Website Terms & Conditions
By accessing and using this site, you as the user, agree without modification to these Terms and Conditions. Plateau Telecommunications Inc. has the right to change the Terms and Conditions of use at any time without further notice. In using this site, you are agreeing to any changes in the Terms and Conditions of use.
Although every effort is made to keep the site up to date and current, Plateau Telecommunications Inc. does not guarantee the accuracy or completeness of the information contained in this website and makes no warranties, express or implied, and assumes no liability or responsibility for any errors, inaccuracies or omissions in the content of this website.
Plateau Telecommunications Inc. does not warrant the content of this website and specifically disclaims, to the fullest extent permitted by law, any and all warranties, express or implied. Furthermore, Plateau Telecommunications Inc. will not be liable for any damages, claims, demands or causes of action, direct or indirect, special, incidental, consequential or punitive, as a result of your use of this website or any information you obtain from it.
The information and references contained in this website are provided as an informational service, and do not constitute advice. Links provided on this website may be third party vendors, advertising links, sponsored affiliate links, or others that are provided as a courtesy. The product names used in this website are for identification purposes only. All trademarks and registered trademarks are the property of their respective owners.
Plateau Telecommunications Inc. requires written permission to reproduce material from www.plateautel.com. Please use the information below to submit your request:
Plateau Telecommunications Inc.
P.O. Drawer 1947
Clovis, NM 88101
ATTN: Public Relations
or E-mail: firstname.lastname@example.org
Plateau Internet Agreement
Plateau Telecommunications, incorporated (hereinafter referred to as Plateau) provides Internet service and related products under the following Terms and Conditions and at rates and charges established from time to time. "You", "your", or "customer", in this Agreement includes you, individually, and any company, spouse, individual or other entity on whose behalf you are acting in submitting application for service and/or product or equivalent.
- Assignment: Plateau may transfer its rights and responsibilities under these Terms and Conditions to any third party who may purchase the company, its assets or the Plateau Internet spam blocking service, patent or technology. Terms and Conditions may be modified by Plateau Internet without notice. Modifications shall be considered to be in force upon posting of the modified Terms and Conditions on the Plateau Internet website(s). Continued use of Plateau Internet following such modifications constitutes acceptance of these Terms and Conditions, as modified. These Terms and Conditions supersede all previous representations, understandings, or agreements and shall prevail notwithstanding any variance with Terms and Conditions of any order submitted.
- The Basics of Your Plateau Agreement: This Agreement is your entire agreement with Plateau and governs your use of the Plateau Internet online service. To access the Plateau service you must accept the terms of this Agreement and comply with the Plateau Guidelines. To be a Plateau customer, you must be at least 18 years old. If you are not yet 18 years old, you may still use Plateau, but only if the account was created and registered by your parent or guardian. It is important that you not reveal your password to other users. Plateau may from time to time ask you for your user name and password but only for trouble shooting purposes. You agree not to reveal your password to other users and you agree to indemnify and hold Plateau harmless for any improper or illegal use of your account. This includes illegal or improper use by someone to whom you have given permission to use your account. Your account is at risk if you let someone use it inappropriately. If your agreement is terminated for violating this Agreement or the Plateau Guidelines, Plateau's express permission will be necessary before you are allowed to use Plateau Internet services again.
- Agreement Revisions: Plateau may update or revise certain provisions of the Customer Agreement. The most current version of the Plateau Agreement is found at link: www.plateautel.com. If you do not agree with any of the other terms in this Agreement, your only remedy is to cancel your Plateau Account. This means that if you, or anyone using your account, violate the Plateau Internet Agreement, Plateau may take action against your account. This can range from the issuance of a warning about a violation to the termination of your account. You understand Plateau is not required to provide notice prior to terminating your account for violating the terms of this Agreement, however, Plateau may choose to do so. Additionally, due to the changing nature of the Internet and Online Services, as a Plateau Internet customer, you may have access to other Plateau services. When using these Plateau services, your conduct remains subject to this Agreement.
- Content: By content, we mean the text, software, communications, images, sounds and other information provided online, including any web page(s) created or utilized by you. Most content on the Plateau service is provided by Plateau, our customers, our affiliates, or independent content providers under license. In general, Plateau does not pre-screen content available on Plateau's Internet Service. Plateau does not assume any liability or responsibility for content that is provided by others. Plateau does reserve the right to remove content that, in Plateau's judgment, does not meet its standards, guidelines or does not comply with Plateau's current Agreement, but Plateau is not responsible for any failure or delay in removing such material. Keep in mind that Plateau is not responsible for content available on the Internet, although we reserve the right to filter access to any Internet area containing illegal or other harmful content or which is otherwise being used for purposes that are unlawful or injurious to Plateau or its customers. One of the most exciting aspects of this medium is that individual customers have the ability to create their own content and voice their own opinions. Plateau encourages their customers to participate and express their views, after all, that is what makes your experience interactive. But it is important to remember that there are rules and standards, guidelines that you must abide by as a Plateau customer for posting content. These rules, and standard guidelines are described in this document. As a Plateau customer, you agree to follow the Plateau Agreement, and you acknowledge that Plateau has the right to change, modify, and enforce them in its sole discretion. Plateau may update or revise certain provisions of the Customer Agreement. By entering the Customer Agreement you agree that Plateau may change the terms of this Agreement and, if said changes or revisions are material, you will be provided notice, only, on Agreement changes at Link: www.plateautel.com Notice will be provided to you thirty days in advance. If you do not agree with the changes proposed by Plateau or to any of the other terms in this Agreement, your only remedy is to cancel your Plateau Account. This means that if you, or anyone using your account, violate the Plateau Agreement, Plateau may take action against your account. This can range from the issuance of a warning about a violation to the termination of your account. You understand Plateau is not required to provide notice prior to terminating your account for violating these rules, and standards, but it may choose to do so. Additionally, as a Plateau customer, you may have access to other Plateau services. When using these Plateau services, your conduct remains subject to this Agreement. Because of the changing nature of the Internet and Online Services, the Plateau Terms and Conditions may change at any time. You can always find the most current version of the Plateau Agreement at link: www.plateautel.com.
- Intended Use of the Service: You may not reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service without Plateau’s prior written consent. You will not use the Service in a manner prohibited by any federal, state, or local law or regulation, and will abide by Plateau’s Policies, which set forth additional rules, standards and guidelines that govern your activity in connection with the Service. Without limiting the foregoing, you may not use the Equipment or Service, or allow the Equipment or Service to be used, for any abusive or harmful purpose or in any way that damages Plateau’s property or interferes with or disrupts Plateau’s network or other users. You may not attempt to circumvent user authentication or security of any host, network, or account (also known as “cracking” or “hacking”). This includes, but is not limited to, accessing data not intended for you, logging into a server or account that you are not expressly authorized to access, or probing the security of other networks. You may not attempt to interfere with service to any user, host, or network (“denial of service attacks”). This includes, but is not limited to; “flooding” of networks, deliberate attempts to overload a service, and attempts to “crash” a host. You may not use any kind of program/script/command, or send messages of any kind, designed to interfere with a user’s session, by any means, locally or via the Internet. You may not use the Service or take any action that will result in excessive consumption or utilization of Plateau’s system or network resources, or which may weaken network performance, or which adversely affects the performance of the Services for other Plateau customers, all as determined in Plateau’s sole discretion. Such prohibited actions include, but are not limited to: using the Service to host a web server site which attracts excessive traffic at your Premises, continuously uploading or downloading streaming video or audio, use net hosting, or continuous FTP uploading or downloading. In the event that Plateau detects excessive use by you, Plateau may restrict your access to Plateau’s network, increase the fees associated with your Service, including upgrading you to a higher class of Service, or terminate your Service. Plateau has the right but not the obligation to restrict any uses of the Equipment or Service that Plateau believes in its sole discretion violate the Agreement or applicable law.
- Internet Addresses, Static IP Addresses, and E-mail: Your Plateau Agreement allows you to send and receive e-mail to and from other Plateau customers and users of the Internet. This does not mean that you may use Plateau to send bulk, commercial or “SPAM” e-mail. Your Plateau agreement and your authorization to use the Plateau e-mail service does not allow you to send bulk, commercial or “SPAM” e-mail or to cause bulk, commercial or “SPAM” e-mail to be sent by someone else. You may not use any Customer Directory or any other area of Plateau to harvest or collect information, including screen names, about Plateau customers, and the use of such information for the purpose of sending bulk, commercial or “SPAM” e-mail is strictly prohibited. Any violation of these provisions can subject your Plateau account to immediate termination and further legal action. Plateau also reserves the right to take any and all legal and technical remedies to prevent bulk, commercial or “SPAM” e-mail from entering, utilizing or remaining within the Plateau Network. Plateau shall not be held responsible for delivery, mis-delivery or non-delivery of any e-mail. Furthermore, your Plateau e-mail and IP addresses assigned to your resources in the process of accessing Plateau's Network remain in the custody of Plateau and are non-transferable. In the event you discontinue service with Plateau, all associated Plateau e-mail and IP addresses will be forfeited. Additionally, it is necessary from time to time to change e-mail domains, IP addresses and technologies associated with Plateau's service. In the event a significant change is made, you will be notified in writing via paper or electronic means no less than 30 days in advance. During this period you will be required at your expense to make reasonable modifications to your resources necessary to accommodate these changes or your service will be subject to interruption without further notice. Additionally, in order for Plateau to maintain equipment that operates in an efficient manner, e-mail storage on Plateau's servers is limited. Any e-mail account that accumulates over 1 gigabyte of storage space may be emptied without notice. It is recommended that you download your e-mail messages to your own computer or server on a regular basis.
- Bandwidth: All advertised connection rates are maximum attainable raw data rates under ideal conditions. These rates should not be considered guaranteed and are subject to but not limited to interference, network congestion, equipment and far end node performance.
- On-Demand Connections: On-demand connections are generally referred to as dial-up connections and are subject to idle time disconnections. Plateau reserves the right to disconnect any session that has been idle for more than 20 minutes. Connections are considered idle if no significant amount of data has been transmitted in either direction of an on-demand connection. Additionally, Plateau may terminate any session that has been online for 8 hours continuously or more. In the event you are disconnected for an idle or 8-hour continuous connection, you are allowed to reconnect immediately.
- Security: The Internet is a public transport. Plateau does not exercise any control over the data transmitted to or from you and only filters content as an additional service described in subsequent sections of this Agreement. This means that you are responsible for protecting all of your resources that may be accessible by a connection to Plateau's Network. Furthermore, you agree to accept full responsibility and hold Plateau harmless for any damages caused or alleged to be caused as a result of accidental or malicious activity resulting from your connection to Plateau's Network.
- Password Security: It is important that you not reveal your password to other users. When you contact Plateau Tech Support for assistance, the technicians may ask you for your user name and password for trouble shooting purposes ONLY. Plateau will never contact you via phone or E-mail asking for this information. You agree not to reveal your password to other users and you agree to indemnify and hold Plateau harmless for any improper or illegal use of your account. This includes illegal or improper use by someone to whom you have given permission to use your account. Your account is at risk if you let someone use it inappropriately. Your account may be suspended and you may be required to change your password if your password is compromised by a third party. For additional password safety, user tutorials, and other helpful information, please refer to the Support section at link www.plateautel.com/support.
- Cancellation or Suspension: Plateau reserves the right to cancel or suspend any account at its sole discretion at any time. This includes, but is not limited to, suspension for failure to pay charges due on the account, repeatedly exceeding volume limits, and activity deemed by Plateau to be harmful or abusive to its service or network. Termination or suspension does not release liability for charges due.
- Third Party Charges: You agree that any charges you incur from a third party as a result of any transactions you willingly or unwillingly conduct through a connection to Plateau's Network are your sole responsibility, including but not limited to credit card and long distance phone charges.
- Resell: Plateau's Internet service is provided for your business, organization or personal use as a provider-end user relationship. You may not resell or provide connectivity to Plateau's Network in any manner to any third party unless express written permission is granted to you from Plateau.
- Proprietary Rights: Much of the content available on our service is owned by others, and is protected by copyrights, trademarks, and other intellectual property rights. It is very easy to copy things in cyberspace, but just because it is easy doesn't mean it is acceptable or legal. Any content that you upload or download while using the service must be authorized; this means you must have the legal right to upload or download the content. You must not copy, transmit, modify, distribute, show in public or in private or create any derivative works from any of the content you find on Plateau unless you have the legal right to. Making unauthorized copies of any content found on Plateau can lead to the termination of your Plateau account and may even subject you to further legal action beyond the termination of your agreement. Similarly, other content owners may take criminal or civil action against you. In that event, you agree to hold harmless Plateau and its subsidiaries, affiliates, related companies, independent contractors, assigns, employees, officers, directors, agents, licensors, representatives, resellers and telecommunication and content providers [hereinafter collectively referred to as independent contractors] from all liabilities, claims, and expenses, including attorney's fees. Bear in mind that some areas of Plateau Internet service are "public", like message boards, forums, or the Customer Directory, and other customers will have access to your posted material and might copy, modify or distribute it. By submitting or posting content there, you are representing that you are the owner of such material or have authorization to distribute it. Once you post content on Plateau Internet, you expressly grant Plateau the complete right to use, reproduce, modify, distribute, etc. the content in any form, anywhere.
- Indemnification: Upon a request by Plateau, you agree to defend, indemnify and hold harmless Plateau and its independent contractors from all liabilities, claims and expenses, including attorney's fees, that arise from a breach of this Customer Agreement for which you are responsible or from the use of Plateau or the Internet, or in connection with your transmission of any content on Plateau. Plateau reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by a Customer.
- Spam Blocker: a. Plateau’s spam blocker (if applicable), a service provided through a third party, offers you a service to block unwanted e-mail to one or more e-mail delivery addresses. You acknowledge that these unwanted e-mails come through the Internet and that the Internet is not owned, operated, managed, or in any way affiliated with Plateau Telecommunications or any of its affiliates, and that it is a separate network of computers independent of Plateau Internet. Access to e-mail from the Internet is solely at your own risk and is subject to all applicable local, state, national and international laws and regulations.
b. Plateau’s spam blocker service may only be used for lawful purposes. The use of Plateau spam blocker service to aid in the transmission of any material in violation of U.S or state regulation is prohibited. This includes, but is not limited to: copyrighted material, material legally judged to be threatening or obscene, material protected by trade secret, or material that is otherwise deemed to be proprietary or judged by Plateau Internet to be inappropriate or improper such as bulk e-mail messages.
c. Any use of your Plateau spam blocker service ID, virtual e-mail address, or service must comply with the rules appropriate for the Internet and any other network that is part of the transmission.
d. Plateau Internet makes no warranties, express or implied, including, but not limited to, those of merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, mis-deliveries or service interruption however caused. Use of any information obtained through the Plateau spam blocker service is at your own risk. Plateau Internet specifically disclaims any responsibility for the accuracy or quality of information obtained from e-mail messages delivered through its services. Under no circumstances shall Plateau Internet be liable for any indirect, incidental, special or consequential damages, including, without limitation, loss of profits.
e. You agree to indemnify and hold harmless Plateau Internet , its directors, officers, shareholders, employees, subcontractors, partners, and customers from any and all claims and expenses, including, without limitation, reasonable attorney's fees arising out of, or resulting from, the use of Plateau’s spam blocking service, techniques, information, or technology.
g. You understand that Plateau Internet prohibits the use of Plateau Internet’s spam blocking service to aid spamming activities. Spamming is defined as any of the following activities:
i. To post a single article or advertisement to more than ten (10) Usenet or other newsgroups, forums, e-mail mailing lists or other similar groups or lists;
ii. To post to any Usenet or other newsgroup, forum, e-mail mailing lists or other similar group or list articles which are off-topic according to the charter of the other owner-published FAQ or description of the group or list;
iii. To send unsolicited mass e-mailings to more than twenty-five (25) e-mail users, if such unsolicited e-mailing provoke complaints from the recipients;
iv. To engage in any of the foregoing activities using the service or another provider, but channeling such activities through a Plateau Internet spam blocking account or remailer, or using a Plateau Internet spam blocking account as a mail drop for responses;
v. To falsify user information provided to Plateau Telecommunications, incorporated or to other users of the service in connection with the use of a Plateau Internet service.
h. Engaging in one or more of the above practices will result in the termination of the offender's account and/or access to Plateau Internet services.
i. You agree to pay all charges incurred through access to your account. The right to use the services is not transferable. You agree to protect your password and account information and to keep them secure from unauthorized use.
j. You understand that successful delivery of e-mail to your destination e-mail account is dependent upon availability of that account. In the case that your destination e-mail account does not accept e-mail sent from Plateau’s spam blocker service, Plateau reserves the right to limit the amount of time your undeliverable e-mail is queued on our servers.
k. Plateau Internet reserves the right to charge excess usage fees for accounts that receive over 5,000 messages per month or messages that contain over 100 megabytes of transmitted data per day.
l. Plateau Internet reserves the right to cancel or suspend any account at its sole discretion at any time. This includes, but is not limited to, suspension for failure to pay charges due on the account, repeatedly exceeding volume limits, and activity deemed by Plateau to be harmful or abusive to its service or network. Termination or suspension does not release liability for charges due.
m. These Terms and Conditions supersede all previous representations, understandings, or agreements and shall prevail notwithstanding any variance with Terms and Conditions of any order submitted. Use of Plateau Internet’s spam blocking service constitutes acceptance of these Terms and Conditions. These Terms and Conditions may be modified by Plateau Internet without notice. Modifications shall be considered to be in force upon posting of the modified Terms and Conditions on the Plateau Internet website(s). Continued use of Plateau Internet following such modifications constitutes acceptance of these Terms and Conditions, as modified.
n. Plateau Internet may transfer its rights and responsibilities under these Terms and Conditions to any third party who may purchase the company, its assets or the Plateau Internet spam blocking service, patent or technology.
o. Plateau Internet and Plateau Telecommunications logos are trademarks of Plateau Telecommunications, incorporated, All rights reserved.
p. Certain techniques and technology used within Plateau Internet’s spam blocking service are patent-pending. You may not use these techniques or technology for any purposes without the express written consent of Plateau Telecommunications.
- Virus Protection: a. Anti-Virus service is only applicable for E-mails via the plateautel.net e-mail server. Anti-virus service only scans all incoming E-mails of users. b. Neither Plateau Internet nor its affiliates warrant that any information, software, or other material accessible on the service is free of viruses, worms, Trojan Horses, or other malicious programs, files, commands or data. Plateau Internet is not liable to Customer for any damage to Customer's equipment, software or networks, or for charges resulting from repair or replacement of hardware or software, or for lost profits, loss of use, or loss of business opportunity as a result of any virus, worm, Trojan Horse program or any other malicious program, file, command or data to which Customer's equipment may be exposed.
c. Customer acknowledges that software capable of detecting and blocking viruses, worms, Trojan Horse programs and other malicious programs, files, commands or data should be obtained and employed by Customer at all times when using the Service. Customer also acknowledges that such software should be kept current to maximize its protective capabilities.
- Meganet Terms: Plateau's Meganet service is available in certain areas of eastern New Mexico to customers within four (4) miles, line of sight, to Plateau's base station antenna(s). Availability of service is also dependent upon Plateau's design of the network. Plateau's service is a burstable service meaning data rates cannot be guaranteed 100% of the time. Disruption of Service: Customer understands and agrees that service may be interrupted by factors including, but not limited to, atmospheric conditions, obstacles that hinder line of sight between the customer site and the base station antenna or equipment malfunction. Service may also be terminated for non payment. Liability: Plateau is hereby released from all liability in all circumstances, except for negligence, including but not limited to, installation of any equipment at the customer premise, and if requested by the customer, the configuration settings on the customer's computer or other equipment, which results in the inoperability of said computer or other equipment. Plateau's limit on liability is $500. Plateau makes no warranties or guarantees in regards to the merchantability of this service, either expressed or implied. Support: Plateau is not required to provide technical support on older operating systems such as Windows 3.1 and Macintosh 7.5.5 or older. Additional Charges: Customers who are disconnected for non payment and then subsequently re-connected may be assessed a reconnect charge of $25 if the equipment was not removed before re-connecting, otherwise another installation/activation fee will apply. Customers who change price plans may be assessed a price plan change charge of $27. Customers who request that their external equipment be moved to another location may be charged a move charge of $99.95. Customers who network 5 or more computers may be required to purchase either the MegaPreferred or MegaPemium plan. Additional charges may apply if customer requires a non standard installation. A standard installation on an outdoor subscriber unit is defined as 150 feet of cable, standard antenna mount, line of sight to the base station antenna that is within four (4) miles and adequate signal strength. Equipment and Customer Responsibility: Customer agrees that ownership of the customer premise equipment (antenna or modem and cabling) remains with Plateau Telecommunications. Customer agrees that if service is cancelled for any reason, customer will return the MMDS Indoor Subscriber Unit or will grant Plateau access to the customer's premise to retrieve the Outdoor Subscriber Unit. Failure of customer to grant Plateau access to the premise to retrieve said equipment or failure to return said equipment will result in customer being billed for the replacement cost of the equipment which is up to $700. Installation of the Network Interface Card is the responsibility of the customer. Customers who network multiple computers may be required to purchase a NAT (Network Address Translator) capable router or other equipment. Customers who have an Outdoor Subscriber Unit shall not move or adjust the customer premise equipment without permission of Plateau. If the antenna must be moved at the request of customer for any reason, customer agrees to notify Plateau and may be subject to a move charge. If equipment is damaged for any reason, beyond normal wear and tear, customer may be billed for the replacement cost of said equipment which may be up to $700. Customer agrees that their account may be subject to cancellation if their High Speed Internet connection is shared with other users without the express written consent of Plateau. Customers who have an Outdoor Subscriber unit and who rent or lease office or living space, will be required to obtain written permission of the Landlord or property owner in order for Plateau to install equipment at the customer premise. Service is available subject to credit check and deposit may be required. Said Terms and Conditions hereby apply and Plateau reserves the right to change or modify said Terms and Conditions and this agreement from time to time, as necessary, and customer agrees to be bound by those Terms and Conditions. Terms and Conditions are available online at: www.plateautel.com/legal. Customer certifies the following: I am at least 18 years of age, I have the authority to sign this agreement and the above prices, specifications and conditions are satisfactory and hereby accepted.
- Warranty: NEITHER PLATEAU NOR ITS INDEPENDENT CONTRACTORS WARRANTS TO YOU THAT DURING THE TERM OF THIS AGREEMENT, THE SERVICE, PRODUCT, OR SOFTWARE WILL CONFORM TO ITS DOCUMENTATION AND SPECIFICATIONS OR THAT IT WILL OTHERWISE BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE. THE PRODUCT AND SERVICES ARE PROVIDED "AS IS," AND "AS AVAILABLE" WITH ALL FAULTS, AND DISCLAIMERS OF ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE AND QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE PRODUCT OR SERVICES WILL FULFILL CUSTOMER'S PARTICULAR NEEDS, AND CUSTOMER ASSUMES ALL RISK OF SATISFACTORY QUALITY, PERFORMANCE AND EFFORT. PLATEAU PROVIDES ITS SERVICES ON A COMMERCIALLY REASONABLE BASIS AND IT IS NOT GUARANTEED THAT CUSTOMERS WILL BE ABLE TO HAVE ACCESS OR USE OF THE SERVICE AND PRODUCTS AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT PLATEAU WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE OR PRODUCT AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.
- Limitation of Damages: Under no circumstances will Plateau or its independent contractors be liable for any consequential, indirect, special, punitive or incidental damages, whether foreseeable or unforeseeable, based on Customer's claims or those of any third party (including but not limited to claims for loss of data, goodwill, profits, use, business, use of money or use of the Products or Services, interruption in use or availability of data, stoppage of other work or impairment of other assets) arising out of breach of contract, whether express or implied, tort, strict liability, negligence, prima facie tort, including breach or failure of express or implied warranty, misrepresentation, access to sites that should have been filtered, including the contents of any site in, or otherwise, except only in the case of personal injury where and to the extent that applicable law specifically requires such liability. In no event will the total liability of Plateau or its independent contractors hereunder exceed the fees actually paid by Customer to Plateau under this Agreement. a. WITHOUT LIMITING THE FOREGOING, THE PARTIES AGREE THAT IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
- Release and Waiver: CUSTOMER HEREBY EXPRESSLY WAIVES AND RELEASES, AND COVENANTS NOT TO SUE PLATEAU OR ANY OF ITS INDEPENDENT CONTRACTORS USED BY PLATEAU FOR ANY RIGHT TO RECOVER LOSSES, DAMAGES, OBLIGATIONS, LIABILITIES OR EXPENSES ON ACCOUNT OF THIS AGREEMENT BETWEEN THE PARTIES.
- Force Majeure: Neither Plateau nor its independent contractors will be liable or in default for breach of this Agreement in the event that any such Party is unable to perform its obligations under this Agreement due to strikes, labor disturbances, lockout, riot, fire, flood, outside electrical failure, outside telecommunications facilities failure, computer virus, act of God or the public enemy, or other cause that is similarly beyond their reasonable ability to control.
PlateauTV Terms & Conditions
You ("You" or "Customer') understand and agree that these Terms and Conditions apply to Plateau Telecommunications, incorporated’s (“PLATEAU”) provision of each and every service ("Service(s)") ordered by Customer or provided by PLATEAU as part of a Service, which may include IPTV service ("Video Service"), high speed data service ("High Speed Internet Service"), voice service ("Phone Service") and any equipment rented from or otherwise supplied by or on behalf of PLATEAU to you ("Equipment").
- Agreement: Customer agrees to be bound to these Terms and Conditions by: (i) executing a copy of the service order presented to Customer at the time of installation ("Service Order"), (ii) ordering a Service, or (iii) using one or more Services at Customer's location. PLATEAU may, in its sole discretion, change, modify, add or remove portions of these Terms and Conditions at any time by posting the amended Terms and Conditions on the Company website at www.plateau.tv, or by giving Customer notice in accordance with these Terms and Conditions. Customer's continued use of the Services following such notice shall be deemed as Customer's acceptance to any revision in these Terms and Conditions. If Customer does not agree to the revised Terms and Conditions, Customer must notify PLATEAU at 1-877-Plateau (752-8328) of Customer’s intent to cancel their agreement within fourteen (14) days, without penalty.
- Residential Use: The Services provided are solely for Customer's personal, residential use and Customer shall not use Services for any commercial purpose. PLATEAU shall have the right to determine, in its sole discretion, what constitutes a "commercial" purpose.
- Access to Customer Premises: Customer grants PLATEAU and its employees, representatives and/or agents the right to enter Customer's premises and access Equipment, the wiring within Customer's premises and Customer's television(s) to install, connect, inspect, maintain, repair, replace, disconnect, remove or alter the Equipment, check for signal leakage, or install or deliver PLATEAU provided software ("Software"). Customer shall cooperate in providing such access upon request of PLATEAU. If Customer is not the owner of the premises, Customer warrants that Customer has obtained the legal authority of the owner to authorize PLATEAU personnel and/or its agents to enter the premises for the purposes described herein.
- Installation Agreement / Equipment Return: Customer requests installation of PLATEAU and/or High Speed Internet service(FiT), equipment such as Modem(s), set top box(s), broadband router, Ethernet Switch(s), network card(s) or any other equipment used to install the service(s) by PLATEAU. PLATEAU assumes no responsibility or liability for access to User’s home network by unauthorized person(s). Customer agrees any request to set up or configure devices and /or networks not associated directly with the installation of PLATEAU or high speed Internet (FiT) may result in a separate charge/fee.
- Payment: The charges for one month of Services, including any deposits and installation and Equipment charges, are due upon installation of the Services. Thereafter, Customer agrees to pay monthly recurring Service charges and Equipment charges (if any) in advance, including all applicable fees, taxes, regulatory fees, franchise fees, surcharges (including a broadcast station surcharge) and other government assessments no later than the date indicated on Customer's bill. Charges for non-recurring Services or Equipment charges will be reflected on Customer's subsequent bill at the then current applicable rates. If Customer elects to pay by automatic recurring credit card, debit card or automatic clearing house payments, Customer authorizes PLATEAU to charge such accounts. Failure to receive a bill does not release Customer from Customer's obligation to pay. Failure to pay the total balance when due shall constitute a breach of this Agreement and may be grounds for termination of Service, removal of Equipment from Customer's premises and/or imposition of an administrative fee ("Administrative Fee") in accordance with applicable law. Any Administrative Fee imposed on Customer is intended to be a reasonable advance estimate of costs of managing past due accounts. PLATEAU does not extend credit to PLATEAU's Customers and the Administrative Fee is not interest, a credit service charge or a finance charge.
- Additional Fees: In addition to Customer's monthly recurring charges and any Administrative Fee, additional fees may be imposed, including fees for returned checks, charge card chargeback, early termination, reconnection and service calls. Additional charges may also be imposed if collection activities are required to recover past due balances, including attorney fees. A list of applicable fees is available from your local PLATEAU's office ("Schedule of Fees"). PLATEAU reserves the right to amend or change the Schedule of Fees from time to time.
- Disputed Charges: Customer must notify PLATEAU in writing of billing errors disputes or requests for credit within thirty (30) days after Customer receives the bill for which correction of an error or credit is sought. The date of the dispute shall be the date PLATEAU receives sufficient documentation to enable PLATEAU to investigate the dispute. The date of the resolution is the date PLATEAU completes its investigation and notifies the Customer of the disposition of the dispute.
- Adjustments or Refunds: Any adjustment or refund shall be an amount equal to the pro-rata part of the monthly charges applicable to the interrupted Service and associated Equipment charges for the period of time during which the Service is interrupted. The adjustment or refund will be accomplished by a credit on a subsequent bill for Service. Except as otherwise expressly provided in this Agreement, the liability of PLATEAU, its officers, shareholders, directors, employees, affiliates, vendors, carrier partners, content providers and other persons or entities involved in providing the Services or Equipment (collectively, the "PLATEAU Parties") for damages shall in no event, by reason of any delays, interruptions, omissions, errors, failures or defects in installation or service, exceed an amount equal to the Customer's Service charges and associated Equipment fees for a regular billing period ("Maximum Credit"). No credit allowance will be made for:
- interruptions of Service due to the negligence of or noncompliance with the provisions of the Agreement by Customer or any person authorized by customer to use the Service;
- interruptions of Service due to the negligence of any person other than PLATEAU including, but not limited to, the other common carriers connected to the PLATEAU's facilities;
- interruptions of Service due to the failure or malfunction of Customer owned equipment or third party equipment;
- interruptions of Service during any period in which PLATEAU is not given full and free access to its facilities and Equipment for the purpose of investigating and correcting interruptions,
- interruptions of Service during a period in which Customer continues to use the Service on an impaired basis;
- interruptions during any period when the interruption is due to implementation of a Customer order for a change in Service arrangements;
- interruptions of Service due to circumstances or causes beyond the control of PLATEAU.
- Limitation of Refund: Unless otherwise provided by applicable law, in the event any amounts owed by PLATEAU to Customer are not claimed by Customer within one year of the date on which the amount became payable to Customer, Customer shall forfeit all rights to the refund and all such amounts shall become the property of PLATEAU.
- Equipment And Software: Any network facilities, Software, cabling or Equipment installed or provided by PLATEAU will remain the property of PLATEAU. Customer will acquire no ownership or other interest in the network facilities, cabling, Software or Equipment by virtue of payments made pursuant to this Agreement or by the attachment of any portion of the network facilities, cabling or Equipment to Customer's residence or premises.
- Misuse of Equipment: Customer will not open, alter, misuse, or tamper with the Equipment. Customer will not remove Equipment from the location where Equipment was installed. Customer will not remove any markings or labels from the Equipment. Customer agrees to safeguard the Equipment from loss or damage of any kind, and (except for any self-installation procedures approved by PLATEAU) will not permit anyone other than a PLATEAU authorized representative to perform any work on the Equipment.
- Return of Equipment: If Customer's Service is terminated or cancelled (for whatever reason), Customer agrees that Customer no longer has the right to keep or use the Equipment and Customer must promptly return the Equipment. The Equipment must be returned to PLATEAU in the same condition as when received, ordinary wear and tear excepted. If Customer fails to return the Equipment, Customer will pay any expenses PLATEAU incurs in retrieving the Equipment. Failure of PLATEAU to remove the Equipment does not mean that PLATEAU has abandoned the Equipment. PLATEAU may continue to charge Customer a monthly Service fee until any remaining Equipment is returned, collected by PLATEAU or fully paid for by Customer. If the equipment is not returned in proper working condition, the customer will be billed for the repair charges up to, but not to exceed, the full price of the Equipment.
- HD-DVR - $200.00/Ea.
- Set-top Box(s) - $120.00/Ea.
- Residential Gateway - $ 90.00/Ea.
- Ethernet Switch - $ 40.00/Ea
- Damaged or Lost Equipment: If the Equipment is damaged by Customer, destroyed, lost or stolen while in Customer's possession, Customer is responsible for the cost of repair or replacement of the Equipment.
- Operation of Equipment: The Customer agrees to operate any Equipment in accordance with instructions of PLATEAU or PLATEAU's agent. Failure to do so will relieve the PLATEAU Parties of liability for interruption of Service and may make the Customer responsible for damage to Equipment.
- Equipment Repair: PLATEAU will repair and/or replace defective Software or Equipment provided such damage was not caused by misuse, neglect or other fault of Customer. In the event of any malfunction of the equipment the customer shall report it to the PLATEAU Tech Support at 1-575-389-4242 or 1-888-638-3872. Customer agrees not to modify, change, or repair, or have others attempt to modify, change, or repair, the equipment. Customer will be liable for repairs if the manufacturer seal is broken or for any other negligent or willful damage. PLATEAU is not responsible for the operation, maintenance, service or repair of any Customer's equipment, including, but not limited to, televisions, computer devices, remote controls or other consumer electronics, including any hardware or third party software, which may be connected to the Services ("Customer Equipment").
- Tests and Inspections: Upon reasonable notification to the Customer, and at a reasonable time, PLATEAU may make such tests and inspections as may be necessary to determine that the Customer is complying with the requirements set forth herein.
- Software: Customer agrees to comply with the Terms and Conditions of any Software license agreement provided with the Software. The Software shall be used solely in connection with the Services and Customer will not modify, disassemble, translate or reverse engineer, the Software. If Customer's Service is terminated, Customer will promptly return or destroy all Software provided by PLATEAU and any related written materials. PLATEAU will have the right to upgrade, modify and enhance the Equipment and Software from time to time through "uploads."
- Customer Insurance: Customer agrees to protect and insure all leased PLATEAU/High Speed Internet and/or any other equipment used to install the service(s) against, theft, collision, water damages and other perils, hazards, and losses, and to name PLATEAU as an additional insured to the extent of its interest, in the amount of the full price as set forth below.
- Customer Liability for Users: Customer must be at least eighteen years of age to subscribe to Services. Customer is responsible for any access, use or misuse of the Services and/or Equipment that may result from access or use by any other person who has access to Customer's premises, equipment or account. Customer is responsible for ensuring that all persons who use Customer's subscribed to Services ("Users") understand and comply with all Terms and Conditions applicable to the Services.
- Termination: PLATEAU may terminate this Agreement immediately at any time, without prior notice, if Customer or a User fails to fully comply with the terms of this Agreement, its components and PLATEAU's Acceptable Use Policy ("AUP") or for any other reason or no reason. If PLATEAU terminates Service due to a violation of this Agreement or PLATEAU's policies, Customer may be subject to additional fees and charges, including disconnect and termination fees and PLATEAU may also exercise other rights and remedies available under law.
- Customer Obligations Upon Termination: Customer agrees that upon termination of any Service, Customer will immediately cease use of the Equipment and any Software, and; Customer will pay in full the charges for Customer's use of the Service and the Equipment through the later of: (i) the effective date of termination of the Service, (ii) if applicable, the expiration of any promotional term, or (iii) the date when the associated Equipment or Software has been returned to PLATEAU.
- No Waiver: The failure of PLATEAU to enforce this Agreement and any of its components, for whatever reason, shall not constitute a waiver of any right of PLATEAU or the ability to assert or enforce such right at any time in the future.
- No Assignment: Customer may not assign, or transfer in any manner, the Services or any rights associated with the Services.
No Warranty; Limitation of Liability: CUSTOMER AGREES THAT THE SERVICES AND EQUIPMENT ARE PROVIDED BY PLATEAU ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. PLATEAU MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE EQUIPMENT WILL WORK AS INTENDED. CUSTOMER FURTHER AGREES THAT ALL USE OF THE SERVICES ARE PROVIDED AT CUSTOMER'S SOLE RISK AND CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR CUSTOMER'S OR ANY USER'S USE OF THE SERVICES.
EXCEPT FOR THE REFUND OR CREDIT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT (INCLUDING NEGLIGENCE) WILL PLATEAU BE HELD RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE, COST OR EXPENSE INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, EARNINGS, BUSINESS OPPORTUNITIES, LOSS OF DATA, PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR LEGAL FEES AND EXPENSES, SOUGHT BY CUSTOMER OR ANYONE ELSE USING CUSTOMER'S SERVICE ACCOUNT, RESULTING DIRECTLY OR INDIRECTLY OUT OF THE USE OR INABILITY TO USE THE SERVICES AND/OR USE OF THE EQUIPMENT OR OTHERWISE ARISING IN CONNECTION WITH THE INSTALLATION, MAINTENANCE, FAILURE, REMOVAL OR USE OF SERVICES AND/OR EQUIPMENT OR CUSTOMER'S RELIANCE ON THE SERVICES AND/OR EQUIPMENT, INCLUDING WITHOUT LIMITATION ANY MISTAKES, OMISSIONS, INTERRUPTIONS, FAILURE OR MALFUNCTION, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN INSTALLATION, FAILURE TO MAINTAIN PROPER STANDARDS OF OPERATION, FAILURE TO EXERCISE REASONABLE SUPERVISION, DELAYS IN TRANSMISSION, BREACH OF WARRANTY OR FAILURE OF PERFORMANCE OF THE SERVICES AND/OR EQUIPMENT; OR RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING RELATING TO SERVICES AND/OR EQUIPMENT, OR THE INFRINGEMENT OF THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
PLATEAU MAKES NO WARRANTIES THAT THE SERVICE, EQUIPMENT OR SOFTWARE ARE COMPATIBLE WITH ANY CUSTOMER EQUIPMENT AND ARE NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR IMPAIRMENT OF SERVICE DUE IN WHOLE OR IN PART TO CUSTOMER EQUIPMENT.
PLATEAU MAKES NO WARRANTY AS TO THE SECURITY OF CUSTOMER'S COMMUNICATIONS VIA PLATEAU'S FACILITIES OR SERVICES, OR THAT THIRD PARTIES WILL NOT GAIN UNAUTHORIZED ACCESS TO OR MONITOR CUSTOMER'S COMMUNICATIONS. CUSTOMER AGREES THAT CUSTOMER HAS THE SOLE RESPONSIBILITY TO SECURE CUSTOMER'S COMMUNICATIONS AND THAT PLATEAU WILL NOT BE LIABLE FOR ANY LOSS ASSOCIATED WITH SUCH UNAUTHORIZED ACCESS.
PLATEAU'S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY LAW. IN NO EVENT SHALL LIABILITY EXCEED THE AMOUNT OF DIRECT DAMAGES FOR INJURY TO PROPERTY OR PERSON CAUSED BY PLATEAU'S WILLFUL OR NEGLIGENCE OR, FOR ALL OTHER CLAIMS, THE MAXIMUM CREDIT.
- Indemnification: Customer agrees to defend, indemnify and hold harmless the PLATEAU Parties from and against any and all claims and expenses, including reasonable attorneys' fees, arising out of or related in any way to the use of the Service and Equipment by Customer or otherwise arising out of the use of Customer's account or any equipment or facilities in connection therewith, or the use of any other products or services provided by PLATEAU to Customer. Customer agrees to indemnify and hold harmless the PLATEAU Parties against claims, losses or suits for injury to or death of any person, or damage to any property which arises from the use, placement or presence or removal of PLATEAU's Equipment, facilities and associated wiring on Customer's premises and further, Customer indemnifies and holds harmless the PLATEAU Parties against claims for libel, slander, or the infringement of copyright arising directly or indirectly from the material transmitted over the facilities of PLATEAU or the use thereof by Customer; against claims for infringement of patents arising from combining with or using in connection with, facilities furnished by PLATEAU, and apparatus, Equipment, and systems provided by Customer; and against all other claims arising out of any act or omission of Customer in connection with the Services or facilities provided by PLATEAU.
- Severability: If any term or condition of this Agreement shall be adjudicated or determined as invalid or unenforceable by a court, tribunal or arbitrator with appropriate jurisdiction over the subject matter, the remainder of the Agreement with respect to such claim shall not be affected and shall remain valid and enforceable to the fullest extent permitted by law.
- No Relationship: Nothing in this Agreement will create any joint venture, joint employer, franchisee-franchisor, employer-employee or principal-agent relationship between PLATEAU and any content, backbone, network, circuit and other technology or communications providers, software and other licensors, hardware and equipment suppliers or other third party providers of elements of the High Speed Internet Service, nor impose upon any such companies any obligations for any losses, debts or other obligations incurred by the other.
- Survival: All representations, warranties, indemnifications, dispute resolution provisions and limitations of liability contained in this Agreement shall survive the termination of this Agreement, as well as any other obligations of the parties hereunder which, by their terms, would be expected to survive such termination or which relate to the period prior to termination (including legal conditions, payment, and PLATEAU rights and the rights of others).
- Force Majeure: PLATEAU Parties shall not be liable for any delay or failure of performance or Equipment due to causes beyond its control, including but not limited to: acts of God, fire, flood, explosion or other catastrophes, cable cuts; any law, order, regulation, direction, action or request of the United States government or of any other government including state and local governments having or claiming jurisdiction over PLATEAU, or of any department, agency, commission, bureau, corporation or other instrumentality of any one or more of these federal, state, or local governments or of any military authority; preemption of existing service in compliance with national emergencies, acts of terrorism, insurrections, riots, wars, unavailability of rights-of-way, material shortages, strikes, lockouts, or work stoppages.
- Use of Services: The programs, content and other service provided through PLATEAU's Video Service must be utilized for use solely at the Customer ‘s residence, for purposes limited to other authorized activities and display on no more than the number of workstations/receivers at the Customer Locations as disclosed on the Service Order, provided that Customer may not directly or indirectly charge any fee as a condition to viewing the Service and that the Video Service is not duplicated, redistributed or accessed in violation of any applicable law.
- Programming Content: Customer understands and agrees that by using the Video Service, Customer or Users may be exposed to materials or content that may be offensive, sexually explicit or objectionable to Customer. Parental control devices are available upon Customer's request for use with the Video Service to block certain programming and/or filter certain content. PLATEAU makes no representation or warranty regarding the effectiveness of such parental control devices. Under no circumstances will the PLATEAU Parties be liable in any way for any claims, losses, actions, suits, proceedings, or any damages relating to any programming content provided with the Video Service.
- Security: PLATEAU has no obligation to track the Video Services provided to Customer; however, as a part of the provision of Service and in order to protect from unauthorized reception of Service, PLATEAU may track through its cable television system the channel or Service selections indicated by Customer or other information necessary to satisfy any law or regulation to properly operate the Video Services and/or to protect PLATEAU, its cable television system, Services, Equipment and/or Customers.
- Signal Level: To maintain legal requirements for minimal signal levels at Customer's terminal, no more than one television set per set top box may be utilized.
- Outages: Subject to applicable law, a credit may be given for qualifying outages. If there is a known outage/interruption in excess of 24 consecutive hours (or in excess of such lesser time period pursuant to local law), PLATEAU, upon prompt notification of such failure or interruption by Customer, may either provide Customer with a pro-rata credit relating to such failure or interruption, or at PLATEAU's discretion, in lieu of the credit, provide alternative programming during any program interruption. PLATEAU will not be liable for any incidental or consequential damages or losses from any interruption in programming or outages.
Hosted Communications Solutions
Terms & Conditions
BY ACCEPTING THESE HOSTED COMMUNICATIONS SOLUTIONS TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS BELOW. ALL SERVICE ORDERS AND SERVICES ARE SUBJECT TO THESE TERMS AND CONDITIONS.
These Hosted Communications Solutions Terms and Conditions (the “Agreement”) are entered into by and between Plateau Telecommunications, Incorporated (“Provider”), a New Mexico company, and the customer purchasing products or services from Provider (“Customer”).
Definitions. The following terms will have the meanings set forth below.
- 1.1 “Customer Data” means any data, information or other materials of any nature whatsoever provided to Provider by Customer or a User in the course of implementing or using the Services.
- 1.2 “Service Descriptions” means user manuals and other documentation relating to the Services that are made available to Customer by Provider in digital or hardcopy form, as updated from time to time.
- 1.3 “Service Fee” or “Service Fees” means the monthly or annual fees set forth in the Service Order to be paid by Customer to Provider as consideration for Provider’s provision to Customer of the Services, but does not include usage fees, taxes or regulatory fees or surcharges, which Customer must pay in addition to the Service Fees.
- 1.4 “Service Order” means an order for Services or products.
- 1.5 “Service Plan” means the monthly or annual subscription plan a Customer agrees to in the Service Order.
- 1.6 “Service Order Addendum” means a Service Order agreed to by Customer subsequent to the initial Service Order.
- 1.7 “Services” means the products or services that are being provided to Customer as described in the Service Order, including any Additional Services set forth in a Service Order Addendum accepted by Provider.
- 1.8 “Software” means any proprietary software owned by, licensed by or which Provider has a right to sublicense that is used in or used to provide the Services. “Software” includes, without limitation, any application that Provider makes available to the Customer for use on a mobile device.
- 1.9 “User” means a user of the software, client, mobile application or other web-based application, equipment, feature or functionality provided by Provider in conjunction with the Services.
- 2.1 Generally. Provider will provide the Services set forth in an accepted Service Order subject to the terms and conditions of this Agreement. Provider hereby grants Customer limited, revocable, non-exclusive, non-transferable access to the Services for use by the number of Users set forth in the Service Order, for Customer’s own internal business purposes. Provider grants Customer a limited, revocable, non-exclusive, non-transferable right to use the Services Descriptions in connection with its use of the Services. Each Service Order will be subject to Provider’s acceptance, which will be deemed given if Provider thereafter provides the Services to Customer.
- 2.2 Conditions. Customer agrees that Provider’s obligations to provide the Services are expressly conditioned upon (a) Customer’s payment of the fees as and when due, and (b) Customer’s satisfaction of the technical requirements set forth in the Services Descriptions for the Services made available to Customer by Provider, as the same may be updated by Provider from time to time.
- 2.3 Additional Services. Customer may request an increase in Users or additional Services at any time during the Term (any such increase, “Additional Services”) by submitting a Service Order Addendum setting forth the specific Additional Services desired. Each Service Order Addendum will be subject to Provider’s acceptance, which will be deemed given if Provider thereafter provides the Additional Services to Customer. Upon acceptance by Provider, such Service Order Addendum will be deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the Service Fees will be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the Service Order or the Service Order Addendum as applicable.
- TERM. This Agreement will commence on the date Provider accepts the Service Order and will continue for the period of time specified in the Service Order (the “Initial Term”). At the end of the Initial Term, the Agreement will automatically renew for an additional one-year period (a “Renewal Term”), and will renew at the end of each Renewal Term for an additional one-year Renewal Term, unless either party provides the other party, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, written notification in accordance with Section 20.1 of its desire to cancel the Services. The Initial Term and any Renewal Terms are collectively the “Term”.
- 4.1 Early Termination by Customer. If Customer terminates the Agreement, or some of the Services provided under the Agreement, before the end of the Initial Term or any Renewal Term (the “Terminated Term”), Provider will charge Customer, and Customer will pay, an early termination charge equal to 100% of the monthly Service Fee for the terminated Services, multiplied by the number of months remaining in the Terminated Term on the date of termination. The early termination charge is in addition to the full monthly Service Fee payable for the month of, and months prior to, termination. Provider will also charge Customer, and Customer will pay, (a) any unpaid recurring or non-recurring charges waived by Provider at the beginning of or during the Terminated Term, and (b) the difference between the MSRP and the price paid by Customer for any equipment purchased at the beginning of or during the Terminated Term. If Customer or its User transfers or ports its phone number to a service provider other than Provider, Customer must also contact Provider to terminate the Services provided to Customer by Provider.
4.2 Termination by Provider
- (a) Provider is entitled, at its sole discretion, to suspend, terminate or change the Services without advance notice upon any misuse of the Services in any way, Customer’s breach of the Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer or a User that adversely affects the Services, Provider, Provider’s network or another customer’s use of the Services. Provider will be entitled to determine, at its sole discretion, what constitutes misuse of the Services, and Customer agrees that Provider’s determination is final and binding on Customer. Provider may require, and if required, Customer will pay, an activation fee as a condition to changing or resuming a terminated or suspended account.
- (b) Provider is entitled to terminate any affected portion of the Services if: (i) Provider is prohibited by law from providing such portion of the Services; or (ii) any material rate or term contained herein and relevant to the affected Services is substantially changed by or as a result of any regulation or order issued by any court of competent jurisdiction, the Federal Communications Commission (FCC), any other local, state or federal government authority, or any carrier or Internet service provider.
- (c) Upon termination of this Agreement under this Section 4.2, Customer will be responsible for the full monthly Service Fee for the month in which termination occurs, in addition to any accrued but unpaid usage and other charges.
Fees, Billing and Taxes
- 5.1 Payment of Service Fees. Customer will pay the Service Fees for Services ordered by Customer, and all other amounts due under the Agreement, pursuant to the terms of this Section 5.
- 5.2 Credit. The provision of Services is contingent upon establishment of and continuing credit approval by Provider. Customer hereby consents to Provider’s procurement of a credit score or report regarding Customer. At any time during the Term, Provider is entitled to require a deposit or other acceptable form of security from Customer, as it deems appropriate. In addition, if requested by Provider, Customer agrees to provide, within two (2) business days of request, appropriate financial records to evaluate Customer’s continuing ability to pay. Provider may, immediately and without notice, suspend or terminate the Services if Customer fails to comply with these security obligations. Upon a payment default by Customer not cured in a timely manner, Provider will have the right to offset against any security or deposit held any amounts owed to Provider by Customer, and to invoice and collect all other amounts owed.
- 5.3 Billing. Provider will provide Customer with a monthly online billing statement for the Services provided each calendar month and bill all charges invoiced to Customer’s account. Such charges will include monthly service fees, storage charges, activation charges, equipment charges, toll charges, shipping charges, taxes, regulatory recovery fees and any other applicable charges. Monthly Service Fees will be paid in advance of each month’s service; any variable charges associated with usage and any other applicable charges associated with such usage shall be billed in arrears. Billing for monthly Service Fees commences upon ordering of the Services, and monthly Services Fees will be billed pro rata in the months in which such Services commence. Customer agrees to provide Provider with complete and accurate contact and payment information, which may include Customer’s credit card information, and Customer agrees to advise Provider of any changes thereto. To the extent Customer’s payment method is by credit card, Customer authorizes Provider to charge Customer’s credit card automatically to pay for Customer’s charges. If a charge to Customer’s credit card is declined or reversed, or if the account or credit card has expired or been suspended or closed, or if Customer fails to provide Provider with accurate or complete credit card information, Provider may suspend or terminate the Services.
- 5.4 Late/Non-payment. If any charges for the Services are due but unpaid for any reason, Provider may suspend or terminate the Services and all accrued charges will be immediately due, plus a late fee of 1.5% per month. A fee may also be charged to activate a suspended or terminated account. No suspension or termination of the Services or of this Agreement will relieve Customer from paying any amounts due hereunder.
- 5.5 Taxes. All Service Fees and other charges are exclusive of any taxes, surcharges, public utility fees and regulatory fees (including, without limitation, Universal Service Fees and E911 taxes). Such taxes and fees will be billed by Provider and paid by Customer. Taxes and regulatory fees may increase during the Term, and Customer will pay such increased fees commencing with the next monthly bill. Should Customer claim an exemption of any taxes or regulatory fees, Customer must provide official documented and certified proof of such exemption. In no event will Provider be liable for any taxes due by Customer or its User, and Customer will defend, indemnify and hold harmless Provider if any claim for taxes or fees is made. If any amounts paid for the Services are refunded by Provider, applicable taxes and regulatory fees may not be refundable.
- 5.6 Regulatory Recovery Fee. A regulatory recovery fee may be charged monthly to offset costs incurred by Provider in complying with inquiries and obligations imposed by federal, state and municipal regulatory authorities and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The regulatory recovery fee will apply to every phone number assigned, including toll free and virtual numbers. The regulatory recovery fee may increase during the Term, and Customer will pay such increased fee commencing with the next monthly bill.
- 5.7 Service Fee Changes. Provider may change the Service Fees, the types of Service Plans and any additional usage charges without advance notice. Provider will post such changes to its website (http://www.anpi.com). Notwithstanding the foregoing, the Service Fees agreed upon in Customer’s Service Order will not be increased during the Initial Term. With respect to any Renewal Term, the Customer will be charged Provider’s then-current Service Fees in effect at the commencement of the Renewal Term.
- 5.8 Availability. Customer acknowledges and agrees that the Services may not be available 100% of the time. Additionally, Services will not be available in the event of interruption in Customer’s or its User’s internet or broadband service. Provider will not credit Customer for any interruptions in Service.
- 5.9 Discounts. From time to time in its sole discretion, Provider may offer promotions or discounts. Any promotion or discount codes must be provided to Provider upon purchase of the Services. Customer will not be entitled to a subsequent credit for such promotions or discounts if not requested at the time of account creation or change of Service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively.
- 5.10 Billing Disputes. Customer must dispute any charges for the Services in writing to BillingDisputes@anpi.com within thirty (30) days of the date of the charge by Provider, or Customer waives any objection and further recourse with regard to such charges. Notwithstanding the foregoing, Customer shall pay all undisputed charges in accordance with this Agreement.
- 5.11 Usage Charges. Every call using the Services that originates or terminates in the Public Switched Telephone Network (“PSTN”), including without limitation other VoIP networks, accrues applicable toll charges. Customer will not be charged for monthly usage within the limits of its then-current Service Plan. Usage which exceeds the limits, if any, of Customer’s then-current Service Plan will be charged to Customer in accordance with the Service Descriptions at the rates published at http://www.anpi.com. Calls to phone numbers outside the United States and Canada will also be charged to the Customer in accordance with the Service Descriptions at the rates published at http://www.anpi.com.
TELEPHONE NUMBER. Any telephone number provided by Provider (“Number”) to the Customer will be leased and not sold. Provider reserves the right to change, cancel or move the Number should Provider reasonably determine, its sole discretion, that it is required to do so as a result of its agreements with its underlying services providers or for other business purposes related to the provision of the Services.
LICENSE; PROHIBITED USES; CUSTOMER RESPONSIBILITIES; LIMITATIONS.
- 8.1 Customer hereby grants to Provider a license to copy, store, record, transmit, display, view, print and use Customer Data, solely to the extent necessary to provide the Services to Customer. Except as expressly provided in this Section 8, Customer grants to Provider no right, title, interest, or license in the Customer Data. Customer represents and warrants that it has all necessary consents and rights to provide personally identifiable information about its Users to Provider, and Customer will provide such information upon reasonable request by Provider.
- 8.2 Customer represents and warrants that it will not use the Services for any illegal, fraudulent, improper, or abusive purpose or in any way that interferes with Provider’s ability to provide high-quality Services to other customers, prevents or restricts other customers from using the Services, or damages any of Provider’s or other customers’ property. If Provider discovers use of the Services for anything other than the permitted uses in this Agreement or for any of the prohibited uses in this Agreement, Provider may at its sole discretion terminate or suspend all or part of Customer’s Services and charge any applicable fees for the Services used plus damages caused by such improper use. Prohibited uses include, but are not limited to: (a) behavior that is illegal, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious or invasive of another’s privacy; (b) sending unsolicited messages or advertisements, including e-mail, voice-mail, text messages or faxes (commercial or otherwise) (“spamming”), or otherwise sending bulk or junk e-mail, voice-mail, text messages or faxes; (c) harvesting or otherwise collecting information about others, including e-mail addresses, without their consent; (d) negligently, recklessly, knowingly or intentionally transmitting any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware or any other programs that may be harmful or dangerous; (e) creating a false caller identity (“ID spoofing”) or forged e-mail/text message address or header, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services; (f) transmitting any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual property rights or other rights of third parties; (g) violating any U.S. or foreign law regarding the transmission of technical data or software exported through the Services; (h) using the Services in excess of what, in Provider’s sole discretion, would be expected of normal business use, including without limitation allowing more than one user to use a single VoIP line or using a single VoIP line in excess of what would be expected of a single user; (i) using the Services in any way that interferes with other customers’ and third parties’ use and enjoyment of the Services; (j) using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit or otherwise avoid this use policy.
- 8.3 Customer understands and agrees that: (a) it will be solely liable for any transmissions sent through the Services under its account or its User’s account, including the content of any transmission sent through the Services under its account or its User’s account; (b) it will abide by all applicable Provider policies, procedures and agreements related to the Services; and (c) it will not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services through password mining or any other means.
- 8.4 Some of Provider’s plans and other Services are offered on an “unlimited” basis. All unlimited plans: (a) may only be used for normal commercially reasonable business use; (b) are provided only for dialog between two individuals at one time per line; (c) are issued on a “one (1) user per line basis”, meaning that only one registered User may be assigned to use the Services for any one line; and (d) are subject to additional usage charges, including but not limited to such charges associated with international calling, in accordance with the then-current rates posted to Provider’s website (http://www.anpi.com). Unlimited plans may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses applicable to all Services): (i) trunking or forwarding a Provider Number to another phone number capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system; (ii) spamming or blasting (e.g., sending bulk or junk voice-mails, e-mails, text messages or faxes simultaneously); (iii) bulk call-in lines (e.g., customer support or sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.); or (iv) auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls). In addition, unusually high usage of the Services may impair Provider’s ability to provide high-quality Services to others and/or indicate unauthorized use of the Services, in which case Provider may suspend or terminate Customer’s account or, upon prior notice, convert Customer’s account to a metered calling plan that charges significantly higher usage rates.
- 8.5 Customer must report any unauthorized use of the Services to Provider immediately after Customer discovers such use. Customer is responsible for all use of the Services, whether authorized or unauthorized. Customer will be responsible if any of its Users use the Services in a manner prohibited by this Agreement. Customer will be responsible for any act or omission of a User that would be a breach of this Agreement if done by Customer.
- 8.6 Customer acknowledges and agrees that the right to use any Services is nonexclusive and nontransferable, and Customer will not permit use of the Services other than for its internal business purposes. Nothing in this Agreement will pass to Customer or any User title to any of the Services, any trade names, trade dress, trademarks, service marks, commercial symbols, copyrightable material, designs, logos and/or any other intellectual property of Provider or its vendors. Customer will not challenge or attempt to register or otherwise protect any of Provider’s intellectual property or other rights in the Services.
- 8.7 Customer will not: (a) copy or adapt the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Services except in accordance with all applicable laws and regulations, and except as set forth in this Agreement; (c) reverse engineer, translate, decompile, or disassemble the Services; (d) use the Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than a User; (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Services; or (f) delete, alter, cover, or distort any copyright or other proprietary notices or trademarks with respect to the Services.
- 8.8 Customer understands and accepts that, in order to protect Customer against fraudulent use of the Services, Provider may require Customer to contact Provider in order to enable calling to certain calling destinations.
- 8.9 Customer will execute such other documents, provide such other information, and affirmatively cooperate with Provider, all as may be reasonably required by Provider relevant to providing the Services.
USE AND STORAGE. Provider reserves the right to establish or modify general practices and limits concerning use of the Services and Software, including, without limitation, the maximum number of days that content will be retained by the Service and the maximum disk space or bandwidth capacity that will be allotted on servers owned or operated by Provider on Customer’s behalf. Where practical, Provider will provide Customer with prior notice of such new or modified practices; provided, however, that Provider will have the absolute right to implement such new or modified practices without prior notice in its sole discretion and without liability of any kind.
ELECTRONIC RECORDING. Customer agrees that there are federal and state statutes governing the electronic recording of telephone conversations and that Provider will not be liable for any illegal use of any recording services provided to Customer or its Users. It is Customer’s responsibility to determine if the electronic recordings are legal under applicable federal and state laws and to comply with those laws. Customer will defend, indemnify and hold harmless Provider for any claims, damages, fines, penalties or costs (including, without limitation, attorneys’ fees) arising out of Customer’s or its User’s failure to adhere to applicable electronic recording laws.
RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF CUSTOMER COMMUNICATIONS. Customer is solely responsible for maintaining the confidentiality of Customer’s account login information (including, without limitation, its Users’ account login information), and will not allow a third party to use the Services. Customer is solely responsible for any and all activities that occur under Customer’s account or its User’s account, including, without limitation, fraudulent use of the account. Customer and its Users must comply with laws regarding online behavior, acceptable content and the transmission of equipment and information under applicable export laws. Customer also agrees to comply with applicable local rules or codes of conduct (including, if applicable, codes of conduct or policies imposed by employers) regarding online behavior and acceptable content. Use of the Services is void where prohibited. Customer will immediately notify Provider of any unauthorized use of Customer’s account or its User’s account or any other breach of security related to Customer’s account, its User’s account or the Provider Services. Customer and each User must “log off” at the end of each session. Provider is not liable for any loss or damage arising from Customer’s or its User’s failure to comply with any of the foregoing obligations. In consideration for using the Provider Services, Customer will: (a) provide certain current, complete and accurate information about Customer and Users when prompted to do so by the Provider Services, and (b) maintain and update this information as required to keep it current, complete and accurate. Customer agrees that Customer is solely responsible for the content of all visual, written or audible communications (“Content”) sent, displayed or uploaded by Customer or a User in using the Services. Although Provider is not responsible for any such communications, Provider may reject or remove any Content that violates a law or this Agreement. Customer or the User retains copyright and any other rights already held in Content that Customer or the User submits, posts or displays on or through, the Services, or any music or ring-tones Customer or a User uses in connection with the Service. Customer understands and agrees that by displaying, exchanging or uploading Content to a Provider website, transmitting Content using the Services or otherwise providing Content to Provider, Customer automatically grants (and warrants and represents that it has a right to grant) to Provider a world-wide, royalty-free, sub-licensable (so Provider affiliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Services, including, without limitation, on associated websites (“Sites”). Furthermore, Customer represents and warrants that it has all necessary consents and rights to transmit Content and other communications from its users to Provider.
RESPONSIBILITY FOR CONTENT OF OTHERS. Customer acknowledges that Users may violate one or more of the above prohibitions, but Provider assumes no responsibility or liability for such violation. If Customer becomes aware of misuse of the Services by any person, entity or organization, Customer agrees to contact Provider Customer Support at 855.492.2300 or CustomerCare@anpi.com. Provider may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to, issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will Provider be liable in any way for any data or other content available on a Site or actions taken while using the Services, including, but not limited to, any errors or omissions in any such data, content or activity or any loss or damage of any kind incurred as a result of the use of, access to or denial of access to any data, content or activities on a Site. Provider does not endorse and has no control over what Users post, submit to or do on a Site. Customer acknowledges that Provider cannot guarantee the accuracy of any information submitted by any User of a Site, nor any personally identifiable information about any User. Provider reserves the right, in its sole discretion, to reject or remove content.
Emergency 911 Services
- 13.1 Service Limitations. The FCC requires that Provider provide E911 Service to all Customers who use Provider Services within the United States. Sections 13.2-13.8 apply to all Customers who use Provider Services within the United States. Section 13.9 applies to all Customers.
- 13.2 ACKNOWLEDGEMENT AND WARNING LABELS. CUSTOMER ACKNOWLEDGES THAT PROVIDER’S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 13, AND CUSTOMER AGREES TO NOTIFY ALL POTENTIAL USERS WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES OF THE 911 LIMITATIONS DESCRIBED HEREIN. PRIOR TO THE INITIATION OF SERVICE, PROVIDER WILL PROVIDE CUSTOMER WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. CUSTOMER AGREES TO PLACE SUCH LABEL ON OR NEAR EACH TELEPHONE OR OTHER CUSTOMER-PREMISES OR USER-PREMISES EQUIPMENT ON WHICH THE SERVICES MAY BE USED. IF ADDITIONAL LABELS ARE REQUIRED, CUSTOMER MAY REQUEST THEM FROM PROVIDER, AND PROVIDER WILL PROVIDE ADDITIONAL LABELS. PROVIDER WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM CUSTOMER. CUSTOMER WILL PROVIDE SUCH ADVISORY NOTICES TO ITS USERS. CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT PROVIDER HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. CUSTOMER WILL PROVIDE SIMILAR ACKNOWLEDGEMENTS FROM ITS USERS UPON REQUEST BY PROVIDER. PROVIDER ADVISES CUSTOMER AND USERS TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
- 13.3 ELECTRICAL POWER. CUSTOMER ACKNOWLEDGES THAT THE SERVICES, INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
- 13.4 INTERNET ACCESS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES, INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
- 13.5 NON-VOICE SYSTEMS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS SUCH AS HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, OR ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. PROVIDER WILL NOT BE LIABLE FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
- 13.6 E911 SERVICE. E911 SERVICE IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS, OUTSIDE THE UNITED STATES, ON TOLL-FREE NUMBERS OR ON SIMILAR SERVICE ACCESSORIES OR ADD-ON SERVICE PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. E911 SERVICE IS TIED TO THE CUSTOMER’S REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER; CUSTOMER IS RESPONSIBLE FOR PROVIDING PROVIDER WITH ADDRESS INFORMATION FOR CUSTOMER’S USERS. THE PROVIDER MOBILE APPLICATION USES THE DEVICE’S DIALER AND CELLULAR TELEPHONE SERVICE TO MAKE 911 CALLS. IF A DEVICE DOES NOT HAVE CELLULAR TELEPHONE SERVICE, THEN THE USER WILL NOT BE ABLE TO CALL 911 FROM THE PROVIDER MOBILE APPLICATION. CUSTOMER ACKNOWLEDGES THAT PROVIDER’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE CUSTOMER’S OR USER’S REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY PROVIDER WILL BE BASED UPON THE CUSTOMER’S OR USER’S REGISTERED SERVICE ADDRESS PROVIDED TO PROVIDER BY CUSTOMER. IN THE EVENT THAT THE REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER IS INCORRECT, IS OUTDATED, OR IS NOT COMPLETE, A 911 CALL MAY BE ROUTED INCORRECTLY.
- 13.7 E911 SERVICE CHARGE. CUSTOMERS THAT ARE REQUIRED TO SUBSCRIBE TO PROVIDER E911 SERVICE WILL BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE WILL BE IN ADDITION TO THE APPLICABLE SERVICE FEES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR PROVIDER E911 SERVICE IS ASSESSED ON A “PER-LINE” (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES PROVIDER FOR THE DIRECT COSTS IT INCURS IN PROVIDING PROVIDER E911 SERVICE, INCLUDING EXPENSES PROVIDER INCURS, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911 SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF SERVICES TO CUSTOMERS SUBSCRIBING TO THIS SERVICE. PROVIDER RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS.
- 13.8 E911 CHARACTERISTICS. CUSTOMER ACKNOWLEDGES THAT PROVIDER E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE PROVIDER E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS OR USERS. BECAUSE CUSTOMER AND USER CIRCUMSTANCES VARY WIDELY, CUSTOMER SHOULD CAREFULLY EVALUATE ITS OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON PROVIDER E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CUSTOMER’S AND ITS USERS’ EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH PROVIDER E911 SERVICE FROM TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE:
- E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S OR ITS USER’S DTA, PHONE OR VIDEOPHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER’S OR ITS USER’S PROVIDER SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND OR OTHER INTERNET SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, CUSTOMER OR THE USER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE PROVIDER SERVICE, INCLUDING FOR E911 PURPOSES. E911 SERVICE MAY NOT FUNCTION IF CUSTOMER OR A USER RELOCATES EQUIPMENT OR USES A NON-NATIVE TELEPHONE NUMBER, OR FOR ANY OTHER REASON BEYOND PROVIDER’S CONTROL.
- AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER’S OR A USER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO PROVIDER’S NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
- THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING PROVIDER E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE PROVIDER E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE PROVIDER NETWORK, THERE IS A POSSIBILITY THAT A PROVIDER 911 CALL WILL PRODUCE A BUSY SIGNAL, THE CALLER WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES OR THE LOCAL EMERGENCY SERVICE OPERATOR WILL TAKE LONGER TO ANSWER THE CALL THAN 911 CALLS PLACED VIA TRADITIONAL, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
- IF CUSTOMER OR ITS USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE PROVIDER EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, PROVIDER E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
- 13.9 E911 LIMITATION OF LIABILITY AND INDEMNITY. CUSTOMER AGREES THAT PROVIDER WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING A PROVIDER SERVICE OR TO ACCESS OR REACH AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS PROVIDER, ITS OWNERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS, AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER OR A USER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO 911 DIALING OR THE INABILITY TO ACCESS OR REACH EMERGENCY 911 SERVICES.
- DISCLAIMER AND LIMITATION OF LIABILITY. PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING FROM A COURSE OF DEALING OR PERFORMANCE OR CUSTOM, WITH RESPECT TO THE SERVICES, EQUIPMENT, AND ANY OTHER PROVIDER PRODUCTS, SERVICES OR EQUIPMENT PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE IN A WORKMAN-LIKE MANNER, COMPLIANCE WITH LAWS, QUALITY, ACCURACY, COMPLETENESS OR CURRENCY OF INFORMATION, SYSTEM INTEGRABILITY, TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT. PROVIDER DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE PRODUCTS, SERVICES OR EQUIPMENT PROVIDED WILL OPERATE UNINTERRUPTED, ERROR FREE OR WITHOUT DEGRADATION OR LOSS OF DATA, OR BE SECURE. NEITHER PROVIDER NOR ITS SERVICE PROVIDERS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR A USER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY SUCH DATA IN PROVIDER’S POSSESSION, CUSTODY OR CONTROL, THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF PROVIDER’S OR ITS SERVICE PROVIDER’S NEGLIGENCE. IN NO EVENT WILL PROVIDER OR ITS AFFILIATE, SERVICE PROVIDER, FACILITY OPERATOR OR CARRIER, OR THEIR RESPECTIVE OWNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, “PROVIDER PARTIES”) BE LIABLE FOR ANY DIRECT, ACTUAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR ANY COST OF COVER OR LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR A PROVIDER PARTY’S PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER, A FAILURE OF OR A DEFECT IN THE SERVICES, EQUIPMENT OR ANY PRODUCT, A PROVIDER PARTY’S VIOLATION OF A THIRD PARTY’S RIGHT, OR A PROVIDER PARTY’S ACTS OR OMISSIONS. PROVIDER WILL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF, A FAILURE OF OR A DEFECT IN ANY PRODUCT OR SERVICE PROVIDED BY, OR VIOLATION OF ANY THIRD PARTY’S RIGHTS BY ANY THIRD-PARTY SERVICE PROVIDER, FACILITY OPERATOR OR CARRIER. THE PROVIDER PARTIES’ MAXIMUM TOTAL LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO PROVIDER IN THE THREE (3) MONTHS PRECEDING THE DATE THE CLAIM ACCRUED. THE PROVIDER PARTIES WILL NOT BE LIABLE IN ANY WAY TO ANY USER.
INDEMNIFICATION. Customer will defend the Provider Parties, at Customer’s expense, against any third-party claim or action, and indemnify and hold harmless the Provider Parties from any and all losses, damages, liabilities, penalties, settlement obligations, costs, attorneys’ fees and other legal expenses related to such third-party claim or action, arising from or related to: (a) Customer’s breach of this Agreement or an agreement between Customer and a third party; (b) Customer’s violation, infringement or misappropriation of the third party’s intellectual property or other rights in Customer’s use of the Services; (c) Customer’s violation of the third party’s privacy, publicity, personality or other rights; (d) Customer’s fraud in use of the Services or fraud or misrepresentation regarding the nature or volume of Customer’s traffic; (e) Customer’s violation of an applicable law; (f) bodily injury, death or property damage to the extent such claim or action arises from the negligence, gross negligence or willful misconduct of Customer, or in the case where strict liability applies; (g) Customer’s business, acts or omissions; or (h) acts or omissions by Users that, if done by Customer, would constitute a breach of this Agreement. Customer will not settle any claim or action without Provider’s prior written consent. Provider will have the option, at its expense, to participate in the defense or settlement of the claim or action with counsel of its own choosing. If a conflict of interests arises or exists between the parties or if Provider has a good faith belief that its rights are being harmed by the counsel selected by Customer, Provider will have the right to retain separate counsel to represent its interests at Customer’s sole cost and expense. Customer will not settle any claim without Provider’s prior written consent.
- 16.1 Equipment Purchase. If Provider sells any equipment to Customer, the terms of this Section 16 apply. All equipment shipments are Free On Board (FOB) Provider’s or Provider’s distributor’s facility. Provider’s liability for delivery will cease, and title (if applicable) and all risk of loss or damage will pass to Customer upon delivery to the common carrier for shipment. Customer shall be wholly responsible for insuring any products purchased from the time risk of loss or damage passes to Customer. Provider will pass through to Customer any warranty provided by the manufacturer of the equipment; PROVIDER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY EQUIPMENT.
- 16.2 Equipment Return Policy. Customer will be required to obtain authorization from Provider to return any equipment. Equipment returned by Customer that is not covered under warranty or that does not bear a return authorization number may be refused. Provider will not replace lost, stolen or modified equipment. Customer must pay all shipping and handling charges related to any equipment returns not covered under warranty. All returned equipment must be unmodified, in good working condition, in the original packaging and include all components, manuals, peripheral devices and all other accessories that were originally shipped with the equipment. Provider may decline Customer’s return or charge Customer an additional fee for each missing item or for each item that Provider reasonably determines is modified, damaged or not in good working condition. Customer must delete all data files stored on returned equipment. Customer acknowledges that any data remaining on returned equipment cannot be recovered, and Customer releases Provider of any liability for any lost, damaged or destroyed files, data or other information.
MOBILE APPLICATION. Provider may make a mobile application for the Services available to Customer. Subject to this Agreement, Provider grants to Customer a limited, personal, revocable, non-exclusive, non-transferable and non-sublicensable license to install and use the mobile application during the Term. Customer has no other rights in or to the mobile application. The mobile application is licensed, not sold. The terms of this Agreement apply to any updated, upgraded or new versions of the mobile application. Use of the mobile application constitutes use of the Services. Provider may require Users to agree to additional terms and conditions governing use of the mobile application, and Customer agrees that its Users will not be permitted to use the mobile application unless they agree to such terms and conditions. Customer agrees that from time to time and without notice Provider may amend, modify, update or upgrade the mobile application or create new versions of the mobile application. Customer agrees that Provider may automatically update the version of the mobile application that a User is using on a mobile device. Customer consents, on behalf of itself and its Users, to such updating on mobile devices. Updates may cause Customer or a User to lose data, and Provider will not be liable for such loss. Customer agrees that Provider has no obligation to provide support, maintenance or updates for or to the mobile application. To the extent the mobile application contains any third-party software, Customer’s and User’s rights and obligations with respect to such software will be subject to and governed by the third party’s terms and conditions. Provider does not make a representation or warranty that the mobile application will operate on any particular device or operating system. The mobile application is commercial computer software, and to the extent any U.S. government agency uses the mobile application, the U.S. government is only granted the limited rights granted to all other Provider customers. Provider is not a wireless licensee of the FCC, and the mobile application will not be able to provide access to E911 service unless Customer subscribes to wireless service that complies with the FCC’s E911 program, as further explained in Section 13.6.
INTELLECTUAL PROPERTY. The Services and Software, and all intellectual property therein, are and will remain the exclusive property of Provider. Provider reserves all rights not expressly granted under this Agreement. The Software may contain third-party software that is subject to the terms and conditions of third-party licenses. Neither Customer, Users nor any other third party has a right to inspect, possess, use, copy, or attempt to discover the source code of (or any portion of) the Software, except to the extent that Customer, a User or a third party is expressly permitted to decompile the Software under applicable law and Customer, the User or the third party notifies Provider in writing in advance of its intention to decompile the Software and its reason for doing so.
PORTAL UPGRADES; PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Provider may update the Customer and User portals, and Customer agrees that Service may be unavailable during the implementation of such updates. Upon expiration, cancellation or termination of the Services, Customer and Users will relinquish and discontinue use of any accounts, Numbers, voice mail access numbers, and/or web portal Sites assigned to Customer by Provider or its service providers.
- 20.1 NOTICES. Unless otherwise specified in this Agreement, any notice required or permitted to be given pursuant to this Agreement will be given in writing by overnight delivery service, sent via certified mail, return receipt requested, e-mailed, or delivered by hand, and such notice will be deemed to have been given and received when delivered or when delivery was refused, or with respect to electronic transmissions, at the time of transmission (unless the sender received a notice of transmission failure). Customer consents to receive all notices in electronic form, and Provider may send any notice to Customer at Customer’s latest physical address or e-mail address provided by Customer. Provider may, in addition to all other methods of giving notice, send any notice to Customer’s mailbox in Customer’s account on the Provider Customer Care Portal. Both parties agree that any agreements and notices made or provided by one or both parties in electronic form, and in accordance with this Agreement, are as legally binding as if made in physical written form. Customer must send all notices to Provider via e-mail in accordance with the following:
To report misuse or fraudulent use of Service: CustomerCare@anpi.com
To submit a billing dispute: BillingDisputes@anpi.com
To terminate Service: CustomerCare@anpi.com
All other notices: CustomerCare@anpi.com
- 20.2 FORCE MAJEURE. Provider’s performance of any part of this Agreement will be excused to the extent that it is hindered by flood, fire, natural disaster, strike, riot, war, terrorism, hostile attack, governmental action, cable cuts, supplier shortages, breaches, or delays, Provider’s inability to perform as a result of actions or inactions of third parties, Customer, a User or Provider’s vendors, including, without limitation, Customer’s failure to provide or maintain a circuit with respect to an order for Service, or any other cause (whether similar or dissimilar to those listed) beyond Provider’s reasonable control (a “Force Majeure”). Provider may terminate the Services without liability if a Force Majeure hinders Provider’s performance for more than five (5) days.
- 20.3 NO CLASS ACTION. Customer irrevocably waives any right Customer may have to serve as a representative or as a private attorney general, or to participate as a member of a class of claimants, in any lawsuit, arbitration or other proceeding against any Provider Party arising from, related to or connected with this Agreement or any Service Order.
- 20.4 BINDING NATURE AND ASSIGNMENT. Customer’s rights and obligations in this Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Provider. Except as part of the sale of all or substantially of the assets for Provider or the assignment of this Agreement, or any rights or obligations thereunder, to any of Provider’s affiliates (which will not require Customer consent), Provider’s rights and obligations in this Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Customer, which will not be unreasonably withheld. For sake of clarity, Provider may assign, delegate and transfer some or all of its rights and obligations under this Agreement to its affiliates. Except as otherwise expressly provided herein, this Agreement will inure to the benefit of, and will bind, the heirs, executors, personal representatives, administrators, successors and permitted assigns of Provider and Customer.
- 20.5 GOVERNING LAW. This Agreement and any related Service Orders will be governed by and construed according to the laws of the State of Illinois, without regard to its conflict of laws provisions. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- 20.6 ARBITRATION. Any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services, will be resolved by binding arbitration. The Federal Arbitration Act and federal arbitration law applies to this Agreement. The arbitration will be administered by the American Arbitration Association (AAA), conducted by one (1) arbitrator, and conducted in accordance with the AAA’s Commercial Arbitration Rules. The arbitration will be conducted in Springfield, Illinois. The language of the arbitration will be English. The parties’ briefs and other documents and the arbitrator’s findings and decision will be confidential unless required to be disclosed by law. Neither party may use any finding or decision of the arbitrator in existing or subsequent litigation or arbitration involving any other person, entity or organization. The arbitrator must have sufficient experience in the matter(s) at issue. The arbitrator’s decision will follow the plain meaning of the Agreement and will be final and binding. Neither party will have the right to appeal an error of law or fact. Each party will bear the cost of preparing and presenting its case. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services or products provided or billed to Customer if claims are asserted against Provider in the same proceeding. Notwithstanding the foregoing, either party may bring suit in court to enjoin unauthorized access or trespass to its computer networks or any misappropriation, infringement or violation of its intellectual property rights. The arbitrator will have the exclusive power to rule on the formation, interpretation, applicability, validity or enforceability of this Agreement, including without limitation the validity or enforceability of this arbitration agreement. The arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. If any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services, cannot lawfully be resolved by arbitration, the complainant must bring any claim or action in the state or federal courts for Springfield, Illinois, and the parties waive any objection based on personal jurisdiction, venue or inconvenient forum.
- 20.7 ENTIRE AGREEMENT, AMENDMENTS, CONFLICT, SEVERABILITY, WAIVER, SURVIVAL. This Agreement, all documents referred to herein and any related Service Order executed by the parties constitute the entire agreement between the parties and supersede any and all prior agreements and rates between the parties with respect to the subject matter hereof. No additions, deletions or modifications to this Agreement or any Service Order will be binding unless (a) made in a writing signed by duly authorized representatives of both parties or (b) agreed to by the party to be charged by electronic means. In the event of a conflict between any of the terms and conditions of this Agreement and any Service Order, the terms and conditions in the Service Order will prevail. The parties are independent contractors. Nothing contained herein will be construed as creating any agency, partnership, or other form of joint venture or enterprise between the parties. If any provision(s) of this Agreement or any related Service Order is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and the parties further agree to substitute a valid provision that most closely approximates the economic effect of the invalid provision. The failure of either party to require performance by the other party of any provision hereof will not affect the right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken to be a waiver of the provision itself. To the extent permitted by applicable law, the parties agree to and do hereby waive any applicable statutory or common law that may permit a court to construe a contract against its drafter. No claim or cause of action may be asserted against either party more than three (3) months after the time the facts giving rise to the claim or cause of action are discovered or should have been discovered. In the event a suit is brought or an attorney or collection agency is retained by Provider to enforce the terms of this Agreement or any Service Order, or to collect any monies due hereunder, or to collect money damages for breach thereof, Provider will be entitled to recover, in addition to any other remedy available at law or in equity, reimbursement for attorneys’ fees, court costs, collection costs, costs of investigation and other related expenses incurred in connection therewith. The terms and provisions contained in this Agreement and any related Service Order that, by their sense and context, are intended to survive the performance thereof by the parties hereto will survive the completion of performance and termination of this Agreement, including, without limitation, payment obligations, the limitations on damages and liability, ownership of intellectual property, and defense and indemnity obligations.