Direct Customer Agreement

Direct Customer Agreement

Valid January 28, 2015 – Present

View Previous Versions of the Customer Agreement.

Important – Read Carefully:  These Terms of Service (“TOS”), together with the applicable quotation or order form agreed upon by the parties hereto, form a legal agreement (“Agreement”) between Mobile Citizen LLC (“Mobile Citizen”) and the entity listed in the associated Mobile Citizen quotation as the “customer” (“Customer”).  The Agreement governs Customer’s access to and use of the mobile broadband service provided by the third-party service provider of wireless broadband services (the “Provider”), which may include associated media or printed or electronic documentation (collectively the “Service”).  BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED BELOW, YOU AGREE ON BEHALF OF CUSTOMER TO BE BOUND BY THESE TOS, AND YOU CERTIFY THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TOS.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TOS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE.  THESE TOS ARE EFFECTIVE WHEN YOU CLICK “I ACCEPT” BELOW (“EFFECTIVE DATE”).

2. Fees and Payment:  In consideration for receipt of the Service and Equipment, Customer will pay Mobile Citizen the fees as set forth in Customer’s Mobile Citizen quotation.

3. Equipment; Activation:  “Equipment” means equipment offered for sale by Mobile Citizen or the Provider for use in connection with Customer’s the Service.  All Equipment supplied by Mobile Citizen will be activated and authenticated by the Provider.  If Customer chooses to provide its own hardware or equipment in lieu of purchasing Equipment (“End User Equipment”), Customer is solely responsible for ensuring the hardware is compatible with the Service and the Provider’s wireless network. Mobile Citizen disclaims any responsibility or liability for the End User Equipment and disclaims any representation or warranty that End User Equipment will operate with the Service, and Mobile Citizen is not responsible for any failure of End User Equipment to function properly with the Service.  Mobile Citizen reserves the right to not activate End User Equipment.  If Customer chooses to use End User Equipment, Mobile Citizen has no obligation to provide assistance, hardware, or other equipment to enable Customer to access the Service.

4. Use of Service.
a.    License and Use. By accepting these TOS, Customer is granted a license to allow Permitted Users to use the Service, during the term of these TOS.  “Permitted Users” means (a) any users, recipients or beneficiaries of Customer’s non-profit or social welfare programs or services, (b) any of Customer’s current employees or independent contractors, or (c) any of Customer’s 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 these TOS.  Educational institutions should use the Service to further the educational mission of the school. 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. The Provider will assign Customer a new IP address each time Customer accesses the Service. Customer is not granted any rights to any firmware or software under these TOS.  All rights not expressly granted in these TOS are reserved by Mobile Citizen and the Provider.

b.    Limitations. The Service is not available in all locations, and Customer will only be able to access the Service when within the operating range of the Provider network, which may change from time to time in the sole discretion of the Provider.  Customer understands 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. Customer acknowledges 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 the Provider, which are not controlled by Mobile Citizen. Customer’s use of the Service is subject to the Provider’s terms of use or service available at www.mobilecitizen.org/legal (“AUP”), which are incorporated into these 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 Customer may be required to reset or reconfigure Customer’s 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.  Customer may not resell or otherwise share access or use of the Service to any third-party (other than to Permitted Users as set forth herein).

5. Term and Termination: These 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. “Trial Period” means the first 30 calendar days that Customer’s Service is activated, plus, in the event of a change in the underlying technology used to provide the third-party’s wireless broadband service, the 30 calendar day period beginning on the date Customer or a Permitted End User receives new Equipment capable of operating on the Service after such change.  Customer may cancel the Service without cost or penalty during the Trial Period by calling (877) 216-9603 or sending an email to customerservice@mobilecitizen.org with “cancel account” in the subject line. If Customer cancels during the Trial Period, Mobile Citizen will refund the Service Fee by the same payment method that Customer used to pay the Service Fee. After the Trial Period, the Service Fee is non-refundable except to the extent expressly stated in these TOS.

b.    Renewal of Subscription Terms. Subscriptions may be renewed in accordance with Mobile Citizen’s standard ordering process, based on its then-current subscription rates.

c.    Payment of Service Fee. If payment is not received by the due date, Mobile Citizen reserves the right to immediately suspend or terminate Customer’s use of the Service.

d.    Termination by Mobile Citizen. Mobile Citizen may terminate the Agreement or access to the Service immediately at any time if Mobile Citizen reasonably believes that Customer (including a Permitted User) violated the AUP, infringed the rights of others, or if Mobile Citizen loses access to the Service, no longer has the right to offer Customer’s subscription to the Service, or the Provider ceases to provide the Service or Mobile Citizen is no longer authorized to resell the Service.  Mobile Citizen may also terminate this Agreement for convenience by delivering to Customer at least 30 days’ prior written notice.  If Mobile Citizen terminates the Agreement without cause more than 30 days prior to the expiration of Customer’s then-current subscription term, or if Customer terminates the Agreement 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 Customer did not receive the Service due to termination.

e.    Effect of Termination. Upon termination, Customer will no longer be able to access the Service. Sections 2, 5e, 6, 7, 8, 9, 11, 13, 18, 19 and 20 will survive termination of the Agreement.

6. Representations and Warranties:

a. Customer represents and warrants that (i) it has the power and authority to agree to these TOS and form a legally binding contract between Mobile Citizen and Customer, (ii) all information provided to Mobile Citizen will be accurate, complete, and current; and (iii) its use of the Service will comply with applicable laws, rules and regulations, the AUP and these TOS at all times in the use of the Service.

b. Customer further represents and warrants that: (i) it is a non-profit organization, social welfare organization, or educational institution; (ii) it is listed on http://www2.guidestar.org (or if not listed there, Customer may notify Mobile Citizen where it is listed as a non-profit or social welfare organization or educational institution); (iii) its Permitted Users’ use of the Service will comply with applicable laws, rules and regulations, the AUP and these TOS at all times, and Customer will be solely liable and’ responsible for the use of the Service by its Permitted Users.

7. Disclaimer of Warranties: EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER MOBILE CITIZEN, ITS RELATED ENTITIES, AND ITS SUPPLIERS, INCLUDING WITHOUT LIMITATION EBS SUPPORT SERVICES LLC (COLLECTIVELY THE “MOBILE CITIZEN PARTIES”) NOR THE PROVIDER MAKES ANY WARRANTIES AND HEREBY DISCLAIMS 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.  CUSTOMER’S USE OF THE SERVICE AND EQUIPMENT IS AT ITS 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 CUSTOMER.

8. Limitation of Liability: THE SOLE LIABILITY OF THE MOBILE CITIZEN PARTIES TO CUSTOMER AND ITS PERMITTED USERS FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT WILL BE LIMITED TO THE TOTAL SERVICE FEES (EXCLUDING EQUIPMENT FEES) PAID BY CUSTOMER TO MOBILE CITIZEN IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE FIRST 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 Customer’s 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 Provider’s 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 the AUP (defined above), 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 the Agreement. 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 the Provider 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.  Further information on the types of activities the Provider may take may be found in the AUP. In addition, the Provider may perform maintenance on the Service, which may include planned or unplanned interruptions of the Service. Customer acknowledges and agrees that the Mobile Citizen Parties will not be responsible for any losses or damages suffered by Customer as a result of any Service interruptions. Customer acknowledges 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 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 these TOS, use of the Service or Equipment, including without limitation any breach of these 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 these 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/or the Provider. Customer may obtain support by calling or emailing Mobile Citizen, Customer or visiting Mobile Citizen’s support FAQs. Mobile Citizen and the Provider may need to, and Customer agree that Mobile Citizen and the Provider may access Customer’s 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 the Agreement, and/or to comply with law.  Defective Equipment should be returned to the Provider as instructed by Mobile Citizen or the Provider.  THE MOBILE CITIZEN PARTIES ARE NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF THE PROVIDER, OR ANY OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY SUPPORT SERVICES PERFORMED BY THEM.

13. Confidential Information.  Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business, products, or services of the Disclosing Party and its suppliers, including information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than exercising its rights or exercising its obligations under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty under this Section 13.  The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.  The Receiving Party’s obligations under Section 13 with respect to any Confidential Information of the Disclosing Party will not apply if such information: (a) was already known to the Receiving Party without restriction at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. Disclosure pursuant to the immediately preceding sentence shall not render Confidential Information as non-confidential or remove such Confidential Information from the obligations of the confidentiality obligations set forth in this Section 13.  The Receiving Party will return to the Disclosing Party or use reasonable efforts to destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party upon the expiration or termination of the Agreement.

14. Modification and Discontinuation of Service: The Mobile Citizen Parties and the Provider 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) for any reason, with or without notice.  The Mobile Citizen Parties will not be liable to Customer or to any third party for any such modification, editing, deletion, suspension or discontinuance of or to the Service, subject to Section 5d.

15. No Assignment: Customer’s rights under these 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 Customer’s rights without the consent of Mobile Citizen will be void, and Mobile Citizen may immediately terminate these TOS without liability.  Notwithstanding the foregoing, all provisions of these TOS will be binding upon Customer’s successors and permitted assigns.

16. Changes in TOS: Mobile Citizen reserves the right to change these TOS from time to time. Any modified versions of these TOS will be posted on our website (currently http://www.mobilecitizen.org/customer-agreement) and are available upon request. If we make any material modifications to these TOS we will notify Customer via email to the email address above and for 30 days from delivery of that email, Customer will have the right to terminate these TOS by sending us written notice, in which case we will provide Customer a refund in accordance with Section 5(d). If Customer does not terminate these TOS within that 30-day window or within 30 days of our posting the revised terms on our website, Customer will be deemed to have agreed to any such revised terms.

17. {Reserved.}

18. Governing Law; Statute of Limitations: These 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 THESE TOS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES, OR THE CLAIM WILL BE PERMANENTLY BARRED.

19. Arbitration; Waiver of Jury Trial: ANY DISPUTE, CONTROVERSY OR CLAIM BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO THE SUBJECT MATTER OF THESE 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, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and judgment may be entered upon the arbitral 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 these 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 these 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. CUSTOMER AND THE MOBILE CITIZEN PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIMS OR DISPUTES RELATING TO THESE TOS OR THE SERVICE OR EQUIPMENT. NEITHER PARTY SHALL HAVE, AND EACH PARTY WAIVES, ANY RIGHT TO PARTICIPATE IN A CLASS ACTION (INCLUDING ANY CLASS ARBITRATION) WITH REGARD TO THE SUBJECT MATTER OF THESE TOS.

20. General: None of the Mobile Citizen Parties will be responsible or liable in any manner for any failure in the performance of these TOS to the extent that such failure is due to causes beyond its reasonable control.  All notices, required or permitted, under these TOS must be delivered in writing in person or by courier, overnight delivery, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement. Notices to Mobile Citizen shall be delivered to: Mobile Citizen LLC, 655 South Sunset St., Ste. A, Sunset Ave., Longmont, CO 80501.  Notice hereunder will be effective upon receipt.  If any part of these TOS is found invalid (including without limitation any conflict with any applicable law or regulation) such invalidity will not affect the remaining portions of these 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.  The Agreement constitute 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.  There are no third-party beneficiaries to this Agreement; only Mobile Citizen and Customer may enforce the provisions herein.