Valid April 2013 – September 2013
Important – Read Carefully: These Terms of Service (“TOS”) are a legal agreement between Mobile Citizen LLC ( “Mobile Citizen”) and the entity or individual listed in the associated Mobile Citizen quotation as the “customer” (“Customer” or “you”) and governs your access to and use of the CLEAR mobile broadband service provided by Clearwire Corporation and Clearwire Spectrum Holdings LLC (collectively “Clearwire”), and may include associated media, equipment, printed or electronic documentation (collectively the “Service”). BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED BELOW, YOU AGREE TO THE TERMS AND CONDITIONS IN THIS TOS. IF THE INDIVIDUAL CLICKING “I ACCEPT” IS ENTERING INTO THIS TOS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDVIDUAL REPRESENTS THAT HE OR SHE HAS THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE. THIS TOS IS EFFECTIVE WHEN YOU CLICK “I ACCEPT” BELOW (“EFFECTIVE DATE”).
2. Fees and Payment.
In consideration for receipt of the Service and Equipment, you will pay Mobile Citizen the fees as set forth in your Mobile Citizen quotation.
3. Hardware Requirements; Activation of Service: If you do not purchase Equipment from Mobile Citizen, you are responsible for providing your own equipment, which must be compatible with Clearwire’s wireless network. Mobile Citizen is not responsible for any failure of your equipment to function properly with the Service. In addition, you are responsible for ensuring that your other equipment meets the minimum technical requirements posted on Clearwire’s website located at www.clear.com. If you obtain equipment from a source other than Mobile Citizen, you should follow the process for activation set forth in the Quick Start Guide provided with the equipment. If compatible with the Clearwire network, your equipment will be activated and authenticated by Clearwire as described therein.
4. Use of Service.
a. License and Use. By accepting this TOS, you are granted a license (i) if you are a Permitted User, to access and use the Service for your internal, personal, non-commercial use, and (ii) if you are an entity offering the Service to your Permitted Users, then you may permit your Permitted Users to use the Service, during the term of this TOS. “Permitted Users” means (a) any users, recipients or beneficiaries of your non-profit programs or services, (b) any of your current employees or independent contractors, or (c) any of your students, faculty, administrators and staff, in each of the foregoing cases, (i) only while such persons meet the requirements of at least one of (a)-(c), and (ii) regardless of whether the individual is aware of, saw, reviewed, or agreed to this TOS. Educational institutions should use the Service to further the educational mission of the school. If Customer is a non-profit entity or educational institution, then once the status of a Permitted User changes so that the individual is no longer a Permitted User (for example, once a student graduates) Customer shall ensure that such individual no longer makes use of or accesses the Service. Customer is responsible for any usage of its account and agrees to notify Mobile Citizen immediately of any unauthorized use of its account or suspected security breach. Clearwire will assign you a new IP address each time you access the Service. Customer is not granted any rights to any firmware or software under this TOS. All rights not expressly granted in this TOS are reserved by Mobile Citizen and Clearwire.
b. Limitations. The Service is not available in all locations, and you will only be able to access the Service when within the operating range of the Clearwire WiMAX network, which may change from time to time in the sole discretion of Clearwire. You understand that the Service may be unavailable from time to time due to maintenance of the Service, emergencies, or other factors, access to the Service may be interrupted or refused, and performance of the Service may be limited or curtailed from time to time. You acknowledge that Mobile Citizen does not own, operate, maintain, or control the Service and Mobile Citizen has no liability with regard to any failure or lack of performance of the Service. The Service may be subject to usage limits established by Clearwire, which are not controlled by Mobile Citizen. Your use of the Service is subject to the Clearwire Acceptable Use Policy located at http://www.clearwire.com/company/legal/aup.htm (“AUP”), which is incorporated into this TOS by this reference, and all users of the Service must comply with such AUP, as well as all applicable laws and regulations, at all times in their use of the Service. The Service and Equipment may not function in the event of a power failure or disruption, and you may be required to reset or reconfigure your modem or other hardware in order to use the Service thereafter. Please review the sections below on “Content and Security” and “Service Quality and Maintenance” for further information. You may not resell access or use of the Service to any third-party (provided that if you are an entity, you may allow access to your Permitted Users).
5. Term and Termination: This TOS will commence on the Effective Date and will continue for the subscription term set forth in Mobile Citizen’s quotation, unless terminated earlier as allowed herein.
a. Termination During Trial Period. The 30 calendar day period beginning on the date that the Service is activated is the “Trial Period”. You may cancel the Service without cost or penalty during the Trial Period by calling (877) 216-9603 or sending an email to firstname.lastname@example.org with “cancel account” in the subject line. If you cancel during the Trial Period, we will refund the Service Fee by the same payment method that you used to pay the Service Fee. After the Trial Period, the Service Fee is non-refundable except to the extent expressly stated in this TOS.
b. Renewal. Mobile Citizen will deliver to you a quotation for a new subscription term at least 30 calendar days before the expiration of your current subscription term which will serve as notice to you that your subscription term is drawing to a close. If you wish to continue the Service for another year, you will need to notify us that you are purchasing another subscription to the Service and pay for the new subscription term before the expiration of the then current subscription term in order to guarantee that your Service is not interrupted.
c. Payment of Service Fee. If payment is not received by the due date, Mobile Citizen reserves the right to immediately suspend or terminate your use of the Service.
d. Termination by Mobile Citizen. Mobile Citizen may terminate this TOS or access to the Service immediately at any time with or without cause, if Mobile Citizen reasonably believes that you violated the AUP, infringed the rights of others, or if Mobile Citizen no longer has the right to make the Service available. Mobile Citizen may terminate this Agreement for convenience by delivering to you at least 30 days prior written notice. If Mobile Citizen terminates this TOS without cause more than 30 days prior to the expiration of your then-current subscription term, or if you terminate this TOS under Section 15, then in either case, Mobile Citizen will issue a pro-rata refund of the Service Fee as soon as administratively possible for the remainder of the applicable subscription term for which you did not receive the Service due to termination.
e. Effect of Termination. Upon termination, you will no longer be able to access the Service. Sections 4c, 5e, 6, 7, 8, 9, 11, 14, 16, 17, 18 and 19 will survive termination of this TOS.
6. Representations and Warranties:
a. All Customers represent and warrant that (i) it has the power and authority to agree to this TOS and form a legally binding contract, (ii) all information provided to Mobile Citizen will be accurate, complete, and current; and (v) its use of the Service will comply with applicable laws, rules and regulations, the AUP, and the terms of this TOS at all times in the use of the Service.
b. If Customer is an entity, then Customer represents and warrants that: (i) it is a non-profit organization or educational institution; (ii) it is listed onhttp://www2.guidestar.org (or if not listed there, Customer may notify Mobile Citizen where it is listed as a non-profit organization or educational institution); (iii) its Permitted Users’ use of the Service will comply with applicable laws, rules and regulations, the AUP, and the terms of this TOS at all times, and Customer will be solely liable and responsible for the use of the Service by its Permitted Users.
c. If Customer is a Permitted User, then Customer represents and warrants that it is currently employed, at the time of entering into this TOS, by an educational or non-profit institution, and if Customer is no longer employed by an educational or non-profit institution during the term of this TOS, Customer will notify Mobile Citizen and cease all access and use of the Service.
7. Disclaimer of Warranties: EXCEPT AS EXPRESSLY SET FORTH HEREIN, MOBILE CITIZEN, ITS RELATED ENTITIES, AND ITS SUPPLIERS, INCLUDING WITHOUT LIMITATION CLEARWIRE AND EBS SUPPORT SERVICES LLC (COLLECTIVELY THE “MOBILE CITIZEN PARTIES”) MAKE NO WARRANTIES AND HEREBY DISCLAIM ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED WITH REGARD TO THE SERVICE AND THE EQUIPMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. YOUR USE OF THE SERVICE AND EQUIPMENT IS AT YOUR OWN RISK. THE SERVICE AND EQUIPMENT ARE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS EXCEPT AS EXPRESSLY PROVIDED HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. Limitation of Liability: THE SOLE LIABILITY OF THE MOBILE CITIZEN PARTIES TO YOU OR ANY THIRD PARTIES FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS TOS WILL BE LIMITED TO THE TOTAL SERVICE FEES (EXCLUDING EQUIPMENT FEES) PAID BY YOU TO MOBILE CITIZEN IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH ANY SUCH CLAIM AROSE. THE MOBILE CITIZEN PARTIES WILL HAVE NO LIABILITY WITH REGARD TO ANY DEFECT OR FAILURE OF THE SERVICE, EQUIPMENT, OR SUPPORT SERVICES, ANY LACK OR BREACHES OF SECURITY OF THE SERVICE OR IN THE STORAGE OR INTEGRITY OF CUSTOMER’S DATA, ANY COST OF OBTAINING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE MOBILE CITIZEN PARTIES BE RESPONSIBLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE OR THE EQUIPMENT, UNDER ANY THEORY, WHETHER CONTRACT, TORT, NEGLIGENCE, PRIVACY, SECURITY, STRICT OR PRODUCT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Content and Security: Any material downloaded or otherwise obtained through use of the Services is accessed at your own discretion and risk. The Mobile Citizen Parties do not control and are not responsible for any third party websites, content, services or products that Customer may access or encounter during use of the Service, and the Mobile Citizen Parties reserve the right to engage in reasonable network management to protect the overall integrity of the CLEAR network, including detecting malicious traffic patterns and attempting to prevent the distribution of viruses or other malicious code, and through techniques such as reducing the aggregate bandwidth available to excessive bandwidth users during periods of congestion. While the determination of what constitutes excessive use depends on the specific state of the network at any given time, excessive use will be determined primarily by resource consumption. For further information, please refer to Clearwire’s Acceptable Use Policy, posted at www.clear.com/legal/aup, which forms a part of these Terms. The Mobile Citizen Parties also have the right to take actions they deem reasonably necessary to protect any individual or entity, comply with applicable laws, regulations, or government requests, or to enforce the terms of this TOS. Customer acknowledges that the Internet and wireless communications are not inherently secure means of data communication, the Mobile Citizen Parties shall have no liability for breaches of security beyond their reasonable control, including, without limitation, Customer’s negligence with respect to controlling access to the Service or Customer’s data. It is the sole responsibility of Customer to obtain and implement appropriate security devices, software, and other measures (including without limitation firewalls) to protect Customer’s systems and data from viruses, worms, Trojan horses, or other security threats, and the Mobile Citizen Parties have no responsibility or liability with regard thereto.
10. Service Quality and Maintenance: The speed and bandwidth available to Equipment accessing the Service may vary for a variety of reasons. Mobile Citizen and Clearwire reserve the right to engage in network management for the Service, including without limitation taking various measures to prevent or eliminate malicious traffic patterns and preventing the distribution of viruses or other malicious code. For further information on the types of activities Clearwire may take, please refer to the AUP. In addition, Clearwire may perform maintenance on the Service, which may include planned or unplanned interruptions of the Service. You acknowledge and agree that the Mobile Citizen Parties will not be responsible for any losses or damages suffered by you as a result of any Service interruptions. You acknowledge that the Service is not available in all areas, and even within coverage areas service availability, quality, signal strength and network speeds may vary, be lower than advertised or be insufficient for use of the Service. No credit or adjustment will be made for interruptions or degradations of the Service except as agreed by Mobile Citizen or as required by applicable law.
11. Indemnification: Customer (and its agency or representatives who have entered this TOS on behalf of a Customer) will indemnify, defend, and hold harmless the Mobile Citizen Parties and their directors, officers, agents, contractors, licensors, vendors, suppliers and employees from and against all claims, actions, losses, expenses, costs or damages of every nature and kind whatsoever (including reasonable attorneys’ fees) arising out of or relating to Customer’s and its Permitted Users’ (or other individuals who have gained access to Customer’s account on the Service due to the fault or negligence of Customer or its Permitted Users) actions or omissions in connection with this TOS, use of the Service or Equipment, including without limitation any breach of this TOS, or negligence of any of the foregoing. Customer further agrees to pay the reasonable attorneys’ and expert witness fees and costs incurred in enforcing this TOS, including in connection with any appeal.
12. Support Services: All support services related to the Service and the Equipment (“Support Services”) will be provided by Mobile Citizen and Clearwire. You may obtain support by calling (877) 216-9603 or emailing email@example.com, and you may view answers to support FAQs and obtain other information by visiting http://www.clear.com/support/faq . Mobile Citizen and Clearwire may need to, and you agree that Mobile Citizen and Clearwire may access your Equipment or other hardware and information stored on it (such as drivers, software, etc.) to troubleshoot issues related to the Equipment or the Service, enable, operate and update the Service and software; investigate activity that may be in violation of this TOS, and/or to comply with law. Defective Equipment should be returned to Clearwire as instructed by Mobile Citizen or Clearwire, and should under no circumstances be returned to Mobile Citizen. Mobile Citizen may require you to use a return label issued by Clearwire, and if so, you must use such return label for the return of the defective Equipment. MOBILE CITIZEN AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF CLEARWIRE, OR ANY OTHER THIRD PARTY, WITH REGARD TO THE SUPPORT SERVICES OR OTHERWISE, AND MOBILE CITIZEN DISCLAIMS ALL LIABILITY FOR THE SUPPORT SERVICES OR THE RESULTS THEREOF.
13. Modification and Discontinuation of Service: The Mobile Citizen Parties and Clearwire reserve the right at any time to modify, edit, delete, suspend or discontinue, temporarily or permanently the Service, the Support Services or any Mobile Citizen Party’s website (or any portion thereof) with or without notice. The Mobile Citizen Parties will not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance of or to the Service, subject to Section 5d.
14. No Assignment: Customer’s rights under this TOS may not be transferred, leased, assigned, or sublicensed, including without limitation to any successor in interest, without the prior written consent of Mobile Citizen. Any purported attempt to transfer, lease, assign, or sublicense your rights without the consent of Mobile Citizen will be void, and Mobile Citizen may immediately terminate this TOS without liability. Notwithstanding the foregoing, all provisions of this TOS will be binding upon your successors and permitted assigns.
15. Changes in TOS: Mobile Citizen reserves the right to change the terms of this TOS from time to time. Any modified versions of this TOS will be posted on our website at https://mobilecitizen.org/customer-agreement.. If we make any material modifications to the terms of this TOS we will notify you via email to the email address above and for 30 days from delivery of that email, you will have the right to terminate this TOS by sending us written notice, in which case we will provide you a refund in accordance with Section 5(d). If you do not terminate this TOS within that 30 day window or within 30 days of our posting the revised terms on our website, you will be deemed to have agreed to any such revised terms.
16. Notifications of Claimed Copyright Infringement: In the event that you believe the Service or any website of a Mobile Citizen Party may contain an infringement of the copyright ownership or other intellectual property rights of you or any third party, you are requested to immediately contact the Mobile Citizen Copyright Agent as described below. We will comply with the Digital Millennium Copyright Act with regard to alleged copyright infringement, and we will use our reasonable judgment when dealing with claims of trademark, patent or other infringement. To report any alleged infringement, you may contact us in writing by providing a signed statement containing the following information:
• your name, address, telephone number, and email address, and if you are acting on behalf of the owner of the intellectual property, the name of the owner;
• a statement, made under penalty of perjury, that you are the owner of the copyright or are authorized to act on behalf of the owner;
• a detailed description of the copyrighted work or other intellectual property that you claim has been infringed;
• if your claim is based on a registered work, the trademark, patent, or copyright registration number, and the date of issuance of the registration;
• a description of the infringing material and the URL where such material is located;
• your written statement that you believe, in good faith, that the identified use of the work has not been authorized by the true owner of the work, its agent, or as a matter of law; and
• a statement that all of the information you have provided is true.
Please send your notice of alleged infringement to:
655 South Sunset Street
Longmont, CO 80501
17. Governing Law; Statute of Limitations: This TOS and the rights and obligations of the parties with respect to the Service will be governed by, and construed in accordance with the laws of the State of Colorado, USA, without reference to the choice of law principles thereof. ANY CLAIM ARISING OUT OF OR RELATED TO THE SERVICE OR THIS TOS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES, OR THE CLAIM WILL BE PERMANENTLY BARRED.
18. Arbitration; Waiver of Jury Trial: ANY DISPUTE, CONTROVERSY OR CLAIM BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO THE SUBJECT MATTER OF THIS TOS, OTHER THAN ANY ACTION FOR INJUNCTIVE RELIEF OR ANY ACTION TO COLLECT AMOUNTS DUE HEREUNDER, BOTH OF WHICH MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION (A “DISPUTE”), WILL BE FINALLY DETERMINED BY BINDING ARBITRATION IN DENVER, COLORADO, USA IN ACCORDANCE WITH THE COMMERCIAL RULES (“RULES”) OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). The arbitration will be heard and decided by a single arbiter mutually agreed upon by the parties, with experience in the subject matter of the Dispute, or if the parties are unable to agree, such arbiter will be selected by the AAA according to the Rules. The judgment of the arbitration will be final, nonappealable (to the extent not inconsistent with applicable law) and binding upon the parties, and judgment may be entered upon the arbital award in any court of competent jurisdiction. The arbiter will not have any authority to award any special or punitive damages, or any damages other than as permitted by this TOS. The arbiter will issue a written opinion setting forth the decision and the reasons therefor within forty-five (45) days after the final hearing of the proceeding is concluded, specifying such remedy (including money damages) as will (a) fully implement the intent and purposes of this TOS and (b) allocate all losses, costs, and expenses (including costs of arbitration and reasonable attorneys’ fees) in accordance with the findings of the arbiter with respect to the respective conduct of the parties. Notwithstanding the foregoing, any Mobile Citizen Party may seek injunctive relief to enforce or protect any of its intellectual property rights or any of its interests that may be subject to irreparable harm in any court of competent jurisdiction without reference to the arbitration proceedings set forth herein. YOU AND THE Mobile Citizen PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIMS OR DISPUTES RELATING TO THIS TOS OR THE SERVICE OR EQUIPMENT. NEITHER PARTY SHALL, AND EACH PARTY WAIVES ANY RIGHT TO, PARTICIPATE IN A CLASS ACTION (INCLUDING ANY CLASS ARBITRATION) WITH REGARD TO THE SUBJECT MATTER OF THIS TOS.
19. General: None of the Mobile Citizen Parties will be responsible or liable in any manner for any failure in the performance of this TOS to the extent that such failure is due to causes beyond its reasonable control. If any part of this TOS is found invalid (including without limitation any conflict with any applicable law or regulation) such invalidity will not affect the remaining portions of this TOS, and the parties will substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision. Failure by either party to complain of any act or failure to act of the other party or to declare the other party in default, irrespective of the duration of such default, will not constitute a waiver of rights hereunder. This TOS constitutes the complete agreement between Customer and any Mobile Citizen Party with respect to the subject matter hereof and supersedes all proposals (oral or written), all previous negotiations, and all other communications, including without limitation communications on the website of any Mobile Citizen Party, except as set forth above.