This Customer Service Agreement (the “Agreement”) sets forth the terms and conditions associated with your use of the VenturesHosting Services. “You” and “your” mean the customer of the Services defined below, and “VenturesHosting. RI.Ventures, www.ventureshosting.com, “we,” “our,” and “us” mean VenturesHosting and any affiliates involved in providing you with the Services.
By enrolling in, using or paying for the Services, you accept and agree to the terms and conditions set forth in this Agreement. Your online agreement and/or acceptance of this Agreement by use of Services will carry the same legal authorization as if you are providing a handwritten signature of agreement acceptance.
“Services” means the national and international telecommunications services provided by VenturesHosting as listed on the Website. The Services covered in this Agreement may not be available in all locations.
“Website” means the VenturesHosting Internet site at www.ventureshosting.com
1.1 The following terms shall have the following meanings for the purpose of this Agreement:
(a) Affiliate. “Affiliate” shall mean, with respect to either Party, any other party which controls, is controlled by, or is under common control with such Party. For purposes hereof, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any such party whether through the ownership of voting securities, by contract, or otherwise.
(b) Agreement. “Agreement” shall mean this Customer Services Agreement, including any schedules, appendices, Exhibits, Tariffs, and documents attached hereto and made a part hereof, or incorporated herein by reference as well as any written amendments to this Agreement which have been signed by the authorized representatives of the Parties.
(c) Customer. “Customer” shall mean a carrier or service provider to whom Customer will provide telecommunications and/or related services using, in part, Services provided by ventureshosting to Customer.
(d) Emergency Maintenance. “Emergency Maintenance” shall mean maintenance which, if not accomplished promptly by ventureshosting, could result in a serious degradation or loss of Service to the Customer or the End User or damage to ventureshosting’s Network or its customers.
(e) End User. “End User” shall mean any person or entity that receives or uses ventureshostings Service, irrespective of whether such person or entity is authorized by the Customer to receive or use Service. “End User” shall also mean any person or entity which Customer provides telecommunications and/or related services using, in part, the Services provided by ventureshosting to Customer under this Agreement.
(f) Exhibit. “Exhibit” shall mean an attachment to this Agreement for a particular Service, including any schedules or attachments thereto, which contains the product description, pricing, and terms and conditions associated with that specific Service.
(g) Planned Service Outage. “Planned Service Outage” shall mean any Service Outage caused by scheduled maintenance or planned enhancements or upgrades to the ventureshosting Network as described in the applicable Service exhibits.
(h) Point of Presence (POP). “Point of Presence” or “POP” shall mean a specific location within a Local Access Transport Area (LATA) where service terminates and/or originates.
(i) Premises. “Premises” shall mean the address to which Service is provided or delivered, identified as a Point of Termination or Service Location on the Service Order.
(j) Service. “Service” shall mean ventureshosting provided telecommunications service, as further described in the applicable Exhibit and as specifically identified on the Service Order.
(k) Service Reguest Date. The “Service Request Date” is the date requested by Customer for in service as indicated on the Service Order.
(l) Start of Service Date. The “Start of Service Date” for a Service shall be the later of (i) the Service Request Date, (ii) the date ventureshosting notifies Customer that the Service is installed or connected, successfully tested and available for Customer use, or (iii) the date after Circuit testing and acceptance has been successfully completed per the relevant Service Exhibit, where applicable, regardless of whether Customer agrees to accept or uses the Service. Notwithstanding the above, the Start of Service Date shall never be later than the date Customer begins to use the Service. Billing for a Service will begin on the Start of Service Date unless Customer fails to permit ventureshosting to begin testing on a Service within five (5) days of the Service Request Date, in which case billing will begin on the Service Request Date.
(a) Customer hereby acknowledges and agrees that it is the customer of record for all Services purchased from ventureshosting. If Customer resells ventureshosting Service or incorporates ventureshosting Service into services sold by Customer to its End Users, Customer understands and agrees that it is solely responsible for interfacing with its Customers or End Users with respect to its service offerings including, without limitation, order provisioning, billing, collection, billing adjustments/credits, tax collection and payment, customer service and dispute resolution. ventureshosting shall have no responsibility whatsoever to interact with Customer’s End Users, nor shall ventureshosting incur any liability to Customer’s End Users for its performance under this Agreement. Customer is responsible for payment for all charges for Service furnished to Customer, its Customer and/or the End Users by ventureshosting pursuant to the payment terms set forth in the Agreement. This responsibility is not changed by virtue of any (i) use, misuse, fraud, or abuse by Customer, its employees, its Customers, the End Users or other members of the public of the Services provided to Customer or Customer provided systems, equipment, facilities, or services interconnected to such Services, or (ii) inability to collect payments or charges from Customer’s End Users, Affiliates, agents, brokers or re sellers. Further, ventureshosting will not issue credits for fraudulent calls passed to ventureshosting by Customer, its Customers or the End Users.
(b) Customer shall be responsible for (i) applying and enforcing all applicable provisions in this Agreement to its Customers and End Users, and (ii) any liability arising from a violation of a Customer obligation under this Agreement by Customer’s End User. If ventureshosting discontinues providing Service to Customer for any reason, Customer shall be solely responsible for furnishing any required notice to its affected Customers or End Users.
2.1 Services Provided. Ventureshosting receipt of local and long distance calls from the PSTN and termination of such call via SIP protocol to the customer.
2.2 Opening an Account. In order to become a ventureshosting customer, you must complete in full an application form on the Website.
Once you have been accepted as a ventureshosting customer, we will send you an electronic mail message (“e-mail”) that confirms that you have become a ventureshosting customer and provides you with information concerning your ventureshosting account (your “Account”). The e-mail will also provide your login information and password to access your account information and call records online.
Please note that we may deny your application and refuse to provide you with the Services if your credit is not deemed satisfactory or for any other lawful reason, which determination shall be made at our sole discretion. In addition, we may accept your application for Services but set a credit limit based on your payment history or your credit score from consumer credit reporting agencies. If we do this, we will notify you of your initial credit limit but we reserve the right to adjust your credit limit at any time. If you exceed your credit limit, we may restrict your access to the Services and also require you to make payment towards outstanding balance on your account.
2.3 Usernames/Passwords/Personal Identification Numbers. YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR ACCOUNT LOGIN AND PASSWORD, AND YOU AGREE TO PAY FOR ALL SERVICES CHARGED TO YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH USE. If you believe that your Account and/or PIN is being used in an unauthorized manner, you agree to contact us immediately so that the appropriate modifications can be made to your Account. Please be aware that your Account information will be sent to the e-mail address that you entered on the application when you applied to become a ventureshosting customer. You are responsible for maintaining a current, operational and secure e-mail address and for reading e-mail from us so that we can notify you of updates to our Services and provide information concerning your Account. We are not responsible if others can access that email account and obtain your Account information. Please note also that you are responsible for any and all charges to your account and that we cannot be held responsible for fraudulent charges that result from theft or fraudulent use of your credit/debit/charge card or PIN.
3.1 Except as set forth in Section 2.2, Customer shall pay the recurring and non recurring rates and charges and the usage charges set forth herein and/or in the Service Orders beginning on the Start of Service Date without deduction, setoff or delay for any reason. Customer agrees to pay for the Services, by credit card, paypal, or by check sent to the address provided for herein or on the invoice or by wire transfer sent in accordance with applicable instructions provided by ventureshosting, within thirty (30) days from the date of the invoice (“Payment Period”). Restrictive endorsements or statements on checks accepted by ventureshosting will not be binding upon ventureshosting. Monthly recurring charges are billed in advance while usage and related charges are billed in arrears. The Parties shall provide one another with reasonably requested information for bill validation including, but not limited to, the number of Circuits and charges for each Service.
3.2 Except for amounts in dispute, interest not to exceed 1.5% monthly may be charged on the unpaid balance not paid within the Payment Period. If the interest rate set out above exceeds the maximum rate allowable by law, then the interest chargeable shall be equal to the maximum rate allowed by law. Customer agrees to reimburse ventureshosting for any costs incurred as a result of any collection activity, including without limitation reasonable attorneys’ fees and court costs, unless otherwise prohibited by law. Customer authorizes ventureshosting to request information from a reporting agency to enable ventureshosting to assess Customer’s credit history. Customer agrees that such action is not the extension of “credit” to Customer and further agrees that ventureshosting, in its sole discretion, may alter any billing arrangements as a result of such report or upon determination of a change in Customer’s financial circumstances. Customer agrees that as a condition of initial or continued Service, it must provide financial statements to ventureshosting’s Credit Department within ten (10) days of receiving a request for such statements from ventureshosting or Service, if already installed, may be suspended or terminated, At any time during and upon two (2) business days written notice, ventureshosting may require Customer to wire transfer a deposit or submit another form of security acceptable to ventureshosting if it reasonably deems itself insecure with respect to Customer’s ability to pay (e.g. if Customer has failed to pay any invoice when due, or if there is a material change in circumstances of Customer’s actual or anticipated usage hereunder or Customer’s financial condition). Failure by Customer to comply with such requirement by ventureshosting may result in Service suspension or termination.
3.3 If Customer disputes any invoice, Customer shall notify ventureshosting’s Credit Department in writing, providing the billing identification, Circuit number, any trouble ticket number and an explanation for the dispute, and shall nevertheless pay the affected invoice within the Payment Period, provided that Customer may withhold payment of the amount in good faith dispute up to twenty percent (20%) of the invoiced charges. ventureshosting will investigate the dispute and in its discretion exercised in good faith, may require additional supporting documentation or reject Customer’s claim as inadequate. No charges may be disputed more than sixty (60) days after the date such charges are invoiced, and if not disputed within that time, all such charges shall be deemed valid and undisputed by Customer. Payment shall not prejudice Customer’s right to dispute charges, so long as they are disputed in good faith in the manner and within the timeframes specified in this Section. The Parties will cooperate in good faith to resolve any such disputes within a thirty (30) day period after the dispute is submitted to ventureshosting. If the dispute is not resolved during this period, then either Party may seek resolution of the dispute in accordance with Article 13.
3.4 If a disputed amount is determined by ventureshosting to be a legitimate charge, interest not to exceed 1.5% monthly may be charged on the balance not paid within the original Payment Period and Customer will make payment of the amount due within five (5) business days of such determination. If the interest rate set out above exceeds the maximum rate allowable by law, then the interest chargeable shall be equal to the maximum rate allowed by law.
3.5 If Customer does not make payment of all invoiced charges in accordance with the provisions herein within the Payment Period, ventureshosting may, at its option and without notice (i) refuse to accept additional Service Orders; (ii) suspend any and all Service provided by ventureshosting under this Agreement and/or any other service agreement until Customer has paid all past due amounts (including interest); (iii) offset such unpaid balances from any amounts that ventureshosting owes to Customer under any other agreement between the parties; and/or (iv) require weekly payments or a surety of up to two (2) times Customer’s aggregrate monthly invoicing and failure by Customer to comply with such requirement by ventureshosting may result in Service suspension. Following suspension of Services for non payment, ventureshosting is not required to reinstate Services to Customer until: (1) Customer has paid in full all charges then due, including any late fees, interest charges, collection costs and any cost of reinstating Services; and (2) Customer provides to ventureshosting satisfactory assurance as requested by ventureshosting (such as a deposit) of Customer’s ability to pay for Services for the remainder of the applicable Service term(s). If Customer fails to timely cure the non payment within the timeframe specified by ventureshosting, Customer will be deemed to have terminated the affected Services as of the effective date of Service suspension, Termination hereunder for non payment shall be treated as termination for convenience by Customer subject to early termination charges as set out in the applicable Exhibit. If Customer has not paid an invoice within the Payment Period and ventureshosting owes any amounts to Customer, ventureshosting may offset respective payments by first applying such amounts owed by ventureshosting to the full balance due from Customer and the remaining amounts owed by ventureshosting, if any, will be remitted in the normal course of business.
3.6 When Service is initiated on a day other than the first day of the month or terminates on a day other than the last day of the month, any monthly recurring charges for that month shall be prorated accordingly.
3.7 Notwithstanding anything contained herein to the contrary, if ventureshosting is required to construct and/or acquire telecommunications facilities in order to provide Service to Customer, Customer acknowledges and agrees that ventureshosting therefore incurs significant costs and expenses in provisioning such Service to Customer, including but not limited to costs associated with constructing and/or acquiring the telecommunications facilities necessary for delivery of ventureshosting Services to Customer. In addition to any other rights and remedies ventureshosting may have at law, in equity or as provided herein, Customer agrees that if Customer cancels this Agreement or any individual Service Order after signature but prior to the Start Of Service Date, or if Customer terminates this Agreement or any individual Service Order prior to expiration of the committed Service term, Customer shall reimburse ventureshosting for all costs and expenses ventureshosting incurred in constructing and/or acquiring such telecommunications facilities.
4.1 The rates, pricing and charges for Services set forth herein or in any Service Order do not include applicable taxes and surcharges. Customer shall be responsible for and shall pay any taxes, arising in any jurisdiction, including without limitation, sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, consumption, or other taxes, fees, duties, charges or surcharges; however designated, imposed on or based on the provision, sale or use of the Services, including taxes or surcharges imposed directly on ventureshosting. If Customer believes it or the Services is exempt from any tax, Customer will provide ventureshosting with a properly executed exemption certificate evidencing such claimed exemption. In no case shall Customer be responsible for any income taxes levied upon ventureshosting’s (or any underlying carriers) net income. Customer agrees that its obligation to pay taxes and surcharges under this Section shall survive the expiration or early termination of the Agreement.
5.1 The term of this Agreement shall commence on the Effective Date of this Agreement, and shall terminate six (6) months thereafter. Thereafter, this Agreement shall be automatically renewed in successive one month periods unless terminated by written notice by one of the Parties at least sixty (60) days prior to the end of the initial term or any renewal period; provided, however, that if the period of time set out in the applicable Service Order for a particular Service(s) extends beyond the effective date of termination of this Agreement, such Service(s) shall remain in effect for such agreed upon time period, subject to this Agreement as if it were still in effect with respect to such Service(s). If Customer wishes to terminate a Service or Circuit(s) for any reason, or not to renew such Service or Circuit(s), Customer shall provide ventureshosting with written notice (“Termination Notice”) addressed to ventureshosting at such location, as ventureshosting shall specify from time to time. Such Termination Notice must specify all necessary identifying details about the Service or Circuit being terminated (e.g., Circuit Identification number) and the requested effective date of such termination (which date must not be less than sixty (60) days from the date notice is received by ventureshosting). Termination of Service/Circuit(s) by any form of communications or means other than as provided above shall not be effective and Customer shall remain obligated to ventureshosting for all Services/Circuit(s) rendered. For the avoidance of doubt, Customer may be liable for early termination charges upon termination of Service/Circuit(s) as further provided in the applicable Service Exhibit attached hereto.If the customer disconnects any DID within 6 months then disconnect charge of $10 per DID shall be applicable. In case customer wants to port out the number there may be additional portout charges based on the location of the DID. For US and Canada there is no port out fee. For UK there is portout fee of $100 per number, in case customer wants to port out the number. This fee must be paid in advance before any port request is submitted otherwise number will be cancelled and portout will be rejected. This disconnect charge will not be applicable if the terms of the agreement are changed by us.
6.1 Each Party represents and warrants to the other Party that it is an entity, duly organized, validly existing and in good standing under the laws of the place of its origin, with all requisite power and authority to enter into and perform its obligations under this Agreement in accordance with its terms.
6.2 Customer represents and warrants that (i) all services rendered by it to its End Users shall be designed, produced, installed, furnished and in all respects provided and maintained in conformance and compliance with applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over the subject matter of the Customer provided services, and (ii) it has all licenses, approvals, registrations and certifications (collectively, “Approvals”) which may be required by the applicable regulatory authorities for its operation and the provision of any services to its End Users and it shall be solely responsible for applying for, obtaining and maintaining all such Approvals.
6.3 The warranties and remedies set forth in this Agreement constitute the only warranties and exclusive remedies with respect to this Agreement. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, NON INTERFERENCE AND NON INFRINGEMENT.
7.1 A Party shall be deemed in “Default” of this Agreement upon the occurrence of any one or more of the following events:
(i) a Party violates any applicable laws, statutes, ordinances, codes or other legal requirements with respect to the Services and such violation(s) are not remedied within thirty (30) days after written notice thereof; or
(ii) a Party fails to perform any of its material obligations under this Agreement and such nonperformance is not remedied within thirty (30) days after notice thereof or such other cure period as may be specified in the applicable Exhibit, except for payment defaults, for which no cure periods in addition to those described in Section 2.5 herein shall be available; provided, however, if Customer is entitled to outage credits pursuant to the applicable Service Exhibit attached hereto or other remedies set out in this Agreement for such nonperformance by ventureshosting, then such outage credits or other remedies shall be Customer’s exclusive remedy and such nonperformance shall not be construed to be a Default under this Section 7. 1.
7.2 In addition to all remedies available at law or in equity, the non defaulting Party hereunder may terminate this Agreement, including, for the avoidance of doubt, its Exhibits, and/or related Service Orders, in whole or in part, upon the occurrence of a Default.
8.1 Each Party shall preserve the other Party’s confidential information provided to it hereunder with the same degree of care in protecting its own confidential or proprietary information, but in no event less than a reasonable standard of care shall be used and shall execute and comply with the terms and conditions of the General Nondisclosure Agreement (“NDA”) executed by both Parties. Notwithstanding any provision therein, the Parties hereby agree that such NDA shall be coterminous with this Agreement.
9.1. Emergency calling service (911 service) is available with 2-way SIP Trunking products and only one the numbers purchased from ventureshosting.
Ventureshosting 911 Dialing is different than traditional 911 service.
Most of our customers (other than customers of our WiFi, Softphone and other nomadic products) have access to either basic 911 or Enhanced 911 (E911) service. With E911 service, when you dial 911, your telephone number and registered address is simultaneously sent to the local emergency center assigned to your location, and emergency operators have access to the information they need to send help and call you back if necessary. Customers in locations where the emergency center is not equipped to receive your telephone number and address have basic 911. With basic 911, the local emergency operator answering the call will not have your call back number or your exact location, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is not completed or is not forwarded, is dropped or disconnected, or if you are unable to speak. As additional local emergency centers become capable of receiving our customers’ information, ventureshosting will automatically upgrade customers with basic 911 to E911 service. Ventureshosting will not give you notice of the upgrade.
Certain customers do not have access to either basic 911 or E911. If you don’t have access to basic 911 or E911 your 911 call will be sent to our 911 Service provider’s national emergency call center (national emergency call center). A trained agent at the emergency call center will ask for the name, telephone number and location of the customer calling 911, and then contact the local emergency center for such customer in order to send help. Examples of situations where 911 calls will be sent to the national emergency call center include when there is a problem validating a customer’s address, the customer is identified with an international location, or the customer is located in an area that is not covered by the landline 911 network. In addition, if you use a nomadic product via WiFi or Softphone, due to the portable nature of these Devices, your 911 calls will be routed to the national emergency call center. Emergency personnel do not receive your phone number or physical location when your 911 call is routed to the national emergency call center.
You authorize us to disclose your name and address to third-parties involved with providing 911 Dialing to you, including, without limitation, call routers, call centers and local emergency centers.
You should inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of the important differences in and limitations of 911 Dialing as compared with basic 911 or E911.
For each phone number that you use for the Service, you must register with ventureshosting the primary physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Service. Thereafter, you may register a new location by following the instructions from the ” Add 911 Service” link on your ventureshosting web account. For purposes of the 911 Dialing feature, you may only register one location at a time for each phone line you use with the Service.
Your 911 Dialing feature will not be activated for any phone line that you are using with the Service, unless and until you receive an email from us confirming that the 911 Dialing feature has been activated for that phone line.
(a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing.
(b) Service Outages Due to Internet Outage or Suspension or Disconnection of Broadband Service or ISP Service. Service outages or suspensions or disconnections of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Disconnection of Your ventureshosting Account. Service outages due to disconnection of your account will prevent all Service, including 911 Dialing, from functioning.
(d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that ventureshosting is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing, which may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you disconnect the Service in accordance with this Agreement.
(e) Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number.
9.7 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls.
There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim any and all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither ventureshosting nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless ventureshosting, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
If you are not comfortable with the limitations of the 911 Dialing service, you acknowledge that it is your duty to secure alternate means of accessing traditional 911 or E911 services or disconnecting the Service. I have read and agree to the terms and conditions of the Customer Service Agreement. You agree to pay all charges set forth above. ventureshosting will bill such charges to the credit card designated above according to subscription terms.
10.1. Indemnity. YOU AGREE THAT WE WILL NOT BE RESPONSIBLE FOR ANY CLAIM BY THIRD PARTIES AGAINST EITHER OF US ARISING FROM YOUR USE OF THE SERVICES OR THE WEBSITE. IN ADDITION, YOU AGREE TO REIMBURSE US FOR ALL COSTS AND EXPENSES, INCLUDING ATTORNEYS. FEES, RELATED TO THE DEFENSE OF ANY SUCH CLAIM AGAINST US, UNLESS SUCH CLAIMS ARE BASED ON OUR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.
10.2. Limitation of Liability. EXCEPT FOR DAMAGES CAUSED BY OUR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, WE WILL NOT BE LIABLE FOR DAMAGES THAT EXCEED THE AMOUNT OF OUR CHARGES TO YOU FOR THE SERVICES DURING THE RELEVANT PERIOD. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, OR INCREASED COSTS OF OPERATION, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR WE HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NO MATTER HOW THAT CLAIM IS STYLED OR ON WHAT LEGAL GROUNDS IT IS BASED (SUCH AS CONTRACT, TORT, STATUTE OR OTHERWISE). IN ADDITION, UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO YOUR INABILITY TO ACCESS, OR YOUR DIFFICULTY IN ACCESSING, OUR SERVICES THROUGH TOLL OR LOCAL ACCESS NUMBERS. AS INDICATED EARLIER, WE ARE NOT LIABLE FOR ANY TOLL CHARGES YOU MAY INCUR IN USING A LOCAL ACCESS NUMBER. THIS SECTION IV WILL REMAIN IN EFFECT AFTER THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
10.3 No Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE DO NOT MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TECHNICAL COMPATIBILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY SERVICE, PRODUCTS OR MATERIAL PROVIDED FOR PURSUANT TO THIS AGREEMENT. WE ALSO MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. WE DO NOT AUTHORIZE ANYONE, INCLUDING OUR EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
1 Neither Party shall be liable to the other Party for any indirect, consequential, special, incidental, reliance, or punitive damages of any kind or nature whatsoever including, without limitation, any lost profits, lost revenues, lost savings, or any other business loss including goodwill, loss of use of property, loss of data, cost of substitute performance equipment or services, downtime costs and claims of customer for damages, or harm to business, regardless of the foreseeability thereof and regardless of whether damages are caused by the willful misconduct, negligent act or omission, or wrongful act arising from or related to this Agreement. For purposes of this Agreement, a Party’s out of pocket costs for damages of the kinds specified in the preceding sentence which are recovered from such Party by a third party shall be deemed to be indirect damages to such Party and each Party hereby releases the other Party, its subsidiaries and affiliates, and their respective officers, directors, managers, employees, and agents, from damages from such claim(s), except to the extent such damages are part of claims for which indemnification is due under Sections 9.1 and 9.2 herein. Customer’s sole remedy for the failure of non performance of ventureshosting and/or the Service shall be to receive credits as set forth in this Agreement and the Exhibits hereto. THE ENTIRE LIABILITY OF ventureshosting AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF DIRECT DAMAGES OR THE TOTAL AMOUNT PAID BY CUSTOMER TO ventureshosting DURING THE PREVIOUS THREE (3) MONTHS FOR THE SERVICE(S). The foregoing limitations apply to all causes of action and claims of any kind arising out of or related to this Agreement including any Exhibit and any Service Order, including, without limitation, breach of contract, breach of warranty, strict liability, negligence, misrepresentation, or any other tort. Customer acknowledges and accepts the reasonableness of the disclaimers and limitations of liability set forth herein.
12.1 The rates set forth in this Agreement are subject to the imposition of new regulation, modification of existing regulation, new interpretation, application or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state, and/or local regulatory agency, legislative body, or court of competent jurisdiction, including, without limitation, the imposition of any charges, surcharges, and/or taxes in reliance or as a result of the same (collectively, “Regulatory Activity”). Company reserves the right, at any time, (i) to pass through to Customer all, or a portion of, any charges, surcharges, or taxes directly or indirectly related to such Regulatory Activity; and/or (ii) modify the rates and/or other terms and conditions of this Agreement to reflect the impact of such Regulatory Activity, including, without limitation, the impact of any actions by third parties in connection with such Regulatory Activity.
VenturesHosting reserves the right to modify the rates and charges for the services provided by giving at least 7 days notice to the customer. In the event VenturesHosting increases the rates, the customer may cancel this agreement without incurring any cancellation charges.
12.2 Customer represents and warrants that all traffic being delivered by Customer or its End Users or agents to ventureshosting for local termination, and all traffic that ventureshosting delivers to Customer or its End Users or agents that has originated in the same local calling area in which Customer’s NPA NXX is assigned and/or in which such traffic is terminated to Customer or its End Users or agents, is local traffic or is legally entitled to be treated as local traffic under all applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over such traffic. Customer understands that ventureshosting will rely upon such representation to assign local telephone numbers to Customer and/or route Customer’s traffic for termination as local calling. Customer represents and warrants that Customer has paid, or shall promptly pay to ventureshosting, all switched access and other charges associated with any of Customer’s traffic that is delivered pursuant to this Agreement. Customer also represents and warrants that neither it nor any of its end users or agents will remove or in any way alter Automatic Number Identification (“ANI”) or Calling Party Number (“CPN”) information associated with any traffic delivered pursuant to this Agreement. Customer agrees to cooperate with ventureshosting to obtain or verify any necessary regulatory certification or other information regarding the nature of its traffic and/or use of facilities.
12.3 Customer shall promptly pay to ventureshosting all access charges, reciprocal compensation, and/or any other charges, surcharges and/or taxes billed to ventureshosting by a third party, or remitted by ventureshosting to a third party, that are associated with any of Customer’s traffic delivered or facilities utilized pursuant to this Agreement, including but not limited to any retroactive charges, (collectively, “Additional Charges”) and that are not already reflected in the rates charged by ventureshosting for the Services rendered pursuant to this Agreement. Although ve' shall not have any obligation to challenge any Additional Charges levied by a third party, if ventureshosting successfully challenges imposition of any Additional Charges by a third party, it will refund to Customer any Additional Charges previously paid by Customer to ventureshosting that were subject to such successful challenge. Within two (2) billing cycles of any such rate increase reflecting Additional Charges, Customer, upon giving written notice to ve, may elect to transition any Services affected by such rate increase to another carrier over a period of time not to exceed thirty (60) days. Notwithstanding any other provision of this Agreement, if, within the designated two (2) billing cycle period, Customer does not provide written notice to ve of its election to transition the affected Services to another carrier, Customer shall be deemed to have waived its right to such election. Even if Customer elects to transition the affected Services to another carrier, Customer shall still be responsible for paying any and all Additional Charges billed to or remitted by ve up to and including the final transition date. The parties agree to cooperate on the scheduling of any such transition.
12.4 Customer agrees that, if ventureshosting is subjected to a third party audit relating to Customer’s traffic or use of facilities which is the subject of this Agreement, Customer will cooperate and assist in any such audit. Customer further agrees that it will protect, defend, indemnify and hold harmless ventureshosting, its subsidiaries, affiliates, officers, directors and employees from any and all costs resulting from or related to such third party action.
12.5 Customer understand that some of ventureshosting’s plans and other Services are offered on an “unlimited” basis. All unlimited plans:
May only be used for normal business use.
13.1 In no event shall a Party have any claim or right against the other Party for any failure of performance due to causes beyond its control, including but not limited to: acts of God, fire, explosion, vandalism, cable or fiber cut, adverse weather conditions, flood or other similar occurrences; any law, order regulation, direction, action or request of the government, including federal, state and local governments having or claiming jurisdiction over ventureshosting or of any department, agency, commission, bureau, corporation, or other instrumentality of any federal, state, or local government, or of any civil or military authority; national emergencies; unavailability of materials or rights of way; insurrections; riots, wars; terrorism; strikes, lock outs, work stoppages, or other labor difficulties, supplier failures, shortages, breaches or delays; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected Party.
14.1 The Parties agree to use the dispute resolution procedures set forth in this Article 13 with respect to any controversy or claim arising out of or relating to this Agreement or its breach, except that ventureshosting may elect to litigate, or bring before the applicable agency in the case of subsection (iii), the following types of controversies or claims: (i) action seeking a temporary restraining order or injunction, (ii) a suit to compel compliance with this dispute resolution process, (iii) disputes relating to the lawfulness of rates, terms, conditions or practices concerning Services are subject to the Communications Act of 1934, as amended, or the rules and regulations of the FCC, a state public utility commission or other administrative agency, (iv) Customer non compliance with publicity provisions, or (v) billing or payment disputes or collections matters.
14.2 Upon ten (10) days written notice, either Party may submit disputes to binding arbitration by a single arbitrator with a professional arbitration service selected by the Parties. If the Parties do not otherwise agree on an arbitration service, such services shall be provided pursuant to the American Arbitration Association (“AAA”) Commercial Arbitration Rules and Mediation Procedures. The costs of arbitration, including the fees and expenses of the arbitrator, shall be paid equally by the Parties. Each Party shall bear the cost of preparing and presenting its case. The Parties agree that Moore County, North Carolina shall be the location for the arbitration hearing.
13.3 The Parties agree that this Article 13 and the arbitrator’s authority to grant relief shall be subject to the Federal Arbitration Act, 9 U.S.C. §§ 1 16, et seq. (“FAA”), the provisions of this Agreement, and the AAA Code of Ethics for Arbitrators in Commercial Disputes. The Parties agree that the arbitrator shall have no power or authority to make any award that provides for punitive or exemplary damages or damages otherwise limited or excluded in this Agreement. The arbitrator’s decision shall be final and binding. The award may be confirmed and enforced in any court of competent jurisdiction. The FAA shall govern all post award proceedings