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HomeMy WebLinkAboutResolution - 2010-R0560 - Contract 1420008 Mobility IT For 496 Wireless Data Cards - 11/04/2010Resolution No. 2010-RO560 November 4, 2010 Item No. 5.10 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Service Agreement for 496 wireless data cards and communication service plans for Lubbock Power and Light, Public Safety, Solid Waste and Water Utilities, by and between the City of Lubbock and Schmidthaus LLC d/b/a MobilityIT of Carry, North Carolina, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on November_ 4, 2010 -- - TOM MARTIN, MAYOR ATTEST: Rebe a Garza, City Secreta APPROVED AS TO CONTENT: Mark arwood, Assistant City Manager Chief Information Officer APPROVED AS "'O FORM: Chad Weaver, Assistant City Attorney vw:ccdocs.'RES.Agreement-MobilityIT September 23, 2010 >; city of lubbock TEXAS TO: PURCHASE ORDER SCHMIDTHAUS LLC DBA MOBILITY IT 116B SALEM TOWNE COURT APEX North Carolina 27502 SHIP TO: Page - Date - 1 10/21/2010 Order Number 14200008 000 OP CITY OF LUBBOCK MUNICIPAL SQUARE BUILDING Cr0 JASON GOELZER, ROOM 104 916 TEXAS AVENUE LUBBOCK Texas 79401 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 I+''/n LUBBOCK, TX 79457 BY: A,Wv/ Ordered 11/18/2010 Freight Requested 11/18/2010 Taken By D. Torres Delivery J.Goelzer / Req 35868 / GSA Contract #GS -35F -0139W Description Supplier Item Ordered UM Clear WiMax 4g/3g card DM USBs 350.000 EA Clear WiMax 4g 3g card DM USBs 14.000 EA Clear WiMax 4g3g card DM USBs 19.000 EA Clear WiMax 4g/3g card DM USBs 8.000 EA Clear WiMax 4g/3g card DM USBs 1.000 EA Clear WiMax Services/Modems 4.000 EA Clear WiMax Services/Modems 2.000 EA Clear WiMax Services/Modems 1.000 EA Clear WiMax 4g/3g card DM USBs 17.000 EA Clear WiMax Services/Modems 2.000 EA Clear WiMax Services/Modems 2.000 EA Clear WiMax 4g/3g card DM USBs 63.000 EA Clear WiMax Services/Modems 1.000 EA Clear WiMax Services/Modems 5.000 EA Clear WiMax Services/Modems 7.000 EA Terms NET DUE ON RECEIPT Unit Cost UM 464.1600 EA 464.1600 EA 464.1600 EA 464.1600 EA 464.1600 EA 336.0000 EA 336.0000 EA 336.0000 EA 464.1600 EA 336.0000 EA 336.0000 EA 464.1600 EA 336.0000 EA 336.0000 EA 336.0000 EA Total Order Extension Request Date 162,456.00 11/18/2010 6,498.24 11/18/2010 8,819.04 11/18/2010 3,713.28 11/18/2010 464.16 11/18/2010 1,344.00 11/18/2010 672.00 11/18/2010 336.00 11/18/2010 7,890.72 11/18/2010 672.00 11/18/2010 672.00 11/18/2010 29,242.08 11/18/2010 336.00 11/1&2010 1,680.00 11/18:2010 2,352.00 11/18.2010 227,147.52 This purchase order encumbers funds in the amount of $227,147.52 awarded to Schmidthaus LLC DBA Mobility IT of Apex, North Carolina, on November 4, 2010. The following is incorporated into and made part of this purchase order by reference: Price quotation dated October 20, 2010 from Schmidthaus LLC DBA Mobility IT of Apex, North Carolina. Resolution# 2010-RO560 CITY OF LUBBOCK ATTEST: e--, -71�,.w y=2)c` Tom Martin, Mayor Rebec Garza, City Secreta Resolution No. 2010-RO560 Service Agreement for City of Lubbock, Texas October 20, 2010 Prepared By: Carla McGee Mobility" Mobility IT - P.O. Box 1597, Cary North Carolina 27512 TABLE OF CONTENTS 1.0 PURPOSE OF DOCUMENT ................................... PAGE 3 2.0 MOBILITY IT OVERVIEW .................................... PAGE 3 3.0 PROJECT OBJECTIVES .......................................... PAGE 4 4.0 ACCOUNT SUPPPORT.................................PAGE 4-5 5.0 SCOPE OF SERVICES ............................................. PAGE 6 6.0 GENERAL CONDITIONS.......................................PAGE 6 7.0 ACCEPTANCE......................................................... PAGE 6 ATTACIMIENT ONE (1): Clearwire Terms of Service Wireless Internet Access and Related Services, Effective August 30, 2010 .................................. PAGE 7-28 ATTACHIVIENT TWO (2): Clearwire Service Level Agreement .......... PAGE 29-35 1) Article I: Purpose of Document This Statement of Work details the services that will be delivered by Mobility IT to: Company City of Lubbock, Texas Address: 162513"6 Street Com: Lubbock State: I TX I ZiQ: 19401 Article H: Mobility IT Communications Overview Mobility IT is a mobile communications services provider that focuses on providing secure wireless products and services for the public sector and US Military. Classified by the SBA as a Woman Owned Disadvantaged Small Business ,Mobility IT also holds a GSA Schedule 70 contract. # GS -3517-0139W Mobility IT focuses on three primary business competencies: ■ Mobile VPN Solutions ■ Wireless Advanced Authentication ■ Clear Wireless Carrier Services Mobile VPN Solutions Focusing on public sector and US Military, Mobility IT has extensive expertise and experience providing mobile VPN solutions supporting over 28,000 mobile devices throughout the country. Wireless Advanced Authentication Mobility IT offers custom designed advanced authentication hardware and software to comply with the CHS strong factor regulations. Clear Wireless Carrier Services Since its inception of May 2001, Mobility IT has been providing best of breed wireless carrier services and is proud to be a top Clear Wireless Business Partner. Article III: Proiect Obiectives 1. Provide the City of Lubbock, Texas the following two (2) year agreement. PRODUCT• -. Dual Mode USB's 472 MRC Per Unit $48.34 20% Discount 200+ Devices Discounted Rate Per Unit $38.68 Modems 24 MRC Per Unit $35.00 20% Discount 200+ Devices Discounted Rate Per Unit $28.00 Total Units 496 Total Monthly Recurring Charge $18,928.96 Annual Pay $227,147.52 Activation Fee $0.00 Equipment Charges $0.00 VI 1 t 1 Ill In addition to the Clearwire Service Level Agreement, attached hereto as Attachment Two (2), as a partner Mobility IT is able to offer you our account team support as well as Clearwire corporate support in your local market. Our goal is to make sure that you have the highest level of product and services support based on the needs of your account. The following outlines your Mobility IT Account Team as well as your local Corporate Clearwire Account Team: Mobility IT Account Team: Contract Management — Mobility IT Name: Roy Schmidt Email: Roy�a mobilityit.net Phone: 919-367-8118 Cell: 919-376-6400 O Carla McGee Carlg@,,mobilityit.net Phone: 919-367-8118 Cell: 919-896-9034 Sales Support — Mobility IT Name: Roy Schmidt Email: Roy@mobilityit.net Phone: 919-367-8118 Lubbock Clearwire Account Team Local Sales Support - Clearwire Shannon King - RGM Shannon.king_(a,clearwire.com 806.392.1118 C Ryea Jones — GM - Clearwire 806.792.9800 W Local Inventory Support — Clearwire Clearwire provides on-site equipment swaps, upgrades, and delivery for your hardware needs. Francesca Bentancourt — Market Support Rep Francesca.bentancourt@clearwire.com 806.283.4009 C 806.792.9800 W Local Network and Technical Support — Clearwire Rodney Oaks — Lead Field Technician Rodney oaks(&clearwire.com 806.392.2361 C E:IIZ' �L'I►��:IIIIIi� Article V: Scope of Services Please Effective Start/Completion Dates: 1.1 Start Times To Be Determined The term of this Agreement shall commence on the Effective Date and continue for a period of two (2) years. Notwithstanding the foregoing, customer may terminate this Agreement at any time for convenience by giving thirty (30) days prior written notice of its election to terminate to Clearwire. A termination for convenience shall be subject to any applicable early termination fees under the Agreement. Article VI: General Terms and Conditions Please refer to C1earWire Terms of Service, Wireless Internet Access and Related Services, Effective August 30, 2010, attached hereto as Attachment One (1). Article VII: Acceptance Mobility IT is enthusiastic about the opportunity to serve you on this important engagement. Please acknowledge your acceptance of this Service Agreement by signing below. ACCEPTANCE FOR Signature / Date November 4, 2010 Printed Name: Tom Martin, Mayor Attest: kebekaGavza t Approved as to Content: Mark r Approved as to Form: Ass' nt City Attorney k ACKNOWLEDGEMENT OF ACCEPTANCE S' ur Date ' /p�O�C7 .I Printed Name: Roy Schmidt CFO Resolution No. 2010-RO560 ATTACHMENT ONE M TERMS OF SERVICE WIRELESS INTERNET ACCESS AND RELATED SERVICES Effective August 30, 2010 TABLE OF CONTENTS 1. Binding Agreement. This section (a) confirms your agreement to comply with these Terms of Service ("Terms") in order to use Clearwire services and (b) describes the other documents that, together with these Terms, comprise part of these Terms. 2. Clearwire's Right to Change Terms and Your Related Rights. This section describes how these Terms may be changed and what your rights are with regard to these changes. 3. Service Limitations. This section describes service availability limitations, variations on speed and bandwidth, service coverage, maintenance outages, how Clearwire manages its network, and remedies for service outages. 4. Your Term of Service; Rate Plan Pricing Feature; Termination; Term Extensions; Early Termination Fees; Return Policy; Restocking Fee; Equipment Non -Return Fee. This section describes how long you can use Clearwire service, how you can cancel Clearwire service, when Clearwire can terminate its service to you, and fees you may have to pay for early termination of Clearwire service. 5. Billing for Service. This section describes how Clearwire intends to bill you, overage charges applicable to Clearwire accounts, and Clearwire's rights if you do not pay Clearwire for service or if your account is delinquent. 6. Equipment. This section describes the nature of your equipment lease (if applicable) and your responsibilities with respect to leased equipment, including the equipment non - return fee, and restrictions on tampering with equipment. This section also sets forth the limited warranty on equipment and describes what you should do if leased equipment is lost or stolen. 7. Support. This section links to a support website that you can use before calling Clearwire's customer service department. 8. Privacy; Business Relationship Consent. This section describes and links to Clearwire's Privacy Policy, and additionally describes certain aspects of your business relationship with Clearwire. 9. Ownership; No Licenses; Third Party Software. This section provides information on ownership of certain intellectual property, including software and trademarks. 10. Credit Reporting Agencies. This section describes when Clearwire can get credit information about you and how Clearwire may use this information. 11. Disclaimers and Limitation of Liability. This section includes important statements about the scope of the warranties Clearwire makes to you and a description of certain things for which Clearwire will not be liable in connection with its services. 12. Indemnification. This section describes when you must indemnify Clearwire from certain losses and liabilities. 13. Disputes. This section describes how you and Clearwire will deal with any disputes that may arise. Please note: In particular, this section explains your right to opt out of arbitration procedures and to pursue in Court any claims that you may have against I Clearwire. 14. Miscellaneous. This section sets forth miscellaneous legal terms and conditions, including how you and Clearwire must send legal notices to each other. 15. Defmitions. This section tells you what some of the capitalized words in these Terms mean. 16. Contacting Clearwire. This section tells you how to contact Clearwire if you have any questions or desire any information with regard to Clearwire's services. 1. Binding Agreement. Please read these Terms of Service ("Terms") carefully. These Terms are a contract between you and Clear Wireless LLC ("Clearwire"). The Terms cover important information about all Clearwire services and equipment, regardless of whether the services and equipment are intended to provide wireless Internet access on the CLEAR -branded network, on the Clearwire-branded network, on another branded ("Future -branded") network for which Clearwire may elect at any time to offer services and/or equipment (e.g., the Rover -branded network), or on some combination of these different branded networks. Unless otherwise stated, these Terms apply to all CLEAR - branded, Clearwire-branded, and Future -branded wireless internet access services, including any voice and other related services (collectively, the "Service" or "Services"), and any Clearwire-supplied equipment (regardless of how branded) you use, purchase or lease in connection with the Services, including your modem ("Equipment"). These Terms include provisions governing fees for early termination and late payments, limitations of liability and privacy. You accept and agree to comply with, and be bound by, these Terms when you (a) sign or otherwise acknowledge (e.g., by checking a box or clicking a button) that you accept on paper or electronically; (b) use Clearwire's Service or Equipment; or (c) start any program that says you are accepting these Terms when doing so, whichever occurs first. IF YOU DON'T WANT TO ACCEPT THESE TERMS, PLEASE DO NOT DO ANY OF THESE THINGS. These Terms incorporate and include the following documents (collectively, the "Other Documents") as part of the contract between you and Clearwire: • The detailed Service plans that Clearwire, or one of its authorized dealers, provides or refers you to during the sales transaction, and any order confirmation materials and receipt that Clearwire, or one of its authorized dealers, provides or sends to you when (or after) you sign up for Service from Clearwire. • Third -party end-user license agreements that govern any third -party software incorporated in any Service for which you sign up with Clearwire. These agreements can be found at: www.clearwire.com/co=gU/Iegal/eula.htm. • Additional terms and conditions for internet phone service, which can be found at: www.clearwire.com/co=gU/Iegal/one terms.htm • The Acceptable Use Policy ("AUP") describing how you can and cannot use the Service. The AUP can be found at: http://www.clear.com/legal/aup . • Clearwire's Privacy Policy describing how Clearwire may collect and use your personally identifiable and other information. This Privacy Policy can be found at: www.clearwire.com/company/legal/privac or www.clear.com/compM/legal/privacy.htm. g Any other policies relating to the Service that Clearwire may choose to develop and implement. These policies may be posted on the www.clear.com web site or the www.clearwire.com web site or the www.rover.com web site, or may be sent to you via email, regular US Mail, or any other permissible means. Any other applicable terms and conditions, addenda and/or policies posted on Clearwire's "Legal Information Index", which can be found at www.clear.com/compoy/legaU and www.clearwire.com/compgU/IegaU and www.rover.com/legal. To the extent that these Terms conflict with the provisions of any of these Other Documents, then these Terms shall control, unless Clearwire has expressly stated or agreed otherwise in writing, and the conflicting provisions of the Other Document(s) shall be deemed modified to the minimum extent necessary to be read consistently with these Terms. 2. Clearwire's Right to Change Terms and Your Related Rights. Clearwire can change any of the Terms (including any documents incorporated within the Terms) at any time. Clearwire will provide you notice of any material changes through your invoice or by e-mail to the most recent email address associated with your Clearwire account. Clearwire additionally will announce any changes in its newsletter and in the "Service Announcements" section of the Clearwire website or the CLEAR website, which you can find at: www.clearwire.com/coMpgU/Iegal/announcements.htin and www.clear.com/c2=gU/Iegal/announcements.htm. Changes will become effective on the date Clearwire sends notice. Except as otherwise provided below, if you continue to use Service or Equipment after Clearwire sends notice, this will mean that you have agreed to be bound by the changes announced in that notice. If Clearwire makes a change that has a materially disadvantageous effect on your Service, then you may cancel the affected Service, and if your Service plan included an "Early Termination Fee" (sometimes also referred to in these Terms as an "ETF", as defined in Section 4(e) below) and/or a "restocking fee" (as described in Section 4(f) below), then your ability to avoid liability for the payment of such ETF and/or restocking fee shall require that: (a) you call Clearwire's customer service department (at 888-888-3113 ) within thirty (30) days after Clearwire sends notice of the change; (b) you inform Clearwire in that notice or call that you want to cancel Service because of a materially adverse change to these Terms; and (c) Clearwire concurs (after good faith consideration) that you have been adversely affected by the change it has made in the Service that you want to cancel. If you fail to cancel Service in this manner, then you will be deemed to have accepted the change(s) Clearwire has made in such Service. 3. Service Limitations. This Section 3 describes certain Service availability limitations, variations on speed and bandwidth, service coverage, maintenance outages, how Clearwire manages the network, and credits for Service outages. a. Availability of Service. The Service, including any internet phone (sometimes known as mobile "Voice Over Internet Protocol" or "VoIP") service or product, may not be 19 available at any or all times in all areas. Even within coverage areas, and for a variety of reasons that may be beyond Clearwire's reasonable control, service availability, quality, signal strength, and network speeds may vary, be lower than advertised, or be insufficient for your desired use of the Service. At the time you purchase Service, you agree to provide Clearwire with the correct address of the primary place where you intend to use the Service. That address will be used to determine whether adequate coverage should be available based on Clearwire's coverage maps. Coverage maps only approximate Clearwire's anticipated wireless coverage area outdoors; actual Service area, coverage and quality may vary and change without notice, depending on a variety of factors, some of which are discussed below. You agree that Clearwire is not liable for problems relating to Service availability or quality, regardless of the cause(s) of these problems. You further agree to promptly notify Clearwire of any changes in the primary Service address. In the event that (i) you provide Clearwire with valid documentation (e.g., a gas, electric or water bill; a driver's license; a statement from a moving van company) reasonably demonstrating that you have moved to a new primary Service address that is located in an area where adequate coverage is not available (based on Clearwire's coverage maps), and (ii) you call Clearwire's customer service department (at 888-888-3113) within sixty (60) days after your move to such new primary Service address, then subject to the next sentence, you may elect to cancel your Service(s) without being obligated to pay any Early Termination Fee that comprised part of your cancelled Service plan. Notwithstanding anything to the contrary contained in the immediately preceding sentence or elsewhere in these Terms, the following provisions will apply: in the event that you purchase a laptop or netbook from us for use in connection with Service that either you cancel, or Clearwire cancels for cause, then even if subsequent to your activation of CLEAR service you have moved to a new primary Service address where adequate coverage is not available (based on Clearwire's coverage maps), you will remain obligated to pay any Early Termination Fee that comprised part of your cancelled Service plan. For purposes of clarity, you specifically understand that your obligation to pay any restocking fee that comprised part of your cancelled Service plan shall remain unaffected by your move to a new primary Service address, regardless of whether that new address is located in an area where adequate coverage is not available. b. Maintenance. To provide the best possible service to its customers, Clearwire periodically performs maintenance on its network. In some cases, this may require Clearwire to conduct either a planned or unplanned interruption of the Service. Clearwire will use commercially reasonable efforts to schedule maintenance outages in a way that minimises the impact on customers, but Clearwire cannot guarantee that your Service will not be interrupted and cannot always give advance notice of such outages. You acknowledge and agree that Clearwire shall not be responsible for any losses or damages (of any kind) that may be suffered by you as a result of any Service interruptions due to maintenance outages. c. Network Management. Clearwire reserves the right to engage in reasonable network management to protect the overall integrity of its 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 In excessive bandwidth users during periods of congestion. While the determination of what constitutes excessive use depends on the specific state of the network at any given time, excessive use will be determined primarily by resource consumption. For further information, please refer to Clearwire's Acceptable Use Policy, posted at www.clear.com/legWup, which forms a part of these Terms. d. VARIATIONS OF SPEED; SERVICE QUALITY DISCLAIMER THE SPEED AND BANDWIDTH AVAILABLE TO EACH COMPUTER OR DEVICE CONNECTED TO THE CLEARWIRE NETWORK, AND HENCE THE QUALITY OF THE SERVICE, MAY VARY FOR MANY REASONS, WITHIN OR BEYOND CLEARWIRE'S CONTROL, INCLUDING WITHOUT LIMITATION: (i) THE NUMBER OF USERS, COMPUTERS OR DEVICES CONNECTED SIMULTANEOUSLY TO THE NETWORK, AND THE TYPES OF USAGE IN WHICH THEY ARE ENGAGED; (ii) THE AMOUNT OF DATA BEING TRANSFERRED OVER THE NETWORK, (iii) NETWORK SIGNAL QUALITY; (iv) PERFORMANCE CAPABILITIES OF YOUR EQUIPMENT AND THE EQUIPMENT OF THIRD PARTIES; (v) TERRAIN AND FOLIAGE; (vi) WEATHER AND ATMOSPHERIC CONDITIONS; AND (vii) BUILDING STRUCTURE AND MATERIALS. NEITHER CLEARWIRE, NOR ITS AFFILIATES, AGENTS OR SUPPLIERS, WARRANT OR REPRESENT THAT THE EQUIPMENT OR SERVICE (A) WILL MEET YOUR REQUIREMENTS OR (B) WILL BE UNINTERRUPTED, WITHOUT DELAY, ERROR -FREE, OR FREE FROM SERVICE DEGRADATION. e. Credits. Clearwire's sole liability for interruptions or degradations of the Service shall be as set forth in this Section 3(e). In the event of an interruption of the Service that continues for a consecutive period of twenty-four (24) hours or more, Clearwire will credit your account for an amount equal to the prorated monthly charges (including any applicable taxes) for your Service during the affected period, provided that you must request the credit within fifteen (15) days of the commencement of the Service interruption or degradation. Such request may be made by a telephone call to Clearwire's customer service department (at 888-888-3113 for customers of CLEAR -branded or Clearwire-branded Service, or at 888-888-9982 for customers of Rover -branded Service). Alternatively, Clearwire may elect in its sole discretion to issue credits to customers for Service problems. No credit will be available if the interruption or degradation period results from any "Excluded Causes", as described in Section 6(d) below (Equipment Warranty). THIS SECTION 3(f) SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR DEGRADATION OF THE SERVICE. 4. Term of Service; Rate Plan Pricing Feature; Termination; Term Extensions; and Early Termination Fees. a. Term of Service. Clearwire may offer the Service on a day pass, other fixed short term (e.g., seven (7) consecutive days), month-to-month subscription, or term subscription basis. The following is a description of these service offerings: 13 (i) 24 -Hour Pass. If you purchase a twenty-four (24) -hour pass (a "Day Pass") to access the Service, you will be able to use the Service for the period described in the acceptance materials that you receive as part of your sales transaction, or in your order confirmation or receipt. Once your Day Pass period expires, you will forfeit any unused internet time during that period, and you will be required to purchase additional time to continue using the Service. (ii) Fixed Short Term. In addition to the 24-hour period described in Section 4(a)(i) above, Clearwire's Rover -branded service (and potentially one or more other of Clearwire's Future -branded services) may afford you the opportunity to access the Service for another fixed, short-term period (e.g., seven (7) consecutive days; thirty (30) consecutive days; etc.). In that situation, you will be able to use the Service for the period described in the acceptance materials that you receive as part of your sales transaction (which materials may be in the form of a stored -value card or electronic PIN), or in your purchase receipt. Once such period expires, you will forfeit any unused internet time during that period, and you will be required to purchase additional time to continue using the Service; provided, however, that Clearwire may elect to provide you with the option to pre -authorize the automatic continuation of your Service for consecutive rolling periods of the same length as the initial Service period, in which case Clearwire, at the commencement of each such period, will charge your "Card" (as defined in Section 5(a) below), or other Clearwire-approved payment method, for (A) the amount that you paid for the initial Service period or (B) any different amount to which you theretofore may have consented; and, provided further, that you will have the right at any time to opt -out of such automatic continuation of your Service. (iii) Month -to -Month Subscriber. If you purchase a month-to-month subscription to the Service, you will be able to use the Service for any consecutive monthly period that has been paid in advance, as described in the acceptance materials that you receive as part of your sales transaction, or on your order confirmation or receipt. For example, if you purchase a month-to-month subscription and your billing cycle begins on the eighth day of the month, then you will be charged on the eighth day of the following month and each month thereafter, and your Service will continue to be provided for consecutive monthly periods as long as you continue paying in a timely way. (iv) Term Subscriber. Some of the Services that we offer require you to maintain Service with Clearwire for a minimum period, usually two (2) years ("Term Commitment"). After you have satisfied the Term Commitment for a Service, that Service will continue on a month-to-month basis and will not be subject to an Early Termination Fee; provided, however, that if you agree to a new Term Commitment or if you extend your initial Term Commitment for that Service as a result of making changes to the Service or accepting one or more offers, discounts, or promotions (e.g., an additional rate plan feature) in exchange for extending your Term Commitment, then you will be subject to a new Early Termination Fee, the details of which will be set forth on your new order confirmation or receipt. b. Rate Plan Pricing Feature. At certain times and in certain markets, Clearwire may 11) offer to new customers a promotional rate plan that sets forth a lifetime or "For Life" rate. Any such lifetime or "For Life" rate refers solely to the Service, and not to any Equipment purchase or rental, and is subject to certain additional conditions contained in the acceptance materials, order confirmation, or receipt for your Service purchase. If a lifetime or "For Life" rate applies to your Service, you specifically acknowledge and understand that this is a pricing feature of your rate plan, and not a guarantee that Clearwire (or any other entity) will continue providing the particular Service you have purchased, at the location where you have purchased the Service. Any such lifetime or "For Life" rate is limited to the life of the Clearwire account. CHANGES THAT YOU MAKE TO YOUR CLEARWIRE RATE PLAN OR ACCOUNT MAY INVALIDATE A LIFETIME OR "FOR LIFE" OFFER c. Cancellation by You. You can cancel any or all Services, (but not any Rover -branded Service session which you previously have purchased), at any time, by calling at any time by calling Clearwire's customer service department (at 888-888-3113 for customers of CLEAR -branded or Clearwire-branded Service, or at 888-888-9982 for customers of Rover -branded Service) and telling Clearwire to deactivate the Service. After you cancel any or all Services in this manner, Clearwire no longer will charge any recurring monthly (or other periodic) Service fees to your "Card" (as defined in Section 5(a) below), bank account, or other Clearwire-approved method of payment. However, you are responsible for all charges for Services (if applicable) and Equipment leasing incurred prior to the date of deactivation of your cancelled Service(s) (including, without limitation, any applicable Early Termination Fee or restocking fee if you are a customer of CLEAR branded or Clearwire-branded Service). If you deactivate Service(s) before the end of a billing period, Clearwire will not prorate charges for that billing period or issue you a credit for any portion of that billing period. IF, AS A CUSTOMER OF CLEAR -BRANDED OR CLEARWIRE-BRANDED SERVICE, YOU AGREED TO MAINTAIN SERVICE WITH CLEARWIRE FOR A MINIMUM TERM COMMITMENT AND YOU CANCEL YOUR SERVICE BEFORE THE END OF THIS TERM COMMITMENT, YOU MAY BE SUBJECT TO AN EARLY TERMINATION FEE OR A RESTOCKING FEE, AS DESCRIBED MORE FULLY IN SECTIONS 4(e) and 4(f) BELOW. Upon termination of Service for any reason, Clearwire may, to the extent permitted by applicable law, delete any voicemails, data, files, electronic messages, or other information stored on Clearwire's or its suppliers' servers or systems. You agree that the "Clearwire Parties" (as defined in Section 15 below) will have no liability whatsoever for the loss of any such data, names, addresses, or other information. d. Termination by Clearwire. CLEARWIRE MAY LIMIT, SUSPEND OR TERMINATE YOUR SERVICE OR ANY AGREEMENT BETWEEN CLEARWIRE AND YOU WITHOUT NOTICE FOR ANY GOOD CAUSE, INCLUDING, WITHOUT LIMITATION, upon receipt of adverse credit information about you at any time, or if you or any user on your account: (i) breaches these Terms; (ii) pays late more than once in any twelve (12) -month period; (iii) provides credit 12 information that Clearwire is unable to verify; (iv) provides Clearwire with any inaccurate or incomplete information; (v) damages or tampers with, or allows anyone else to damage or tamper with, any Equipment; (vi) incurs charges greater than any billing or credit limitation on your account (even if Clearwire has not yet billed for those charges); (vii) transfers Service to another person without Clearwire's advance written consent; (viii) becomes insolvent, goes bankrupt, or threatens bankruptcy (except as prohibited by law); (ix) uses the Service in a way that violates Clearwire's Acceptable Use Policy, any other agreement you may have with Clearwire, or any other policy affecting your Service that Clearwire may choose to develop and implement; or (x) otherwise acts in a malicious or unsavory manner; provided, however, that potential suspension and/or termination of your Service by reason of adverse credit information or pursuant to subsection (ii) or (iii) above shall not apply to the extent that you are a customer of Rover -branded Service IF AS A CUSTOMER OF CLEAR -BRANDED OR CLEARWIRE-BRANDED SERVICE YOU AGREED TO MAINTAIN SERVICE WITH CLEARWIRE FOR A TERM COMMITMENT, AND IF CLEARWIRE TERMINATES YOUR SERVICE FOR CAUSE BEFORE THE END OF THIS TERM COMMITMENT, YOU MAY BE SUBJECT TO AN EARLY TERMINATION FEE AND/OR RESTOCIING FEE, AS DESCRIBED MORE FULLY IN SECTIONS 4(e) AND 4(f) BELOW. e. Early Termination Fees (not applicable to customers of Rover -branded Service). If you purchase any Service under a rate plan requiring you to maintain Service for a Term Commitment, THEN UNLESS STATED OTHERWISE IN THESE TERMS OR ON YOUR ORDER CONFIRMATION, AN EARLY TERMINATION FEE WILL APPLY IF YOU CHOOSE TO CANCEL YOUR SERVICE BEFORE THE END OF YOUR TERM COMMITMENT, OR IF CLEARWIRE TERMINATES YOUR SERVICE FOR CAUSE BEFORE THE END OF YOUR TERM COMMITMENT. The Early Termination Fee is part of Clearwire's rates, is not a penalty, and applies only to the extent permitted by law. Clearwire will disclose your initial Term Commitment and the amount of the Early Termination Fee in the Service plan description that you receive as part of the sales transaction or on your order confirmation or receipt. All Early Termination Fees will decline over the life of the then existing Term Commitment, as potentially extended pursuant to Section 4(a)(iii) above. To view the currently applicable Early Termination Fee amounts for new service and charts showing how the Early Termination Fee amortizes over time, visit: www.clear.com/legal/etf. f. Service Trial Period, Return Policy, Restocking Fee, and Equipment Non -Return Fee. You may cancel CLEAR -branded or Clearwire-branded Service without paying an Early Termination Fee (or a restocking fee, as applicable) if you cancel WITHIN FOURTEEN (14) DAYS of initially signing up for such Service (the "Return Period"). You may not cancel a Rover -branded Service session once you have purchased that particular session. With regard to any cancellation by you of CLEAR -branded or Clearwire-branded Service, then you remain responsible to pay for the Service and all charges, fees and taxes (including any Equipment lease fee, but excluding any Early 1A Termination Fee or restocking fee) incurred during the Return Period through the date of cancellation. To cancel CLEAR -branded or Clearwire-branded Service during the Return Period, you must within the Return Period, call Clearwire's customer service department (at 888-888-3113) and give Clearwire notice of your intention to cancel Service. In addition, once you have cancelled Clear -branded or Clearwire-branded Service, you will be obligated immediately to return, in undamaged condition and in good working order, any Equipment you purchased or leased at the time of activation (i.e., with original packaging and all contents intact). Unless an authorized representative of Clearwire's customer service department expressly instructs you otherwise, you should use the electronic, prepaid mailing label that Clearwire emails to you in order to return the Equipment to Clearwire at the address set forth on that label. Upon your return to Clearwire of any of the Equipment that you leased and subsequently returned is received by Clearwire in damaged condition or in poor working order, then you may be required to pay Clearwire a restocking fee, as disclosed to you in the Service plan description (that you receive as part of the sales transaction) or on your order confirmation or receipt; provided, however, that as long as you cancel the Clear -branded or Clearwire-branded Service during the Return Period and you return the leased Equipment to Clearwire within thirty (30) days of your Service cancellation date, then you will be charged a restocking fee only if the leased Equipment is returned to Clearwire in damaged condition or in poor working order. If you fail (for whatever reason) to return any and all leased Equipment within thirty (30) days of your Service cancellation date and otherwise in accordance with the provisions of this Section 4(f), then as further discussed in Section 6(b) below, you additionally shall be responsible for the payment to Clearwire of an "Equipment Non -Return Fee" in an amount equal to the lesser of (i) the then -fair market value of the Equipment or (ii) the then -applicable "Retained Device Fee" amount for such particular leased Equipment, as set forth in the Retained Devices chart located at www.clear.com. Clearwire shall be entitled to automatically charge the amount of the Equipment Non -Return Fee to your "Card" (as defined in Section 5(a) below), bank account, or other method of payment that you have provided to Clearwire for any purpose. For customers of Clear -branded or Clearwire-branded service: if you purchased your Equipment and comply with each of the requirements discussed above ("Return Policy"), and return the purchased Equipment to Clearwire (in undamaged condition and in good working order) within thirty (30) days of your Service cancellation date, then you will receive a refund of the Equipment purchase price (including any taxes that you paid thereon), less (i) rebates received (or applied for) and (ii) shipping costs. (A) rebates received (or applied for) and (B) shipping costs. For customers of Rover -branded Service: if you purchased your Equipment directly through rover.com, submit a "Return Material Authorization" ("RMA") request (by calling Rover's customer service department, at 888-888-9982) within fourteen (14) days of your Equipment purchase date, and return the purchased Equipment to Clearwire (in undamaged condition and in good working order) within thirty (30) days after the date you submit the RMA request, then you will receive a refund of the Equipment purchase price (including any taxes that you paid thereon), less (I) rebates received (or applied for) and (II) shipping costs. 5. Billing for Services. This Section 5 describes how Clearwire bills you for Service and Equipment, overage charges applicable to certain CLEAR accounts, and Clearwire's rights if you do not timely pay in full for Service or Equipment or if your account is 1S delinquent. a. How You Will Be Billed. You will pay Clearwire for the Service and Equipment using your credit, debit, or other acceptable bank card (the "Card") or through an electronic funds transfer ("EFT") that debits funds directly from a bank account that you designate; provided, however, that EFT is not presently an option for CLEAR -branded Service accounts or Rover -branded Service accounts. The Card and/or EFT -related information (if applicable) you have provided to Clearwire must be valid and up to date (i.e., not expired) at all times. If your Card information or Card status is not valid and up to date, your account balance(s) will not be timely paid, and Clearwire may suspend or terminate the Service for cause and/or charge you late charges, re -activation fees, and/or any applicable Early Termination Fees or restocking fees (as described in Sections 4(e) and 4(f), respectively, above). Clearwire has web -based account tracking systems called "My Clear" (formerly known as My Account) for customers of CLEAR -branded or Clearwire-branded Service and "My Rover" for customers of Rover -branded Service. These systems allow you to view your account status and any credit balance, pay invoices (or in the case of My Rover, purchase a particular period(s) of Service), and make other changes to your account profile at any time. My Clear is located at: www.cleancom/my clear/signin.php; and, My Rover is located at www.rover.com/myrover. For customers of CLEAR -branded or Clearwire- branded Service, fees and charges for Service are set forth in your order confirmation and your invoices on "My Clear"; For customers of Rover -branded Service, fees and charges for Service are set forth in your purchase receipt and your statements on "My Rover" Clearwire disclaims any and all liability, and you relieve Clearwire from any and all liability, in the event of (i) errors or omissions in information displayed on My Clear or My Rover or (ii) your inability to access My Clear or My Rover (for any reason) during any particular period(s). You specifically acknowledge and understand that Clearwire does not produce, mail or otherwise send paper invoices to its customers. Rather, your invoices/statements that are viewable on My Clear or My Rover and that Clearwire may send to you via email are the sole forms of Clearwire Service and Equipment invoices/statements that currently are available to you. You are entitled and encouraged to access and print out copies of your most recent invoices from My Clear (or, if applicable, your most recent statements from My Rover). In certain states, you additionally may be entitled to request paper invoices from Clearwire, and Clearwire will honor any such written requests that Clearwire receives in conformance with the "Notice" provisions contained in Section 14(c) below. As part of the order process, or whenever you update your Card information on file with Clearwire, Clearwire will pre -authorize two charges on your account with your Card. The first will be for Two Dollars ($2.00) to test the validity of the Card. (This Two Dollar ($2.00) sum is not actually charged to your Card, but rather serves as a temporary hold that the Card -issuing bank should release within 10-15 days.) The second will be for the estimated amount of your first month's Service, plus applicable taxes. As an additional part of the order process, you will have the option to make a lump -sum, advance payment to Clearwire that covers, for an initial two (2) -year period, the recurring monthly plan rate (plus taxes) for the Service you have ordered. After the initial month of Service, and subject solely to the immediately preceding sentence, Clearwire will invoice you, on a 14 monthly basis (except in the case of a Day Pass account), for the Service (including any add-on features), any "Overage Charges" (as defined in Section 5(b) below), any Equipment Clearwire leases to you, any applicable installation fees, and any applicable activation fees. As stated above, these invoices will be available to you solely in "My Clear" and by means of an email that Clearwire may send to you. For customers of CLEAR -branded or Clearwire-branded Service, monthly charges will be automatically charged to your Card (or debited via EFT from your a -check account on record, if and as applicable), as specified on the order confirmation or receipt that Clearwire provides to you. As a customer of CLEAR -branded or Clearwire-branded Service, you agree that Clearwire may charge your Card (or debit via EFT, if and as applicable) all amounts owed in connection with your Clearwire account, and you further agree to pay in full to Clearwire all outstanding balances when due. For customers of Rover -branded Service, charges for the particular Service period(s) purchased s will be satisfied first by means of an automatic reduction of any credit balance that may be available in your account. If such credit balance is less than the outstanding charges, then the difference between those two amounts will be charged to your Card. As a customer of Rover -branded service, you agree that Clearwire may reduce your account credit balance by, and (if necessary) charge your Card for, all amounts owed in connection with your Clearwire account, and you further agree to pay in full to Clearwire all outstanding balances when due. b. Data Plans/Overages (Applicable only to CLEAR Accounts.) If you subscribe to the CLEAR service, you will be entitled to use the CLEAR Service for the monthly bandwidth amounts (the "Plan Amount") listed on your order confirmation or receipt. If you exceed your Plan Amount during any monthly billing period, Clearwire will automatically charge you, and you agree to pay, an additional internet service usage fee per gigabyte (or fraction thereof) of additional bandwidth (the "Overage Charge"). The rate for this Overage Charge will be as set forth in your Service plan description (that you receive as part of the sales transaction) or on your order confirmation or receipt. Your Plan Amount does not roll-over from month to month, but rather expires in its entirety at the end of each monthly billing period. You should read and familiarize yourself with Clearwire's Acceptable Use Policy, which (as stated above) forms a material part of these Terms and which sets forth examples of permissible and non -permissible uses of the Service. c. Suspension or Termination for Non -Payment. If you are a customer of CLEAR- branded LEARbranded or Clearwire-branded Service and you do not pay your account in full by the due date more than once in any twelve (12) -month period, then Clearwire may suspend or terminate the Service. If you are a customer of Rover -branded Service and you incur a negative balance on your account, then Clearwire may suspend or terminate the Service, and Clearwire additionally may suspend your ability to use -- in connection with any and all of your Clearwire accounts -- the Equipment that you have purchased for use in association with your Rover -branded Service. Furthermore, Clearwire may terminate your Service if your Card expires or your bank account is closed or suspended (as applicable) and you have not provided Clearwire with a valid replacement Card (or valid 17 EFT -related information, if and as applicable). In the event of such suspension or termination by Clearwire, you promptly will pay to Clearwire any and all outstanding fees and all collection costs and fees, including reasonable attorneys' fees and late fees (and further including, in the event of termination of CLEAR -branded or Clearwire. branded Service, any applicable Early Termination Fee and/or restocking fee) incurred or charged by Clearwire. Clearwire may, but is not required to, reactivate your Service if you bring your account current after Service has been suspended or terminated; provided, however, that if (i) your account for Rover -branded Service has been suspended pursuant to this Section 5(c), (ii) you fail to bring such account current within thirty (30) days after such suspension date, and (iii) you are in the midst of a particular Rover -branded Service period on such suspension date, then you will forfeit any theretofore unused time in such Service period. Before Service may be reactivated, you must pay Clearwire all past due amounts, late payment fees, and applicable taxes, plus a reasonable suspension/termination charge (as determined by Clearwire) per account to cover Clearwire's administrative costs associated with the suspension/termination. In addition, if you are a customer of CLEAR -branded or Clearwire-branded Service, you may be required to provide Clearwire with a deposit (in an amount determined by Clearwire, within then -prevailing industry parameters) as a condition to reactivating your Service. d. Delinquency/Late Fees. All delinquent charges and charges not honored by your Card issuer or bank will be subject to a late fee equal to 1.5% (or the highest percentage or dollar amount that is allowed by applicable law, whichever is lower) of the delinquent amount or Five Dollars ($5.00) per month (or portion of a month), whichever is greater. Except to the extent prohibited by applicable law, Clearwire may charge a late fee pending the resolution of any disputes you may have raised regarding your invoiced charges, provided that Clearwire will reverse late fees with respect to any charges that are removed from your account as a result of the dispute process being resolved in your favor. 6. Equipment. This Section 6 describes your responsibilities with respect to leased Equipment, including the Equipment Non -Return Fee and restrictions on tampering with Equipment. This Section 6 also provides the sole warranty relating to Equipment and describes what you should do if Equipment is lost or stolen. a. Term of Equipment Lease. If you lease Equipment from Clearwire, then your lease of that Equipment shall be on a month-to-month basis, even if your Service plan description includes a Term Commitment (as defined in Section 4(a)(iii) above). b. Return of Leased Equipment; Non -Return Fee. If you lease Equipment from Clearwire, you must return all leased Equipment, undamaged and in good working order, within thirty (30) days after termination of Services or within thirty (30) days after written notice from Clearwire to return the Equipment, whichever occurs sooner. If you do not return all leased Equipment, undamaged and in good working order, reasonable wear and tear excepted, within thirty (30) days after termination of Services or after Clearwire's written request (as applicable), then as previously discussed in Section 4(f) above, you agree that Clearwire may charge you, and you agree to pay to Clearwire, the Equipment Non -Return Fee in an amount equal to the lesser of (i) the then -fair market 1Q replacement value of the Equipment or (ii) the then -applicable "Retained Device Fee" amount for such particular leased Equipment, as set forth in the Retained Devices chart located at www.clear.com. You authorize Clearwire to charge such amounts to any Card, bank account, or other method of payment you provide, or previously have provided, to Clearwire for any purpose (but not to any such previously provided Card or bank account that you have notified us is closed or no longer valid). You may not revoke this authorization to charge your Card or bank account for any failure to timely return leased Equipment, undamaged and in good working order, even if you notify us of your intent to cancel your Service or otherwise revoke authorization to charge your Card, bank account, or other method of payment for other purposes. c. Repair or Replacement of Leased Equipment. Clearwire may replace, upgrade, repair, or otherwise modify any leased Equipment, and Clearwire will repair or replace any properly maintained leased Equipment that falls to operate as required for the delivery of Service. Clearwire may supply a refurbished modem for purchase or lease, but there will be no offset, discount, or other reduction in purchase or lease price for that reason. You may not modify leased Equipment in any way or sell, encumber, or otherwise transfer the leased Equipment to any other person or entity. d. Equipment Warranty. Your Equipment is covered by a limited warranty from its manufacturer. This manufacturer's limited warranty provides that your Equipment will be substantially free from material defects, under normal use in compliance with the manufacturer's and Clearwire's instructions, for a period of one (1) year from the date you receive the Equipment ("Limited Warranty"). This Limited Warranty excludes any defects resulting from abuse, misuse, neglect, theft, vandalism, fire, unusual physical or electrical stress, water, extremes of temperature, an act of God, use of the Equipment by an unauthorized person, your failure to comply with the Equipment manufacturer's or Clearwire's policies or with any other instructions provided by the Equipment manufacturer or Clearwire, actual or attempted alteration of or additions to the Equipment not approved in advance (in writing) by the Equipment manufacturer and Clearwire, or any other cause beyond the reasonable control of the Equipment manufacturer and Clearwire, all as reasonably determined by the Equipment manufacturer and Clearwire (collectively, "Excluded Causes"). Repair or replacement of the Equipment, in Clearwire's discretion, and reperformance of the installation of the Equipment are Clearwire's only responsibility, and your exclusive remedy, for breach of any warranty regarding the Equipment. This Limited Warranty is personal to you, and will terminate immediately upon the sale or transfer of the Equipment or expiration or termination of the Service (for any reason). Neither your Equipment manufacturer, Clearwire, nor any other party makes any other warranty, express or implied, with regard to the Equipment. e. Tampering with the Equipment. You must not use the Service with any equipment that has an altered electronic serial number or equipment identifier or any equipment that has undergone a factory reset, without seeking and obtaining Clearwire's express advance written permission in each instance. In addition, you may not use any serviced, altered, modified, stolen, or tampered equipment with the Service, and you may not permit any 10 other person to do so (unless specifically authorized in advance by Clearwire, in writing). E Theft of the Service or Leased Equipment. If your Equipment is lost or stolen, or if you become aware at any time that the Service has been stolen or is being fraudulently used, it is very important that you notify Clearwire immediately, so that Clearwire can suspend your Service (and/or in the case of customers of Rover -branded Service, suspend the ability to use the Equipment that you purchased for use in association with that Service) in order to prevent further usage and limit your liability. If you are a customer of CLEAR -branded or Clearwire-branded Service, you can do this by (i) logging into My Clear (at www.clear.com/my clear/si nin.phn) to request a suspension of your Service or (ii) calling Clearwire's customer service department at (888) 888-3113. If you are a customer of Rover -branded Service, you can do this by calling Rover's customer service department at (888) 888-9982. Once you notify Clearwire, Clearwire will suspend your Service (i.e., until you possess replacement Equipment usable with the Service or such fraudulent activity has ceased, as applicable), and you will not be responsible for charges incurred with the lost or stolen Equipment during that period of suspension. If you are a customer of CLEAR -branded or Clearwire-branded Service, then the following provisions will apply: you will be obligated to fulfill the remainder of your Term Commitment (unless you then are subscribed to month-to-month Service), which will be deemed extended by the full duration of the period that your Service is suspended; and, if you do not fulfill the remainder of your Term Commitment, then the Early Termination Fee (or the restocking fee, as applicable) will become due and will be chargeable automatically by Clearwire to your Card (or through an EFT, if and as applicable). 7. Support. Prior to contacting Clearwire's customer service for assistance, you may elect to use the troubleshooting guides and user information provided by Clearwire, or available at www.clearwire.com/support/support.php for customers of CLEAR -branded or Clearwire-branded Service or at www.rover.com/support for customers of Rover - branded Service. If you request a service call to your Service location and Clearwire determines that the problem is your responsibility, then Clearwire reserves the right to charge you a reasonable fee for the cost of the technician's service call, and you hereby pre -authorize Clearwire to charge that fee to your Card or bank account. If you desire to file a warranty claim pursuant to Section 6(d) above, please call Clearwire's customer service department (at (888) 888-3113 for customers of CLEAR -branded or Clearwire. branded Service, or at (888) 888-9982 for customers of Rover -branded Service). 8. Privacy; Business Relationship Consent. a. Privacy Policy. Clearwire's Privacy Policy (posted at www.clear.com/legavpdvacy describes how Clearwire may collect and use your personally identifiable and other information, including your customer proprietary network information (CPNI), applicable to internet data and phone service subscribers. Clearwire's Privacy Policy constitutes par[ of these Terms. b. Consent to Business Relationship. When you sign up for the Service, and as part of your business relationship with Clearwire, you will be asked to provide a telephone number. Regardless of whether this is a wired or wireless number or whether this number is listed on the Do -Not -Call Registry, you consent to being contacted by Clearwire 1) ri (and/or its designated agents) at this number, for any purpose (including sales, marketing and promotional offers) and by any means (including autodialed or prerecorded voice calls and text messages). In this regard, you specifically acknowledge and understand that you may incur, and will bear sole responsibility for, charges related to these incoming calls or messages. 9. Ownership; No Licenses; Third Party Software. The Service and leased Equipment, and any firmware or software used to provide the Service embedded in any Equipment or used in connection with the Service; all Service information, documents and materials delivered to you by Clearwire or located on the www.clearwire.com website or the www.clear.com website, or www.rover.com website; and all names, service marks, trademarks, trade names, logos, domain names, and patents of Clearwire (collectively, the "Clearwire Assets"), are and will remain the sole property of Clearwire (and/or its affiliate). Nothing in these Terms grants you the right or license to use any of the Clearwire Assets, except on a non-exclusive basis in connection with your personal use of the Service in strict compliance with each of these Terms. The Service may require third -parry software to be installed in order to function. Clearwire shall not be liable for any use or installation of such software. Any third -party software installed shall be governed by that third -party's end-user license agreement (see the listing of "Other Documents" under Section 1 above). By accepting these Terms, you agree to accept the terms of those third -parry end-user license agreements and to look solely to the provider(s) of such third -party software to handle and resolve any problems or issues relating to the use or installation of any such third -party software. 10. Credit Reporting Agencies (not applicable to customers of Rover -branded Service). You authorize Clearwire to ask trade references and (if you are seeking to sign up for Service on other than a month-to-month or Day Pass basis) consumer reporting agencies to furnish Clearwire with employment and credit information about you, and you consent to Clearwire's rechecking and reporting personal and/or business payment and credit history, as well as to Clearwire's entering this information in your file and to disclosing this information concerning you to appropriate third parties for allowable business purposes. You understand that a credit inquiry could adversely affect your credit rating. You authorize Clearwire to report your payment record to credit-reporting agencies. 11. Disclaimers and Limitation of Liability. This Section 11 includes important statements about the scope of the sole warranty made to you and a description of certain things for which Clearwire will not be liable in connection with the Service. (a) DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. THE ONLY WARRANTY BEING MADE ABOUT THE SERVICE AND EQUIPMENT IS THE MANUFACTURER"S EXPRESS LMTED WARRANTY SET FORTH IN SECTION 6(d) ABOVE. THE CLEARWIRE PARTIES (SEE THE "DEFINITIONS" IN SECTION 15 BELOW) DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AVAILABILITY, NON-INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE OR EQUIPMENT, OR NON -INFRINGEMENT. II ANY STATEMENTS MADE IN ANY PACKAGING, MANUALS, OR OTHER DOCUMENTS NOT EXPRESSLY INCORPORATED HEREIN (SEE "OTHER DOCUMENTS"), AND ANY STATEMENTS MADE BY ANY CLEARWIRE EMPLOYEES OR REPRESENTATIVES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS REPRESENTATIONS OR WARRANTIES OF ANY KIND BY ANY CLEARWIRE PARTIES. CLEARWIRE DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON CLEARWIRE'S BEHALF, AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICE AND THE EQUIPMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE EXCLUSIONS IN THIS SECTION I 1 MAY NOT APPLY TO YOU, IN WHOLE OR IN PART. (b) LIMITATION OF LIABILITY. THE CLEARWIRE PARTIES SHALL NOT BE LIABLE OR OBLIGATED IN CONNECTION WITH THESE TERMS, UNDER ANY THEORY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, PRIVACY, SECURITY, STRICT OR PRODUCT LIABILITY, BREACH OF WARRANTY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR: ANY AMOUNTS IN EXCESS OF THE TOTAL FEES PAID TO CLEARWIRE FOR THE SERVICE OR EQUIPMENT DURING THE SIX (6) -MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO LIABILITY; ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICE, PRODUCTS, OR RIGHTS; ANY LOSS OR CORRUPTION OF DATA; DELAYED, DEGRADED OR INTERRUPTED USE OF THE SERVICE OR ACCESS TO THE INTERNET (SUBJECT SOLELY TO THE PROVISIONS OF SECTION 3(e) ABOVE); INABILITY TO MAKE OR COMPLETE CALLS USING THE INTERNET PHONE SERVICE; OR DAMAGE TO ANY HARDWARE, SOFTWARE, OR THE SERVICE LOCATION; ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES AND/OR LOST PROFITS OF ANY KIND OR AMOUNT; ANY LACK OR BREACHES OF SECURITY OF THE SERVICE OR IN THE STORAGE OR INTEGRITY OF YOUR DATA OR ANY OTHER USER'S DATA; OR ANY DAMAGES ARISING FROM ANY DELAY OR FAILURE IN PERFORMANCE DUE TO EVENTS OR CAUSES OUTSIDE OF CLEARWIRE'S REASONABLE CONTROL. THE EXCLUSIONS AND LIMITATIONS CONTAINED IN THIS SECTION 11 SHALL APPLY WHETHER OR NOT CLEARWIRE WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES, AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SUBJECT SOLELY TO YOUR RIGHTS AS EXPRESSLY SET FORTH IN SECTIONS 3(e) AND 6(d) ABOVE, IF YOU ARE DISSATISFIED WITH THE SERVICE OR EQUIPMENT, OR IF YOU HAVE ANY OTHER DISPUTE WITH CLEARWIRE OR CLAIM AGAINST CLEARWIRE, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE (SUBJECT TO YOUR OBLIGATION TO PAY ANY EARLY TERMINATION FEE AND/OR RESTOCKING FEE APPLICABLE TO YOUR SERVICE PLAN AND ANY OTHER CHARGES THERETOFORE INCURRED IN CONNECTION WITH YOUR USE OF THE SERVICE), AND ANY LIABILITY WILL BE LIMITED TO THE RECOVERY OF YOUR DIRECT DAMAGES, LIMITED TO THE AMOUNT AND BY THE EXCLUSIONS SET FORTH IN THIS SECTION 11. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OTHER MODIFICATIONS OF OR LIMITATIONS ON CERTAIN REMEDIES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU, IN WHOLE OR IN PART. 12. Indemnification. You will defend, indemnify, and hold harmless the Clearwire Parties from and against any and all claims, demands, actions, causes of action, judgments, liabilities, damages, losses, injuries, costs and expenses arising from (a) the use or misuse of the Service or Equipment by you or by any person you allow to use the Service or Equipment, or (b) any breach of these Terms by you, including, but not limited to, claims by any owner of the primary location where you use the Service. You also agree to pay each Clearwire Party's reasonable attorneys' fees and costs related to defending such claims and to enforcing these Terms, including any and all such fees incurred in connection with any appeal. 13. Disputes. This section describes what rights you and Clearwire possess if you and Clearwire have a dispute. a. Your Right to Dispute Charges or Services. If you have a dispute about your invoice/statement/purchase receipt, including any charge to your account or any Service for which you were billed, you agree to notify Clearwire of the dispute within thirty (30) days after the initial posting on My Clear or My Rover (as applicable) of the invoice/statement/purchase receipt on which the disputed charge or Service first appears. Such notice shall be in the form of a writing to Clearwire at its following customer service address: www.clearwire.com/company/Contact.php. Unless otherwise provided by law, you must pay disputed charges until the dispute is resolved. If you accept a credit, refund, or other compensation or benefit that Clearwire offers to resolve a disputed invoice, charge or Service, then you agree that the issue has been fully and finally resolved. b. You Agree to Provide Clearwire an Opportunity Informally to Resolve Your Dispute. Before you may pursue or participate in any dispute (or raise such dispute as a defense) in court against Clearwire for any claims, including claims related in any way to Clearwire Service, Equipment, these Terms, billing, privacy, advertising, or Clearwire's communications with you, you must first send a written description of your claim to Clearwire Escalations at the following address: 5520 Industrial Boulevard, Milton, II Florida 32583, and you must allow Clearwire a reasonable opportunity to resolve your dispute. Your written notice must describe the problem in reasonable detail, and identify or enclose all relevant documents and information. You and Clearwire agree to negotiate in good faith with each other to try to resolve your claim. If you and Clearwire do not reach a resolution of your dispute within sixty (60) days after Clearwire receives your written notice of claim, you may pursue your claim in court. e. Governing Law. These Terms, and any disputes arising between you and Clearwire related in any way to these Terms, Clearwire's Service, or Clearwire's Equipment, including but not limited to disputes over billing, service, privacy, advertising, or Clearwire's communications with you, whether based on contract, tort, statute, or common law, will be governed by the laws of the State in which your most recent billing address (as provided to Clearwire) is located, without regard to choice of law principles. 14. Miscellaneous. a. Assignment and Successors in Interest. These Terms will be binding upon, inure to the benefit of, and be enforceable against your respective successors and permitted assignees. You may not assign these Terms, or any of your rights, interests, or obligations in connection with your use of the Service, without seeking and obtaining the prior written consent of Clearwire in each instance. Any such assignment without such consent will be void and of no force and effect. b. Entire Agreement/Severability. For customers of CLEAR -branded or Clearwire- branded Service, the Terms consist of (i) the terms and conditions set forth in this document and (ii) the Other Documents posted at www.clear.com/legal/index, each as they may be amended from time to time by Clearwire (or in the case of third -party end- user license agreements, by the owner of such licensed software). For customers of Rover -branded Service, the Terms consist of (A) the terms and conditions set forth in this document and (B) the Other Documents posted at www.rover.com/lgg@L each as they may be amended from time to time by Clearwire (or in the case of third -party end-user license agreements, by the owner of such licensed software). The Terms comprise the entire agreement and understanding of you and Clearwire regarding the Service and Equipment and supersede and supplant all other representations, whether electronic, written or verbal, regarding the subject matter of these Terms. To the extent that these Terms conflict with the provisions of any other agreement between you and Clearwire, then these Terms shall control, unless Clearwire has expressly stated or agreed otherwise in writing, and the conflicting provisions of the other agreement shall be deemed modified to the minimum extent necessary to be read consistently with these Terms. If a court determines, in a final non -appealable judgment, that any provision of these Terms is invalid, illegal, or otherwise unenforceable, such provision will be deleted and the remainder of the Terms shall be enforced as nearly as possible in accordance with the stated intention of the parties, except to the extent otherwise provided in the arbitration provisions contained in Section 13(c) above. c. Notices. Written notices to you from Clearwire will be deemed given 1) n when sent to the email address specified on your order confirmation, or such other email address as you subsequently provide in writing to Clearwire (with any request by you that Clearwire disregard an email address that you previously provided to Clearwire to be made by calling Clearwire's customer service department at (888) 888-3113 for customers of CLEAR -branded or Clearwire- branded Service, or at (888) 888-9982 for customers of Rover -branded Service, and with Clearwire to be afforded a minimum of thirty (30) days to abide by such request); three (3) days following the date deposited in the U.S. Mail addressed to your last known street/mailing address as maintained in Clearwire's files; or, the date of delivery or rejection when sent by a nationally recognized courier to your last known street/mailing address as maintained in Clearwire's files. You are responsible for promptly notifying Clearwire of any changes in your email and/or street/mailing address. Written notice to Clearwire will be effective when directed to Clearwire's customer service department and received at the address set forth at www.clearwire.com/company/contact.". Except as specifically provided in these Terms, notices from you to Clearwire must be in writing to be effective. You also agree that all correspondence and communications sent to you by Clearwire, including account statements, account status, payment and billing information, and changes to these Terms, may be sent by Clearwire electronically to the email address most recently provided by you. d. Survival. The rights, obligations, and commitments in the Terms that, by their nature, would logically continue beyond the termination of Services (including, but not limited to, those relating to billing, payment, disclaimer and limitation of liability, indemnification, repair or replacement of leased equipment, dispute resolution, no class action, no jury trial), shall be deemed to survive termination of Services. 15. Definitions. "Clearwire" means Clear Wireless LLC. "Clearwire Parties" means Clearwire and its parent, subsidiaries and affiliates, and the directors, officers, employees, shareholders, agents, and suppliers of each such entity. "ETF" means the Early Termination Fee, per device (leased or purchased from Clearwire), that your particular Service plan may require you to pay to Clearwire if. (a) you are signed up for Service under a rate plan requiring a Term Commitment, and (b) (i) you elect to cancel your Service (for any reason), or (ii) Clearwire terminates your Service for cause, before the end of the Term Commitment. The amount of the ETF that you potentially may owe to Clearwire shall be as set forth in your Service plan description (that you receive as part of your sales transaction) or on your order confirmation or receipt. "Initial Term" means the first fixed period of time for which you sign up for Service, as 7c set forth in your Service plan description (that you receive as part of your sales transaction) or on your order confirmation or receipt. "Renewal Term" means any fixed period of time, after the Initial Term, for which you sign up for Service. 16. Contacting Clearwire. Clearwire encourages questions and comments from its customers. If you are a customer of CLEAR -branded or Clearwire-branded Service and you desire to ask any questions or to seek and obtain additional information concerning the Service, please either (a) visit www.clear.com/Mpgrt/index, where you will find various FAQs and relevant contact information, or (b) call (888) 888-3113 between 9 a.m. and 10 p.m., Monday through Friday. If you are a customer of Rover -branded Service and you desire to ask any questions or to seek and obtain additional information concerning the Service, please either (i) visit www.rover.com/suppprt, where you will find various FAQs and relevant contact information, or (ii) call (888) 888-9982 between 9 a.m, and 10 p.m., Monday through Friday. Clearwire will work hard to meet and exceed your expectations by responding to your inquiries as promptly, courteously, and comprehensively as reasonably possible. © 2010 Clear Wireless LLC 17. Arbitration. Each party reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitations, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, either party shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, the former shall control. 1A Resolution No. 2010-R0560 ATTACHMENT TWO (2) Clearwire Service Level Aereement This SERVICE LEVEL AGREEMENT (this "SLA") is agreed and entered into between Clear Wireless LLC or Clearwire U.S. LLC, as may be applicable (in either event, together with their affiliated entities, "Clearwire") and Clearwire's Managed Services Customer ("Customer"), effective as of (i) the date of the applicable Managed Services Agreement by and between Clearwire and Customer or (ii) the date of Customer's first use of the Clearwire Services (in either event, the "MSA"), into which binding Agreement this SLA is and shall be incorporated and made an enforceable part. This SLA sets forth, in complete form and substance, Clearwire's sole SLA with, for, and on behalf of Customer during the term of Clearwire's provision, and customer use, of the subject Clearwire Services. Clearwire and Customer (the "Parties"), intending to be legally bound, hereby further agree as follows: 1. GENERAL. Clearwire is committed to providing reliable, responsive and personalized service to its valued customers. To ensure our business priorities are aligned with our business and government customers' need for reliable service, Clearwire provides this SLA to customers activated on Clearwire (and/or Clearwire's CLEARTM'-branded) Professional class Services. Professional class Services consist of specific services and features as described on the Clearwire web site and other Clearwire-provided documentation. This SLA sets forth, contains and represents the complete and sole responsibility and liability of Clearwire, and Customer's sole remedy and recourse, with respect to any and all Clearwire Professional class Services and Clearwire performance of same. 11 2. DEFINITIONS. For purposes of this SLA: "Customer" means a Clearwire customer who has purchased a Clearwire Professional class Service under a one or two-year agreement and is in Good Standing. Customer's purchase of Clearwire Professional class Services on a no - contract or month-to-month or day pass agreements shall not be eligible for credits and other privileges under this Service Level Agreement. "Good Standing" means that the Customer is current in its payment of all issued Clearwire invoices and is in full compliance with Clearwire's designated terms of service and acceptable use policies. "Professional class Services" means specific services provided by Clearwire that are designated as "Professional" class in Clearwire documentation, web site materials, and other approved literature. Professional class Services do not apply to services sold by Clearwire that are provided by third parties, including without limitation, the 3G EVDO wireless data services that are provided by Sprint Communications Company L.P. "Trouble Ticket" means a phone notification from the Customer to a Clearwire designed phone number used for such notifications. A Trouble Ticket shall not be considered valid unless all information necessary for Clearwire to perform needed Testing or restoration is provided by Customer. Further, a Trouble Ticket shall not be considered valid if Clearwire is denied access to Customer's facilities and equipment to perform Tests requested by Clearwire at its sole discretion. "Testing" or "Tests" means testing or tests conducted by Clearwire's authorized personnel on Customer's Professional class Services. All Testing shall be conducted between the Clearwire equipment associated with the Customer's Professional class Services and a point or points designated by Clearwire within the Clearwire network. Testing or Tests must be done in a period where the only traffic on the Professional class Services is the Test traffic. "Speed Objectives" means the uplink and downlink speeds designated as speed objectives for each Professional class Service as documented on the Clearwire web site and other Clearwire documentation. "Scheduled Maintenance" means and refers to normal maintenance scheduled for the upgrade or maintenance of Clearwire's network(s) and/or related systems. Scheduled Maintenance may temporarily degrade the quality of service including possible outages. Such effects related to Scheduled Maintenance shall not give rise to service credits or other Customer remedies outlined in this SLA. 19 "Urgent Maintenance" means and refers to Clearwire's efforts to correct Clearwire network or related systems conditions that are likely to cause service outages or severe network performance degradation impacting multiple customers and requires immediate action. Urgent Maintenance may degrade the quality of service including possible outages. Urgent Maintenance or any such effects related to Urgent Maintenance shall not give rise to service credits or any other Customer remedies that may be outlined in this SLA. 3. SERVICE; AVAILABILITY. a. The availability targets referenced below do not account for Scheduled Maintenance or Urgent Maintenance on the Clearwire network or events outside of Clearwire's control, including, but not limited to, force majeure events or activities, operation, configuration or applications associated with Customer's equipment. The service guarantees described below shall only apply to Professional class Services. b. A Professional class Service is deemed to be experiencing an outage or is considered unavailable if, through no fault of Customer, Customer is unable to exchange data traffic across the Clearwire network, or Clearwire is unable to ping the Clearwire equipment associated with the specific instance of Customer's Professional class Service for a period of at least one (1) continuous hour in any calendar month during the Term of Service. The period of outage or unavailability will be validated by Clearwire Testing and based on the creation time of a valid Trouble Ticket. c. Outage hours are rounded to the nearest hour and based on the time a valid Trouble Ticket is created. d. Credits, rights to terminate, and other applicable remedies under this SLA shall apply only to the affected individual service instances of Clearwire Professional class Services. e. Credits under this SLA shall be calculated on the basis of the actual monthly recurring charge(s) associated with the individual affected service instance(s) of Professional class Services and does not include monthly recurring charges related to features, equipment lease fees and taxes f. In no case shall the sum of credits associated with all SLA terms during a calendar month exceed the total of Customer's monthly recurring charge for the individual instance of Clearwire service impacted. g. This SLA expressly excludes and shall not cover (and Clearwire shall not be responsible or liable for) any excusable impacts arising from or related to 10 availability, outages, speed performance or latency affected by: (i) Clearwire's network or related systems maintenance; (ii) acts or omissions, or negligence, of or by Customer or any of its employees, contractors or agents; (iii) behavior, failure or interruption of Customer's equipment, facilities or applications; (iv) widespread or systemic internet, World Wide Web, or other telecommunications network or utility grid failure or interruption; or (v) acts of God, war, civil disorder, natural cataclysm, terrorism, radio frequency interference or blockages, or other occurrences beyond the reasonable control of Clearwire. 4. SERVICE GUARANTEES. a. THIRTY DAY SATISFACTION GUARANTEE: If Customer is for any reason dissatisfied with any Clearwire provided Professional class Service, Customer may, during the Thirty Day Service Guarantee period, terminate the Professional class Services without liability for further term commitments. In the event that Customer terminates the Professional class Services as allowed herein, Customer will remain responsible for all applicable service fees and charges. The Thirty Day Service Guarantee period shall start upon activation of the Clearwire equipment and enablement of the Customer's account for use, and end thirty (30) days thereafter regardless of when the customer begins usage of Clearwire service. b. CHRONIC OUTAGE TERM WAIVER: In the event that during any thirty (30) calendar day period of service, Customer is eligible for credit for four (4) or more individual instances for issues under this Service Level Agreement for the Professional class Services, such being defined as a Chronic Outage ("Chronic Outage"), customer may terminate the individual service instances of affected Professional class Services without liability for further term commitments. In the event that Customer terminates Professional class Services as allowed by this paragraph, Customer will remain responsible for any and all applicable invoices, fees and charges. Clearwire must receive written notice of Customer's intent to terminate Professional class Services as permitted herein within thirty six (36) hours after the last day of the thirty (30) calendar - day period in which the qualifying events occurred. c. RESPONSE TIME FOR INITIALIZING SERVICE RESTORATION: Clearwire target response time for initializing service restoration following the customer's phone notification to Clearwire and the creation of a Trouble Ticket of a service outage is four (4) hours. If Clearwire is unable to meet this target response time, Customer may request a credit for 50% of Customer's monthly in recurring charge for the affected individual service instance of the Professional class Service. d. UPTIME AVAILABILITY: Clearwire provides an uptime availability target of ninety-nine and nine -tenths percent (99.9%) for Professional class Services each calendar month during the Term. If a specific instance of Clearwire Professional class service fails to meet the availability target for a particular month, Customer may request a credit for 3% of Customer's monthly recurring charge for each hour of service outage in excess of the availability target. Customer is responsible for requesting any credits herein and to provide Clearwire with test data or other documentation detailing the service outage if so requested by Clearwire. e. UPLINK / DOWNLINK SPEED: Clearwire guarantees 80% performance of its Speed Objectives on all Professional class Services. If Customer's Professional class Services are continuously and chronologically documented through Customer or Clearwire Tests as functioning below 80% of the Speed Objectives for 30 consecutive days, Customer may request a credit of 50% of the monthly recurring charge of the individual service instances of affected Professional class Services. If the Customer's Professional class Services are continuously and chronologically documented through Customer or Clearwire Tests as functioning below 80% of the Speed Objectives for a subsequent, consecutive 30 -day period, Customer may request a credit of 100% of the monthly recurring charge of the individual service instance of affected Professional class Services, or, may terminate the individual service instance of Professional class Services without liability for further term commitments. In the event that Customer terminates the Professional class Services as allowed herein, Customer will remain responsible for all applicable service fees and charges. Customer is solely responsible for requesting any credits herein and to provide Clearwire with test data or other documentation detailing the service performance as and if so requested by Clearwire. Customer tests must be conducted between 8:00 a.m. and 5:00 a.m. in Customer's service -area local time zone. Clearwire must receive written notice of Customer's intent to terminate Professional class Services as permitted herein within thirty six (36) hours after the last day of the thirty (30) calendar -day period in which the qualifying events occurred. 7S f. AVERAGE LATENCY: Clearwire guarantees a maximum average latency of 50 milliseconds, one-way, from the Clearwire equipment associated with the Customer's specific instance of Professional class Service to a Test point designated by Clearwire on the Clearwire network. Average latency is the hourly average of the latency Tests performed on a service connection. Average latency is not measured when a service connection is experiencing a service outage or during Scheduled Maintenance or Urgent Maintenance. Should Customer's average latency exceed the guaranteed maximum in a calendar month, Customer is eligible for a credit equal to 50% of the monthly recurring charge for the affected individual instance of Professional class Service. Should Customer's average latency exceed the guaranteed maximum in a subsequent and consecutive month, Customer is eligible for a credit equal to 100% of the monthly recurring charge for the affected individual instance of Professional class Service, or, may terminate the individual service instance of Professional class Services without liability for further term commitments. In the event that Customer terminates the Professional class Services as allowed herein, Customer will remain responsible for all applicable service fees and charges. Customer is responsible for requesting any credits herein and to provide Clearwire with test data or other documentation detailing the service performance if so requested by Clearwire. Customer tests must be conducted between 8:OOam and S:OOpm in Customer's service area local time zone. Clearwire must receive written notice of Customer's intent to terminate Professional class Services as permitted herein within thirty six (36) hours after the last day of the thirty (30) calendar -day period in which the qualifying events occurred. g. PING TIMES: Clearwire does not and shall not guarantee "ping times" for any Professional class Services. Ping times are often misunderstood as indicative of throughput or speed of Customer's service. S. CUSTOMER TERMS; SLA OR RELATED POLICY CHANGES Notwithstanding anything set forth in this SLA to the contrary, this SLA, its terms, and any and all customers and users hereof and hereunder, are and shall be bound by and subject to Clearwire's applicable customer/user terms of service and policies (including, but not limited to, acceptable -use policy) ("Clearwire TOS") as in existence and as may be amended or updated by Clearwire (within its sole discretion) from time to time. This SLA is a supplement to, and does not condition or limit the Clearwire TOS, and in the event of any conflict between this SLA and any Clearwire TOS, the Clearwire TOS shall control and govern in such instance. All customers hereunder shall proceed through Clearwire's normal on -boarding process for Service activation, and shall expressly evidence their acknowledgement and agreement to the Clearwire TOS. Clearwire also expressly reserves the right to update, change, amend, or revise this SLA at any time in Clearwire's sole discretion. Changes or revisions to this SLA will be deemed effective and binding upon Clearwire's posting of the amended SLA (and/or modified terms or policies) on the applicable Clearwire website(s) available to and accessible by Customer. 6. MISCELLANEOUS TERMS a. Controlling Law; Forum; Venue. Notwithstanding anything set forth in the MSA to the contrary, this SLA and the rights and obligations of Clearwire and Customer shall be governed by the substantive and procedural laws of the State of New York or Delaware, without regard to any conflict of laws principles. Except to the extent necessary for a Party to enforce indemnity or defense obligations under this SLA, any court proceeding brought by either Party must be brought in the appropriate New York or Delaware state court or the United States District Court located in New York or Delaware. Each Party consents and agrees to personal jurisdiction in either such New York or Delaware court. The prevailing Party in any formal dispute will be entitled to reasonable attorneys' fees and costs (including reasonable expert fees and costs), unless the prevailing Party rejected a written settlement offer that exceeds the prevailing Party's recovery. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT ACTION ARISING BETWEEN THE PARTIES, WHETHER UNDER THIS SLA OR OTHERWISE RELATED TO THIS SLA, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE. THE AGREEMENT OF EACH PARTY TO WAIVE ITS RIGHT TO A JURY TRIAL WILL BE BINDING ON ITS SUCCESSORS AND ASSIGNS. b. Waiver. No waiver of any term, condition or obligation of this SLA will be valid unless made in writing and signed by the party to which such performance is due. No failure or delay by any party at any time to enforce one or more of the terms, conditions or obligations of this SLA will (a) constitute waiver of such term, condition or obligation, (b) preclude such party from requiring performance by the other party at any later time, or (c) be deemed to be a waiver of any other subsequent term, condition or obligation, whether of like or different nature. C. Assignment. This SLA (nor any terms hereof) shall not be assigned (whether by operation of law or otherwise), nor any obligation hereunder delegated, by either Party without the prior written consent of the other Parry which will not be unreasonably denied or delayed. Subject to the foregoing, this SLA shall inure to the benefit of and bind all successors, permitted assigns, receivers and trustees of the respective Parties. 17 d. Severability. This SLA will be enforced to the fullest extent permitted by applicable law. If any provision of this SLA is held to be invalid or unenforceable to any extent, then the remainder of this SLA will have full force and effect and such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision. e. Entire Agreement. This SLA contains the entire agreement between the Parties with respect to the subject matter hereof, and (with the exception of the Clearwire TOS) merges and supersedes any all oral understandings, representations, prior or contemporaneous discussions and/or preliminary agreements. Except as otherwise expressly stated herein, this SLA (unless otherwise expressly provided herein) may be amended only in writing signed by both Parties. 1n