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Clearwire Location API License and Terms of Use

By using the Clearwire Location API (the "Location API "), you accept and agree to be bound by the following license terms and conditions (the "Terms"). These Terms are in addition, and subject, to the Clearwire Developer API Terms of Service (the “Developer TOS”). These Terms form a subset of the Developer TOS and intended to be read in conjunction with the Developer TOS. Please refer to the Developer TOS for more information.

1. Location API License

1.1 Description of License. The Location API consists of protocols that enable you to establish a location based application that will allow end users to access and use certain location based services over the Clearwire WiMAX network in your application, or in your other product expressly authorized in writing by Clearwire (each, a "Product"), subject to the limitations and conditions described below. Clearwire grants to you a non-exclusive, non-transferable, royalty free, revocable, limited license (without right to sublicense) to download, use, copy, and display the Location API and related data during the term of these Terms. You are allowed to use the Location API only for the purpose of designing and developing a location based services application for your Product. The API does not provide you with the ability to access, and you are not allowed to access, other underlying Clearwire software, services or data. Subject to the limitations and conditions described below, you may use the Location API to enable end users of your Product to use location based services over the Clearwire WiMAX network.

1.2 Modifications. Clearwire reserves the right to change the form and nature of the Location API that Clearwire provides with or without notice. In addition, Clearwire reserves the right to release subsequent versions of the Location API. Clearwire may change these Terms from time to time. The changes will become effective seven (7) days after they are posted, except if the changes apply to new functionality, in which case they will be effective immediately. If you do not agree to the modified Terms for the Location API, you may terminate the Terms as they apply to you by removing the implementation of the Location API from your Product. If you continue to use the Location API on any Product, you will be deemed to have accepted the modifications.

1.3 Acceptable Use. Your use of the Location API must be in accordance with the documentation. You agree that you will not, and you will not permit your users or other third parties to modify or alter the location based results. The implementation of the Location API on your Product and any applications you develop using the Location API must also include a clear and conspicuous “opt-in” feature or functionality, which at minimum is consistent with the “Best Practices and Guidelines for Location Based Services” established by CTIA-The Wireless Association™ and can be found at http://www.ctia.org/business_resources/wic/index.cfm/AID/11300, to ensure that any users of your Product (a) understand the inherent risks of making their location information available to third parties, and (b) knowingly and affirmatively choose to share their location information with third parties.
You agree that you are responsible for your own conduct and content while using the Location API and for any consequences thereof. You agree to use the Location API only for purposes that are legal, proper and in accordance with these Terms and any applicable policies or guidelines. By way of example, and not as a limitation, you agree that when using the Location API, you will not, and will not permit users or other third parties to:
  • hide or mask from Clearwire the identity of your service as it uses the API, including by failing to follow the identification conventions listed in the API documentation;
  • defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others, including Clearwire;
  • upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful content;
  • upload, post, email or transmit or otherwise make available any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you (or the user posting the content) are the owner of the rights or have the permission of the owner to post such content;
  • upload, post, email or transmit or otherwise make available messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by applicable law, these Terms, or any applicable policies or guidelines.
  • distribute any file posted by another that you know, or reasonably should know, cannot be legally distributed in such manner;
  • impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
  • restrict or inhibit any other user from using and enjoying Clearwire services;
  • use Clearwire services for any illegal or unauthorized purpose;
  • remove any copyright, trademark or other proprietary rights notices contained in or on Clearwire services;
  • reproduce and/or distribute, resell, sublicense or otherwise share the Location API for any reason
  • interfere with or disrupt Clearwire services or servers or networks connected to Clearwire services, or disobey any requirements, procedures, policies or regulations of networks connected to Clearwire services;
  • use any robot, spider, site search/retrieval application, or other device to collect information about users for any unauthorized purpose;
  • submit content that falsely expresses or implies that such content is sponsored or endorsed by Clearwire;
  • create user accounts by automated means or under false or fraudulent pretenses;
  • promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual;
  • transfer, sell, lease, syndicate, lend, or use for co-branding, timesharing, service bureau, or other unauthorized purposes, the Location API or access thereto; or
  • transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.

If you are located outside of the United State, you further agree to comply with your own local rules regarding online conduct and acceptable content, including laws regulating the export of data to or from the United States or your country of residence.

1.4 Advertising. Clearwire reserves the right to include advertising in the Clearwire connection manager application provided to you through the Location API.

2. Intellectual Property Rights

2.1 Clearwire Rights. The phrase "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. As between you and Clearwire, you acknowledge and agree that Clearwire owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Location API and that you shall not acquire any right, title, or interest in or to the Location API, except as expressly set forth in the Terms. You further acknowledge that third parties may own right, title and interest, including without limitation all Intellectual Property Rights, in and to content linked to or accessible through in the Location API, and that you shall not acquire any right, title, or interest in or to such content except as provided by applicable law.

2.2 Brand Element License. The phrase "Brand Elements" shall be defined as the trade names, trademarks, service marks, logos, domain names, and other distinctive brand elements of each party, respectively, as secured by such party from time to time. Clearwire hereby grants to you a nontransferable, nonsublicenseable, nonexclusive, revocable license during the Term to display Clearwire's Brand Elements for the purpose of promoting or advertising that you use the Location API, provided that your use is in accordance with this Section 2.2 and for the purpose of fulfilling your obligations under Section 2.3 below. You hereby grant to Clearwire a nontransferable, nonexclusive license during the Term to use your Brand Elements to advertise that you are using the Location API.

In using Clearwire Brand Features, you may not:
  • display a Clearwire Brand Element in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Clearwire (other than your involvement in the Service) or that can be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of Clearwire or Clearwire personnel;
  • use Clearwire Brand Elements to disparage Clearwire, its products or services;
  • display Clearwire Brand Elements on your Product if it contains or displays adult content or promotes illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty-one (21) years of age;
  • have any Clearwire Brand Elements appear as the largest element or logo on your Product;
  • display a Clearwire Brand Element as the most prominent element on any page of your Product;
  • display a Clearwire Brand Element in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to Clearwire;
  • display a Clearwire Brand Element on a Product that violates any applicable law or regulation; or
  • remove, distort or alter any element of a Clearwire Brand Element (this includes squeezing, stretching, inverting, discoloring, etc.).

You understand and agree that Clearwire has the sole discretion to determine whether your use of Clearwire Brand Elements is in accordance with the above restrictions. Except as set forth in this Section 2.2, nothing in the Terms grants or shall be deemed to grant to one party any right, title or interest in or to the other party's Brand Elements. All use by you of Clearwire's Brand Elements (including any goodwill associated therewith) shall inure to the benefit of Clearwire. At no time during or after the Term shall you challenge or assist others to challenge the Brand Elements of Clearwire (except to the extent such restriction is prohibited by law) or the registration thereof by Clearwire, nor shall you attempt to register any Brand Elements (including domain names) that are confusingly similar in any way (including but not limited to, sound, appearance and spelling) to those of Clearwire.

2.3 Attribution. The Location API may contain the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of Clearwire or its partners. If such items are included, then you may not delete or in any manner alter these trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.

3. Privacy Policy

For information about Clearwire’s privacy practices, please read Clearwire’s privacy policy at http://www.clear.com/company/legal/privacy.htm. This policy explains how Clearwire treats your personal information, and protects your privacy when you use the Service. You agree to the use of your data in accordance with Clearwire’s privacy policy.

4. Indemnity

You agree to hold harmless and indemnify Clearwire, and its subsidiaries, affiliates, officers, agents, and employees, advertisers or partners, from and against any third party claims arising from or in any way related to your use of the Location API, violation of these Terms or any other actions connected with use of Clearwire services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Clearwire will provide you with written notice of such claim, suit or action.

5. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE LOCATION API IS AT YOUR SOLE RISK. THE LOCATION API IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CLEARWIRE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

CLEARWIRE MAKES NO WARRANTY THAT (i) THE LOCATION API WILL MEET YOUR REQUIREMENTS, (ii) THE LOCATION API OR ANY SERVICES INCIDENTAL THERETO WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LOCATION API WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE LOCATION API IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CLEARWIRE OR THROUGH OR FROM CLEARWIRE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

6. LIMITATION OF LIABILITY

YOU UNDERSTAND AND AGREE THAT CLEARWIRE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CLEARWIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE LOCATION API; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE LOCATION API; OR (v) ANY OTHER MATTER RELATING TO THE LOCATION API.

7. EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 5 AND 6 MAY NOT APPLY TO YOU.

8. Term and Termination

8.1 Term. The term shall commence on the date upon which you agree to the Terms and shall continue in force thereafter, unless terminated as provided herein.

8.2 Termination.

a. You may terminate these Terms at any time by discontinuing your use of the Location API at any time. You do not need to specifically inform Clearwire when you stop using the Location API.

b. Clearwire may, at any time, terminate your access to the Location API at its discretion without prior notice to you if:

(i) Clearwire reasonably believes you have breached any provision of the Terms; or

(ii) Clearwire is required to do so by law (for example, due to change to the law governing the provision of the Location API); or

(iii) Clearwire determines in its sole discretion that providing the Location API is economically not feasible; or

(iv) Clearwire determines in its sole discretion that providing the Location API could create a security risk or technical burden; or

(v) You engage in any action that reflects poorly on Clearwire or otherwise disparages or devalues Clearwire’s reputation or goodwill.

8.3 Effect of Termination. Upon the termination of the Terms for any reason (a) all license rights granted herein shall terminate, (b) you shall immediately remove the Location API from your Product, and (c) you shall immediately delete any and all Clearwire Brand Elements.

8.4 Survival. In the event of any termination or expiration of the Terms for any reason, Sections 2.1, 4, 5, 6, 7, 8.3, 8.4, and 9 shall survive termination. Neither party shall be liable to the other party for damages of any sort resulting solely from terminating the Terms in accordance with its terms.

9. GENERAL INFORMATION

9.1 Entire Agreement. The Terms and the documents referenced herein constitute the entire agreement between you and Clearwire and govern your use of the Location API, superseding any prior agreements between you and Clearwire. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Clearwire services, affiliate services, third-party content or third-party software.

9.2 Choice of Law and Forum. The Terms and the relationship between you and Clearwire shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. You and Clearwire agree to submit to the personal and exclusive jurisdiction of the courts located within the county of King, Washington.

9.3 Remedies. You acknowledge that your breach of the Terms may cause irreparable harm to Clearwire, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which Clearwire may be legally entitled, Clearwire shall be entitled to the granting of immediate injunctive relief without the requirement of posting bond, in the event of a breach of the Terms by you or any of your officers, employees, consultants or other agents.

9.4 Third Party Beneficiaries. Nothing in the Terms should be construed to confer any rights to third party beneficiaries.

9.5 Waiver and Severability of Terms. The failure of Clearwire to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.

9.6 Limitations Period. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Clearwire Location API or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

9.7 Headings. The section headings in the Terms are for convenience only and have no legal or contractual effect.

August 2009

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