Valid May 2011 – July 2012
PLEASE NOTE: YOUR ORGANIZATION MUST BE A NON-PROFIT ORGANIZATION OR EDUCATIONAL INSTITUTION IN ORDER TO ENTER INTO THIS AGREEMENT.
1. Important – Read Carefully: This Customer Agreement (“Agreement”) is a legal agreement between the entity listed above (“Customer” or “you”) and Instructional Telecommunications Foundation, Inc. (referred to herein as “ITF” or “Mobile Citizen”) for access to 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 your signature on this agreement or by accessing or using the Service, you agree to be bound by the terms of this Agreement, without limitation or qualification. If you do not agree to the terms of this Agreement you may not access or use the Service.
2. Fees and Payment.
a. Service. The service fee (“Service Fee”) for the Service is set forth in the order that accompanies this Agreement (“Order”). The first 30 calendar days that the Service is activated during your “Initial Subscription Term” (as defined in the Order) is the “Trial Period”. If you would like to cancel the service, you must do so during the Trial Period. Please refer to Section 5 of this Agreement regarding termination and renewal of your Subscription Term.
b. Payment Method. The Service Fee is due and payable upon activation of the Service. You may pay the Service Fee by check or credit card or you can issue a Purchase Order to Mobile Citizen and we will send you an invoice. If you do not pay by credit card, we will not activate the Service until we have received payment from you.
c. Changes to Service Fees. The Service Fee is subject to change by Mobile Citizen following your Initial Subscription Term at any time following thirty (30) days’ written notice. Please refer to Section 5(c) of this Agreement regarding the procedure for paying for Renewal Subscription Terms.
d. Equipment. If you selected any equipment above (“Equipment”) you are required to pay the applicable fee for the Equipment upon acceptance of this Agreement. If you cancel this Agreement within the Trial Period and return all Equipment to Mobile Citizen according to the instructions in this paragraph, Mobile Citizen will issue you a credit (via your method of initial payment) in the amount you paid for the Equipment upon receipt of your Equipment in good condition. Any shipping charges paid will not be refunded. In order to return the Equipment and qualify for a refund as described in the preceding sentence, you must first call us at (877)216-9603 to request a return authorization number. We will then send you a pre-paid return label which you must use to return the Equipment. If you do not cancel the Agreement within the Trial Period, you are entitled to keep the Equipment and you are deemed the owner thereof.
3. Hardware Requirements; Activation of Service: If you do not purchase Equipment from Mobile Citizen, you are responsible for providing your own modem, which must be compatible with Clearwire’s wireless network. Mobile Citizen is not responsible for any failure of your modem to function properly with the Service. In addition, you are responsible for ensuring that your other hardware meets the minimum technical requirements posted on Clearwire’s website located at www.clear.com. If you purchase a modem, you should follow the process for activation set forth in the Quick Start Guide provided with the modem. Your modem will be activated and authenticated by Clearwire as described therein.
4. Use of Service.
a. License and Use. By entering into this Agreement, you are granted a license to access and use the Service, and to permit your Permitted Users to use the Service, during the term of this Agreement. “Permitted Users” means any then-current employees or independent contractors of the Customer, or with regard to any educational institutions, any students, faculty, administrators and staff, while such persons are employed by or involved with the Customer, but not thereafter. Educational institutions should use the Service to further the educational mission of the school. Permitted Users of the Service will be required to log in to the Service with the log-in name and password provided by Mobile Citizen or Clearwire the first time the Permitted User installs the Equipment. Once the status of a Permitted User changes so that the individual is no longer a Permitted User (for example, once a student graduates) you are responsible for ensuring that such individual no longer makes use of or accesses the Service. You may not assign your log-in name, password or IP address to any other person, device or equipment. Authenticating data provided for a Customer’s use may not be shared with any individual other than a Permitted User. 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. Your user name or password may be changed by Clearwire at any time, and 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 Agreement. All rights not expressly granted in this Agreement are reserved by Mobile Citizen.
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 in the sole discretion of Clearwire. You may not transfer your subscripton in the Service to a different metropolitan area than the one city from which you have entered into this Agreement, (however, if a staff member of your organization travels to a different location for a limited period of time, such staff member may continue to utilize the Service while roaming, subject to limitations on Service availability in various locations). 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. 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”) 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.
c. Reselling the Service. You are permitted to charge your current faculty, staff, and students (if you are an educational institution) and your current staff and users of your programs (if you are a non-profit organization) no more than the amount you pay ITF to access the Service. ITF reserves the right to request information that verifies that you are complying with the requirements in this Section from time to time in ITF’s reasonable discretion. You agree to cooperate with such requests and provide the information requested within fifteen (15) days following the date of the request.
d. Prohibitions. Except as permitted in Section (4)(c), you are prohibited from reselling the Service, permitting third parties to access the Service, granting any sublicense, distributing or transmitting the Service in whole or in part, or using the Service for purposes other than your internal business purposes. You are further prohibited from engaging in any activities with regard to the Service that would violate the AUP, including without limitation engaging in any fraudulent, unlawful, harassing, or abusive activities, using the Service in a manner that could damage any property of any other party or otherwise interfere with the Service, or violating any law, regulation, or the rights of any third party. Your use of the Service is subject to immediate suspension or termination without notice if any Mobile Citizen Party (as defined in Section 7 below) believes you have engaged in any prohibited activity.
5. Term and Termination: This Agreement will commence on the date you have entered accept into this Agreement (the “Effective Date”) and will continue for the Initial Subscription Term set forth in the Order.
a. Termination During Trial Period. You may terminate this Agreement without penalty during the Trial Period by calling (877) 216-9603 or sending an email to email@example.com 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.
b. Renewal. Mobile Citizen will attempt to contact you by email and a telephone call (to the last email address and telephone number you provided to us) to inform you that your Subscription Term is drawing to a close and to confirm that you wish to renew the Service for another year. If you inform us in writing that you wish to terminate your Service at the end of the current Subscription Term, we will do so. If you choose to renew the Service, this Agreement will renew for subsequent terms The Initial Subscription Term and the Renewal Subscription Term are referred to collectively in this Agreement as the “Subscription Term.”
c. Payment of Service Fee for Renewal Subscription Terms. If you choose to renew the Service, Mobile Citizen will invoice you for a new Subscription Term. If payment is not received by the due date set forth in the invoice, Mobile Citizen will notify you by sending an email to the last email address you provided to us, and if payment is not received within ten (10) days thereafter, Mobile Citizen reserves the right to immediately suspend or terminate your use of the Service.
d. Termination by Mobile Citizen. Mobile Citizen has the right to terminate this Agreement immediately at any time with or without cause, including without limitation for violations of the AUP or for infringement of the copyrights of others. If Mobile Citizen terminates this Agreement without cause more than one month prior to the expiration of your then-current Subscription Term, 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.
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 Agreement.
6. Representations and Warranties: Customer represents and warrants that: (i) it is a non-profit 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 organization or educational institution); (iii) it has sufficient authority to enter into this Agreement (iv) all information provided to Mobile Citizen will be accurate, complete, and current; and (v) it and its authorized users of the Service will comply with applicable laws, rules and regulations, the AUP, and the terms of this Agreement at all times in the 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 MERCHANDISE, 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 AGREEMENT WILL BE LIMITED TO THE LESSER OF (I) $120 US DOLLARS OR (II) THE TOTAL 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, MERCHANDISE, 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 Agreement. Customer acknowledges that the Internet and wireless communications are not inherently secure means of data communication and while the Mobile Citizen Parties have taken commercially reasonable steps to secure transmission and storage of Customer data and access to the Service, 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 each computer or device accessing the Service may vary for a variety of reasons. Clearwire reserves 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 steps to limit or eliminate, please refer to the AUP. In addition, Clearwire must 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 may not be 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 Agreement 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 Agreement, use of the Service or Equipment, including without limitation any breach of this Agreement, 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 Agreement, 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 firstname.lastname@example.org, and you may view answers to support FAQs and obtain other information by visiting http://www.clear.com/help.php. 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 Agreement, 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 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.
14. No Assignment: Customer’s rights under this Agreement 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 Agreement without liability. Notwithstanding the foregoing, all provisions of this Agreement will be binding upon your successors and permitted assigns.
15. Changes in Agreement: Mobile Citizen reserves the right to change the terms of this Agreement from time to time. Any modified versions of this Agreement will be posted on our website at https://mobilecitizen.org/terms-of-use.php and we will email a link to any modified versions to the last email address you provided to us. You agree that the foregoing is sufficient notice of modifications and agree to be bound by such modified versions of this Agreement, subject to the termination rights of this paragraph. If we modify any material terms of this Agreement and the modifications would be materially adverse to you, we will notify you via email to the email address above and you will have the right to terminate this Agreement by sending us written notice. We will not provide any refund in the event you terminate this Agreement under this Section 15. If you do not terminate this Agreement within five (5) 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. 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:
PO Box 6060, Boulder CO 80306
17. Governing Law; Statute of Limitations: This Agreement 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 AGREEMENT 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 AGREEMENT, 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 Agreement. 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 Agreement 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 AGREEMENT 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 AGREEMENT.
19. General: None of the Mobile Citizen Parties will be responsible or liable in any manner for any failure in the Service or in the performance of this Agreement to the extent that such failure is due to causes beyond its control. If any part of this Agreement is found invalid (including without limitation any conflict with any applicable law or regulation) such invalidity will not affect the remaining portions of this Agreement, 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 Agreement 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.