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Customer Initials: _______
<br />the Customer cancels HSI service, damages are difficult or
<br />impossible to ascertain; thus, the provisions of this Section are
<br />intended to establish liquidated damages in the event of
<br />cancellation and are not intended as a penalty. This provision does
<br />not apply to Consolidated’s Business One Bundle or any non-HIS
<br />service.
<br />LD: Cancellation, Suspension and Restoration of LD Service:
<br />Service continues to be provided until canceled by the Customer or
<br />until canceled by the Company as set forth below. The Company
<br />may render bills subsequent to the cancelation of service for
<br />charges incurred before cancellation. The Customer shall pay such
<br />bills in full in accordance with the payment terms set forth herein.
<br />Cancelation by the Customer: The Customer may have LD service
<br />canceled upon written or verbal notice to the Company. The
<br />Customer shall pay the Company for service furnished until the
<br />cancellation date specified by the Customer or until the date that
<br />the written cancelation notice is received, whichever is later.
<br />Cancellation of service is subject to ETF obligations set forth
<br />herein.
<br />Limitation of Liability:
<br />IN NO EVENT SHALL THE COMPANY, ANY OF ITS
<br />AFFILITED ENTITES OR ANY OF ITS THIRD PARTY
<br />LICENSORS, PROVIDERS OR SUPPLIERS BE LIABLE TO
<br />THE CUSTOMER FOR (A) ANY PUNITIVE DAMAGES,
<br />SPECIAL DAMAGES, ENHANCED COMPENSATORY
<br />DAMAGES, CONSEQUENTIAL DAMAGES, INCIDENTAL
<br />DAMAGES OR INDIRECT DAMAGES - INCLUDING
<br />WITHOUT LIMITATION, LOST PROFITS OR LOSS OR
<br />DAMAGE TO DATA ARISING OUT OF THE USE OR
<br />INABILITY TO USE THE SERVICE, EVEN IF THE
<br />COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF
<br />SUCH DAMAGES, OR (B) ANY CLAIMS AGAINST THE
<br />CUSTOMER BY ANY THIRD PARTY.
<br />Limitation of Damages: THE COMPANY’S OR AFFILIATED
<br />ENTITIES’ AGGREGATE LIABILITY TO THE CUSTOMER
<br />FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER,
<br />INCLUDING, BUT NOT LIMITED TO, ANY NON-
<br />INSTALLATION, SECURITY BREACH, FAILURE OR
<br />DISRUPTION OF SERVICES PROVIDED HEREUNDER,
<br />REGARDLESS OF THE FORM OF ACTION, WHETHER IN
<br />CONTRACT, EQUITY OR TORT, OR OTHERWISE, SHALL
<br />BE LIMITED TO AN AMOUNT EQUIVALENT TO CHARGES
<br />PAID BY THE CUSTOMER UNDER THE THIS AGREEMENT
<br />DURING THE PERIODS WHEN SUCH CLAIM AROSE. IN
<br />ANY JURISDICTION THAT DOES NOT PERMIT THE
<br />EXCLUSION OF CERTAIN WARRANTIES OR THE
<br />LIMITATION OR EXCLUSION OF DAMAGES AS SET
<br />FORTH HEREIN, THEN IN THESE JURISDICTIONS THE
<br />COMPANY’S AND ANY AFFILIATED ENTITIES’ LIABILITY
<br />SHALL BE LIMITED TO THE MAXIMUM EXTENT
<br />PERMITTED BY LAW.THE COMPANY SHALL NOT BE
<br />LIABLE FOR UNLAWFUL USE, OR USE BY ANY
<br />UNAUTHORIZED PERSON, OF ITS SERVICES, OR FOR ANY
<br />CLAIM ARISING OUT OF A BREACH IN THE PRIVACY OR
<br />SECURITY OF COMMUNICATIONS TRANSMITTED BY
<br />THE COMPANY. THE COMPANY IS NOT LIABLE FOR ANY
<br />DAMAGES, INCLUDING TOLL USAGE CHARGES THE
<br />CUSTOMER MAY INCUR AS A RESULT OF THE
<br />UNAUTHORIZED USE OF ITS TELECOMMUNICATIONS
<br />FACILITIES OR INTERNET ACCESS FACILITIES. SUCH
<br />UNAUTHORIZED USE OF THESE FACILITIES INCLUDES,
<br />BUT IS NOT LIMITED TO, THE PLACEMENT OF CALLS
<br />THROUGH CUSTOMER-PROVIDED EQUIPMENT WHICH
<br />ARE TRANSMITTED OR CARRIED ON THE COMPANY'S
<br />NETWORK. THE CUSTOMER IS SOLELY RESPONSIBLE
<br />FOR CONTROLLING ACCESS TO, AND THE USE OF, ITS
<br />OWN TELECOMMUNICATIONS FACILITIES, DATA
<br />FACILITIES AND INTERNET ACCESS FACILITIES.
<br />Indemnification: The Customer hereby agrees to indemnify,
<br />defend and hold the Company harmless from and against any
<br />damages, costs, liabilities and attorneys' fees (and costs) the
<br />Company may incur from any claim arising from the Customer’s
<br />use of the Service, or the use of the Customer’s Service by others,
<br />including without limitation, violation of the copyrights,
<br />trademarks or other intellectual property rights of others, the
<br />Customer’s combination of any Service with other products or
<br />services not provided by the Company, any modification of the
<br />Service, or any breach of the terms and conditions contained herein
<br />by the Customer. In such event, the Customer agrees to defend and
<br />control any such litigation, including the payment of any
<br />settlement thereof, as the case may be; provided, however, the
<br />Customer agrees not to acquiesce to any judgment or enter into any
<br />settlement that adversely affects the Company’s rights or interests
<br />without the Company’s prior written consent, such consent to be
<br />exercised in the Company’s sole discretion. The Company hereby
<br />agrees to give the Customer prompt notice of all claims and to
<br />cooperate in defending against the claim. The Customer may not
<br />settle any claim under this section which includes an admission of
<br />criminal liability or the payment of a settlement amount without
<br />the Company’s prior written consent, such consent to be exercised
<br />in the Company’s sole discretion.
<br />Alternative Dispute Resolution (“ADR”):The Company and the
<br />Customer (each a “Party” and together the “Parties”) agree to
<br />resolve disputes arising out of services provisioned pursuant to the
<br />terms set forth herein without litigation. Accordingly, except for:
<br />a) actions seeking a temporary restraining order or an injunction
<br />related to the purposes expressed hereunder; b) actions to compel
<br />compliance with this dispute resolution process; or c) termination
<br />of the HSI or LD Services as set forth herein, the Parties agree to
<br />follow the ADR procedure set forth in the Standard Terms and
<br />Conditions of Service as their sole remedy with respect to any
<br />controversy or claim arising out of or relating to the provisioning
<br />of the HSI or LD services or a breach of the terms of this
<br />Agreement. The parties agree that any such claims arising
<br />hereunder must be pursued on an individual basis in accordance
<br />with the procedures contained in the Standard Terms and
<br />Conditions of Service. Even if applicable law permits class actions
<br />or class arbitrations, the ADR procedure agreed to herein (and as
<br />set forth within the Standard Terms and Conditions of Service)
<br />applies and the Parties hereby waive any and all rights to pursue
<br />any claim arising hereunder on an individual or on a class basis.
<br />Limitations of Service – HSI & LD:
<br />Service is offered subject to the availability of the necessary
<br />facilities, equipment and/or Customer information, including, but
<br />not limited to, network infrastructure, billing systems and
<br />information required for billing, and any offering is subject to the
<br />provisions hereunder. The Company may decline applications for
<br />Service to or from a location where the necessary facilities or
<br />equipment are not available. The Company may discontinue
<br />furnishing Service in accordance with the terms set forth herein.
<br />The Company reserves the right to discontinue or limit Service
<br />when necessitated by conditions beyond its control or when
<br />Service is used in violation of provisions stated herein or the law.
<br />The Company does not undertake to transmit messages, but offers
<br />the use of its Service when available, and, as more fully set forth
<br />herein, shall not be liable for errors in transmission or for failure to
<br />establish connections.
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