Calyx Institute End-User Terms of Service

End User Terms of Service

You are required to accept the following End User Terms of Service (“Terms of Service”) in order to use the Service (as defined herein), provided to you by Mobile Citizen through an Agreement with The Calyx Institute (“Calyx”).

IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, YOU MAY NOT USE THE SERVICE.

1. Definitions.

“Equipment” means equipment provided by Sprint and/or Mobile Citizen for use in connection with your Subscription to the Service.

"Calyx Parties" means Calyx, together with its employees, officers, directors, agents and any related entities.

“Mobile Citizen Parties” means Mobile Citizen, together with its suppliers and related entities, including, without limitation, Sprint and EBS Support Services, LLC.

“Service” means the mobile broadband service provided by Sprint Corporation (collectively “Sprint”) including any associated media, Equipment, printed or electronic documentation.

“Subscription Term” means one year.

2. Service. Subject to the terms and conditions herein and any additional conditions imposed by Calyx, the Mobile Citizen Parties hereby grant you a Subscription to use the Service during the Subscription Term.

3. Sprint Acceptable Use Policy. Your use of the Service is subject to the Sprint Acceptable Use Policy located at https://www.sprint.com/legal/AUP.html (“AUP”) and you must comply with such AUP, as well as all applicable laws and regulations, at all times in your use of the Service.

4. Use of the Service.

a. Permitted Users; Login and Passwords. You are permitted to use of the Service as long as you are a user, recipient or beneficiary of Calyx’s non-profit programs or services, but not thereafter. Once your status changes so that you are no longer a Permitted User, you may no longer use or access the Service. You are responsible for any usage of your account and you agree to notify Calyx and Mobile Citizen immediately of any unauthorized use of your account or suspected security breach. Sprint will assign you a new IP address each time you access the Service. You are not granted any rights to any firmware or software under these Terms of Service. All rights not expressly granted in these Terms of Service are reserved by Mobile Citizen.

b. Service 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 Sprint 4G/LTE network, which may change from time in the sole discretion of Sprint. 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. Neither Calyx nor 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 Sprint, which are not controlled by Mobile Citizen or Calyx. 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. Prohibitions. You are strictly 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 own personal use. 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 Calyx Party or Mobile Citizen Party believes you have engaged in any prohibited activity.

5. Support Services. All support services related to the Service and the Equipment (“Support Services”) will be provided by Mobile Citizen and Sprint. You may obtain support by calling (877) 216-9603 or emailing customerserivce@mobilecitizen.org. Mobile Citizen and Sprint may need to, and you agree that Mobile Citizen and Sprint 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 these Terms of Service, and/or to comply with law. Defective Equipment should be returned to Sprint as instructed by Mobile Citizen or Sprint, and should under no circumstances be returned to Mobile Citizen. Mobile Citizen may require the use of a return label issued by Sprint, and if so, you must use such return label for the return of the defective Equipment. THE MOBILE CITIZEN PARTIES AND THE CALYX PARTIES ARE NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF Sprint, MOBILE CITIZEN OR ANY OTHER THIRD PARTY WITH REGARD TO THE SUPPORT SERVICES OR OTHERWISE, AND THE MOBILE CITIZEN PARTIES DISCLAIM ALL LIABILITY FOR THE SUPPORT SERVICES OR THE RESULTS THEREOF.

6. Content and Security: Any material downloaded or otherwise obtained through use of the Service is accessed at your own discretion and risk. The Calyx Parties and the Mobile Citizen Parties do not control and are not responsible for any third party websites, content, services or products that you 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 the AUP. The Calyx Parties and 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 these Terms of Service. You acknowledge that the Internet and wireless communications are not inherently secure means of data communication and while the Calyx Parties Mobile Citizen Parties have taken commercially reasonable steps to secure transmission and storage of your data and access to the Service, the Calyx Parties and the Mobile Citizen Parties shall have no liability for breaches of security beyond their reasonable control, including, without limitation, your negligence with respect to controlling access to the Service or your data. YOU ARE SOLELY RESPONSIBLE FOR USING APPROPRIATE SECURITY DEVICES, SOFTWARE, AND OTHER MEASURES (INCLUDING WITHOUT LIMITATION FIREWALLS) TO PROTECT YOUR SYSTEMS AND DATA FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER SECURITY THREATS, AND THE CALYX PARTIES AND THE MOBILE CITIZEN PARTIES HAVE NO RESPONSIBILITY OR LIABILITY WITH REGARD THERETO.

7. Service Quality and Maintenance: The speed and bandwidth available to each computer or device accessing the Service may vary for a variety of reasons. Sprint 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 Sprint may take steps to limit or eliminate, please refer to the AUP. In addition, Sprint must perform maintenance on the Service, which may include planned or unplanned interruptions of the Service. You acknowledge and agree that the Calyx Parties and 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.

8. Notifications of Claimed Copyright Infringement:

a. 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:
Copyright Agent
Mobile Citizen
PO Box 6060, Boulder CO 80306
Fax: 303.532.2855
E-mail: customerservice@mobilecitizen.org

b. In the event that you believe any website of a Calyx 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 Calyx 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:
Copyright Agent
The Calyx Institute
254 36th Street
Unit 48
Brooklyn, NY 11232
E-mail: legal@calyxinstitute.org

9. Disclaimer of Warranties: EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CALYX PARTIES AND 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.

10. Limitation of Liability: THE SOLE LIABILITY OF THE CALYX PARTIES AND THE MOBILE CITIZEN PARTIES TO YOU OR ANY THIRD PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE WILL BE LIMITED TO THE LESSER OF (I) $120 US DOLLARS OR (II) THE TOTAL FEES (EXCLUDING EQUIPMENT FEES) PAID BY YOU TO CALYX, IF ANY, IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH ANY SUCH CLAIM AROSE. THE CALYX PARTIES AND 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 YOUR DATA, ANY COST OF OBTAINING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE CALYX PARTIES AND 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.

11. Modification and Discontinuation of Service: The Calyx Parties and 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 Calyx Party's website or Mobile Citizen Party’s website (or any portion thereof) with or without notice. In the event that the Calyx Parties or the Mobile Citizen Parties terminate the Service prior to the end of your Subscription Term, the Calyx Parties and the Mobile Citizen Parties will not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance.

12. Changes in Agreement: You acknowledge that Sprint has the right to change the AUP from time to time. Any modified versions of these Terms of Service will be posted on Sprint’s website located at http://www.Sprint.com/company/legal/aup.htm. You agree that the foregoing is sufficient notice of modifications and agree to be bound by such modified versions of the AUP.

13. Governing Law; Statute of Limitations: These Terms of Service 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 TERMS OF SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES, OR THE CLAIM WILL BE PERMANENTLY BARRED.

14. Arbitration; Waiver of Jury Trial: ANY DISPUTE, CONTROVERSY OR CLAIM BETWEEN YOU AND THE MOBILE CITIZEN PARTIES ARISING OUT OF OR RELATING TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE, 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 “MOBILE CITIZEN 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”). ANY DISPUTE, CONTROVERSY OR CLAIM BETWEEN YOU AND THE CALYX PARTIES ARISING OUT OF OR RELATING TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE, 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 “CALYX DISPUTE”), WILL BE FINALLY DETERMINED BY BINDING ARBITRATION IN NEW YORK, NEW YORK USA IN ACCORDANCE WITH THE RULES OF 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 Mobile Citizen Dispute or the Calyx Dispute, as the case may be, 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 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 Terms of Service. 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 Terms of Service 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 Calyx Party or 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. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIMS OR DISPUTES RELATING TO THESE TERMS OF SERVICE 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 THESE TERMS OF SERVICE.

15. General: None of the Calyx Parties and the Mobile Citizen Parties will be responsible or liable in any manner for any failure in the Service or in the performance of these Terms of Service to the extent that such failure is due to causes beyond its control. If any part of these Terms of Service is found invalid (including without limitation any conflict with any applicable law or regulation) such invalidity will not affect the remaining portions of these Terms of Service, 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 any party to complain of any act or failure to act of the any other party or to declare any other party in default, irrespective of the duration of such default, will not constitute a waiver of rights hereunder. These Terms of Service constitutes the complete agreement between you and any Calyx Party 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 Calyx Party and any Mobile Citizen Party, except as set forth above.

YOU ACKNOWLEDGE THAT YOU UNDERSTAND THE ENGLISH LANGUAGE, THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE, AND THAT YOUR USE OF THE EQUIPMENT OR THE SERVICE CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT WITH THESE TERMS OF SERVICE IN ACCORDANCE HEREWITH.