HomeMy WebLinkAboutMOBILE CITIZEN, LLCCity of Santa Ana
Clerk of the Council
AGREEMENT TERMINATION FORM SA �NT
Please complete this form in its entirety when the attached agreement and all
amendments (if any) are no longer in effect.
Note: If your agreement is grant related, please ensure that all grant retention requirements
have been satisfied prior to signing the termination form.
Is the agreement(s) a permanent record? Yes No
Return form to the Cleric of the Council Office (NI-30).
Call 647-1520 if you have any questions.
The agreement with
N-2022-067
No.
(List all amendments.
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was completed on
Use space below if needed.)
iAagreementsWormslform - agreement termination brm_goldenrod.doc
COTC Office Use Only
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1-14 10 and final payment has been made.
Department:
Phone/Ext.:
Signature:
Date:
DocuSign Envelope ID: CB13659F-2459-4F6F-BE37-AA4811D1C7BA
INSURANCE NOT REQUIRED
WORK MAY PROCEED
CLERK OF COUNCIL
DATE: 1
Customer Registration d'. ���p YYtYy �•�arioi �e�gryy, (�A�) 0
Organization Name: City of Santa Ana Q
Contact Person: Brian Sternberg, Library Services Director
Mailing Address: 26 Civic Circle Center Plaza, M-75
City: Santa Ana State: California Zip:92701
Website Address: https://www.santa-ana.org/library
Telephone: (714)647-5259 Fax: (714) 647-5291
Email: BStemberg@santa-ana.org
Designate organization/institution type: Government
N-2022-067
By signing below, Customer and Mobile Citizen, LLC agree to be legally bound by the Terms of Service
attached hereto. THIS AGREEMENT WILL NOT BE BINDING UNTIL MOBILE CITIZEN, IN ITS SOLE
DISCRETION, HAS APPROVED CUSTOMER, AND BOTH MOBILE CITIZEN AND CUSTOMER
HAVE SIGNED AND DELIVERED THIS AGREEMENT.
CITY OF SANTA ANA
2
Signed: L' Print Name: Brian Sternberg
Title: Library Services Director Date: 3/9/2022
APPROVED AS TO FORM
By:
Signed: ��Print Name: Brandon Salvatierra
Title: Deputy City Attorney Date: 3/9/2022
Signed: Print Name: Kristine Ridge
Title: City Manager D �i�. 22
gned:��� Print Name: Daisy Gomez
Title: Clerk of the City Council Date: 3 /
DCo y Gomez
IWllll9L14
DocuSign Envelope ID: CB13659F-2459-4F6F-8E37-AA4811D1C7BA
MOBILE CITIZEN, LLC
Dueus4n0 by:
Signed: I kjj AdliU Print Name: Adam
55E51D510525470...
Title: Operations Manager Date:3/9/2022
300111197.14
Miller
Docu&gn Envelope ID: C613659F-24594F6F-8E37-AA4811 D1C7BA
Mobile Citizen - Direct Customer Terms of Service
Version: April 6, 2021
IMPORTANT — READ CAREFULLY: These Direct Customer Terms of Service (including the "Customer
Registration" cover page, these "TOS"), as they may be amended as hereinafter provided, together with
the applicable Mobile Citizen quote or order form ("Order") into which these TOS are Incorporated by
reference, form a binding legal agreement (the "Agreement") between Mobile Citizen LLC ("Mobile Cit-
izen") and the customer entity listed in the cover page (the "Customer"). Notwithstanding any other pro-
vision hereof, the Agreementwill not be in effect until (1) Mobile Citizen has, in Its sole discretion, approved
the Customer, and (ii) Mobile Citizen and Customer have both signed and delivered this Agreement, The
Agreement governs Customer's access to and use of the wireless broadband service identified In the
Order, 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"). For more information regarding the technical specifications of
the Service, please refer to AoDendix A attached hereto (for reference purposes only).
The "Effective Date" means the date both parties hereto have executed the cover page of this
Agreement. NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE.
1. Scope of Agreement.
a) Service. Subject to Customer's continued compliance with the terms and conditions of this
Agreement, Mobile Citizen will make the Service available to Customer for use by Permitted Users
(defined below) based on the number of subscriptions purchased in the Order (each, a
"Subscription"). Each Subscription will be paired with a single piece of Equipment, and in no
event may Customer associate more than one piece of Equipment with a particular Subscription.
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.
b) Subscription Term, The Initial term of each Subscription shall be set forth in the Order and
subject to Service availability and any price adjustments then in effect. The initial term of each
Subscription may be extended by the parties' mutual written agreement. The initial Subscription
term and any subsequent renewal Subscription term are collectively referred to herein as the
"Subscription Term". If Mobile Citizen does not receive payment in full for any applicable
Subscription Fees (defined below), Mobile Citizen reserves the right to immediately suspend or
terminate Customer's use of the Service for the applicable Subscription(s).
c) 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 (6) regardless of whether the individual has reviewed
or agreed to this Agreement. Once the status of a Permitted User changes so that the individual
is no longer a Permitted User, Customer is responsible for ensuring that such individual no longer
makes use of or accesses the Service. Customer is responsible to Mobile Citizen 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
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use of a Permitted User's account or suspected security breach
d) 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 for congestion management, block or rate -control protocols of
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 ("Provider Service
Change"). Any change to or disruption of the Service in connection with the foregoing shall not
constitute a breach of this Agreement.
e) Equipment. Customer and/or its fiscal sponsor (if applicable) is responsible for ordering through
Mobile Citizen all equipment needed for Customer's Permitted Users' use of the Service
("Equipment"). Requirements for Equipment compatibility with the Provider's network are set
forth on the Provider's wabsite. Mobile Citizen is not responsible for any failure of the Equipment
to function properly with the Service. In addition, Customer is responsible for ensuring that all
Equipment and associated components thereof meet the minimum technical requirements posted
on Provider's website. Equipment must be activated and authenticated by the Provider prior to
first use. All Equipment is delivered Free On Board (FO.B.) Origin unless otherwise agreed. The
use of third -party equipment is not permitted without the prior written approval of Mobile Citizen.
2. Pricing, Payment & Other Charges
a) Pricing & Payment. Pricing for a Subscription (the "Subscription Fee") and for any Equipment
Is set forth in the Order. Pricing is subject to adjustment at the end of the Subscription Term.
Payment is due even if Service has been suspended by Mobile Citizen or Provider as permitted
by this Agreement. Customer and/or its fiscal sponsor (if applicable) will pay all undisputed
amounts invoiced within 30 days of the invoice date and must notify Mobile Citizen in writing of
any good faith disputed amounts within such time, in which case Customer and/or its fiscal
sponsor (if applicable) may withhold the disputed portions of the invoice pending resolution of the
dispute. Payments are otherwise not subject to set off or withholding for any reason.
b) Taxes, Fees & Other Charges. Customer will be responsible for all applicable taxes, duties, fees,
surcharges, account set-up fees or other costs payable in connection with the Service or
otherwise incurred by Mobile Citizen (including Equipment shipping costs), except to the extent
Customer can show with documentation satisfactory to Mobile Citizen that Customer (or the
Permitted User, as the case may be) is legally exempt from such taxes or fees. The taxes, fees
and other charges detailed above may vary on a monthly basis. Mobile Citizen is not required to
provide advance notice thereof except as required by law. Surcharges and recovery fees are not
taxes and are not required by law, but are set by Mobile Citizen and may change. To the extent
permitted under applicable law, Customer also agrees to pay any additional charges or fees
applied to its account, including interest and charges due to insufficient credit or Insufficient funds,
c) Publicity. Customer may not use or refer to the name, trademarks or logos of Mobile Citizen or
Provider in any advertisements, publications or other such media without the prior written consent
of Mobile Citizen or Provider, respectively.
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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 modern or
other hardware In order to use the.Service thereafter, Neither Mobile Citizen nor Provider assume
any liability hereunder with regard, to any failure or lack of performance of the Service for any
reason whatsoever,
(b) Service quality and Maintenance. The speed and bandwidth available to each computer or
device accessing the Service may vary for a variety of reasons. Provider reserves the right to
engage in reasonable network management and/or eliminate malicious traffic patterns and
prevent the distribution of viruses or other malicious code, as provided in the Provider T&C's, in
addition, Provider will perform maintenance on the Service, which may include planned or
unplanned interruptions of the Service. Customer acknowledges and agrees that neither Mobile
Citizen nor any of the other• Mobile Citizen -Parties (defined below) will be responsible for any
losses or damages suffered by Customer, Permitted Users.or anyone accessing the Service
through Customer, as a result of any. Service interruptions, Customer acknowledges 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 in Its discretion or as required by applicable law.
(c) Provider AUP, T&C. Use of the Service is subject to the Provider's then -current (1) acceptable
use policy (the "Provider AUP"), a copy of which Is, as of the Effective.Date, available at
httDs•//www sprint com/en/legal/acceptable-use- ooligy 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 h_&a.* /www.sprint.com/en/le I/terms-and-conditions and incorporated herein
by reference,
(d) Open Internet Rule Disclosures, Customer represents that it has read and understands Mobile
Citizen's Open Internet Transparency Rule Disclosures, as may be amended, which are available
at https://mobilecitizen.oraliegal/ and incorporated herein by reference.
(e) 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
CUSTOMERADVANCE NOTICE THEREOF.
(f) Prohibitions, Customer shall. not resell Subscriptions or the Service, permit third parties to
access the Service, grant any sublicense, or distribute or transmit the Service in whole or in part,
If Customer desires to resell the Service, Customer must enter into a Mobile Citizen Reseller
Agreement, 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 and all Permitted Users will
DocuSign Envelope ID: C313659F-2459-4F6F-8E37-AA4811D1C7BA
comply with all applicable laws and regulations in connection with its performance under this
Agreement and use of the Service.
5. Term and Termination.
(a) Term. This Agreement will commence on the Effective Date and, unless sooner terminated as
permitted herein, will continue in effect until all Subscriptions hereunder have expired or been
terminated (the "Term"). The term of each individual Subscription Is described in Section 1, above.
(b) Termination of Subscription or Suspension of Service by Mobile Citizen.
(1) Mobile Citizen may suspend or terminate the Service, in whole or in part, upon written notice
to Customer in the event Customer has breached any term of this Agreement, provided that,
where such breach is curable, Customer has failed to cure said breach within 30 days' receipt
of notice of the breach. Mobile Citizen may also suspend orterminate Service for an individual
Subscription upon written notice to Customer where a Permitted User of such Subscription
has breached any terms of this Agreement, provided that, where such breach is curable,
Permitted User has failed to cure said breach within 30 days of Customer's receipt of notice
of breach from Mobile Citizen. Termination of Service will automatically constitute termination
of the affected Subscription. For purposes of this clause b(I), any violation of the ProviderAUP,
the Provider T&C, intellectual property rights or applicable laws or regulations may be deemed
Incurable by Mobile Citizen in its reasonable discretion.
(ii) Mobile Citizen may suspend or terminate the Service, in whole or in part, in the event the
Provider ceases to make the Service available to Mobile Citizen for any reason (including in
the case of a Provider Service Change), Mobile Citizen otherwise loses the right to offer
Subscriptions for any reason, or Mobile Citizen incurs a material increase in the cost of
providing the Service. Mobile Citizen will use good -faith efforts to provide as much advance
notice of such suspension or termination as is practicable under the circumstances; however,
Customer understands that Mobile Citizen may not receive advance notice from the Provider
of suspended or terminated Service,
(Ili) This Agreement will terminate, effective upon delivery of written notice by either party to the
other party: (a) upon the Institution of Insolvency, receivership, or bankruptcy proceedings or
any other proceedings for the settlement of debts of the other party; (b) upon the making of
an assignment for the benefit of creditors by the other party; (c) upon the dissolution of the
other party; or (d) if any substantial part of such party's property becomes subject to any levy,
seizure, assignment, application, or sale for or by a creditor or governmental agency, then the
other party may terminate this Agreement upon sixty (60) days written notice (provided in case
of clause (a) such termination will only be effective if such petition or proceeding is not
dismissed within sixty (60) days after such written notice is provided).
(iv) Where Mobile Citizen terminates a Subscription without cause more than one month prior to
the expiration of a Subscription, Mobile Citizen will issue a refund of Subscription Fees paid
for full, unused months remaining on the then -current Subscription Term. If such Subscription
Fees were paid for by a fiscal sponsor, Mobile Citizen will refund such fees to the fiscal
sponsor.
(c) Effect of Termination. Upon expiration or termination of a Subscription for any reason, all rights
of access to and use of the Service under the Subscription shall automatically terminate and
Customer will cause Permitted Users to immediately cease use of the Service.
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6. Confidentiality, In connection with this Agreement, either 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 that the Disclosing Party
designates as confidential or which a reasonable person would understand to be confidential or
proprietary based on the nature of such Information ("Confidential Information"). Without limitation,
Confidential Information may include technical data, marketing materials, financial information,
employee information, and business plans. The Receiving Party will not use any Confidential
Information of the Disclosing Party for any purpose not expressly permitted by the Agreement, and
will disclose the Confidential Information of the Disclosing Party only to the employees or contractors
of the Receiving Party, and in the case of Mobile Citizen only, its affiliated companies, 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 hereunder. 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 this Section with respect to any Confidential Information of the Disclosing Party will
terminate if such information: (a) was already known to the Receiving Party 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 (1) approved in writing by the Disclosing Party, (11) necessary
for the Receiving Party to enforce its rights under the Agreement in connection with a legal
proceeding; or (ill) 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. The Receiving
Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party
in the Receiving Party's possession or control and permanently erase all electronic copies of such
Confidential Information promptly upon the written request ofthe Disclosing Party upon the expiration
or termination of the Agreement. The Receiving Party will certify In a writing signed by an officer of
the Receiving Party that it has fully complied with its obligations under this Section.
7. Representations and Warranties; Disclaimer.
(a) Customer represents and warrants that: (i) it is a non-profit or social welfare organization or
educational institution and will only allow persons who are current Permitted Users access to
Subscriptions; (ii) it is listed on http://www2.guidestar.org (or, if not listed, has otherwise been
approved in writing by Mobile Citizen); (ill) it has requisite authority to enter into this Agreement;
(iv) all information provided to Mobile Citizen will be accurate, complete and 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 other than as set forth in Section 4, above; and (vi) it will keep Mobile Citizen Informed of
any problems and resolutions with the Service.
(b) Equipment Warranty & Replacement. Mobile Citizen warrants that for a period of nine (9)
calendar months from the date Mobile Citizen ships the Equipment (the "Warranty Period"), the
Equipment will be free from defects in design, workmanship, construction and material (the
"Equipment Warranty"). The foregoing Equipment Warranty is only valid to the Customer and its
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Permitted Users, and cannot be transferred or resold to another party. As the sole remedy for a
violation of the Equipment Warranty, Mobile Citizen will, at its sole discretion, repair or replace the
defective Equipment, or refund the purchase price of the Equipment. if such Equipment was paid
for by a fiscal sponsor, such refund (if any) will be Issued to the fiscal sponsor. The replacement
Equipment can be refurbished, new, or a similar, product, at Mobile Citizen's sole and absolute
discretion. Replacement or refunds for defective Equipment are subject to Mobile Citizen's Return
Merchandise Authorization (RMA) policies, which require the Customer to work with Mobile
Citizen and Provider to troubleshoot potentially defective Equipment, and set forth requirements
for returning defective Equipment. Mobile Citizen shall make its RMA policies available to
Customer.
The limited Equipment Warranty does not cover, and is void with respect to Equipment that has
undergone, any of the following: (1) abuse, accident, physical damage, abnormal operation, bat-
tery leakage, improper handling, neglect, unauthorized alteration, or improper storage; (11) cos-
metic damage; (III) removal or alteration of warranty stickers or product serial numbers (the Equip-
ment serial number must be legible for the Equipment Warranty to be valid); (Iv) signal reception
problems (unless caused by defects in material and workmanship); (v) damage from fire, flood,
acts of God or other acts which are not the fault of Mobile Citizen and which the Equipment is not
specified to tolerate, Including damage caused by shipping; or(vi) any Equipment which has been
repaired, modified, or altered by anyone other than Mobile Citizen.
In addition, in order to receive the benefits of the Equipment Warranty, (1) the applicable Equip-
ment must be subject to an active Subscription (not currently cancelled or suspended for any
reason), (11) Provider must deem the Equipment defective, (111) Provider must provide and generate
an Interaction ID (which must then be supplied to Mobile Citizen before defective Equipment is
shipped back to Mobile Citizen), and (iv) defective Equipment must be returned to Mobile Citizen
within the Warranty Period and in the manner detailed in the applicable Mobile Citizen RMA poli-
cies.
(c) Disclaimer of Warranties. MOBILE CITIZEN, ITS RELATED ENTITIES AND ITS SUPPLIERS,
INCLUDING WITHOUT LIMITATION EBS SUPPORT SERVICES LLC AND ITS AFFILIATES
(COLLECTIVELY, THE "MOBILE CITIZEN PARTIES"), MAKE NO WARRANTIES UNDER THIS
AGREEMENT 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. 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 EXCEPT AS EXPRESSLY PROVIDED HEREIN,
8. Support Services. Except as expressly set forth in this Agreement, Mobile Citizen shall have no
obligations with respect to the Service. Customer is responsible for handling all billing, payment,
collection, disputes and administrative matters related to Permitted Users. Except for any basic Tier
1 technical support that Mobile Citizen may elect to provide, technical support requests will be routed
to and are the responsibility of the Provider (collectively, the "Support Services"). Support Services
are subject to Permitted Users' use of the Service and Equipment in accordance with this Agreement
as well as, in the case of Equipment defects, the manufacturer's applicable warranty policy. Mobile
Citizen or the Provider may need to access Equipment or related hardware or software in order to
provide Support Services. Defective Equipment should be returned to the Provider as instructed by
Mobile Citizen or the Provider. EACH MOBILE CITIZEN PARTY IS NOT RESPONSIBLE FOR THE
10111UM4
ACTS OR OMISSIONS OF ANY OTHER MOBILE CITIZEN PARTY, THE PROVIDER OR THIRD
PARTIES IN CONNECTION WITH SUPPORT SERVICES. Provider will only provide Support
Services for Equipment purchased through Mobile Citizen, through the Provider or an authorized
Provider dealer.
9. Service Modification and Discontinuation. Mobile Citizen and the Provider reserve the right at any
time to in any way modify, edit, suspend or discontinue the Service or the Support Services made
available hereunder with or without notice. In the event of Service discontinuation or of Service
changes causing a material adverse effect on the quality or availability of Service, the Customer may,
as Its and the Permitted Users' sole and exclusive remedy arising out of this Agreement, terminate
the affected Subscriptions and the sole and exclusive liability of Mobile Citizen and the other Mobile
Citizen Parties shall be to pay Customer a refund of Subscription Fees previously paid for full, for
unused months remaining on the then -current Subscription Term. If such Subscription Fees were paid
for by a fiscal sponsor, Mobile Citizen will refund such fees to the fiscal sponsor.
10. Changes to Terms. Mobile Citizen reserves the right to make modifications to the terms of this
Agreement to comply with applicable laws or to account for changes in Mobile Citizen's business,
course of dealing with the Provider, or other factors. The Provider also reserves the right to change
or update the Provider AUP and`Provider T&C at any time. Mobile Citizen wilt make reasonable
attempts to provide Customer with notice of all changes (to the extent the Provider has not already
done so), which may include providing notice of the revised version of this Agreement on the Mobile
Citizen website. Notwithstanding any other provision of this Agreement, providing notice of the revised
version of this Agreement shall constitute sufficient notice. All such changes will be deemed effective
and accepted by Customer and Permitted Users upon their continued use of the Service thereafter;
provided, however, that if such modifications are not agreeable to Customer or to Permitted Users,
Custcmer may elect Instead (as its sole and exclusive remedy) to terminate the affected Subscriptions
within 30 days of the change and receive a refund of Subscription Fees paid for full, unused months
remaining on the then -current Subscription Term. if such Subscription Fees were paid for by a fiscal
sponsor, Mobile Citizen will refund such fees to the fiscal sponsor.
11. Limitation of Llabillty. TO THE FULLEST EXTENT PERMITTED BY LAW, THE MOBILE CITIZEN
PARTIES' CUMULATIVE LIABILITY TO CUSTOMER AND TO ANY PERMITTED USER OR THIRD
PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE
LIMITED TO TEN TIMES (10x) THE TOTAL SUBSCRIPTION FEES PAID BY CUSTOMER
AND/OR FISCAL SPONSOR TO MOBILE CITIZEN IN THE TWELVE (12) MONTHS PRIOR TO
THE DATE ON WHICH THE FIRST CLAIM AROSE. MULTIPLE CLAIMS WILL NOT ENLARGE
THiS LIMIT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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 OR ANY
PERMITTED USER'S DATA, ANY COST OF OBTAINING SUBSTITUTE GOODS, SERVICES OR
TECHNOLOGY. FURTHER, TO THE FULLEST 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 ANYWAY
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.
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12. 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 Customer's 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 shall be
binding upon Customer.'s successors and permitted assigns.
13.-Governing Law. Any question, controversy or dispute arising out of or related to this Agreement (a
"Dlspute") shall be governed by and interpreted in accordance with the laws of the State of California,
without regard to conflict of laws principles. To the extent permitted by law, the parties hereby
expressly waive the right to a trial by Jury.
14. Content and security. Any material downloaded or otherwise obtained through use of the Services
Is accessed at Customer's and Permitted Users' 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 and Provider T&C, which form a
part of this Agreement. 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
flrewalls) 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.
15. Notices. Except where the Agreement provides otherwise, all notices, required or permitted under
this Agreement shall 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 address set forth in the
Customer Registration Form (in the case of the Customer) and in the case of Mobile Citizen delivered
to: Mobile Citizen LLC, 825 Delaware Street, Ste. 500, Longmont, CO 80501. Notice hereunder will
be effective upon certified delivery. Either party may change the notice address by Notice to the other
party.
16. General. None of the Mobile Citizen Parties or Provider shall 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 or by reason of a change in the Service as provided in Section 10 above. Except as otherwise
provided in Section 10, no amendment or modification of this Agreement shall be valid unless made
in writing and signed by duly authorized representatives of each party. If any part of this Agreement
is found invalid (Including without limitation any conflict with any applicable law or regulation) such
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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 Mobile Citizen with respect tor 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.
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Appendix A —Additional Information regarding the Service
Mobile Citizen 30GB+ 4G LTE Plan
Sprint is providing Mobile Citizen's users with a 30GB+ 4G LTE data -only plan (with no throttling,
suspension or overage charges after 30 GB).* The plan does not include off -network roaming and it is
subject to any standard network management that Sprint may apply to commercial broadband data -only
account users.
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