of use of the access point. Any liability or responsibility in relation to the use of the access point lays exclusively with the Customer, and Customer shall indemnify and hold GateWise and its affiliates harmless from any and all claim, demand, loss, liability, damage, cost or expense (including attorneys’ fees) arising out of or in connection with the access point, its use and/or maintenance (including such losses occurring as a result of use of the App, the Console or the Hardware).
  • Customer shall comply with all applicable laws when accessing or using the Services and may use the Services pursuant to obligations and rights lawfully granted to Customer, and for lawful purposes only (e.g., Customer may not unlawfully discriminate when granting access rights to the Facility; Customer shall not make use of the Services upon the lawful termination of its management rights of the facilities, etc.).
  • Customer is hereby made aware and expressly agrees that ALL ACTIVITY ON THE CONSOLE, AND THE APP MAY BE LOGGED AND STORED ON GATEWISE’S COMPUTER SERVERS. GateWise may disclose any information it has about the Customer and/or the users if it determines that such disclosure is necessary in connection with any inquiry, investigation, or complaint regarding the use of the Services, or to identify, contact or bring legal action against someone who may have made use of the Services and/or who may have caused damage, injury to or interference with (either intentionally or unintentionally) any right or property belonging to GateWise or any third party. GateWise reserves the right at all times to disclose any information that GateWise deems necessary to comply with any applicable law, regulation, legal process or governmental request. GateWise also may disclose information when GateWise determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
  • Customer acknowledges and agrees that GateWise may preserve any transmittal or communication between Customer and GateWise, and may also disclose such data if required to do so by law or GateWise determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of GateWise, its employees, Customers, users of the App, and the public.
  • GateWise may, in its sole discretion and without prior notice, terminate Customer’s access to the Services and/or block Customer’s future access to the Services, the Console, the App or the Hardware if GateWise determines that Customer has not paid its subscription fees and/or has violated these Terms or other agreements or guidelines which may be associated with the use of the Services.
  • GateWise may, in its sole discretion, without prior notice, terminate Customer’s access to the Services, the App, the Console or the Hardware, for any reason, including (but not limited to) (i) a request made by law enforcement or other government agencies; (ii) the Customer ceases to be under a valid, paid, Subscription Agreement with GateWise in relation to such access point; (iii) technical issues or problems. Customer agrees that GateWise will not be liable to Customer or to any third party for termination of access to the Services for any reason.
  1. The Subscription
  • Customer shall pay GateWise a Monthly Subscription Fee as detailed in the Subscription Agreement (the “Fee”).
  • The Fee payment shall be made on or before the 1st day of each calendar month with respect to the previous calendar month.
  • Each Party may terminate the Subscription Agreement at any time, by sending a written notice of termination to the other Party, and the termination will apply upon the later of (i) 30 days from the other Party’s receipt of the written notice of termination, or (ii) the date specified on the written notice of termination.
  • The Customer will continue to receive the Services pursuant to the Subscription Agreement, up until the actual date of termination.
  • The Customer will not receive a refund for the period between the written notice of termination and the actual date of termination.
  • Notwithstanding the foregoing, failure by the Customer to remit the Fee or make any other payment pursuant to the terms of this Agreement, within five (5) days after the due date thereof, shall constitute a material default hereunder and shall entitle GateWise, in addition to all other lawful remedies, to charge a late fee equal to the higher of (i) $25 (ii) or 5% of the amount overdue, as well as to immediately terminate the Subscription Agreement, without prior notice, and/or to immediately cease the provision of Services, without prior notice.
  • Effects of Termination. Upon a termination hereof, for whatever reason, the following shall apply:
  • The Customer shall remit final payment of the Fee applicable to the last calendar month of the Subscription Term;
  • GateWise shall have the right and the Customer shall grant immediate access to the Facility during ordinary business hours and upon a reasonable prior notice for the purpose of GateWise’s removal of its Hardware. GateWise shall have up to thirty (30) days following the effective date of termination to remove its Hardware from the Facility. Such removal shall be at GateWise’s sole cost and expense. Failure by the Customer to grant such access shall entitle GateWise to injunctive relief and liquidated damages of one hundred ($100) per day for each day access is denied commencing on the 3rd day after the effective date of termination until the date access is actually granted. The Parties agree that this section is required to protect GateWise’s right to access the Customer’s property and to remove its property therefrom. The liquidated damages agreed upon herein are not a penalty and are reasonable under the circumstances; and
  • GateWise shall no longer be required to provide any of the Services from and after the effective date of termination and the Hardware may, at GateWise’s sole election, be disconnected and cease operation as of the effective date of termination.
  1. Disclaimer
  • THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. GATEWISE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
  • GATEWISE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. GATEWISE FURTHER DOES NOT WARRANT THAT THE SERVICE WILL BE SECURE OR UNINTERRUPTED.
  • GateWise makes no warranties, express or implied, as to any matter whatsoever, including, without limitation, the condition of the Hardware, its merchantability, its design, its capacity, its performance, its material, its workmanship, its fitness for any particular purpose, or that it will meet the requirements of any laws, rules, specifications, or contracts which provide for specific apparatus or special methods. GateWise further disclaims any liability whatsoever for loss, damage, or injury to Customer or third parties as a result of any defects, latent or otherwise, in the Hardware. GateWise shall not be liable in any event to Customer for any loss, delay, or damage of any kind or character resulting from defects in, or inefficiency of, the Hardware or accidental breakage thereof.
  • Given the fact that the Hardware will be installed at Customer’s Facility, it is expressly clarified that GateWise shall not be liable and shall not bear any responsibility for any damage, personal injury or bodily injury or death, caused as a result of the condition of the Facility, including the access points onto which GateWise’s Hardware shall be installed, and/or as a result of the behavior and/or act and/or omission and/or breach of the duty of care of the Customer and/or visitors to the Facility, including any officers, agents, employees, or subcontractors and/or those acting on their behalf, and Customer hereby releases GateWise of any lawsuits, claims, demands, losses, liabilities, damages, and expenses (including attorneys’ fees) arising in respect of any such damage, personal injury or bodily injury or death, including any special, incidental, consequential or punitive damages or losses which may be suffered by any party in connection with the subject matter hereof. Such damages include, but are not limited to, compensation, reimbursement or damages on account of present or prospective profits, expenditures, investments or commitments.
  • GATEWISE DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR FUNCTIONALITY OF THE ACCESS POINTS ONTO WHICH THE HARDWARE IS TO BE INSTALLED, WHICH MAY BE DANGEROUS AND/OR UNSAFE TO USE. CUSTOMER AGREES THAT THE ENTIRE RISK ARISING OUT OF OR IN CONNECTION WITH THE ACCESS POINTS, REMAINS SOLELY WITH THE CUSTOMER, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
  1. Limitation Of Liability
  • IN NO EVENT SHALL GATEWISE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE ACCESS POINTS, THE INSTALLATION OF MATERIALS ON THE ACCESS POINTS FOR THE PURPOSES OF PROVIDING THE SERVICES, THE USE OF OR INABILITY TO USE THE SERVICES OR THE ACCESS POINT; ANY UNAUTHORIZED ACCESS TO OR USE OF GATEWISE’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVERS BY ANY THIRD PARTY, AND/OR; FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY INFORMATION TRANSMITTED, OR OTHERWISE MADE AVAILABLE, VIA GATEWISE’S SERVICES OR ITS SERVERS OR CLOUD STORAGE; FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE ABILITY TO BYPASS THE ACCESS POINT WITHOUT PERMISSION; ETC), REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF GATEWISE, EVEN IF GATEWISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GATEWISE SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF THE USE OF OR RELIANCE ON THE SERVICES OR INABILITY TO ACCESS THE ACCESS POINTS OR USE THE SERVICES, EVEN IF GATEWISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • GATEWISE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE. GATEWISE IS FURTHER NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY ACCESS POINT AND/OR COMMUNICATION NETWORK OR LINES, VEHICLES, COMPUTER SYSTEMS, SERVERS OR PROVIDERS, COMPUTER HARDWARE, SOFTWARE, TECHNICAL PROBLEMS OR CONGESTION DUE TO THE USE OF OUR SERVICES OR COMBINATION THEREOF, INCLUDING ANY INJURY OR DAMAGE TO PERSONS OR PROPERTY, IN CONNECTION WITH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE ACCESS POINTS THEMSELVES WERE NOT PROVIDED, INSTALLED BY, MAINTAINED, OR OTHERWISE MANAGED BY GATEWISE, AND THAT GATEWISE MAKES NO REPRESENTATION AS TO THEIR FUNCTIONALITY OR CONDITION, WHICH MIGHT BY FAULTY AND/OR UNSAFE TO USE, AND CUSTOMER AGREES THAT GATEWISE HAS NO RESPONSIBILITY OR LIABILITY TO CUSTOMER AND/OR ANY THIRD PARTY RELATED TO THE SERVICES.
  • BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, GATEWISE’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON THE CHOICE OF LAW PROVISION SET FORTH BELOW.
  • TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, GATEWISE’S LIABILITY, IF ANY, FOR ANY ALLEGEDLY DEFECTIVE HARDWARE OR PART OR MATERIAL WILL BE LIMITED TO REPAIR OR REPLACEMENT OF SUCH HARDWARE OR PART OR MATERIAL, AT GATEWISE’S SOLE ELECTION. GATEWISE’S TOTAL LIABILITY, IF ANY, FOR DAMAGES RELATING TO HARDWARE AND/OR SERVICES AND/OR LICENSES PROVIDED UNDER THIS AGREEMENT, WILL NOT EXCEED ANY FEE RECEIVED BY CUSTOMER.
  • The provisions set forth in in this §‎6‎5 shall survive the termination of the Subscription Agreement and shall be enforceable by equitable relief.
  1. Indemnity
  • Customer shall indemnify, defend, and hold harmless GateWise and its direct and indirect parents, subsidiaries and affiliates and their respective officers, agents, and employees (each a “GateWise Indemnified Party”) from and against any and all losses, liabilities, claims, damages, and expenses (including reasonable costs of attorneys’ fees) arising out of or in connection with (i) the use of the Services; (ii) the breach or violation of any of these Terms and/or any other terms or conditioned referenced in these Terms; (iii) Customer’s violation of the rights of any third party; (iv) failure by Customer and/or users of the Facility and/or users of the App to comply with any and all federal, state, foreign, local, and municipal regulations, ordinances, statutes, rules, laws, and constitutional provisions; (v) any unlawful acts on the part of the Customer and/or users of the Facility and/or users of the App, including their respective officers, agents, employees, or subcontractors; (vi) personal injury or bodily injury to persons, up to and including death, caused by the acts, errors, and/or omissions or the willful misconduct of the Customer and/or users of the Facility and/or users of the App, including their respective officers, agents, employees, or subcontractors; (vii) damage to property (including the Hardware, cars, buildings, the Facility, etc.) caused by the acts, errors, and/or omissions or the willful misconduct of the Customer and/or users of the Facility and/or users of the App, including their respective officers, agents, employees, or subcontractors; (viii) claims, demands, suits, or proceedings made or brought against any GateWise Indemnified Party by a third party alleging a breach by the Customer and/or users of the Facility and/or users of the App and/or anyone with access to Customer’s GateWise Management Console Account of any applicable local, state, federal and foreign laws.; (ix) claims, demands, suits, or proceedings made or brought against any GateWise Indemnified Party by a third party alleging liability in connection to the condition and/or safety and/or maintenance of an access point.
  • In no event shall GateWise be liable for any incidental, special, or consequential damages of any nature, even if GateWise has been advised of the possibility of such damages.
  • The provisions set forth in in this §‎6 shall survive the termination of the Subscription Agreement and shall be enforceable by equitable relief.
  1. Independent Contractors. Nothing herein shall be deemed to create a partnership, joint venture or similar arrangement between the parties and they are operating on a contractor basis. Nothing herein shall be deemed to create an employer-employee relationship between the employees of one party and the other party. Each party shall remain solely liable to pay for the cost of its own employees, service providers and agents (including the cost of labor, taxes, insurance, withholding and similar obligations). Likewise, each party agrees to report and pay its own taxes imposed on its income by any jurisdiction, including, without limitation, state and federal income taxes.

 

  1. Representations and Warranties. Customer hereby represent and warrants as follows:
  • The Customer has the full power and authority to enter into the Subscription Agreement and these Terms, and perform each of its obligations hereunder.
  • The Customer is legally authorized and has obtained all necessary regulatory approvals for the execution, delivery, and performance of the Subscription Agreement and these Terms.
  • The Customer ‘s performance under the Subscription Agreement and these Terms shall be in compliance with applicable laws, statutes, rules, ordinances and regulations (collectively, the “Laws”) and the Customer such party shall obtain from, prior to its performance under the Subscription Agreement and these Terms, and maintain any and all applicable certifications with all applicable governmental authorities required by the Laws during the Subscription Agreement and these Terms.
  • In addition the Customer warrants and represents that (i) it has all rights and interest to manage and hold the Facilities as well as to enter in the Subscription Agreement and these Terms with GateWise; (ii) the Subscription Agreement and these Terms is not subject to the approval of any third party; (iii) the Customer’s right to hold, or manage the Facilities is not subject to termination by any third party during the term of the Subscription Agreement.

 

  1. Arbitration Clause.
  • Customer and GateWise agree that any dispute, claim or controversy arising out of or relating to (a) the Subscription Agreement or these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) the access to or use of the Services at any time, whether before or after the date Customer agreed to the Subscription Agreement and these Terms, will be settled by binding arbitration between Customer and GateWise, and not in a court of law.
  • CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER AND GATEWISE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Unless both Customer and GateWise otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, Customer and GateWise each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
  • Rules and Governing Law
  • The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Clause.
  • The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Clause, including any claim that all or any part of this Arbitration Clause is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
  • Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Clause evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Clause or the enforcement thereof, then that issue shall be resolved under the laws of the state of Texas.

 

  • Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Texas and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

 

  • Location and Procedure. Unless Customer and GateWise otherwise agree, the arbitration will be conducted in Houston, Texas. If Customer’s claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents Customer and GateWise submit to the Arbitrator, unless Customer request a hearing or the Arbitrator determines that a hearing is necessary. If Customer’s claim exceeds $10,000, Customer’s right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

 

  • Arbitrator’s Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The side which prevails in arbitration will be entitled to an award of attorneys’ fees and expenses.
  • Severability and Survival. If any portion of this Arbitration Clause is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Clause or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Clause; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

 

  1. Miscellaneous
  • Choice of Law. This Agreement shall be deemed to be made, governed by, and construed in accordance with the laws of Texas, without giving effect to the conflicts of law principles thereof, except as may be otherwise provided in the Binding Arbitration Clause set forth in Paragraph ‎9. The foregoing choice of law and forum selection provisions do not apply to the Arbitration Clause in Paragraph ‎9 or to any arbitrable disputes as defined therein.
  • Paragraph Headings. The paragraph headings are inserted herein only as a matter of convenience and for reference and in no way are intended to be a part of these Terms or to define, limit, or describe the scope or intent of these Terms or the particular paragraphs hereof to which they refer.
  • Severability. If any provision or a portion of any provision of these Terms is held to be unenforceable or invalid by a court of competent jurisdiction, the validity and enforceability of the enforceable portion of any such provision and/or the remaining provisions shall not be affected thereby.
  • Successors. These Terms shall be binding upon, and shall inure to, the benefit of the successors and permitted assigns of the parties.
  • Singular and Plural. Whenever the context shall so require, the singular shall include the plural, and the plural shall include the singular. In these Terms, the words “including” and “include” mean “including, but not limited to.”
  • GateWise’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by GateWise in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Clause of these Terms.
  • Customer may not assign these Terms without GateWise’s prior written approval. GateWise may assign these Terms at its sole discretion without your prior consent. Any purported assignment in violation of this section shall be void.
  • Notice. GateWise may give notice by means of a general notice on the Services, telephone or text message to any phone number provided in connection with Subscription Agreement, or by written communication sent by first class mail or pre-paid post to any address connected with the Subscription Agreement. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by telephone or text message). Customer may give notice to GateWise, with such notice deemed given when received by GateWise, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o GateWise, Inc.

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