Mobile Citizen – Terms of Service
Short-Term, No-Charge Service and Loan Agreement
Version: April 2017
These Terms of Service (“TOS”), together with the registration form into which these TOS are incorporated by reference, form a binding legal agreement (the “Agreement”) between Mobile Citizen LLC (“Mobile Citizen”) and the Permitted User listed in the registration form (the “Customer”). The Agreement governs Customer’s use of wireless broadband service that Mobile Citizen makes available under this Agreement (including any associated media and documentation, the “Service”). The Service is controlled and made available by a third party that may change from time to time (the “Provider”). This Agreement is effective upon the earlier of Customer’s execution of the registration form or its initial access to the Service or Equipment (“Effective Date”).
1. Scope of Agreement.
a. Service. Subject to Customer’s compliance with these TOS, Mobile Citizen grants Customer a non-exclusive and non-transferable right for Customer’s Permitted Users to access and use the Service free of charge for a period of one (1) month (“Loan Period”) from the Service activation date. As part of the Service, Mobile Citizen will loan to Customer, free of charge, the devices that Customer must use for the Service (the “Equipment”). All rights not expressly granted in this Agreement are reserved by Mobile Citizen. Neither Customer nor any Permitted User is granted any rights to any firmware or software under this Agreement. Upon request of Mobile Citizen, Customer agrees to provide feedback on the performance and functionality of the Service in order to support continued improvement of the Service.
b. Permitted Users. “Permitted Users” means (i) any users, recipients or beneficiaries of Customer’s own non-profit, social welfare or educational programs or services, (ii) any of Customer’s employees or independent contractors, or (iii) any of Customer’s students, faculty, administrators and staff, in each of the foregoing cases, (A) only while such persons meet the requirements of at least one of (i)-(iii), and (B) regardless of whether the individual has reviewed or agreed to this Agreement. Customer is responsible for the conduct of Permitted Users, including all Permitted User account activity related thereto, as if such conduct were Customer’s own, and Customer will notify Mobile Citizen immediately of any unauthorized use of a Permitted User’s account or suspected security breach.
c. Third-Party Provider. Customer understands and agrees on behalf of itself and Permitted Users that the Service is provided by a third party that may change from time to time during this Agreement (the “Provider”). As of the Effective Date, the Provider is Sprint Spectrum, L.P. (or an affiliate thereof). Mobile Citizen, as a distributor of the Service, does not assume responsibility for the availability of the Service or the conduct of the Provider. For example, Mobile Citizen does not control or assume responsibility congestion management, block or rate-control protocols or protocol ports, inhibit or favor any particular applications, impose user device rules or provide end-user security functionality. Customer further understands and agrees on behalf of itself and Permitted Users that the underlying technology and availability of the Service could change after the Effective Date in a manner causing changes or disruptions to the Service (“Network Transition”). Any change to or disruption of the Service in connection with the foregoing shall not constitute a breach of this Agreement.
d. Use and Return of Equipment. The Equipment is loaned, not sold, to Customer and Mobile Citizen retains title to all Equipment. Customer bears the risk of loss or damage to Equipment while the Equipment is used, possessed or controlled by or on behalf of Customer, and Customer shall be responsible for the repair or replacement cost (as applicable) of damaged or lost Equipment. ALL EQUIPMENT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND.
2. No Publicity. Customer may not use or refer to the name, trademarks or logos of Mobile Citizen in any advertisements, publications or other such media without the prior written consent of Mobile Citizen.
3. Service Limitations & Restrictions.
a. Availability. The Service is not available in all locations and Permitted Users will only be able to access the Service when within the operating range of the Provider’s network, which may change from time in the sole discretion of the Provider. The Service may be disrupted or unavailable from time to time due to maintenance, emergencies, inclement weather or other factors outside of Mobile Citizen’s control. The Service and Equipment may not function in the event of a power failure or disruption, and Permitted Users may be required to reset or reconfigure their modem or other hardware in order to use the Service thereafter. Mobile Citizen assumes no liability with regard to any failure or lack of performance of the Service.
b. Provider AUP, T&C. Use of the Service is subject to the Provider’s then-current (i) acceptable use policy (the “Provider AUP”), a copy of which is, as of the Effective Date, available at https://www.sprint.com/legal/AUP.html and incorporated herein by reference; and (ii) end user terms and conditions (the “Provider T&C”), a copy of which is, as of the Effective Date, available at http://www.sprint.com/termsandconditions and incorporated herein by reference.
c. Open Internet Rule Disclosures. Customer represents that it has read and understands Mobile Citizen’s Open Internet Transparency Rule Disclosures for Direct Customers, as may be amended, which are available at http://www.mobilecitizen.org/legal and incorporated herein by reference.
d. Usage Limits. THE SERVICE MAY BE SUBJECT TO USAGE LIMITS ESTABLISHED BY THE PROVIDER, WHICH ARE NOT CONTROLLED BY MOBILE CITIZEN AND ARE SUBJECT TO CHANGE. MOBILE CITIZEN MAY NOT RECEIVE ADVANCE NOTICE OF ANY SUCH CHANGES FROM THE PROVIDER AND IN SUCH CASES WILL NOT BE ABLE TO GIVE CUSTOMER ADVANCE NOTICE THEREOF.
e. Prohibitions. Customer and Permitted Users shall not reverse-engineer, interfere or tamper with, or otherwise use or abuse the Service or Equipment with the intended or actual effect of violating this Agreement or any party’s intellectual property rights.
4. Compliance with Laws. Customer represents and warrants that it will comply with all applicable laws and regulations in connection with its performance under this Agreement and use of the Service.
5. Term and Termination. This Agreement will commence on the Effective Date and, unless sooner terminated as permitted herein, will continue in effect until the completion of the Loan Period. Either party may freely terminate this Agreement at any time for any or no reason without liability to the other party (subject to the restrictions applicable to Mobile Citizen set forth in Section 1). Upon expiration or termination of this Agreement for any reason, Customer shall immediately discontinue use of the Services and return all Equipment to Mobile Citizen except to the extent Customer has entered into a cost-based subscription agreement with Mobile Citizen providing for use of such Equipment and Service. The disclaimer of warranties and liability limits below shall survive expiration or termination of this Agreement.
6. Representations and Warranties; Disclaimer.
a. By Customer. Customer represents and warrants that: (i) it is an educational institution, non-profit or social welfare organization; (ii) it is listed on http://www2.guidestar.org (or, if not listed, has otherwise been approved in writing by Mobile Citizen); (iii) it has requisite authority to enter into this Agreement; (iv) all information provided to Mobile Citizen will be accurate, complete and kept current; (v) it will not make or publish any representations, warranties or guarantees on behalf of Mobile Citizen Parties (defined below) or the Provider concerning the availability, performance or functionality of the Service; and (vi) it will keep Mobile Citizen informed of any problems and resolutions with the Service.
b. Disclaimer. NEITHER Mobile Citizen, ITS RELATED ENTITIES OR ITS SUPPLIERS, INCLUDING WITHOUT LIMITATION EBS SUPPORT SERVICES LLC (COLLECTIVELY THE “Mobile Citizen PARTIES”) NOR THE PROVIDER MAKES ANY WARRANTIES UNDER THIS AGREEMENT 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. ALL USE OF THE SERVICE AND EQUIPMENT IS AT THE PERMITTED USER’S OWN RISK. THE SERVICE AND EQUIPMENT ARE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS.
7. Support Services. Mobile Citizen has no obligation to provide Customer any technical support in connection with the Service.
8. Service Modification and Discontinuation. The Mobile Citizen Parties and the Provider reserve the right at any time to in any way modify, edit, suspend or discontinue the Service. Mobile Citizen will use good-faith efforts to provide Customer with as much prior written notice as is reasonably possible under the circumstances.
9. Indemnification. Customer shall defend, indemnify and hold harmless the Mobile Citizen Parties from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties (including any Permitted User) resulting from or relating to: any acts, omissions or breach of the Agreement by Customer or Permitted Users.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE Mobile Citizen PARTIES BE RESPONSIBLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR OTHER DAMAGES OR LIABILITIES 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.
11. Governing Law & Venue. Any question, controversy or dispute arising out of or related to this Agreement (a “Dispute”) shall be governed by and interpreted in accordance with the laws of the State of Colorado, without regard to conflict of laws principles. The parties hereby irrevocably submit to the exclusive jurisdiction of the state and federal courts seated in Denver, Colorado for the resolution of any such Dispute.
12. 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 and the Provider each 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. The Provider’s network management practices may entail the inspection and storage of network traffic, the provision of network traffic to third parties and/or the use of network traffic for non-network management purposes. For further information, please refer to the Provider AUP (defined above) and the Open Internet Rule Disclosures which form a part of these TOS. The Mobile Citizen Parties and the Provider also have the right to take actions either of them 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 theft, viruses, worms, Trojan horses, or other security threats, and the Mobile Citizen Parties have no responsibility or liability with regard thereto.
13. General. None of the Mobile Citizen Parties or Provider will be responsible or liable in any manner under this Agreement for any failure in the Service or Mobile Citizen’s performance of this Agreement to the extent that such failure is due to acts of God, failure of suppliers or other causes beyond its control. No amendment or modification of this Agreement shall be valid unless made in writing and signed by duly authorized representatives of each party. All notices, required or permitted under this Agreement must be delivered in writing in person or by courier, overnight delivery 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, 825 Delaware Street, Ste. 500, Longmont, CO 80501, or such other address as Mobile Citizen may have provided to Customer. Notice hereunder will be effective upon delivery. 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.