Pursuant to this Services Agreement ("Agreement") entered into by and between Telepak Networks, Inc., a Mississippi corporation offering services under the C Spire™ brand ("Company"), and the customer identified on the reverse hereof ("Customer"), Company agrees to provide and Customer agrees to purchase the services (the "Service" or "Services") and equipment (the "Equipment") described on the reverse hereof at the prices stated therein, on the terms and conditions stated therein and below and as provided in all Applicable Tariffs. This Agreement shall be effective and binding at the time of Customer's execution and delivery of this Agreement to Company and Company's acceptance thereof. Company may accept this Agreement by providing Services to Customer. Customer agrees and acknowledges that Company may refuse to accept this Agreement or provide Services to Customer if Company believes Customer is unable to perform, in whole or in part, its obligations hereunder.
TERM OF SERVICE AND ACCEPTANCE. The Services shall commence on the Service Commencement Date, which shall be the later of any estimated Service Commencement Date or the day immediately following the date on which Company notifies Customer that the Services are ready for use, and shall continue for the length of the term for such Services stated on the reverse hereof ("Applicable Term"). Following the expiration of the Applicable Term, this Agreement shall continue in effect on a month-to-month basis ("Extended Term"), until canceled by either party by giving thirty (30) days prior written notice of cancellation. The Parties acknowledge and agree that any estimated Service Commencement Date is an estimate and that Company shall not be liable to Customer in any way for failure to commence the Services by such date.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT, PARTICULARLY THOSE PARAGRAPHS RELATING TO YOUR INDEMINIFICATION OF COMPANY AND ITS AFFILIATES AND ITS AND THEIR AGENTS, REPRESENTATIVES, SUPPLIERS, AND PROVIDERS, AND THE LIMITATION OF LIABILITY PROVISIONS IN THIS AGREEMENT.
EARLY TERMINATION FEE. In the event Customer fails to maintain internet access Service with Company for the Applicable Term, the Customer agrees and acknowledges that Customer will be charged an early termination fee of Three Hundred Dollars ($300) in addition to any other damages caused by Customer's early termination of this Agreement.
CHARGES AND PAYMENT. The monthly charge for each Service provided by Company during the Applicable Term shall be that charge stated on the reverse hereof, and the charges for each month's Service during the Extended Term, if any, shall be based upon the then current monthly charges provided in any Applicable Tariff or Company's standard charge for the same or similar services ("Monthly Charge"). Company shall invoice Customer for Services on a monthly basis for the Monthly Charge and all other charges incurred by Customer during the month resulting from Customer's use of the Services (for example, charges incurred for video on demand purchases), and Customer's payment of each invoice shall be received by Company within thirty (30) days of the invoice date ("Due Date"). All non-recurring activation, installation and Equipment charges stated on the reverse hereof shall be due on the Due Date of the first invoice. The first Monthly Charge shall be prorated from the Service Commencement Date through the end of the calendar month in which the Service Commencement Date occurs. If any invoice is not paid in full within five (5) days after the Due Date, Customer shall also pay a late charge equal to the lesser of one percent (1%) of the unpaid balance of the invoice per month or the maximum lawful rate under applicable state law. Any applicable surcharge, fee, franchise fee, federal, state, local, excise, or sales tax or similar levy, chargeable to or against Company because of the Services provided by Company to Customer, shall be charged to and paid by Customer in addition to the Monthly Charge. If Customer subscribes to an unlimited nationwide long distance plan and Customer has monthly usage exceeding by ten (10) times the average usage of all other customers subscribing to the same plan, then Company may charge Customer an additional fee of $50 per month per line or terminate Customer's subscription to said plan. If Customer subscribes to video services, then Customer understands that Company may pass through increases in the amount Company must pay video content providers to which Customer subscribes. This may result in an increase to Customer's Monthly Charge during the applicable Term or any Extended Term.
PAYMENT BY CHECK. If Customer tenders a check or any equivalent thereof in payment of any obligation under this Agreement which is returned due to insufficient funds in the account for payment upon presentation and Company is charged a fee or service charge as a result of such return, then Customer agrees that Company is authorized to add the actual amount of the fee or service charge (up to the maximum amount allowed by law) to the amount due under this Agreement. In the event of a returned check or equivalent thereof Customer also agrees to pay a Thirty Dollar ($30) returned check charge. Customer agrees that Company is not responsible for any unauthorized payments on Customer's account with Company, whether by check or otherwise.
BILLING DISPUTES. If you intend to dispute a charge to your account, then you must notify Company in writing within sixty (60) days of the date of your bill. Customer waives any disputes that are not reported within sixty (60) days of the date of the bill.
APPLICABLE TARIFFS. This Agreement is subject to and controlled by the provisions of Company's lawfully filed and approved state and federal tariffs relating to the certain of the Services provided in this Agreement, and all changes and modifications to said tariffs as may be made from time to time, including all provisions limiting Company's liability and disclaiming warranties ("Applicable Tariffs"), which are incorporated herein. All appropriate tariff rates and charges shall be included in the provision of some of the Services. The Applicable Tariffs shall supersede any conflicting provisions of this Agreement in the event any part of this Agreement conflicts with terms and conditions of Company's Applicable Tariffs.
EQUIPMENT. Customer understands and acknowledges that, for Company to provide the Services, certain Equipment must be provided to Customer at the physical address where the Service will be provided and as specified on the reverse hereof (the "Premises"). Customer acknowledges that the Equipment requirements are subject to change depending upon the specific installation environment provided by Customer, and Company makes no representation or warranty that additional Equipment will not be needed. Customer agrees to maintain in good working condition and repair, at Customer's sole cost and expense, the Equipment requirements for each Service provided by Company. Company will install or arrange for the installation of the Equipment at the Premises. Customer agrees to provide an installation environment and electrical and telecommunications connections as provided for in any applicable supplier or manufacturer installation manual or as otherwise specified by the supplier or manufacturer of the Equipment. The Equipment may only be used in the Premises, and Customer acknowledges that they may not remove, relocate or reinstall the Equipment at a location other than the Premises. Customer acknowledges that they are responsible for loss, repair and replacement of the Equipment. Upon termination of this Agreement, Customer shall return and/or provide Company the ability to remove the Equipment from the Premises. For unreturned or unrecoverable Equipment, Customer will pay Company one half (1/2) of the price of the Equipment at the time of installation.
COMPLIANCE WITH LAWS; PAYMENT OF TAXES. Customer agrees to comply with all laws, regulations and orders relating to this Agreement and its use of the Services. Customer agrees and acknowledges that it is solely responsible for the payment of all license fees, assessments and sales, rental, use, property, excise and other taxes or surcharges or fees now or hereafter imposed by any governmental body or agency upon the Services. Any fees, taxes or other lawful charges paid by Company in connection with the Equipment or use thereof or the provision of Services hereunder (exclusive of any taxes based on the net income of Company), shall become immediately due from Customer to Company. This provision shall survive the termination of this Agreement and the use of the Equipment or Services pursuant hereto.
REMEDIES. Upon the occurrence of any default or breach of this Agreement by Customer, and at any time thereafter, Company may, in its sole discretion, do any one or more of the following: (a) terminate this Agreement; (b) declare all sums then due and all sums to become due hereunder (including any residual amount) for the remainder of the Applicable Term or Extended Term, as applicable, of this Agreement immediately due and payable; and (c) exercise any other right or remedy which may be available to it under applicable law. Customer shall be liable for all reasonable attorneys' fees and other costs and expenses resulting from such default or the exercise of Company's remedies. No remedy referred to in this paragraph is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Company at law or in equity. No express or implied waiver by Company of any default shall constitute a waiver of any other default by Customer or a waiver of any of Company's rights. The parties agree and acknowledge that the remedies afforded by this paragraph are an agreed measure of damages and are not a forfeiture or penalty.
ASSIGNMENT. This Agreement and any contractual rights or remedies available to Company hereunder shall be freely assignable, in whole or in part, by Company. Additionally, Company may sell or assign its interest, in whole or in part, in any telecommunications facilities utilized to provide the Services. Customer shall not assign this Agreement or its rights hereunder without the written consent of Company to such assignment. Any such transfer without the consent of Company is void.
GOVERNING LAW, ARBITRATION. This Agreement shall be governed by the laws of the State of Mississippi without regard to its conflict of laws principles. THE PARTIES AGREE THAT ANY CONTROVERSIES, CLAIMS OR DISPUTES ARISING BETWEEN CUSTOMER AND COMPANY, WHETHER IN TORT OR IN CONTRACT, INCLUDING BUT NOT LIMITED TO THOSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, OR THE SERVICES PROVIDED, WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION, THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, EQUIPMENT, SERVICE OR ADVERTISING PROVIDED BY THE COMPANY, ADDITIONALLY THE PARTIES AGREE NOT TO PURSUE ARBITRATION RELATED TO OR ARISING OUT OF THIS AGREEMENT ON A CLASSWIDE BASIS. THE PARTIES AGREE THAT ANY ARBITRATION RELATED TO OR ARISING OUT OF THIS AGREEMENT WILL BE SOLELY BETWEEN YOU AND THE COMPANY (NOT BROUGHT ON BEHALF OF OR TOGETHER WITH ANOTHER INDIVIDUAL'S CLAIM). SUCH ARBITRATION SHALL BE BEFORE A PANEL CONSISTING OF THREE (3) ARBITRATORS AT A LOCATION IN THE GREATER JACKSON, MISSISSIPPI METROPOLITAN AREA. SUCH ARBITRATION SHALL BE BINDING UPON BOTH CUSTOMER AND COMPANY AND SHALL BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") UNDER ITS RULES, INCLUDING THE SELECTION OF THE ARBITRATORS, WHICH SHALL BE ACCOMPLISHED IN ACCORDANCE WITH THE RULES OF THE AAA. THE AWARD RENDERED BY THE ARBITRATORS SHALL BE FINAL, AND JUDGMENT MAY BE ENTERED UPON IT IN ACCORDANCE WITH APPLICABLE LAW IN ANY COURT HAVING JURISDICTION THEREOF. THE PARTIES FURTHER AGREE THAT THE PREVAILING PARTY IN SUCH ARBITRATION SHALL BE ENTITLED TO RECOVER THE COSTS OF SUCH ARBITRATION FROM THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES. THIS AGREEMENT TO ARBITRATE SHALL BE SPECIFICALLY ENFORCEABLE UNDER APPLICABLE LAW IN ANY COURT HAVING JURISDICTION THEREOF. PROVIDED, HOWEVER, COLLECTION MATTERS OF $1,500 OR LESS IN ALLEGED VALUE (BEFORE COSTS, INTEREST AND ALLOWABLE ATTORNEYS' FEES, IF ANY) FOR SERVICE MAY BE FILED IN ANY COURT WITH JURISDICTION THEREOVER AND THERE TRIED BY ANY PARTY, UNLESS COUNTER-CLAIMS OR OTHER CLAIMS IN AN AMOUNT IN EXCESS OF $1,500 (SUBJECT OT THE SAME EXCLUSIONS) ARE ASSERTED BY ANY PARTY. IN THE LATTER CASE, THE ENTIRE MATTER AND ALL CLAIMS BEFORE THE COURT SHALL BECOME SUBJECT TO BINDING ARBITRATION HEREUNDER UPON WRITTEN REQUEST OF ANY PARTY FILED IWTH THE COURT WITHIN THIRTY (30) CALENDAR DAYS OF ACTUAL NOTICE OF THE FILING OF SUCH COUNTER-CLAIMS OR OTHER CLAIMS. TO THE EXTENT ALLOWED BY LAW, THE PARTIES WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
CREDIT INVESTIGATION. By execution of this Agreement, Customer authorizes Company to conduct an investigation into its creditworthiness, including obtaining credit histories and making inquiries of other business, banks and lending institutions concerning the creditworthiness of Customer. Customer hereby releases Company from any and all claims arising against Company or its affiliates in connection with such investigation and agrees to indemnify and hold Company harmless from any and all liability, damages and costs, including attorneys' fees, arising in connection with such investigation. Customer acknowledges and agrees that Company may terminate this Agreement any time before the Service Commencement Date in the event Company determines in its sole discretion that Customer's creditworthiness is not acceptable and that Customer cannot provide sufficient additional security to Company.
DEPOSIT; ADVANCE PAYMENT. Company may require Customer to make a deposit or advance payment for Services which Company may offset against any balance due on Customer's account. Company does not pay interest on any advance payment or deposit unless required by applicable law. Company may establish a credit limit based on its investigation of Customer's creditworthiness. If Customer's account balance goes beyond Customer's credit limit, then Company may immediately suspend its provision of Services to you until Customer's account balance is brought below the credit limit. Any charges incurred in excess of Customer's credit limit are immediately due and payable. If Customer has more than one account with Company, Company reserves the right to require that all accounts remain in good standing or else Company may terminate Services to any or all accounts.
PREMISES. You warrant that you are either the owner of the Premises, or that you have the authority to provide access for installation of Equipment and the Services, and the right of ways, easements, and other licenses or permissions granted in this Agreement.
RIGHT OF WAY EASEMENT. For and in consideration of Company providing the Services set forth herein, Customer hereby grants Company a perpetual right-of-way and easement to lay, construct, place, repair, operate, test, maintain, improve, replace, remove, in whole or in part, as the Company may from time to time require, one telecommunications system and all appurtenances or appliances necessary or useful in carrying signals, voices, data, pictures, images and other information in any form of any kind or nature which can now or may hereafter be capable of being carried over a telecommunications system (said systems consisting of underground fiber optics, digital systems, cables, splice boxes, conduits, wires, surface testing terminals, manholes, markers, and other appurtenances and appliances) (hereinafter, collectively referred to as the "System") under a strip of land five feet (5') wide across Customer's property, together with the right of reasonable ingress and egress to and from said easement by Company and its authorized representatives for the purposes set forth herein. The consideration herein paid includes all damage which may be caused on the easement from the construction of the System. Company is further granted the right to sell, assign, transfer, and/or convey to others the rights granted herein.
DAMAGES TO BURIED FIBER. Customer is responsible for any damages to Company's buried fiber optic cable and equipment which is caused by Customer or Customer's contractor's excavation and/or digging on Customer's property unless Customer or its contractor first calls 811 or 800-227-6477 at least two (2) days in advance of any such excavation/digging in order to allow Company to mark and/or identify the location of its buried fiber optic cable and equipment in compliance with Mississippi's One-Call Law (Miss. Code Ann. §§ 77-13-1 et seq.). Failure to comply with Mississippi's One-Call Law by Customer will result in Company charging Customer for any damages to its System caused by Customer's or its contractor's excavation. Customer agrees to indemnify and hold harmless Company from any damages caused by Customer's failure to comply with this provision. DO NOT EXCAVATE OR DIG ON YOUR PROPERTY WITHOUT CALLING 811 AT LEAST TWO (2) DAYS IN ADVANCE OF ANY SUCH EXCAVATION.
INSTALLATION AND REMOVAL OF EQUIPMENT. We will install or arrange for the installation, and you agree to permit installation, of the Equipment on the Premises, within a reasonable time after this Agreement has been accepted by Company. We shall perform any re-installation, return of, change or transfer in location of the Equipment at our rates in effect at the time of service. Company shall not be responsible for any damage to the Premises arising from the installation or removal of the Equipment, except in cases of negligence, or improper workmanship, and then only to the extent of the actual damages thereof. Claims of negligence or improper workmanship must be made in writing to Company to: C Spire Claims, P.O. Box 429, Meadville, MS 39653, within thirty (30) days after installation or removal of the Equipment. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE THAT THERE ARE INHERENT RISKS ASSOCIATED WITH INSTALLATIONS AND YOU RELEASE AND HOLD HARMLESS INSTALLER, THE COMPANY, AND THEIR RESPECTIVE AGENTS FROM LIABILITY RELATED THERETO. You hereby grant to Company an easement in gross covering the routing and access necessary for the installation, operation, and removal of the Equipment on, across, through, and inside the Premises at no cost or charge to the Company.
LAWFUL, NON FRAUDULENT USE OF SERVICES. You agree to use the Services only for lawful purposes. You will not use the Services for any unlawful, abusive, or fraudulent purpose, including, for example, using the Services in a way that: (a) interferes with our ability to provide Services to you or other customers; or (b) avoids your obligation to pay for Services. If Company has reason to believe that you or someone else is abusing the Services or using it fraudulently or unlawfully, we can immediately suspend, restrict, or cancel the Services without advance notice. You are liable for any and all such use of the Services and/or Equipment by yourself or any person making use of the Services or Equipment provided to you and agree to indemnify and hold harmless Company from any and all liability for any such use.
PROHIBITED USES OF THE SERVICES AND EQUIPMENT. You are prohibited from reselling or transferring the Services or Equipment to any other person for any purpose, without the express prior written consent of Company. In addition, you are prohibited from using the Services to operate fixed servers, for commercial purposes, or for any uses that result in excessive usage inconsistent with normal usage patterns. Specifically, if Company determines, in its sole discretion, that you are reselling or transferring the Services or that your Services are being used for excessive auto dialing, call forwarding, telemarketing, fax broadcasting, or fax blasting, Company reserves the right to immediately terminate without advance notice or modify the Services and to assess additional charges for each month in which the excessive usage occurred.
You agree to use the Services and Equipment only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in Company's sole judgment the transmission, receipt or possession of such communication or material (a) would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law, or (b) encourages conduct that would constitute a criminal offense or give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. Company reserves the right to terminate your Services immediately and without advance notice if Company, in its sole discretion, believes you have violated the above restrictions, leaving you responsible for all unbilled charges plus a disconnect fee, all of which shall become immediately due and payable. You are liable for any and all use of the Services and Equipment by yourself and any other person making use of the Services and Equipment and you agree to hold Company harmless from and against any and all liability associated with such use.
COPYRIGHT; TRADEMARK; UNAUTHORIZED USAGE OF EQUIPMENT. The Services and Equipment and any firmware or software used to provide the Services or provided to you in conjunction with providing the Services, or embedded in the Equipment, and all Services, information, documents, and material provided to you (either personally or via Company's or its affiliate's website(s)), are protected by trademark, copyright, patent, and other intellectual property laws. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively the "Marks") of Company and its affiliates are and shall remain the exclusive property of Company and its affiliates and nothing in this Agreement shall grant you the right or license to use any of such Marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Services or provided to you in conjunction with providing the Services or embedded in the Equipment, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modifications thereto) strictly in accordance with this Agreement. If you decide to use the Services through an interface device not provided by Company, which Company reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use the interface device with the Services and you will indemnify and hold harmless Company from and against any and all liabilities arising out of your use of such interface device with the Services. You shall not reverse engineer, reverse compile, decompile, or otherwise attempt to derive the source code from the binary code of the firmware or software.
TAMERPING WITH SERVICE OR EQUIPMENT. The Equipment will be configured for your exclusive use of the Services as designated by Company. Unless expressly authorized by Company you shall not tamper with the Equipment or modify its configuration. You agree not to change the electronic serial number or identifier of the Equipment, or perform a factory reset of the Equipment without prior written permission from Company. Company reserves the right to terminate your Services should you tamper with the Equipment, leaving you responsible for all applicable charges. You agree not to hack or disrupt the Services or to make any use of the Services which is inconsistent with its intended purpose.
CANCELLATION OF SERVICES. Company reserves the right to discontinue Services immediately and without advance notice if Company deems such action is necessary to prevent or protect against fraud or to otherwise protect Company's or its affiliate's personnel, agents, facilities, or services. Without limitation, Company may take such actions if: (a) you refuse to furnish information or furnish false information that is essential for billing, or pertains for your creditworthiness or your use of the Services; (b) you indicate that you will not comply with a request for security for the payment of Services; (c) your Service usage charges exceed established parameters based on your history of usage, which may indicate a likelihood of non-payment or fraud; (d) you have been given notice by Company of any past due amount and such amount remains unpaid, in whole or in part; (e) you refuse to pay when billed for Services; (f) you use, or attempt to use, the Services with the intent to avoid the payment, in whole or in part, of the charges for the Services by using or attempting to use Services by rearranging, tampering with, or making connections to Services in an unauthorized manner, or using fraudulent means or devices; (g) you act in a manner that is threatening, obscene, or harassing to Company personnel; or (h) you are in breach of the terms of this Agreement. The discontinuance of Services by Company does not relieve you of any obligation to pay Company for charges due and owing for Services furnished up to the time of cancellation.
PRIVACY AND SECURITY. Some of the Services may utilize the public internet and/or third party networks to transmit voice or other communications. You acknowledge and understand that Company cannot guarantee that the Services are private and secure. Company is not liable for any lack of privacy or security that you may experience with regard to the Services. You are responsible for taking precautions and providing security that best suits your intended use of the Services. You hereby consent to the monitoring and/or recording of calls you make to Company and to the use of automatic equipment to contact you regarding your account. You also consent to Company's disclosure of information about your account to: (a) any person claiming to be you and who is able to provide the following correct information: Customer's name, address, social security number, and the assigned number for Service, and such person may make changes to your account; and (b) any person(s) or entity as required by any request made pursuant to subpoena or court order appearing proper on its face. Company will provide you with a copy of our customer privacy notice at the time we accept this Agreement from you or in your first invoice for Services and annually thereafter. To the extent the Company is required to do so by applicable law, Company will provide notice to you of a breach of security of certain personally identifiable information about you.
CUSTOMER PROPRIETARY NETWORK INFORMATION ("CPNI"). Services purchased by Customer under this Agreement may be provided by Company or any of Company's affiliates. If Customer is purchasing multiple categories of Services under this Agreement or another agreement, i.e. wireless service or VoIP Service, then Customer's CPNI (as defined in 47 U.S.C. § 222(h)(1)) will be shared between Company and its affiliates as necessary to provide all the categories of Services ordered by Customer as permitted by 47 C.F.R. § 64.2005(a)(1).
CONSENT TO ELECTRONIC CONTACT: It is important that Company be able to contact you from time to time. If you agree to give Company an email address (your "Primary Email Address"), then you are consenting to the receipt of emails from Company at Customer's Primary Email Address for any purpose relating to this Agreement. Customer also agrees that Company may call Customer at the phone numbers Customer supplies Company and Customer agrees that calls may be made using any method including autodialing equipment, an artificial or recorded voice, or via text or email messages sent to a wireless device. If your wireless provider charges you for text or email messages you are responsible for any such charges. Customer agrees that if Customer provides Company with a wireless telephone number that Company is authorized to send Customer Service related text messages during the Term of this Agreement. Customer must notify Company immediately if Customer's Primary Email Address or wireless telephone number changes.
NO CREDIT ALLOWANCE FOR INTERRUPTION OF SERVICES. You acknowledge and agree that the Services are provided "as is." Credit allowances for interruption of Services shall not be provided.
INDEMINIFICATION. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD COMPANY, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AND AGENTS, AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THIS AGREEMENT, HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES) BY, OR ON BEHALF OF YOU OR ANY THIRD PARTY OR USER OF YOUR SERVICES, RELATING TO OR ARISING OUT OF THE SERVICES, THE EQUIPMENT OR ITS INSTALLATION, OR THIS AGREEMENT. THIS PROVISION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
YOU AGREE THAT COMPANY IS NOT RESPONSIBLE FOR ANY THIRD PARTY CLAIMS THAT ARISE FROM YOUR USE OF THE SERVICES OR THE EQUIPMENT AND YOU AGREE TO REIMBURSE COMPANY FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING RESONABLE ATTORNEYS' FEES, UNLESS SUCH CLAIMS ARE BASED ON OUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS PROVISION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
LIMITATION OF LIABILITY. COMPANY'S LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE ACCESS AND/OR USE OF THE SERVICES, ANY CONTENT PROVIDED VIA THE SERVICES, OR THE ACTS OR OMISSIONS OF ANY THIRD PARTY, WHETHER OR NOT COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER OR NOT CAUSED BY COMPANY'S NEGLIGENCE, OR ON ACCOUNT OF ANY ACT OR OMISSION OF COMPANY, SHALL BE LIMITED TO ACTUAL DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, OR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY COMPANY'S INTENTIONAL MISCONDUCT OR RECKLESSNESS, TO THE FULL EXTENT SAME MAY BE DISCLAIMED BY LAW, YOU WILL NOT BE ENTITLED TO ANY OTHER DAMAGES, INCLUDING INDIRECT OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION. COMPANY AND ITS AFFILIATES AND EACH OF THEIR EMPLOYEES, AGENTS, CONTRACTORS, AND REPRESENTATIVES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY UNAUTHORIZED ACCESS, DAMAGES, OR MODIFICATIONS TO, OR LOSS OR DESTRUCTION OF, ANY OF YOUR SOFTWARE, FILES, DATA, OR PERIPHERALS OR FOR COPYRIGHT, TRADEMARK, PATENT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT.
Company will not be liable for any delay or failure to provide the Service, at any time or from time to time, or any interruption or degradation of Service that is caused by any of the following: (a) acts or omissions of an underlying carrier, service provider, vendor or other third party; (b) Equipment, network, or facility failure; (c) Equipment, network, or facility upgrade or modification; (d) force majeure events such as, but not limited to, acts of god, hurricane, fire, war, acts of terrorism, and government actions; (e) Services, Equipment, network, or Facility failure caused by loss of power to you; (f) outage of your broadband service provider; (g) your acts or omissions or the acts or omissions of any person using the Services or Equipment provided to you; or (h) any other cause that is beyond Company's control including, but not limited to, failure of or defect in any Equipment, the inability of communications connections to be completed, or the degradation of voice quality. Furthermore, Company will not be liable to you or others for any damages arising from the content of any data transmission, communication, or message transmitted or received by you, or losses resulting from any goods or service purchased or messages received or transactions entered into through the Service.
Company's aggregate liability for: (i) any failure or mistake, (ii) any claim with respect to Company's performance or nonperformance hereunder, or (iii) any act or omission of Company hereunder, shall in no event exceed the charges for the Services for the affected time period.
NO WARRANTIES ON SERVICE. THE SERVICES ARE PROVIDED TO YOU "AS IS." COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY, OR LOSS OF CONTENT, DATA, OR INFORMATION. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICES OR EQUIPMENT, IF ANY, BY COMPANY OR ITS AGENTS OR INSTALLERS ARE INFORMATIONAL ONLY AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. COMPANY DOES NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, COMPANY EMPLOYEES, AGENTS, OR REPRESENTATIVES TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
NO WARRANTIES OR LIMITED WARRANTIES ON EQUIPMENT. If you received Equipment from Company and the Equipment included a limited warranty from the manufacturer at the time of receipt, you must refer to the separate limited warranty document provided with the Equipment for information about such warranty. You acknowledge that Company is not the manufacturer of the Equipment and you agree to look solely to the manufacturer for any remedies associated with the malfunction of the Equipment. Company makes no warranties of any kind, express or implied, in connection with the Equipment.
MISCELLANEOUS. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Any provision of this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Time is of the essence with respect to this Agreement. Customer shall promptly execute and deliver to Company such further documents and take such further action as Company may request in order to give effect to the intent and purpose of this Agreement. All indemnifications, releases, limitations of liability, disclaimers of warranties, limitations of remedies, the agreement to arbitrate, the restrictions upon use of the Services and/or the Equipment and the rights of Company to take action necessary to remain in compliance with any Applicable Tariff or license, including its right to retake possession of or disable the Equipment, all as more particularly set forth herein, shall survive the termination of this Agreement and discontinuation of the Services.
ENTIRE AGREEMENT; MODIFICATION. Subject to any Applicable Tariff, this Agreement correctly sets forth the entire agreement between Company and Customer with respect to the Services, installation and maintenance services, and Equipment provided by Company to Customer. To the extent, if any, the terms of this Agreement and any Applicable Tariff conflict, then the Applicable Tariff shall control. This Agreement may be modified or amended only in writing signed by both parties, except amendments maybe tendered with thirty (30) days' notice to Customer (included in a bill or otherwise) and use by Customer of the Services after such notice period shall be construed as acceptance of the amendment.
Copyright of Telepak Networks, Inc. dba C Spire. 01852693-3 dated August 2, 2014