Keycafe Location Provider Agreement

Last updated November 27, 2017.

This Location Provider Agreement (the "Agreement") creates a binding legal agreement between You ("Location Provider", "You" or "Your") and Keycafe. If You are entering into this Agreement on behalf of a company or other legal entity, then You represent and warrant that You have the authority to enter into this Agreement on behalf of such entity and that from and after Your acceptance of this Agreement, this Agreement is binding upon the entity You represent, in which case the terms "You" and "Your" will refer to such entity.

Capitalized terms used in this Agreement have the meanings set out in the Keycafe Terms of Service available at https://www.keycafe.com/keycafe-tos (the "Keycafe Terms"), unless otherwise defined in this Agreement.

BY ACCEPTING A SITE SURVEY REPORT (AS DEFINED BELOW) OR PARTICIPATING IN THE SERVICE BY OPERATING A CAFE, RESTAURANT, OFFICE, RESIDENTIAL OR COMMERCIAL BUILDING, OR OTHER VENUE (COLLECTIVELY, "LOCATIONS") HAVING EQUIPMENT INSTALLED FOR USE BY END USERS, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT OR THE KEYCAFE TERMS, YOU MUST NOT USE THE EQUIPMENT OR OTHERWISE USE OR PARTICIPATE IN THE SERVICE.

If You enter into this Agreement, You must also enter into the Keycafe Terms and the Keycafe Community Guidelines available at https://www.keycafe.com/keycafe-community-guidelines (the "Community Guidelines"). For clarity, the Keycafe Terms and Community Guidelines must be entered into by each Customer. Amongst other things, the Keycafe Terms include provisions under which each Customer agrees to defend, indemnify and hold harmless You (and each other Customer) from and against any and all claims arising from their use of the Service or the Equipment, their breach of the Keycafe Terms or their infringement of any third party right.

1. Selection of Locations

   1.1.	Proposed Locations. From time-to-time Keycafe and You will agree by informal discussion that Keycafe may inspect a potential venue (each, a "Proposed Location") to determine whether the Proposed Location is suitable for installation of the Equipment and to be a Location. If Keycafe determines that Proposed Location is suitable, Keycafe will provide You with a site survey report (the "Site Survey Report") for the Proposed Location containing details regarding Keycafe's installation plan. The Site Survey Report will be subject to approval by You, You are responsible for reviewing all safety matters related to the Site Survey Report details, and You must digitally sign or reject it in writing within seven (7) days of the date of the first notice sent to You by Keycafe. If You reject the Site Survey Report, Keycafe may elect to provide You with a revised Site Survey Report, which will be subject to Your approval. Your acceptance of the Site Survey Report means that You agree that the Proposed Location will become a Location.
   1.2.	Installation. You agree that installers contracted by Keycafe (each, an "Installer") may install Equipment at each of Your Locations. You acknowledge that while Keycafe makes efforts to source listed professional Installers, Keycafe does not review, vet or guarantee Installers hold any particular license, certification, accreditation, insurance, or other trade credential. If You wish for a specific contractor to act as the Installer you must provide their contact information in writing to Keycafe prior to installation. The timing of the actual installation at a Location will be determined by Keycafe, acting reasonably with due regard for Your operational issues. You agree it is Your responsibility to ensure an agent of the Location is available to oversee the safety and accuracy installation process.
   1.3.	Deemed Approval. Notwithstanding anything in Sections 1.1 and 1.2 to the contrary, You acknowledge and agree that it is not possible for Keycafe to maintain a singular and wholly applicable approval and installation process given the breadth of its independent Location Providers. Examples include but are not limited to situations in which (i) Location Providers who are accustomed to verbal agreements approve installation of a Proposed Location but never digitally sign the Site Survey Report, (ii) a co-owner, manager, tenant or agent may digitally sign a Site Survey Report on behalf of a Location Provider where the signing authority may technically require other or multiple signatories, or (iii) at the time of the installation, the Installer, in its sole discretion or in discussion with other involved parties, decides to modify the installation plan from the Site Survey Report based on technical or business decisions made at the time of installation. Regardless of the manner in which acceptance of the Site Survey Report and installation of Equipment at a Location occurs, You agree that, by permitting entry of the Equipment into Your Location, You are deemed to have approved and authorized the installation of the Equipment at the Location, as is, regardless of any and all prior discussions and agreements.
   1.4.	Closing. If a Location is to be closed by You temporarily, indefinitely or permanently for reasons within Your control, You must give Keycafe at least thirty (30) days' notice prior to closing the Location and cooperate with Keycafe as provided in Section 3.4 to facilitate the removal of the Equipment and continuation of the Service relating to that Location. If the cause of closure is not within Your control, You must immediately notify Keycafe as soon as You become aware of the need to close the Location.

2. Keycafe's Obligations

   2.1.	Maintenance and Expansion. Keycafe will provide, install and maintain Equipment at each Location. Keycafe may, at any time during the term of this Agreement and in its sole discretion, elect to install replacement or upgraded Equipment at a Location at or near the existing Equipment. Keycafe may elect, with Your approval, to install expansion Equipment such as additional key storage units.
   2.2.	Costs. Keycafe will be responsible for all costs associated with installing, operating and maintaining the Equipment, if any, at each Location and providing the Service, except as agreed to by You or as expressly set out in this Agreement.
   2.3.	Familiarization. Keycafe will provide information to Your Location personnel at or about the time of installation at each Location, typically by phone, including information regarding: (i) a general understanding of the Service; (ii) restocking fobs and brochures and simple troubleshooting; and (iii) referrals to Keycafe's 24/7 service hotline for service issues, all as reasonably necessary to facilitate Customers' use of the Equipment for the Service. Keycafe will provide additional familiarization training as the Service is updated and the Location is visited and called from time to time by Keycafe personnel.
   2.4.	Location Data. The Keycafe Group may at its option provide key exchange visit data, results of Customer surveys and other data relevant to Your Locations ("Location Data"). Any Location Data is provided "as is" with no guarantee of completeness, accuracy or timeliness and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular purpose. In no event will the Keycafe Group be liable for any decision made or action taken in reliance on Location Data, even if advised of the possibility of such damages, and the Location Data shall not be construed as an admission against interest, waiver, estoppel or release by the Keycafe Group.

3. Your Obligations

   3.1.	Access to Locations. You agree that: (i) You will provide Keycafe and its contractors with access to each Proposed Location during its normal operating hours, as may be reasonably requested by Keycafe from time-to-time, for the limited purpose of site surveying and inspection; (ii) You will provide Keycafe and its contractors with access to each Location during its normal operating hours, from time-to-time and without advance notice, for such purposes including but not limited to (a) installation, servicing, maintenance, operation and removal of Equipment and (b) meeting with Location personnel and Customers for educational purposes and to solicit and obtain feedback and testimonials; (iii) You permit Keycafe and its contractors to take photographs of each Location and display such photographs on Keycafe's websites, mobile applications and elsewhere for purposes including but not limited to advertising the Service and educating Customers to use the Service; and (iv) You permit Keycafe to display its and any other third parties' Marks, marketing materials, customer instructions and other information on or near the Equipment installed at the Location, including but not limited to in formats such as onscreen display, third-party branded expansion key storage units, stickers, signage and brochures designed, produced, or approved at Keycafe's discretion.
   3.2.	License. You hereby grant to the Keycafe Group, its contractors and partners, and any Customers utilizing the API a worldwide, non-exclusive, royalty-free, irrevocable right and license to utilize and display the Photos and Your trademarks for purposes related to the Service including but not limited to in education materials and web and mobile applications that facilitate key exchange.
   3.3.	Installation Site. For each Location, You will provide at no cost to Keycafe an installation site at the Location that is safe and suitable for use, in compliance with applicable laws and as approved in the applicable Site Survey Report or otherwise determined by the Installer at the time of installation. Each installation site shall be located inside, weather protected, temperature controlled, lighted and free from electronic interference, have adequate reception for mobile telephone transmissions, provide constant on alternating current electrical power, include a reasonable method for mounting or attaching the Equipment to a wall and be sufficiently large to install the Equipment. You acknowledge and agree that installation of the Equipment is not without risk and damage may be caused to Your Location during the installation.
   3.4.	Costs and Care. You are solely responsible for providing and paying for the electricity required to operate and preserving and protecting the Equipment that is installed at Your Locations. You must immediately notify Keycafe if You become aware of any risk of damage or damage caused to the Equipment at Your Locations. You acknowledge and agree that only Keycafe personnel will have internal access to the Equipment, that Keycafe will not reveal the security code to You that opens the Equipment, and that Keycafe must be notified if You wish to move the Equipment. You agree to return the Equipment to Keycafe, in the same condition as it was at the time of installation (reasonable wear and tear excepted), as follows: (i) if Keycafe elects to discontinue a Location, You will permit Keycafe to remove the Equipment located at that Location; and (ii) if this Agreement is terminated for any reason, You will permit Keycafe to remove all of the Equipment located at each of Your Locations.
   3.5.	Support Activities. In cases where an issue is believed to relate to the Location, such as the Equipment losing power, You may be contacted and asked to assist. Otherwise, Keycafe anticipates that Your involvement maintaining Equipment and supporting Customers will be minimal as Keycafe operates a 24/7 service hotline and maintenance network, though Keycafe does not exclude the possibility You may be contacted. If You operate a remote Location that is not in a major Keycafe market, You agree that, upon request by Keycafe, You will conduct occasional maintenance activities to facilitate the continued operation of the Service at Your Locations that would normally be fulfilled by Keycafe personnel, such as refilling brochures and fobs and troubleshooting Equipment failures with the guidance of Keycafe's 24/7 service hotline.
   3.6.	No Competing Services. You agree that You will not offer, permit to be offered or provide any key exchange services at any Location other than the Service as provided by Keycafe.

4. Ownership and Control of Equipment and Keys

   4.1.	Equipment. You acknowledge and agree that the Equipment is owned by and continues to be owned by Keycafe, and that while Equipment is located at Your Location, the Equipment must be protected by You and returned by You to Keycafe upon request by Keycafe. Notwithstanding the foregoing, if a Location is not located in one of Keycafe's Jurisdictions, You agree that, as to that specific Location, You are importing, possessing, controlling and operating under Your business license the Equipment located at such Location in trust for Keycafe as a bare trustee and at Keycafe's sole discretion until such time that a member of the Keycafe Group becomes licensed to own and operate the Equipment in the jurisdiction where such Location is located, and at such time Your obligations as a bare trustee will automatically dissolve and all ownership rights to such Equipment will transfer to such member of the Keycafe Group.
   4.2.	Keys. You acknowledge and agree that You have no ownership rights in the Keys and that You will not obstruct or delay a Customer's access to the Keys for any reason.
   4.3.	Injunctive Relief. You acknowledge that irreparable harm shall result if You breach Your obligations under this Section 4. You acknowledge that such a breach would not be properly compensable by an award of damages and that, in addition to any other available remedies, the non-breaching party shall be entitled to injunctive relief, and the breaching party will not contest or interfere with any application or proceeding for such injunctive relief.

5. Additional Acknowledgements

   Other than expressly provided herein, You acknowledge that: (i) You do not have any expectation of and have received no assurances for future business or that any investment by You will be recovered or recouped or that You will obtain any anticipated profits by virtue of this Agreement; (ii) You will not have or acquire by virtue of this Agreement or otherwise any vested, proprietary or other right in the Keycafe Group's intellectual property, trademarks or in "goodwill" created by You or Keycafe's efforts hereunder; (iii) Keycafe is not liable for, and You hereby release Keycafe from, any claims for damages (including, but not limited to, consequential, punitive or exemplary damages) asserting that Keycafe has an obligation or commitment to extend, continue, renew, or negotiate any additional agreement or relationship between the parties related to this Agreement, the Equipment or the Service; (iv) Keycafe is not obligated to pay You any commissions or reimbursement for expenses for offering the Service and any such amounts paid are strictly as a courtesy and subject to change at any time in Keycafe's sole discretion; and (v) Keycafe is not liable for, and You hereby release Keycafe from, any claims for damages (including, but not limited to, consequential, punitive or exemplary damages) relating to our resulting from the acts of Customers who access Your Locations in connection with the Service, including but not limited to theft, vandalism, harm to persons or property or disruptions in business.

6. Insurance

   At the time of the publication of this Agreement, Keycafe Inc. maintains commercial general liability insurance coverage in the amount of USD$5,000,000 per occurrence, with certain exclusions (the "Insurance Policy"). The Insurance Policy is intended to apply solely to the Keycafe Group's business and permitted usage of the Service and the Equipment by Customers, and is not intended to provide insurance coverage for any other matters, including any matters relating to Customers interacting with your Locations. You are solely responsible for obtaining adequate insurance coverage for your Locations. You may request a copy of the Insurance Policy by contacting Keycafe at legal@keycafe.com.

7. Term and Termination

   7.1.	Term. This Agreement will remain in effect indefinitely until terminated as set forth in this Section 7.
   7.2.	Termination by Keycafe for Breach. Keycafe may terminate this Agreement and remove Equipment from Your Locations without notice upon Your breach of this Agreement, the Keycafe Terms or the Community Guidelines.
   7.3	Termination by Keycafe for Convenience. Keycafe may terminate this Agreement and remove Equipment from Your Locations for any reason upon ten (10) days' notice.
   7.4	Termination by You. You may terminate this Agreement, or require Keycafe to discontinue one or more of Your Locations, for any reason by providing Keycafe with prior written notice equal to or greater than the applicable Grace Period (as defined in Section 7.5). If You are an Enterprise User who pays Keycafe subscription or other fees related to the Locations from which Equipment is to be removed by Keycafe, You agree that Keycafe will continue to bill for and You will continue to pay all such fees until the earlier to occur of the removal of the Equipment or the end of the Grace Period for each applicable Location.
   7.5	Grace Period. For each discontinued Location, You agree to provide Keycafe with a period of time (the "Grace Period") before the removal of Equipment in which it may (i) continue normal operations at its option and with no new inconvenience to Customers and (ii) facilitate the transfer of Keys and the Service to other Locations and the removal and return of the Equipment to Keycafe with the least possible disruption to the Service. The Grace Period shall be as follows: (i) if Equipment is to be removed from less than five (5) Locations, thirty (30) days; (ii) if Equipment is to be removed from six (6) to twenty-five (25) Locations, three (3) months; (iii) if Equipment is to be removed from twenty-six (26) to fifty (50) Locations, six (6) months; and (iv) if Equipment is to be removed from more than fifty (50) Locations, the time period that is nine (9) months plus one (1) month for each additional fifty (50) Locations, not to exceed eighteen (18) months.
   7.6	Costs. Keycafe will bear its own costs directly associated with the removal of any Equipment. Provided you have not breached this Agreement, the Keycafe Terms or the Community Guidelines, Keycafe will make an effort to restore the building surfaces, wiring, and wear and tear resulting from the removal of the Equipment (together, "Restoration"). Restoration is a courtesy and Keycafe may elect to discontinue its efforts to restore in the event of a dispute or its costs exceeding USD $250.
   7.7	Survival. The parties' respective rights, obligations and duties under Sections 3.4, 4, 5, 7 and 8, as well as any rights, obligations and duties which by their nature extend beyond the expiration or termination of this Agreement, shall survive any expiration or termination of this Agreement.

8. Limitation of Liability

   YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, WILL THE KEYCAFE GROUP OR ITS OWNERS, DIRECTORS, AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF THE KEYCAFE GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE, OR THE EQUIPMENT.