UPDATED AUGUST 18, 2022 AT 8 AM EST
IMPORTANT – READ CAREFULLY: THESE DIRECT CUSTOMER TERMS OF SERVICE, as they may be amended as hereinafter provided, form a binding legal agreement (these “TOS”) between Educational Broadband Service Agency LLC d/b/a Mobile Beacon (“Mobile Beacon”) and the entity listed in the signature fields below (hereinafter, the “Customer” or “you” or “your”). These TOS govern Customer’s access to and use of the wireless broadband service that Mobile Beacon makes available under these TOS (the “Service”). THESE TOS ARE EFFECTIVE WHEN EXECUTED AS PROVIDED BELOW (“EFFECTIVE DATE”). THESE TOS APPEAR ON MOBILE BEACON’S WEBSITE AND MAY BE MODIFIED AT ANY TIME BY MOBILE BEACON BY POSTING A REVISION ON ITS WEBSITE, WHICH REVISION SHALL BECOME EFFECTIVE AND BINDING ON THE PARTIES HERETO ONE WEEK AFTER POSTING. See Section 11 below. IT IS CUSTOMER’S RESPONSIBILITY TO MONITOR THE WEBSITE FOR SUCH UPDATES TO THESE TOS.
BY SIGNING BELOW, OR BY CUSTOMER’S ACCESS TO OR USE OF THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THESE TOS, AND THE PERSON SIGNING BELOW ON BEHALF OF CUSTOMER CERTIFIES THAT THE PERSON SO EXECUTING THESE TOS HAS THE POWER AND AUTHORITY TO BIND CUSTOMER TO THESE TOS.
1. Scope of Agreement.
- Subscriptions for Service. Subject to Customer’s continued compliance with the terms and conditions of these TOS (including timely payment of applicable fees), Mobile Beacon will make the Service available to Customer for use by Customer’s Permitted Users (defined below) based on the number of subscriptions (each, a “Subscription”) either (i) purchased in an order placed with Mobile Beacon or (ii) provided to Customer through a donation made by Mobile Beacon (each an ““Order”). ALL RIGHTS NOT EXPRESSLY GRANTED IN THESE TOS ARE RESERVED BY MOBILE BEACON. NEITHER CUSTOMER NOR ANY PERMITTED USER IS GRANTED ANY RIGHTS TO ANY FIRMWARE OR SOFTWARE UNDER THESE TOS.
- Subscription Term. The initial term of each Subscription shall be as set forth in the applicable Order and, subject to these TOS, Service availability and any applicable price adjustments then in effect. For all other Subscriptions, Mobile Beacon will attempt to contact Customer by email at the last email address provided to Mobile Beacon by Customer to (i) inform Customer when Customer’s Subscription Term is drawing to a close and (ii) provide Customer with a form to renew Service for an additional Subscription Term. If Mobile Beacon does not receive payment in full for any applicable additional Subscription Term, Mobile Beacon reserves the right to immediately suspend or terminate Customer’s use of the Service for the applicable Subscription(s). The initial Subscription Term and any subsequent renewal Subscription Term are each a “Subscription Term.”
- Equipment. Customer is responsible for ordering through Mobile Beacon the equipment needed for its Permitted Users’ use of the Service (“Equipment”). Requirements for Equipment compatibility with Provider’s network are set forth on www.t-mobile.com. MOBILE BEACON 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 ANY ASSOCIATED COMPONENT THEREOF MEET THE MINIMUM TECHNICAL REQUIREMENTS POSTED ON PROVIDER’S WEBSITE. Equipment will be shipped activated and authenticated by the Provider. All Equipment is delivered Free On Board (F.O.B.) Destination unless otherwise agreed. Title to purchased Equipment will pass upon receipt of full payment. Customer is responsible for maintaining documentation of the serial number for all Equipment as this information is required to provide technical support services or to request a refund or replacement for defective Equipment as provided for in Section 1f. The serial number is located on the factory sticker of the box the Equipment came in, under the battery of the Equipment., or on the back cover of the device.
- Permitted Users.
- “Permitted Users” means only those individuals who at all times during a Subscription Term are
(1) users, recipients, or beneficiaries of Customer’s educational, nonprofit, or social welfare programs or services, or (ii) employees, volunteers, or independent contractors of Customer, and who, in each case, (A) acknowledge to Customer that they have been (x) provided a copy of the then-current TOS or Permitted User Minimum Terms of Service available at mobilebeacon.org/legal, and (y) advised to monitor updates to these Permitted User Minimum Terms of Service on Mobile Beacon’s website, and (B) are not in violation of these TOS or the Permitted User Minimum Terms of Service.
- Termination of Permitted User Status. Customer will notify Mobile Beacon immediately upon Customer becoming aware of any unauthorized use of a Permitted User’s account, any suspected security breach, or any failure by a Permitted User to comply with these TOS. Once a person ceases to be a Permitted User for any reason, Customer shall take such action as is necessary to ensure that such individual no longer makes use of or accesses the Service and shall (i) attempt to reclaim possession of the Equipment from such person, and (ii) email [email protected] with (A) the serial number of any Equipment in the former Permitted User’s possession (the serial number is located on the factory sticker under the battery of such Equipment, or on the back cover of the device) and (B) request Mobile Beacon to disable access to the Service by the Equipment until such time as Customer has reclaimed possession of the Equipment and requests that access to the Service be enabled.
- Additional Obligations Regarding Permitted Users. Customer will make the Service available to Permitted Users only pursuant to arrangements whereby Permitted Users are made aware of prohibited activity and their obligations under the Permitted User Minimum Terms of Service, including checking Mobile Beacon’s website for any changes to these terms. Customer shall remind each Permitted User at least annually during the Subscription Term, of the conduct expected of Permitted Users. Customer shall maintain documentation of the serial number of any Equipment in the possession of a Permitted User.
- “Permitted Users” means only those individuals who at all times during a Subscription Term are
- Limitations Resulting from Third-Party Provider. Customer understands and agrees that the Service is provided by a third party, who may change from time to time (the “Provider”). As of the Effective Date, the Provider is evolving from Sprint Spectrum, L.P. to T-Mobile USA, Inc or an affiliate thereof to create a single network over time and in connection with ongoing discussions with Mobile Beacon. The state of the network migration and the identity of the Provider may change at any time. MOBILE BEACON, 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 Beacon does not control or assume responsibility for 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 its behalf and on behalf of its 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 THESE TOS.
- REFUND AND RETURN Mobile Beacon provides a 60-Day Limited Refund Policy for new Equipment ordered through Mobile Beacon. Mobile Beacon also provides a Defective Device Replacement Policy for certain Equipment. The current terms of these policies are located at the following website address: www.mobilebeacon.org/legal and their terms are incorporated in these TOS by reference, and like these TOS, the terms of these policies may be modified at any time by Mobile Beacon upon posting a revision to its website, which shall become binding on the Customer one week after such posting.
- Additional Obligations of Grant Recipients. The following terms apply only to Customers who are recipients of donations (each a “Grant Recipient”) through Mobile Beacon’s Connect for Success and Wi-Fly grant programs (each, a “Grant Program”):
- In connection with the Grant Programs and for the purposes described in the Customer’s grant application to Mobile Beacon (“Grant Purpose”), during the initial Subscription Term, Customer agrees to complete the Mobile Beacon’s feedback and evaluation requirements, which include submitting a six-month and 12-month written report in the format provided by Mobile Beacon. If Customer fails to complete and provide these reports to Mobile Beacon at the appropriate times, Customer shall return all Equipment to Mobile Beacon at Customer’s expense within 30 days.
- In connection with the above written reports, and in compliance with Customer’s privacy policies and applicable privacy laws, Customer agrees to provide feedback, testimonials, stories and photographs of Permitted Users and/or Customer’s staff or program administrators to demonstrate how the Service and Equipment were used for the Grant Purpose during the initial Subscription Term. Customer is responsible for securing any required permission/release from individuals for any personally identifiable information prior to submitting to Mobile Beacon. For all such material provided to Mobile Beacon, Customer grants Mobile Beacon and its affiliates the right to edit, use, and reuse this content in future publications, marketing materials, case studies, social media, or other public communications. Customer represents and warrants that any such materials provided to Mobile Beacon adhere to Customer’s privacy policies as well as state and federal law regarding any personally identifiable information of Permitted Users or Customer’s employees, and will hold Mobile Beacon and its officers, directors and affiliates, harmless for any claims resulting from a breach of any such privacy policies and applicable laws. For example, if Customer does not have permission to use a students’ or parent/guardian’s name, Customer may attribute the feedback generally (e.g. “student in Grade [X]” or “Parent”).
- Customer agrees to use the Service and Equipment for the Grant Purpose for a minimum of 20 hours per week so long as any applicable Subscription Term hereunder remains unexpired(the “Grant Period”). For Connect for Success grant recipients, this requirement only applies while school is in session. If the Service associated with any Subscription is not used for three consecutive months during (x) in the case of a Connect for Success Grant Recipient, the initial Subscription Term, and (y) for all other Customers, the Grant Period, the Customer is required at its own expense to return all Equipment (100% intact including the original boxes, all cords and plugs, batteries, body of the devices, and pamphlets) to Mobile Beacon. Customer shall be responsible for the cost of any Equipment not returned 100% intact and free of defects.
- Customer also agrees to follow the communication plan provided by Mobile Beacon in communicating the Grant Program to its local media and community. Additionally, Customer agrees to cooperate with Mobile Beacon in publicizing the grant award and associated outcomes. Customer shall provide Mobile Beacon with the opportunity to review materials with our name and logo prior to publication. Such materials should be sent to [email protected] and include details on where the information will be posted or distributed and when.
- Provided that Customer meets its obligations under subparts i, ii, and iii of this Section, Customer shall have no obligation to return any of the Equipment at the end of the Grant Period. Additionally, unless terminated in accordance with Section 6b, Customer has the right (but no obligation) to continue the Service at the end of the Grant Period by renewing some or all of the Subscriptions associated with Equipment at Mobile Beacon’s then-current rate.
2. Pricing, Other Charges and Payment Terms.
- Subscription and Equipment Pricing & Payment. Pricing for Subscriptions (the “Subscription Fee”) during the initial Subscription Term, and the pricing for any associated Equipment, will be as set forth in the applicable Order (which also will specify any applicable discount or no-charge items in the case of donations). Customer is responsible for payment of all invoiced amounts within the time specified on the invoice. Payments are not subject to set off or withholding.
- Taxes, Fees Other Charges.Customer is responsible for any and all applicable taxes, duties, fees, surcharges, account set-up fees or other costs payable in connection with the Service and Equipment, (including Equipment shipping costs), except to the extent Customer can show with documentation satisfactory to Mobile Beacon that the transaction is lawfully exempt from such taxes, fees, or other charges. Taxes, fees and other charges may vary from month to month. Mobile Beacon is not required to provide advance notice of any such taxes, fees or other charges, except as may be required by law. Customer agrees to pay any additional charges or fees, including interest and charges due to insufficient credit or insufficient funds or delay in payment or failure to collect any applicable tax or governmental charge.
- Customer may use or refer to the name, trademarks or logos of Mobile Beacon in any advertisement, publication or other media with Mobile Beacon’s prior written consent.
- Customer may not use or refer to the name, trademarks or logos of Provider or any of its affiliates in any advertisement, publication, other media or otherwise.
4. Service Limitations & Restrictions.
- 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 Beacon’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 Equipment or other hardware in order to use the Service thereafter. Neither Mobile Beacon nor Provider assume any liability with regard to any failure or lack of performance of the Service for any reason whatsoever.
- Service Quality and Maintenance. The speed and bandwidth available to Equipment accessing the Service may vary for a variety of reasons. The Provider reserves 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 network congestion. 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 Beacon nor any of the other Mobile Beacon Parties (as defined in Section 8b will be responsible for any losses or damages suffered by Customer, 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 Beacon in its discretion or as required by applicable law.
- Provider AUP, T&C. Use of the Service is subject to the Provider’s then-current (i) acceptable use policy (the “Provider AUP”) and (ii) end user terms and conditions (the ” Provider T&C”). The Provider AUP and Provider T&C (as they may change from time to time) are incorporated herein by reference. If your service is provided through Sprint, you can view its Provider AUP at https://www.sprint.com/en/
legal/acceptable-use-policy, and its Provider T&C at https://www.sprint.com/en/ legal/terms-and-conditions. If your service is provided through T-Mobile, you can view its Provider AUP and Provider T&C at https://www.t-mobile.com/ responsibility/consumer-info/ policies/terms-of-use. These Provider AUPs and Provider T&Cs, as well as their locations on the Provider websites, are subject to change without notice. The applicable Provider AUP and Provider T&C are effective as of the date provided for on the Provider websites, which may be different than the time changes to these TOS made on the Mobile Beacon website become effective.
- Open Internet Rule Disclosures. Customer represents that it has read and understands Mobile Beacon’s Open Internet Transparency Rule Disclosures, as may be amended, which are available at mobilebeacon.org/legal and are incorporated herein by reference.
- Usage Limits. THE SERVICE MAY BE SUBJECT TO USAGE LIMITS ESTABLISHED BY THE PROVIDER, WHICH ARE NOT CONTROLLED BY MOBILE BEACON AND ARE SUBJECT TO CHANGE. MOBILE BEACON 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.
- Customer and Permitted User Prohibitions/Suspension of Services. Customer shall not permit any person who is not a current Permitted User to access the Service, nor shall Customer permit anyone to resell Subscriptions or the Service or Equipment, nor shall Customer grant any sublicense of any kind in respect of any aspect of the Service. CUSTOMER AND PERMITTED USERS SHALL NOT ATTEMPT TO REVERSE-ENGINEER, INTERFERE OR TAMPER WITH, OR OTHERWISE USE OR ABUSE THE SERVICE OR EQUIPMENT WITH THE INTENDED OR ACTUAL EFFECT OF VIOLATING THESE TOS OR ANY PERSON’S INTELLECTUAL PROPERTY RIGHTS. CUSTOMER AND ITS PERMITTED USERS ARE FURTHER PROHIBITED FROM ENGAGING IN ANY ACTIVITIES WITH REGARD TO THE SERVICE THAT WOULD VIOLATE THE PROVIDER TERMS AND CONDITIONS, 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 PERSON, OR OTHERWISE INTERFERING WITH THE SERVICE, OR VIOLATING ANY FEDERAL, STATE, OR LOCAL LAW, REGULATION OR RULE, OR THE RIGHTS OF ANY THIRD PARTY. CUSTOMER’S SUBSCRIPTION(S) AND ITS PERMITTED USERS’ ACCESS TO AND USE OF THE SERVICE ASSOCIATED WITH SUCH SUBSCRIPTION(S) ARE SUBJECT TO IMMEDIATE SUSPENSION OR TERMINATION WITHOUT NOTICE IF MOBILE BEACON, IN ITS SOLE DISCRETION, HAS A REASONABLE BASIS TO BELIEVE THAT CUSTOMER OR ITS PERMITTED USER HAS ENGAGED IN ANY PROHIBITED ACTIVITY.
5. Compliance with Laws.
Customer represents and warrants that it will comply with all applicable laws and regulations in connection with its performance under these TOS.
6. Term and Termination.
- Term. The term of these TOS 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.
- Termination of Subscription or Suspension of Service
- Mobile Beacon may suspend or terminate the Service, in whole or in part, with or without cause, at any time, including without limitation for violations of the Provider Terms and Conditions. If Mobile Beacon terminates a Subscription without cause more than one month prior to the expiration of a Subscription, Mobile Beacon will issue a refund of Subscription Fees paid for full, unused months remaining on the then-current Subscription Term.
- Customer may terminate Service, in whole or in part, with or without cause at any time. Except as referenced in this Section 6bii), Customer shall not be entitled to any refund or credit from Mobile Beacon under these TOS in respect of such terminated Service except in the following cases:
- Where Customer returns Equipment for a refund in accordance with Mobile Beacon’s 60-Day Limited Refund Policy located at mobilebeacon.org/legal.
- Where Mobile Beacon terminates a Subscription without cause more than one month prior to the expiration of a Subscription, Mobile Beacon will issue a refund of Subscription Fees paid for full, unused months remaining on the then-current Subscription Term.
- To the extent Customer has complied with the provisions thereof, a limited refund will be provided as set forth in Sections 10 (Service Modification and Discontinuation) and 11 (Change to Terms).
- 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.
7. Customer Representations and Warranties. Customer represents and warrants that:
- it is either (i) an accredited school, college or university or has been identified in writing by Mobile Beacon as an otherwise qualifying educational institution, or (ii) a nonprofit organization described in Section 501 of the Internal Revenue Code of 1986, as amended (the “Code”), or has been identified by Mobile Beacon in writing as an otherwise qualifying nonprofit organization, or (iii) is an academic or public library, housing authority, or has been identified by Mobile Beacon in writing as a qualifying social welfare organization,
- it (i) has received a recognition of exemption under Section 501(c) of the Code, (ii) is listed on http://www.guidestar.org for nonprofits or https://data.imls.gov for libraries or (iii) has otherwise been identified by Mobile Beacon in writing as a qualifying organization,
- it will not permit anyone who is not a Permitted User to access the Service and will monitor its Permitted Users in compliance with these TOS,
- it has obtained such approvals as may be required to enter into these TOS and the executing individual has the authority to bind Customer to these TOS,
- all information provided to Mobile Beacon by or on behalf of Customer is and will continue to be accurate, complete, and current;
- it it will not make or publish any representations, warranties or guarantees on behalf of Mobile Beacon or any of the other Mobile Beacon Parties or the Provider concerning the availability, performance, or functionality of the Service; and obtained such approvals as may be required to enter into these TOS and the executing individual has the authority to bind Customer to these TOS,
- it will keep Mobile Beacon informed of any problems with the Service and the related resolution of such problems.
8. Limitation on Warranties; Disclaimer.
- Limited Warranty. To the extent Mobile Beacon has the power and authority to do so, Mobile Beacon will pass through to Customer any manufacturer’s warranty for the Equipment.
- Disclaimer of Warranties. CUSTOMER ACKNOWLEDGES THAT NEITHER MOBILE BEACON, ITS RELATED ENTITIES, PARENT ORGANIZATION, OR ITS SUPPLIERS, INCLUDING WITHOUT LIMITATION NORTH AMERICAN CATHOLIC EDUCATIONAL PROGRAMMING FOUNDATION INC (COLLECTIVELY THE “MOBILE BEACON PARTIES”) HAS MADE ANY WARRANTIES UNDER THESE TOS OR OTHERWISE, AND CUSTOMER HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED BY THE MOBILE BEACON PARTIES WITH REGARD TO THE SERVICE OR 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 CUSTOMER’S OR PERMITTED USER’S OWN RISK. THE SERVICE AND EQUIPMENT ARE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS EXCEPT AS EXPRESSLY PROVIDED HEREIN.
9. Support Services.
Except as expressly set forth in these TOS, Mobile Beacon shall have no obligations with respect to the Service. For questions about Customer’s account, billing, or customer support, please contact Mobile Beacon by emailing [email protected]. Except for any basic troubleshooting or technical support that Mobile Beacon may provide, technical support requests will be routed to and are the responsibility of the Provider (collectively, the “Support Services”). Support Services are subject to Customer and its Permitted Users’ use of the Service and Equipment in accordance with these TOS. Mobile Beacon or the Provider may need to access Equipment or related hardware or software in order to provide Support Services. Defective Equipment must be returned as provided under Mobile Beacon’s Defective Device Replacement Policy available at mobilebeacon.org/legal. NO MOBILE BEACON PARTY IS RESPONSIBLE FOR THE ACTS OR OMISSIONS OF ANY OTHER MOBILE BEACON PARTY OR THIRD PARTIES IN CONNECTION WITH SUPPORT SERVICES. Provider will only provide Support Services for Equipment purchased through Mobile Beacon, T-Mobile, or an authorized T-Mobile dealer.
10. Service Modification and Discontinuation.
Mobile Beacon 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, including without limitation by modification to the TOS as they appear on Mobile Beacon’s website from time to time. 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 sole and exclusive remedy arising out of this Section 10, terminate the affected Subscriptions and the sole and exclusive liability of Mobile Beacon and the Mobile Beacon Parties shall be to pay Customer a refund of Subscription Fees previously paid for full, unused months remaining on the then-current Subscription Term.
11. Changes to Terms.
THE TERMS OF THESE TOS MAY BE MODIFIED AT ANY TIME AND FROM TIME TO TIME BY MOBILE BEACON AS PROVIDED IN THE FIRST UNNUMBERED PARAGRAPH OF THESE TOS ENTITLED “IMPORTANT – READ CAREFULLY.” Without limiting the generality of the foregoing, Mobile Beacon also reserves the right to make modifications to the terms of these TOS as may reasonably be needed to comply with applicable laws or to account for changes in Mobile Beacon’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 Beacon or the Provider (as the case may be) will reflect such changes on the Mobile Beacon website or the website of the Provider, as indicated above, which the parties consider a reasonable means of notice of such changes to Customer. All such changes will be deemed effective as provided above. If such modifications are not agreeable to Customer or to Permitted Users, Customer may elect (as its sole and exclusive remedy) to terminate the affected Subscriptions and receive a refund of Subscription Fees paid for full, unused months remaining on the then-current Subscription Term.
Customer shall defend, indemnify and hold harmless Mobile Beacon and the other Mobile Beacon 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: (a) any acts, omissions or breach of the representations and warranties in these TOS of or by Customer; or (b) any acts, omissions or breach of these TOS by Permitted Users or any other user receiving access to the Service through Customer.
13. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE MOBILE BEACON PARTIES’ CUMULATIVE LIABILITY TO CUSTOMER AND TO ANY PERMITTED USER AND TO ANY THIRD PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TOS WILL BE LIMITED TO THE TOTAL SUBSCRIPTION FEES PAID BY CUSTOMER TO MOBILE BEACON IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE FIRST CLAIM AROSE. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE MOBILE BEACON 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, IN NO EVENT WILL THE MOBILE BEACON 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.
Customer’s rights under these TOS may not be transferred, leased, assigned, or sublicensed, including without limitation to any successor in interest, without the prior written consent of Mobile Beacon. Any purported attempt to transfer, lease, assign or sublicense Customer’s rights without the consent of Mobile Beacon will be void, and Mobile Beacon may immediately terminate these TOS without liability. Notwithstanding the foregoing, all provisions of these TOS shall be binding upon Customer successors and permitted assigns.
15. Governing Law & Venue
Any question, controversy or dispute arising out of or related to these TOS (a “Dispute”) shall be governed by and interpreted in accordance with the laws of the State of Rhode Island, without regard to its choice of law provisions. Any actions or proceedings arising out of or relating to these TOS shall be brought in a state or federal court sitting in Rhode Island and the parties irrevocably submit to the exclusive jurisdiction of such courts in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of such action or proceeding. To the extent permitted by applicable law, the parties hereby expressly waive the right to a trial by jury.
16. Content and Security.
- Customer acknowledges that the internet and wireless communications are not inherently secure means of data communication, and agrees that the Mobile Beacon 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 Beacon Parties have no responsibility or liability with regard thereto.
- Any material downloaded or otherwise obtained through use of the Service is accessed at Customer’s and Permitted Users’ own discretion and risk. The Mobile Beacon Parties do not control and are not responsible for any third-party websites, tools, content, services or products that Customer or a Permitted User may access or encounter during use of the Service, including without limitation the Provider’s content filtering tool. Customer may request that Mobile Beacon enable the Provider’s content-filtering tool for specified Equipment to block sites or content determined inappropriate in accordance with the Children’s Internet Protection Act (CIPA). The Provider’s content filtering tool is not guaranteed to be 100% accurate and can only filter web pages accessed via the Provider’s network (it does not filter emails, SMS, MMS, applications or anything else which is not accessed through a web browser). The Provider’s content filtering tool does not work if the Equipment is roaming or using WiFi. Customer agrees the Mobile Beacon Parties have no responsibility or liability with regard thereto.
- 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 Terms and Conditions, which form a part of these TOS. The Mobile Beacon 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 these TOS.
Except where notice is not required to be given by Mobile Beacon or may be given by changes reflected on the Mobile Beacon website as provided above, including in Section 11, all notices, required or permitted under these TOS (each a “Notice”) shall be delivered in writing 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 the Order in the case of the Customer and in the case of Mobile Beacon and the Mobile Beacon Parties, on its website identified above, or Notice may be given by confirmed electronic delivery by email at the address set forth on the Order in the case of the Customer or at the email address set forth of Mobile Beacon’s website in the case of Mobile Beacon. Either party may change to the notice address by Notice to the other party.
None of the Mobile Beacon Parties or Provider shall be responsible or liable in any manner under these TOS for any failure of the Service or Mobile Beacon’s performance of these TOS 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. If any part of these TOS is found invalid (including without limitation any conflict with any applicable law or regulation) such invalidity will not affect the remaining portions of these TOS, and the parties will substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision. Failure by either party to complain of any act or failure to act of the other party or to declare the other party in default, irrespective of the duration of such default, will not constitute a waiver of rights hereunder. These TOS, together with such modifications as may be adopted pursuant to Section 11 constitute the complete agreement between Customer and Mobile Beacon 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 Beacon, except as set forth above.