12 Jan 2015 13:31
Limitation of Liability
IN NO EVENT WILL MULTITEL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER THEY MAY ARISE, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE: (i) USE OF THE INFORMATION CONTAINED ON THIS WEBSITE; (ii) USE OF SOFTWARE DOWNLOADED OR LINKED TO FROM THIS WEBSITE; OR (iii) FOR THE FAILURE TO PROVIDE SERVICES OR INFORMATION AVAILABLE FROM THIS WEBSITE, EVEN IF MULTITEL HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT YOU HAVE ANY DISPUTE WITH ONE OR MORE THIRD PARTIES AS A RESULT OF YOUR USE OF THE WEBSITE, CONTENT OR SERVICES, OR ARE IN ANY WAY DAMAGED AS A RESULT OF ANY THIRD PARTY IN CONNECTION THEREWITH, YOU HEREBY RELEASE AND COVENANT NOT TO SUE OR OTHERWISE MAKE A CLAIM, DEMAND OR FILE ANY LEGAL ACTION OR INSTITUTE ANY LEGAL OR REGULATORY PROCEEDINGS AGAINST MULTITEL, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND SUPPLIERS FROM, FOR ANY CLAIMS, ACTIONS, DEMANDS OR DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL), OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, WHETHER FORESEEABLE OR NOT, DISCLOSED OR UNDISCLOSED.
MULTITEL'S NONPERFORMANCE HEREUNDER SHALL BE EXCUSED AND MULTITEL SHALL NOT BE LIABLE IF CAUSED BY ACT OR OMISSION OF AN UNDERLYING CARRIER; EQUIPMENT; NETWORK OR FACILITY SHORTAGE; EQUIPMENT OR FACILITY RELOCATION OR CAUSES BEYOND MULTITEL'S CONTROL , INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING CALL, CALL TO BE CONNECTED OR COMPLETED, DEGRADATION OF VOICE QUALITY, AVAILABILITY OF E911 SERVICES OR AVAILABILITY AND GUARANTEE OF SUCCESSFUL DELIVERY OF TEXT/SMS MESSAGES. MULTITEL'S LIABILITY FOR ANY FAILURE OR MISTAKE SHALL IN NO EVENT EXCEED SERVICE CHARGES DURING THE AFFECTED PERIOD. MULTITEL IS NOT LIABLE FOR ANY INCIDENTAL OR CONSEQUENCIAL DAMAGES OF ANY TYPE.
IN THE EVENT YOU HAVE ANY DISPUTE WITH ONE OR MORE THIRD PARTIES AS A RESULT OF YOUR USE OF THE WEBSITE, CONTENT OR SERVICES, OR ARE IN ANY WAY DAMAGED AS A RESULT OF ANY THIRD PARTY IN CONNECTION THEREWITH, YOU HEREBY RELEASE AND COVENANT NOT TO SUE OR OTHERWISE MAKE A CLAIM, DEMAND OR FILE ANY LEGAL ACTION OR INSTITUTE ANY LEGAL OR REGULATORY PROCEEDINGS AGAINST MULTITEL, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND SUPPLIERS FROM, FOR ANY CLAIMS, ACTIONS, DEMANDS OR DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL), OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, WHETHER FORESEEABLE OR NOT, DISCLOSED OR UNDISCLOSED.
CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD MULTITEL AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS OR DAMAGES RELATING TO ANY THIRD PARTY CLAIM FOR BREACH OF INTELECTUAL PROPERTY RIGHTS IN RELATION TO ANY MISUSE OF MULTITEL'S PRODUCTS AND SERVICES BY THE CUSTOMER. MULTITEL AGREES TO DEFEND, INDEMNIFY, AND HOLD CUSTOMER AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS OR DAMAGES RELATING TO ANY THIRD PARTY CLAIM FOR BREACH OF INTELECTUAL PROPERTY RIGHTS IN RELATION TO ANY USE OF THE MULTITEL PRODUCTS OR SERVICES PROVIDED TO THE CUSTOMER BY MULTITEL OR ANY OF MULTITEL'S RESELLERS OR AFFILIATES.
Disputes
Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Multitel's or any third party's intellectual property rights and/or proprietary rights. You further acknowledge that our rights in the Multitel Services, Multitel Properties and the Multitel Marks are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
- By using the Services, You agree that the laws of the State of Michigan, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between You and us.
- Arbitration. YOU AND MULTITEL BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION. THERE'S NO JUDGE OR JURY IN ARBITRATION, AND THE PROCEDURES MAY BE DIFFERENT, BUT AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS' FEES, AN ARBITRATOR CAN AWARD THEM TOO. YOU AND MULTITEL ALSO BOTH AGREE THAT:
** THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY SERVICES YOU RECEIVE FROM US WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR YOU.
** UNLESS YOU AND MULTITEL AGREE OTHERWISE, THE ARBITRATION WILL TAKE PLACE IN STERLING HEIGHTS, MICHIGAN. YOU CAN GET PROCEDURES, RULES AND FEE INFORMATION FROM THE AAA (WWW.ADR.ORG) OR FROM US.
** THIS AGREEMENT DOESN'T ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.
** IF EITHER YOU OR MULTITEL INTENDS TO SEEK ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO MULTITEL SHOULD BE SENT AS REQUIRED BY THIS AGREEMENT. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. IF YOU AND MULTITEL ARE UNABLE TO RESOLVE OUR DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION.
** AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN'T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
** IF FOR SOME REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN SUBSECTION (3) CANNOT BE ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
** IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND MULTITEL AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND MULTITEL UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT. YOU AND MULTITEL ALSO AGREE THAT ANY DISPUTE HEREUNDER SHALL BE ADJUDICATED IN ANY STATE OR FEDERAL COURT IN STERLING HEIGHTS, MICHIGAN, AND YOU CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN SUCH COURTS.
Notices
Notices made by us under this Agreement for You or Your account specifically (e.g., notices of breach and/or suspension) will be provided to You via a notification message displayed on Your account page or via the email address provided to us in Your registration for the Services or in any updated email address You provide to us in accordance with standard account information update procedures we may provide from time to time. It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not You actually receive the email.