DOWNTOWN TRAVERSE CITY ASSOCIATION WIRELESS TERMS OF SERVICE
AGREEMENT
Effective Date: May 4, 2018

Welcome to the Downtown Traverse City Wireless Network (“Network”). The Network and its associated services is owned by the Traverse City Downtown Development Authority and provided to you under contract by the Downtown Traverse City Association (“DTCA”), a Michigan non-profit corporation located at 303 East State Street, Suite C, P.O. Box 42, Traverse City, Michigan 49685 and What’s Up Michigan, LLC, a Limited Liability Corporation located at 1024 Boyd, Traverse City, Michigan 49686. The Downtown Traverse City Association and the Downtown Development Authority (collectively “Owners”) have adopted this Terms of Service Agreement (“Agreement”) to govern your use of the Network and to notify you of your rights and duties while using the Network.

THIS AGREEMENT IS A LEGALLY BINDING CONTRACT AND YOU HAVE A DUTY TO READ THIS AGREEMENT BEFORE USING THE NETWORK. THROUGH YOUR USE OF THE NETWORK, YOU MANIFEST YOUR ASSENT TO THE TERMS AND CONDITIONS CONTAINED WITHIN THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE YOUR USE OF THE NETWORK. THE OWNERS RESERVE THE RIGHT TO MODIFY, AMEND, REPLACE, SUSPEND, OR TERMINATE THIS AGREEMENT AT ANY TIME AND WITHIN THEIR SOLE AND ABSOLUTE DISCRETION. IN THE EVENT THE OWNERS MODIFY, AMEND, OR REPLACE THIS AGREEMENT, THE EFFECTIVE DATE, LOCATED ABOVE, WILL CHANGE. YOUR USE OF THE NETWORK AFTER A CHANGE IN THE EFFECTIVE DATE OF THIS AGREEMENT CONSTITUTES YOUR ACQUIESCENCE TO AND ACCEPTANCE OF ANY MODIFICATION, AMENDMENT, OR REPLACEMENT.

1. Warranties.
The Network may only be used or accessed by human individuals age eighteen (18) or over. You warrant that you are age eighteen (18) or over, that you are of sound mind and competent to agree to the terms of this Agreement, and that your use of the Network does not violate any law, regulation, ordinance, treaty, or statute. You further warrant that you are not prohibited from entering into this Agreement by the terms of any preexisting agreement. If you are accessing the Network on behalf of a governmental organization, non-governmental organization, or business entity, you warrant that you are an authorized agent of said organization or entity and that you have the authority to bind said organization or entity to the terms of this Agreement.

2. Use of the Network
You understand and agree that the Network is provided to you for your personal use and will not be used for commercial purposes unless otherwise approved of in writing by the Owners. You warrant that you will not use the Network for commercial purposes without prior written approval from the Owners. Your use of the Network must comply with the Owners’ acceptable use policy, which is specified below. You understand and agree that the Network is an unsecured public wireless network and that your use of unsecured public wireless networks, including the Network, increases the risk that your computer or other wireless device may be accessed by unauthorized persons or devices. You are instructed to take precautions to lower your risk of unauthorized access, including, but not limited to, by utilizing a firewall, maintaining up to date security and virus software, unsharing any computer or device hard drives, and avoiding transmitting sensitive or financial information across unsecured public wireless networks.

You understand and agree that the Owners make no warranties or guarantees concerning the Network, including, but not limited to, a guarantee of Network bandwith or the suitability of the Network for a specific application. You understand and agree that both temporary and permanent interruptions of the Network may occur and that the Owners will not be held responsible or liable for such interruptions. Additionally, the Owners will not be held liable for any delays, disruptions, errors, omissions, deletions of data, or corruption of data caused by third party networks or websites that you may access during your use of the Network.

The Owners reserve the right to implement content filtering, including URL filtering, traffic or packet shaping, or traffic or packet prioritization within its sole and absolute discretion.

3. Privacy Policy
During your use of the Network, the Owners, or their advertising partners, may collect personal or personally identifiable information from you to provide you with the Network or its associated services (“Personal Information”). This Personal Information may include, but is not limited to, your Internet protocol address, your geolocation, packet header and footer information, latency information, and any other information that you voluntarily submit to the Network. This Personal Information is used to provide you with the Network and its associated services, to communicate with you, to troubleshoot problems with the Network, and to provide the Owners’ advertising partners with information necessary to provide you with advertisements on the Network.

The Owners will only share your Personal Information with third parties in the following situations: (1) where the Owners have obtained your consent; (2) where it is necessary to provide you with the Network or its associated services; (3) where it is needed to respond to information requests by government authorities supported by warrant, court order, or subpoena; (4) where it is necessary to protect the employees, independent contractors, members, directors, or officers of the Owners; or (5) where it is needed to help prevent against fraud or the violation of any applicable law, statute, regulation, ordinance, or treaty.

The Owners may not be held responsible or liable for any personal or personally identifiable information that you submit to third parties through the Network, and you are advised to review the privacy policies of such third parties before submitting personal or personally identifiable information to those third parties through the Network.

4. Copyright Policy
The Owners will respond to all duly authorized notices of alleged infringement that comply with the Digital Millennium Copyright Act. If you believe that a user of the Network has infringed upon your copyright rights, you may provide the Owners with a notice of copyright infringement that complies with § 512 of the Digital Millennium Copyright Act. Upon receipt of a notice that complies with the Digital Millennium Copyright, the Owners will make a good faith attempt to notify the owner or uploader of the allegedly infringing content so that they can respond with a counter-notification under the Digital Millennium Copyright Act.
All notices of copyright infringement submitted to the Owners must contain the following: (1) the physical or electronic signature of a person authorized to act on behalf of the copyright owner; (2) identification of the copyrighted work(s) alleged to have been infringed; (3) the location of the copyrighted work(s) on the Network; (4) your contact information, such as an address, telephone number, fax number, or email address; (5) a statement that you have a good faith belief that the use of the allegedly infringing content is not authorized by the copyright owner, its agent, or the law; and (6) a statement, under penalty of perjury, that the information contained in the notification is accurate and that you are authorized to act on behalf of the copyright owner.

5. Acceptable Use Policy
You warrant and agree that, in using the Network, you will comply with the Owners’ Acceptable Use Policy. You agree that you will not use the Network to violate any law, statute, ordinance, regulation, or treaty, to violate to rights of third parties, or for a use outside of the customary and intended purposes of the Network. Specifically, you are expressly prohibited from:

a. Transmitting unsolicited commercial email messages through the Network or to users of the Network;

b. Imposing a disproportionate load on the Network or its server infrastructure or otherwise attempting to interfere with the operation of the Network;

c. Circumventing the Network’s technological or security protection measures;

d. Using a robot, spider, bot, script, or other automated technology to access or use the Network;

e. Submitting or utilizing any virus, worms, Trojan horses, or other code that might disrupt, disable, harm, erase memory, or otherwise impede the operation, features, or functionality of the Network;

f. Providing any material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
g. Violating any governmental export control regimes, including, but not limited to, the U.S. Export Administration Regulations;

h. Attempting to gain access to the private data, network, personal information, or personally identifiable information of a user of the Network or of a third party;

i. Posting or transmitting content intended to collect personal or personally identifiable information from users of the Network or third parties;

j. Harassing another user of the Network;

k. Harassing a third party through your use of the Network;

l. Posting or transmitting content that infringes upon the intellectual property rights, personal rights, or proprietary rights of users of the Network or third parties;

m. Posting or transmitting content that threatens or encourages bodily harm or the destruction of property through the Network;

n. Posting or transmitting content that constitutes fraud, an unwanted commercial solicitation, a phishing scam, a pyramid, or a chain letter through the Network; and

o. Posting or transmitting content that is false, inaccurate, misleading, tortious, defamatory, vulgar, obscene, libelous, invasive, hateful, or otherwise objectionable.

6. Third Party Links You acknowledge and agree that the Network and its associated content may contain links to third party websites or services that are not under the Owners’ ownership or control. The Owners will not be held liable or responsible for the content of third party websites or services.

7. Term and Termination
This Agreement will remain in full force and effect until terminated under the terms of this Agreement. The Owners may terminate this Agreement without liability at any time, without notice, and for any reason, including, but not limited to, for your violation of any term or condition of this Agreement.

8. Disclaimer of Warranties
THE OWNERS PROVIDE THE NETWORK ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, ACCURACY, OR NONINFRINGEMENT. THE OWNERS DO NOT WARRANT THAT THE NETWORK WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUS OR OTHER HARMFUL COMPUTER PROGRAMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO UNDERSTAND YOUR RIGHTS UNDER THE LAW. BY USING THE NETWORK, YOU ASSUME ALL RISK AND RESPONSIBILITY TO YOUR USE, INCLUDING, BUT NOT LIMITED TO, RISKS TO SECURITY, PRIVACY, CONFIDENTIALITY, AND DAMAGE TO PERSON OR PROPERTY.

9. Limitation of Liability
THE OWNERS WILL NOT BE HELD LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIMS, DAMAGES, JUDGMENTS, LIABILITIES, COSTS, CHARGES, OR FEES, INCLUDING COSTS AND ATTORNEYS’ FEES, WHETHER IN TORT, CONTRACT, PERSONAL INJURY, OR STRICT LIABILITY, INCLUDING, BUT NOT LIMITED TO, INDIRECT DAMAGES, CONSEQUENTIAL DAMAGES, EXEMPLARY DAMAGES, INCIDENTAL DAMAGES, STATUTORY DAMAGES, SPECIAL DAMAGES, OR PUNITIVE DAMAGES, EVEN IF THE OWNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE OWNERS WILL NOT BE HELD RESPONSIBLE FOR ANY CONTENT TRANSMITTED THROUGH THE NETWORK. THE OWNERS ARE A SERVICE PROVIDER AND DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DESTRUCTION OF IDENTITY, UNAUTHORIZED ACCESS, OR ALTERATION. THE OWNERS RESERVE THE RIGHT TO DISCONTINUE THE NETWORK AT ANY TIME AND WITHOUT LIABILITY IN ITS SOLE AND ABSOLUTE DISCRETION.

10. Indemnification
You agree to hold harmless, indemnify, and defend the Owners, their officers, employees, agents, successors, assigns, affiliates, parents, and contractors from and against any and all claims, demands, losses, damages, rights, and actions of any kind, including, but not limited to, property damage, infringement, personal injury, and death, that either directly or indirectly arise out of or are related to your use of the Network, your violation of any term or condition of this Agreement, your violation of any applicable law, statute, ordinance, regulation, or treaty, whether local, state, national, or international, or your violation of the rights of a third party.

Your obligation to defend the Owners under the terms of this Agreement will not provide you with the right to control the Owners’ defense, and the Owners reserve the right to control their defense and choose their counsel regardless of your contractual requirement to defend the Owners.

11. Assignment
You acknowledge and agree that you are prohibited from assigning your rights and obligations under this Agreement. The Owners may assign their rights and obligations under this Agreement at any time, including but not limited to in a sale of the Network.

12. Interpretation
This Agreement shall be governed by the laws of the State of Michigan, both as to interpretation and performance. This Agreement was drafted at the joint direction of the parties. The pronouns and relative words used herein are written in the neuter and singular.

13. Venue
Any and all suits for any and every breach of this Agreement may be instituted and maintained in any court of competent jurisdiction in the County of Grand Traverse, State of Michigan.

14. Dispute Resolution
If any party has a dispute with another regarding the meaning, operation, or enforcement of any provision of this Agreement, the disputing parties agree to meet and confer to negotiate a resolution of the dispute. They further agree as follows:

a. Mediation. If they are unable to resolve the dispute themselves and before formally instituting any other dispute mechanism, they shall utilize the services of a mutually acceptable neutral mediator, who meets the qualifications of MCR 2.411, to bring them together in at least one mediation session.

b. Arbitration. If they are unable to resolve the dispute through mediation, it may be decided by final and binding arbitration according to the rules and procedures of the American Arbitration Association or a similar agreed to organization or arbitrator. Judgment upon the award rendered by the arbitrator may be entered in Circuit Court.

c. Venue. All meetings, hearings and actions to resolve the dispute shall be in Grand Traverse County.

d. Notice. Written notice of a claim shall be given to the other party not later than 90 days after the occurrence giving rise to the dispute becomes known or should have become known. Negotiations and mediation shall occur within 60 days after such notice. Unless a longer time is agreed upon, arbitration must be demanded within 120 days after such notice and, if not, the claim is deemed waived. Arbitration must be demanded within this time limit even if negotiation or mediation has not occurred, but the arbitrator must direct the parties to mediation before issuing an award.

15. Force Majeure
If because of force majeure, either party is unable to carry out any of its obligations under this Agreement (other than obligations of such party to pay or expend money for or in connection with the performance of this Agreement), and if such party promptly gives to the other party concerned written notice of such force majeure, then the obligations of the party giving such notice will be suspended to the extent made necessary by such force majeure and during its continuance, provided the effect of such force majeure is eliminated insofar as possible with all reasonable dispatch. “Force Majeure” means unforeseeable events beyond a party’s reasonable control and without such party’s fault or negligence, including, but not limited to, acts of God, acts of public enemy, acts of the federal government, acts of another party to this Agreement, fire, flood, inclement weather, epidemic, quarantine restrictions, strikes and embargoes, labor disturbances, the unavailability of raw materials, legislation, charter amendments or referendum, orders or acts of civil or military authority, injunctions, or other causes of a similar nature which wholly or substantially prevent performance.

16. Severability
If any portion of this Agreement is found to be invalid or unenforceable for any reason whatsoever, the remaining provisions will remain valid and unimpaired and will continue in full force and effect.

17. Waiver
You understand and agree that no term or provision of this Agreement will be deemed to have been waived and no breach will be deemed to have been consented to unless said waiver or consent is in writing and signed by the party to be charged.

18. Reservation of Rights
All rights not expressly granted herein are reserved to the Owners.

19. Limitation on Actions
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE NETWORK MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.