Terms of Service
This agreement (the "Agreement") is between Adera, LLC ("Adera"), a Delaware limited liability company, and an end user ("End User") of the Adera Residential Broadband Voice Service (the "Service"). End User shall be governed by the terms and conditions as set forth herein. By activating the Service, End User acknowledges receiving, reading and understanding this Agreement and accepts the terms and conditions herein.
End User acknowledges that they are of legal age to enter into this Agreement.
1. TERMS AND CONDITIONS. The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents or publications previously issued by Adera, including, without limitation, any advertising material or published Service specifications.
ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITION ON ANY SUCH DOCUMENT ISSUED BY ADERA AT ANY TIME ARE HEREBY OBJECTED TO BY ADERA ,AND ANY SUCH DOCUMENT SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON ADERA.
No waiver or amendment to this contract or these terms and conditions shall be binding on Adera unless made in writing expressly stating that it is such a waiver or amendment and signed by a representative of Adera.
2. TERM. The term of this Agreement (the "Term") begins on the date that End User activates the Service and continues for a period of twelve (12) consecutive months. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by End User unless End User gives Adera written notice of non-renewal at least ten [10] days before the end of the monthly term in which the notice is given. End User is purchasing the Service for full monthly terms, meaning that if End User attempts to terminate Service prior to the end of a monthly term, End User will be responsible for the full month's charges to the end of the then-current term, including without limitation, unbilled charges, plus any applicable disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of the Services does not excuse the End User from paying all unpaid, accrued charges due in relation to the Agreement hereunder. If End User chooses to cancel the service before the end of the current Term, Disconnection Fees may apply as set forth below.
3. E911 AND SERVICE REQUIREMENTS
END USER ACKNOWLEDGES THAT THE SERVICE AND E911 WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
END USER ACKNOWLEDGES THAT THE SERVICE AND E911 WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF END USER'S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
END USER ACKNOWLEDGES THAT THE SERVICE IS NOT INTENDED TO FUNCTION WITH HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, SOME FAX MACHINES, AND SATELLITE TELEVISION SYSTEMS. END USER HAS NO CLAIM AGAINST ADERA FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEM BY THE SERVICE.
END USERS WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF THEIR EQUIPMENT WITH ADERA AND MUST SELECT TELEPHONE NUMBER(S) LOCAL TO THE CALLING AREA WHERE THE EQUIPMENT IS REGISTERED AND THE E911 SERVICE IS TO BE PROVIDED.
END USERS WILL BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE SHALL BE IN ADDITION TO THE APPLICABLE RESIDENTIAL PLAN CHARGE FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR E911 SERVICE IS ASSESSED ON A "PER-LINE" (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES ADERA FOR THE DIRECT COSTS ASSOCIATED WITH PROVIDING E911 SERVICE, INCLUDING, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911 SURCHARGE, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSE, AND ANY OTHER TAXES OR SURCHARGE DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF E911 SERVICE TO END USER. ADERA RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGE ASSOCIATED WITH THE PROVISION OF E911 SERVICE TO REFLECT INCREASES IN THE COSTS IT INCURS. (SEE SECTION 11 REGARDING CHANGE TO THE AGREEMENT, SERVICE OR PLAN).
WHEN AN END USER DIALS 9-1-1 WITH E911 SERVICE, ADERA WILL UTILIZE THE LOCATION INFORMATION PROVIDED BY END USER AT THE TIME OF ACTIVATION OF THE SERVICE. END USER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY ADERA WILL BE BASED UPON THE PHYSICAL LOCATION ON FILE WITH ADERA.
END USER ALSO ACKNOWLEDGES THAT E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THE E CHARACTERISTIC MAY MAKE ADERA'S E911 SERVICE UNSUITABLE FOR SOME END USER BECAUSE END USER CIRCUMSTANCES VARY WIDELY. END USERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY UPON ADERA'S E911 SERVICE FOR EMERGENCY REPSONSE. END USER ACKNOWLEDGES THAT IT IS END USER'S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET END USER'S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISION FOR ACCESS TO EMERGENCY CALLING SERVICE (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS).
THE FOLLOWING CHARACTERISTIC DISTINGUISH E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
ADERA'S E911 SERVICE WILL NOT FUNCTION IF END USER'S PHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF END USER'S SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF THE SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, END USER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE SERVICE, INCLUDING FOR E911 PURPOSES.
AFTER INITIAL ACTIVATION OF THE SERVICE, 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 E911 CALL APPROXIMATELY SEVEN (7) DAYS AFTER THE SERVICE IS ACTIVATED, 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 A E911 EMERGENCY SERVICE CALL MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICE 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 E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION, THERE IS A POSSIBILITY THAT AN E911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIME AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORK.
IF END USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE ADERA EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, E911 COMMUNICATION MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
END USER ACKNOWLEDGES AND UNDERSTANDS THAT ADERA WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 USING THE SERVICE OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. END USER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS ADERA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, VENDORS AND AGENTS AND ANY OTHER SERVICE PROVIDER WHOM FURNISHES SERVICE TO END USER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, END USER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
4. EQUIPMENT. To provide the Service, Adera will provide certain equipment ("Equipment") to End User. All Equipment shall remain the property of Adera and all risk of loss or damage to the Equipment shall pass to End User upon delivery to End User . End User will be provided a twelve (12) month manufacturer's warranty from the date of delivery of Equipment or Service. End User shall be required to obtain authorization from Adera to return any Equipment. Adera will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. Adera will not cover replacement for lost, stolen or modified equipment. Equipment returned by End User that is not covered under warranty may be refused by Adera and End User will be responsible to pay return shipping charges.
5. BILLING,CHARGES AND PAYMENT. Upon purchase of the Service, End User must provide Adera with a valid credit card number from an issuer that is accepted by Adera (the "Credit Card"). End User authorizes Adera to charge the credit card number provided by End User for all charges arising from End User's use of the Services. End User agrees to notify Adera of any change to the Credit Card information including, but not limited to, changes in account number, expiration date or billing address. Adera shall not be responsible for any charges made by the Credit Card issuer to End User's Credit Card account for exceeding credit limit, insufficient funds or other reasons.
6. CREDIT TERMS. All Services provided to End User and covered by the Agreement shall at all times be subject to credit approval or review by Adera. End User will provide such credit information or assurance as is requested by Adera at any time. Adera, in its sole discretion and judgment, may discontinue credit at any time without notice.
7. BILLING. Adera will provide End User with a monthly on-line billing statement for the Services and bill all charges invoiced to End User's account to the Credit Card. Such charges shall include all monthly recurring Plan charges, any activation fees, installation charges, disconnection fees, equipment charges, taxes and any other applicable charges. Monthly Plan fees are paid in advance of each month's service; toll charges and any other applicable charges are billed subsequent to the end of each month's service. Adera reserves the right to charge the Credit Card for charges due if at any time, End User's cumulative charges for the current month exceed fifty dollars ($50.00). Billing for monthly service fees commences upon installation and activation of the Service, and the first month's monthly service fee shall be prorated to take into account any partial month that may occur as the result of the date monthly service fees are initiated.
8. LATE/NON-PAYMENT. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges, Adera may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by Adera. If charges cannot be processed to the Credit Card, End User will be charged a fee of ten dollars ($10.00) in addition to the amount due and owing. No suspension or termination of the Services or of this Agreement shall relieve End User from paying any amounts due for the Services provided hereunder.
9. TAXES. Prices for the Service does not include any added Federal Excise taxes, or governmental fees for the provision of local number portability and providing E911 service or other similar taxes. All such taxes shall be paid by End User and will be added to any amounts otherwise charged to End User. If any amounts paid for the Services by End User are refunded by Adera, applicable taxes may not be refundable.
10. REGULATORY RECOVERY FEE. A Regulatory Recovery Fee of $1.50 per phone number will be charged monthly to offset costs incurred by Adera in complying with inquiries and obligations imposed by federal ,state and municipal regulatory bodies/governments 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.
11. TRIAL PERIOD. Adera offers a thirty (30) day trial period ("Trial Period" ) to new End Users. The Trial Period commences upon the activation of the Service. If End User is not satisfied with the Service during the Trial Period, End User may obtain a refund of the activation fee and monthly service fees. Installation fees and any federal excise taxes are not refundable. To obtain a refund, End User must: a) Notify Adera in writing within thirty (30) days of activation of the Service and obtain a return material authorization number ("RMA") from Adera for the Equipment, b) Return the Equipment to Adera within seven (7) days of cancellation of the Services, and c) Return the Equipment in its original, unaltered condition with all packaging intact. The Trial Period refund shall not apply to End Users that have Trial Period usage in excess of three hundred (300) minutes of long distance usage. Disconnection fees shall not apply if End User cancels service during the Trial Period.
12. DISCONNECTION FEES. Subsequent to the expiration of the Trial Period, if an End User terminates the Service within twelve (12) months of the activation of the Service Adera shall charge a Disconnection Fee of fifty-nine dollars ($59.00). The Disconnection Fee shall be waived after End User completes twelve (12) months of consecutive service. Disconnection Fees shall be billed to End User's Credit Card when End User notifies Adera of the early termination of the Services.
13. RATE CHANGES. Adera may change the prices for the Services, installation and activation fees, regulatory recovery fees and federal, state and local taxes from time to time and without advanced notice. In the event of a change in prices or toll charges, Adera will post such changed rates to the web site currently located at http://www.aderanetworks.net.
14. CREDITS. End User acknowledges and agrees that the Services are provided on a "as is" basis and credit allowances for interruption of the Services shall not be provided.
15. DISCOUNTS. From time to time and in its sole and absolute discretion, Adera may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be entered by End User upon purchase of the Services. End User shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of Service activation.
16. BILLING DISPUTES. End User must dispute any charges for the Service in writing within thirty (30)days of the date of the charge by Adera or End User waives any objection.
17. TOLL CHARGES. Every call using the Service that originates or terminates in the Public Switched Telephone Network ("PSTN"), including other VoIP networks, is subject to the then applicable toll charges that are associated with the calling plan. Calls to a phone number outside the United States and Canada will be charged at the current international rates published on the Adera's web site. The duration of each call is to be calculated in one minute increments and rounded up to the nearest one minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When End User dials an International PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by an End User to an International mobile, rather than landline, telephone number may result in higher toll charges.
18. TELEPHONE NUMBER. Any telephone number provided by Adera ("Number") to the End User shall be leased and not sold. End User is not to use the Number with any other device other than the Equipment without the express written permission of Adera. Adera reserves the right to change, cancel or move the Number at its sole discretion.
19. LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT. End User shall not modify the Equipment, including but not limited to, changing its initial configuration, in any way without the express written permission of Adera. End User shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, End User is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue using the Service. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes .End User shall immediately notify Adera of any lost or stolen Equipment and shall cooperate with Adera in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At Adera's sole option, failure to report lost or stolen equipment in a timely manner will cause End User to be responsible for all Service fees accrued until the time that Adera is informed of the loss or theft and can effect a termination of the Services.
20. PROHIBITED USES. Any use of the Service or any other action that causes a disruption in the network integrity of Adera or its affiliates and vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of Adera. End User understands that neither Adera nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. End User agrees that it will NOT use the Services in ways that violate any laws, infringe the rights of others, or interferes with the users, Services, or equipment of the network. End User agrees and represents that it is purchasing the Services for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of Adera.
21. PERSONAL USE. Adera's calling plans for residential subscribers that offer unlimited minutes of PSTN calls ("Calling Plans") are for the reasonable personal residential use of End User only. This means that End User is not to resell or transfer the Service or Equipment to any other person for any purpose, without express written permission from Adera in advance. End Users of Calling Plans shall not use the Services for commercial or governmental purposes or for profit or non-profit activities, including, but not limited to, home office, business, sales, tele-commuting, autodialing, continuous or extensive call forwarding continuous connectivity, fax broadcast, fax blasting, telemarketing or any other activity that would be inconsistent with personal and residential usage. End User agrees to notify Adera immediately if usage of the Calling Plans changes from personal residential to business use and End User agrees to subscribe to a business plan. Adera reserves the right to immediately terminate or modify the Services of any End User using Calling Plans if Adera determines, in its sole discretion, that End User is not using the Calling Plans for End User's reasonable personal residential use.
22. SERVICE TERRITORY. Calling Plans are only for the personal use of individuals whose primary residence and place of operation of the Service is located within the Adera service territory. Any use found to be inconsistent with this location restriction will result in the plan being automatically terminated at the sole discretion of Adera.
23. COMMERCIAL USE. End User agrees that the use of the Service under this Agreement for activities other than reasonable personal residential use will obligate End User to pay Adera's higher rates for business services for all periods of such use, including past periods ,in which End User used the Service for commercial or governmental. purposes. If End User subscribes to a business plan ("Business Plans"), the Service and Equipment are provided to End User as a small business user. This means that End User is not to resell or transfer the service or Equipment to any other person for any purpose, without express written permission from Adera in advance. End User agrees that Adera Business Plans do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting. Adera reserves the right to immediately terminate or modify the Service, if Adera determines, in its sole discretion, that End User's Business Plans' Service is being used for any of the aforementioned activities.
24. CHANGES TO THE AGREEMENT, SERVICES OR CALLING PLANS. Adera reserves the right to make changes to the terms and conditions of this Agreement, the services and/or the calling plans (a "Change of Service"). In the event of a Change of Service, Adera will post to the Adera web site (http://www.aderanetworks.net). Notice will be considered received by End Users and such changes will become binding to End Users, on the date the changes are posted to the web site ("Change Date"), and no additional notice will be required. If End User does not send Adera notification of their desire to terminate this Agreement or uses the Service after the Change Date, End User is deemed to have accepted and consented to the change of terms and conditions of the Service. If End User does not consent to the Change of Service and terminates this Agreement, End User will be responsible for any sums due hereunder in addition to any applicable Disconnection Fee. End User may request a Plan change at anytime, subject to any applicable Change of Service fee and additional terms and conditions. In no case will an activation fee be credited after thirty (30)days from the initial purchase of the Services for a Plan change or cancellation. For a Change of Service to a calling plan that requires a purchase of the Equipment, an equipment charge will apply.
25. TERMINATION. End User agrees to provide Adera with ten (10)days notice of termination. End User shall be responsible for the full monthly service fee for the month during which the notice of termination of service is provided to Adera. In accordance with section 5,Disconnection Fees may apply. Adera reserves the right, at its sole discretion, to suspend, terminate or change the Services without advance notice for any reason, including without limitation, misuse of the Services in any way, End User's breach of this Agreement, End User's failure to pay any sum due hereunder, suspected fraud or other activity by End User that adversely affects the Services, Adera's network or other End Users' use of the Services. Adera reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and End User agrees that Adera's determination is final and binding on End User. Adera will require an re-activation fee to resume a terminated or suspended account.
26. PRIVACY. Adera utilizes the public Internet and third party networks to provide voice communication services. Accordingly, Adera cannot guarantee the security of voice and data communications of End User. Adera is committed to respecting an End User's privacy. Once End User chooses to provide personally identifiable information, it will only be used in the context of the End User's relationship with Adera. Adera or its affiliates will not sell, rent, or lease End Users' personally identifiable information to others. Unless required by law or subpoena or if End User's prior permission is obtained, Adera will only share the personal data End User provides with other Adera entities and/or business partners that are acting on Adera's behalf to complete the activities described herein. Such Adera entities and/or national or international business partners are governed by Adera's privacy policies with respect to the use of this data. Adera may be required to file numerous reports with different administrative bodies. As such, Adera may provide aggregate statistics about customers, sales and traffic patterns. None of these reports or statistics will include personally identifiable information. However, Adera reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either Adera or any company affiliated with Adera. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Adera may disclose personally identifiable information.
27. RETURNS AND ADJUSTMENTS. No Equipment may be returned by End User for any reason without the prior approval of Adera. All returns shall be in original packaging or equivalent. End User shall be responsible for all costs related to shipping to Adera any Equipment that is being returned. Any Equipment returned to Adera without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund upon cancellation, End User must immediately obtain a return material authorization ("RMA") number from Adera, return to Adera any Equipment provided hereunder undamaged and in good working condition in its original packaging and with its original content or otherwise will be immediately responsible for paying to Adera an amount equal to the fair retail price of the equipment minus any payments End User had previously paid specifically for said Equipment.
28. TECHNICAL SUPPORT. Adera provides technical support to End Users via telephone and e-mail for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied.
29. BREACH. In the event of End User's breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, End User shall reimburse Adera for all attorney, court, collection and other costs incurred by Adera in the enforcement of Adera's rights hereunder and Adera may keep any deposits or other payments made by End User.
30. INDEMNIFICATION. End User agrees to defend, indemnify and hold Adera, its affiliates and its vendors harmless from any claims or damages relating to this Agreement.
31. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL ADERA OR ITS AFFILIATES AND VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,INDIRECT,PUNITIVE OR CONSEQUENTIAL DAMAGE OR FOR ANY DAMAGES,INCLUDING.BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS,OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF ADERA OR ITS VENDOR OR OTHERWISE.
32. WARRANTY AND LIABILITY LIMITATIONS. ADERA MAKES NO WARRANTIES ,EXPRESS OR IMPLIED,INCLUDING, BUT NOT LIMITED TO,ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNES FOR A PARTICULAR PURPOSE. NEITHER ADERA NOR ITS AFFILIATES AND VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO ADERA'S OR END USER' TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF END USER' DATA FILES, PROGRAMS, PROCEDURE OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEAN OR DEVICE, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF ADERA'S OR ITS VENDOR'S NEGLIGENCE. ANY CLAIM AGAINST ADERA MUST BE MADE WITHIN 90 DAYS OF THE EVENT OF THE CLAIM OR 90 DAY FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER AND ADERA SHALL HAVE NO LIABILITY THEREAFTER. ADERA'S ENITRE LIABILITY IS LIMITED TO REPAIR, REPLACEMENT, CREDIT OR REFUND. ADERA MAY ELECT TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR. ALL WARRANTIES COVER ONLY DEFECTS ARISING UNDER NORMAL USE AND DO NOT INCLUDE MALFUNCTION OR FAILURE RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIR BY ANYONE OTHER THAN ADERA. IN NO EVENT SHALL ADERA'S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNT PAID BY END USER TO ADERA IN THE PRIOR TWELVE (12) MONTH PERIOD FROM DATE OF CLAIM.
33. EXPORT COMPLIANCE. End User agrees to comply with U.S. Export laws concerning the transmission of technical data and other regulated materials via the Services. End User agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.
34. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, End User shall relinquish and discontinue use of any Numbers, voice mail access numbers and/or web portals assigned to End User by Adera or its vendors.
35. SOFTWARE COPYRIGHT. Any software or firmware used by Adera to provide the Services and any software provided to End User in conjunction with providing the Services are protected by copyright law and international treaty provisions. End User may not copy the software or any portion of it.
36. NOTICES. Adera communicates with End Users primarily via email. Notices to End User shall be sent to the email address specified by End User at the time of registration for the Services or as subsequently specified by End User ("Email Address"). End User is responsible for notifying Adera of any Email Address changes. End User agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that End User read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.
37. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). Adera shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire ,flood, accident ,riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of Adera as may occur in spite of Adera's best efforts.
38. GOVERNING LAW /RESOLUTION OF DISPUTES. Any dispute or claim between End User and Adera arising out of or relating to the Service or Equipment provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules .The arbitration shall take place in Washington, D.C. and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to:(i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGE THAT THIS ARBITRATION PROVISION CONSTITUTE A WAIVER OF ANY RIGHT TO A JURY TRIAL.
39. GOVERNING LAW. The Agreement and the relationship between you and Adera shall be governed by the laws of the State of Maryland without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 38, End User and Adera agree to submit to the personal and exclusive jurisdiction of the courts within the state of Maryland ,to the extent possible in Howard County, and waive any objection as to venue or inconvenient forum.
40. GENERAL. The failure of Adera to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give full effect to the parties' intentions as reflected in this Agreement, and the other provisions of the Agreement shall remain in full force and effect. End User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1)year after such claim or cause of action arose or be forever barred.
41. ENTIRE AGREEMENT. The terms and conditions of this Agreement constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements written or oral, relating to the Services. This agreement shall be binding upon the heirs, successors, and assigns of Adera and End User.