Terms and Conditions

TERMS AND CONDITIONS FOR SERVICES AND EQUIPMENTS PROVIDED BY CLEARSOURCE

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IT IS ESPECIALLY IMPORTANT FOR YOU TO READ SECTION 10 (DISPUTE RESOLUTION) CAREFULLY, AS SECTION 10 PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. YOU WILL CONTINUE TO HAVE CERTAIN RIGHTS TO OBTAIN RELIEF FROM FEDERAL OR STATE AGENCIES.

 

1. Definitions.

“You” or “Customer” means the person or entity that subscribes to Services or purchases or leases Equipment and anyone who accesses the Services and Equipment provided to you.

“We,” “us,” “our,” “Company,” and “ClearSource” refer to the ClearSource legal entities providing Services to you and as identified on your bill.

“Service(s)” refer to any services you have agreed to obtain from us.

“Equipment” means any equipment or accessories you purchase or lease from us or those provided by us for use in any manner in connection with your Services. For ease of reference, Services and Equipment provided by ClearSource shall be referred to in this document collectively as “Services.”

“Promotional Terms” mean terms that apply to special offers from time to time. Promotional terms will be specified in your first bill message. Promotional terms may include a term commitment and an early termination fee in the event the Service is not installed or maintained, or in the event you disconnect Service prior to the end of the term.

“Service Order” means the form (whether paper or electronic, including online order forms), if any, in which you apply for or make changes to Services and may include the length of time you will subscribe to a Service, rate plans, access charges, fees, taxes and surcharges, , and the equipment you have selected.

 

2. Agreement and Acceptance. This Agreement incorporates by reference, and you agree to be bound by the following, in this order of priority AND INCLUDING ANY CHANGES (SEE SECTION 23 BELOW): 1) any applicable tariffs filed with the Federal Communications Commission (“FCC”) or the relevant state public service commission; 2) The FCC or state web-posted price lists or terms and conditions (either, “price lists”).

You accept this Agreement when you do any of the following: (a) give us your written or electronic signature; (b) tell us orally or electronically that you accept (i.e., by clicking the “I Accept” button for online purchases or account changes); or (c) use any Services. If you have never used the Services before, and do not wish to be bound by this Agreement, then do not begin using them, and notify us immediately. By accepting this Agreement, you acknowledge that you are 18 years of age or older, are competent to enter into a contract with us, and are authorized to obtain Services or make changes to an existing account. You may obtain a copy of these Terms and any product-specific Terms and Conditions by visiting www.theclearsource.com, or calling a service representative at 888-824-2484. This Agreement supersedes any and all statements or promises made to you by any of our employees or agents. If you are a business customer with an existing contract, then those contract terms will control.

 

3. Charges for Services and Taxes, Fees, and Surcharges. You are responsible for paying all charges applicable to Services provided to you including, but not limited to, monthly recurring charges (“MRCs”), access charges, features, changes and moves to Services, Service repair visits and no-show charges, installation charges, IP-address charges, billing charges, credit-card surcharges, toll, long distance, and directory assistance, equipment fees, and any other usage-based charges at our current rates when used. In addition to the monthly recurring and usage-based charges, other charges (such as taxes, fees, surcharges, and assessments) apply to all Services and Equipment, including how those may change in the future. In certain service areas, paper bills are available for a monthly charge.

To determine whether certain taxes, fees, and surcharges are applicable to Services provided to you, we are required by federal law to obtain your street address, which must be within our service area. You represent and warrant that the address you provide us to obtain Service is correct, and you acknowledge that we are relying on this information to determine which taxes, fees, or surcharges are applicable to your Service. You agree to notify us if your address changes. In the event you do not provide us with a valid address or address change, you may be responsible for additional taxes, fees, surcharges, and penalties associated with failure to pay taxes based on the proper address, and we may terminate your Services.

As a convenience to you, ClearSource may include charges for third-party services on your monthly bill. You should always review your bill carefully, and contact ClearSource if you are unsure about a charge on your bill. ClearSource also offers the ability to block third-party charges from your monthly bill. This Service is optional and free of charge. If you are interested in adding a third-party block to your account, then call a ClearSource representative at the number found at the top-right-hand corner of your statement to determine if your account is eligible. The block does not apply to Services provided by ClearSource or its affiliates to which you subscribe.

 

4. Billing and Payment; Rate Increases. We will bill you the recurring and installation rates you were quoted for Services or those associated with the Services you currently use or previously ordered, with increases on notice. All recurring charges are billed one month in advance. Billing at a location will begin upon the earlier of either (i) the Installation Date (which may be the date administrative access to certain software-based Services are granted to Customer), or (ii) 30 days after delivery of the applicable facility and/or equipment to Customer’s premises (if the delay in connection of the facility and/or equipment is due to Customer or its agent). Company may choose to bill in full monthly increments with no proration for partial service periods, when Service either starts or ends in the middle of a billing cycle.

We reserve the right to back-bill you for Services actually used, but not previously billed.

Payment in full is due no later than the due date indicated on your bill and we may apply a late fee, interest, and other charges (including, but not limited to, collection fees) up to the maximum amount permitted by law. Returned checks, payment by phone, paper bills, and other fees due to your choice of payment method or billing receipt may also be subject to fees. You agree to pay costs and fees, including, but not limited to, attorney fees we incur to collect an unpaid balance from you.

Company may require you to authorize payment for Services by credit card or by debiting a bank account, and no additional notice or consent is required before we invoice the credit card or debit the bank account for all amounts due to us for any reason.

 

5. Credits, Deposits, and Advanced Payments. Our agreement to provide you Services is subject to credit approval, and, as such, you authorize us to ask credit-reporting agencies for credit information about you. We may require you to submit an initial deposit and/or an advanced payment as security for payment of charges. In the future, an additional deposit or advanced payment may be required if either the amount/number of Services is increased, you are late on payment or your credit rating changes. Simple interest will be paid on the cash deposit for the period it is held by us, and will be refunded if satisfactory credit has been established or upon termination of Service (if no balance is due). We reserve the right to apply the deposit to any amount due and unpaid, and the payment of a deposit in no way relieves you of paying your bills in a timely manner. Regarding advanced payments, any advanced payment will appear as a credit to your first-month’s bill. If you cancel Services before installation, or we cannot install your Services for some reason, then we may refund the advanced payment. We will not refund any advanced payment made after installation of Services.

 

6. Termination by You.

Pre-Installation. If you are a business customer, and you terminate your order prior to the installation of Services, then you will be required to pay a pre-installation cancellation charge equal to the greater of (i) three (3) months of MRCs; or (ii) our costs to other providers. You agree that this charge is a reasonable measure of the administrative costs and other fees, incurred by us, to prepare for installation.

After Installation. If you cancel your Services or a portion thereof after installation, then you remain liable for payment of all outstanding charges for all Services you used and Equipment you purchased from us prior to termination. If you terminate Services prior to the last day of your billing cycle, then you will be charged for the full last month of Service with no proration or credit.

Fixed-Term Agreements. When you purchased your Service(s), you may have been required to commit to a term or a minimum purchase. Either you or we may elect not to renew your service by providing notice to the other no later than thirty (30) days prior to expiration of the fixed term. If neither you nor we deliver a timely notice not to renew, THEN the Services will renew on a month-to-month basis. IF YOU TERMINATE SERVICES AFTER INSTALLATION OR DURING THE INITIAL OR RENEWAL TERM FOR ANY REASON OTHER THAN FOR CAUSE, OR WE TERMINATE FOR CAUSE PURSUANT TO SECTION 7 BELOW, THEN YOU WILL BE REQUIRED TO PAY TO US AS LIQUIDATED DAMAGES AN AMOUNT EQUAL TO 100% OF THE MONTHLY RECURRING CHARGES (“MRCS”) MULTIPLIED BY THE NUMBER OF MONTHS REMAINING IN THE THEN CURRENT TERM. IF YOU TERMINATE OR DISCONNECT LESS THAN THE ENTIRETY OF YOUR SERVICES SUCH THAT YOUR ACTUAL USAGE AT A LOCATION FALLS BELOW ANY MINIMUM MONTHLY CHARGE (“MMC”) OR MINIMUM MONTHLY FEE (“MMF”) FOR THAT LOCATION, THEN YOU AGREE TO PAY AN AMOUNT EQUAL TO THE MMC OR MMF FOR EVERY MONTH REMAINING IN THE THEN CURRENT TERM (“LIQUIDATED DAMAGES”).

You agree that in the event of termination by you, the actual damage to ClearSource is difficult to ascertain, and that the early termination fee represents liquidated damages, not a penalty, and is a reasonable estimate of the actual reduction in the value of this Agreement that we will sustain.

Month-to-Month Agreements. If no length of time is identified on the Service Order or you were not otherwise required to commit to a term, then the term is month-to-month, and you or we may terminate at any time by providing notice at least thirty (30) days prior to the effective date of termination. You remain liable for payment of all outstanding charges for all Services you used and Equipment you purchased from us prior to termination. If you terminate Service prior to the last day of your billing cycle, then you will be charged for the full last month of Service with no proration or credit.

Bundled Services. Some plans may offer a discount, if you sign up for bundled Services, and may require a term commitment. If you sign up for bundled Services, then you agree to maintain the bundled Services for the applicable term. If you receive bundled Services, and you subsequently unbundle, terminate, or disconnect any of these Services, or we disconnect any of the Services, then we may adjust the rates for the remaining Service(s) to the then current price.

Change in Location. A change in your service address or location to which any Service is provided to you may constitute, at our sole discretion, termination of the Services or result in an increase in the prices you must pay for the Services.

Change to another Carrier. We may deem a request by you to port your numbers as a request by you to terminate your Agreement. If you choose to port less than all of your numbers, or you leave any Services connected, then we will continue to bill you for the numbers and/or Services still connected.

 

7. Termination by Us. Provisioning of the Service is subject to the availability of the requisite equipment and facilities. We may limit, interrupt, suspend, terminate, or refuse to provide a Service if: (a) you do not honor any provision of this Agreement; (b) you use a Service in an adverse manner that affects ClearSources’ network or other customers, you have used a Service fraudulently or unlawfully or are suspected of doing so, or there occurs an event for which ClearSource reasonably believes that the suspension or termination of Services is necessary to protect ClearSource or ClearSources’ other customers from an imminent and significant operational, financial or security risk, in which case ClearSource will provide advance notice if practicable; (c) you modify your phone, or any software residing thereon, from the original manufacturer specifications, including for the purpose of accessing non-ClearSource services; (d) you use a Service in a manner that is excessive or unreasonable when compared to the predominant usage patterns of other customers, on a similar service plan, in your geographic area (and we may, also, implement charges or change you to the appropriate rate plan consistent with such use); (d) resell any Service; (f) for any other reason set forth in the relevant tariffs and price lists or terms and conditions; (g) you do not pay any amount due to us or billed by us on behalf of others, including disputed amounts that ClearSource determines are valid charges on your bills and any deposits or advanced payments that ClearSource may require; (h) facilities or property associated with providing the Services have been condemned, or use has been prohibited by the government in any manner; (i) you fail to acquire and maintain the right-of-way or property access necessary for installation or maintenance of Services; (j) you are insolvent, have made an assignment for the benefit of credits, or you have filed or had filed against you a petition for bankruptcy; or (k) we determine in our sole discretion that facilities are not technically or economically feasible; or (l) you make nuisance calls, impersonate another person, use obscene or profane language or are abusive or harassing when communicating with ClearSource representatives, and fail to stop the behavior after receiving a written or verbal warning from ClearSource; or (m) you fail to comply with any law, or regulation, including but not limited to any applicable regulations and does not cure such failure of compliance within ten (10) days of receiving notice from ClearSource . We may restore such interrupted or terminated Service, in our sole discretion, following your correction of the violation and payment of any amounts due (including any restoration charge we assess for restoring your Service).

 

8. Personal Identifiers. We assign telephone numbers, e-mail addresses, IP addresses, and other personal identifiers in connection with the Services. You have no proprietary right to any such identifiers, and we reserve the right to change them upon notice to you. In the event that we allow you to transfer a personal identifier to another party to obtain any Services we provide you, we reserve the right, prior to honoring the request for transfer, to charge a fee for the transfer, and to collect any money owed for the Services.

 

9. Disputed Bills. You must review bills in a timely manner. To dispute a bill, you must comply with the dispute resolution provisions in Section 10, and submit your dispute, in writing, within 60 days after the date on the bill. You must pay any undisputed portion while your dispute is investigated. You accept all charges on your bill not disputed within 60 days, and must pay those charges.

 

10. Dispute Resolution. By utilizing ClearSources’ Services and agreeing to these Terms, you agree to the following dispute resolution procedures. You and ClearSource agree to waive any right to a trial by jury in a court of general jurisdiction and any right to participate in a class action or consolidated action regarding a dispute as defined below. Specifically, you and ClearSource agree to waive any right to pursue a dispute by joining a disputed claim with the disputed claim of any other person or entity or to assert a disputed claim in a representative capacity on behalf of anyone else in any lawsuit, arbitration, or other proceeding.

If you have a dispute with ClearSource, you should notify ClearSources’ Customer Care department at the number listed on your invoice. If the Customer Care department is unable to resolve your dispute, you must submit your dispute to us in writing at the following address:ClearSource LLC, Green Tree Shopping Center 900 Route 73 N, Suite C Marlton, NJ 08053, Attn: Executive of Customer Relations. You must describe your dispute and provide enough detail to allow us to understand it. You must provide any supporting documentation with your written dispute. If we have a dispute with you, we will send you a written notice to your billing address to attempt to resolve the dispute. You and ClearSource agree that a dispute is any claim or controversy related in any way to ClearSources’ Services, including charges for Services, Equipment, Service Order(s), or our agreements pursuant to these Terms or any other agreements, whether the dispute: arises in tort, contract, by statute, or any other legal theory; arises under this or any prior agreement with us; or arises after your Services with ClearSource are terminated.

If you and ClearSource are unable to resolve the dispute after 60 days from the date of receipt of the written dispute, you agree that either you or ClearSource shall resolve the dispute in only one of two possible ways: (1) by seeking relief in small claims court, if appropriate under the applicable court’s rules, in the city or county of the billing address reflected on your bill; or (2) by arbitration. This Section does not prohibit you from submitting any issue you have with ClearSource to any federal, state, or local governmental agency or public service commission which may be able to seek relief from ClearSource on your behalf. If the dispute is regarding the charges for Services, you agree that if you do not seek relief in small claims court or by arbitration following the 60 day dispute period, then you will immediately begin paying the disputed amount that ClearSource determines is valid, plus any charges that were not paid during the 60 day dispute period, or ClearSource may terminate the Services.

Regarding arbitration, you and ClearSource specifically agree to finally resolve all disputes not filed in small claims court by arbitration that will be final and binding on both you and ClearSource, subject to any exceptions required by applicable law. The following provisions shall apply to arbitration:

Notice: If you want to arbitrate a dispute with ClearSource after expiration of the 60 day dispute period noted above, you must file a claim with the American Arbitration Association (“AAA”). The claim must include a description of the dispute, a brief outline of previous efforts to resolve the dispute, all supporting documentation, and a proposed resolution. A copy of the claim and proof of payment of the filing fee, such as a copy of the check or money order, should be sent to ClearSource at: 900 Route 73 N, Suite C Marlton, NJ 08053, Attn: Director of Legal Arbitration. ClearSource will reimburse you for the filing fee if your claim does not exceed $50,000. If ClearSource wants to arbitrate a dispute with you after expiration of the 60 day dispute period noted above, ClearSource will send a copy of its claim to your billing address.

Applicable Law: The interpretation and enforceability of the arbitration provisions, and whether a dispute is subject to arbitration, is subject to the Federal Arbitration Act (“FAA”) only and not state law.

Applicable Rules: ClearSource and you agree that the arbitration will be conducted by the AAA. The rules governing the arbitration proceeding will be the current Consumer Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (“AAA Rules”) from the American Arbitration Association. The AAA rules can be found at www.adr.org, or can be obtained by calling 1.800.778.7879.

Method of Arbitration: If your claim is for $10,000 or less, ClearSource agrees that you may choose whether the arbitration will be conducted solely on the written documents submitted, by telephone, or in person in the city or county of the billing address reflected on your bill. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA rules. The written documents can be the notice to arbitrate that either of us send to the other regarding arbitration and referenced above.

Arbitration Costs and Attorney Fees: If you properly file a claim with AAA pursuant to these arbitration provisions, and the amount of your dispute does not exceed $10,000, ClearSource agrees to pay for all AAA filing, administrative and arbitrator fees (“Arbitration Costs”), and your reasonable attorney’s fees (with reasonable hourly rates and expenses to be determined by the location of the arbitration) (“Attorney Fees”) incurred by you regardless of the decision of the arbitrator, unless your claim is found to be frivolous or improper (as set forth in the Federal Rules of Civil Procedure Rule 11) by the arbitrator. A portion of the payment of Arbitration Costs may be in the form of reimbursement, as you may be required to place a deposit when your notice of arbitration is filed. If the claim is found to be frivolous or improper, the AAA Rules will apply regarding payment of Arbitration Costs. If your dispute exceeds $10,000 but not $50,000, ClearSource agrees to pay all the Arbitration Costs and 50% of your Attorney Fees. For disputes of $50,000 or more, the AAA rules regarding Arbitration Costs will apply. However, ClearSource agrees to pay 50% of the Arbitration Costs, and each party will pay its own Attorney Fees incurred for disputes of $50,000 or more. Notwithstanding the foregoing, if your claim is found to be frivolous or improper (as set forth in the Federal Rules of Civil Procedure Rule 11) by the arbitrator, ClearSource will have no obligation to pay any of your Attorney Fees. If ClearSource disputes the reasonableness of any Attorney Fees, you agree that the presiding arbitrator shall determine what a reasonable fee is, and his/her decision regarding Attorney Fees will be binding on both you and ClearSource. In no event shall ClearSource be entitled to an award of its Attorney Fees.

Awards: If the arbitrator’s award is in your favor and is greater than the value of ClearSources’ last settlement offer made to you prior to selection of the arbitrator, ClearSource will pay you the amount of the arbitrator’s award or $2,500, whichever amount is greater. ClearSource also will pay your attorney’s reasonable fees, including expenses, or $2,500, whichever amount is greater.

Injunctive Relief: If you seek declaratory or injunctive relief in the arbitration, the arbitrator may award such relief only to the extent necessary to provide relief warranted by your individual claim.

Consolidation: The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

Confidentiality: Any arbitration shall remain confidential. During the arbitration, the amount of any settlement offer made by ClearSource or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or ClearSource is entitled. Neither you nor ClearSource may disclose the existence, content, or result of any arbitration or award, except as may be required by law, or to confirm and enforce an award.

Exceptions: Nothing in this Section shall prevent ClearSource from issuing notices, including: takedown notices for alleged trademark or copyright infringement pursuant to the Digital Millennium Copyright Act; or termination of Service pursuant to ClearSources’ Acceptable Use Policy for your abuse of your Internet access Services. Nothing in this Section shall prohibit ClearSource from filing a lawsuit in a court of general jurisdiction to collect outstanding balances for unpaid Services or Equipment, any other type of charge owed on your account, or for the theft of any Services or Equipment by you. This Section is intended to resolve outstanding disputes between us, and not to collect a debt owed by you to ClearSource.

Limitation of Liability: This Section is subject to the Limitation of Liability Section in these Terms and Conditions.

1. Limitations Period: Any dispute must be brought by you or ClearSource within two years after the date the basis for the claim or dispute first arises.

Not withstanding any provision in these Terms and Conditions to the contrary, you and ClearSource agree that if ClearSource makes any future change to this arbitration provision (other than a change to the notice addresses), you may reject any such change by sending ClearSource written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any such change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.

If the provisions concerning the waiver of the class or consolidated actions, or the provisions regarding mandatory arbitration, are deemed unenforceable or void as a matter of law, you and ClearSource agree that all claims will be brought in a court of general jurisdiction, and not resolved through arbitration. YOU AND CLEARSOURCE WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR THE SERVICES PROVIDED BY US.

11. Services Provided by Third-Parties. The Services will be provided either by us or by our third party vendors or contractors. We reserve the right to change or modify the source of any Services provided to you without notice.

 

12. Company Provided and Owned Equipment. Any Equipment installed by us, on your premises, that is not the subject of a sale or lease to you (such as the CSU/DSU interface cards, Channel Bank, and router, if applicable) shall remain at all times our property. It shall remain in good condition, less normal wear and tear. If we do not have access to your premises within 30 days after Services are terminated, then you shall reimburse us for the full purchase price of the equipment, as well as any attorney’s fees and costs. You are responsible for all security measures over the Services, including, but not limited to, access to authorization codes or encryption you deem necessary or required. Once the Equipment is delivered to you, you bear the risk of loss.

 

13. Disconnection of Current Provider; Special Construction; Third-Party Charges. You are solely responsible for disconnecting Services with your current service provider, and we are not responsible for any charges assessed against you by such provider. You shall pay all charges if we or a third-party provider is required to extend the demarcation point, undertake special construction, or non-routine installation for you. Unless we specifically agree—in writing—to undertake equipment installation and maintenance work, you are responsible for all charges assessed by your phone-system vendor and other third-parties in connection with the Services, and we shall have no responsibility for maintenance or repair of same.

 

14. Access to Third-Party Services. You agree that the telephone line, on which your Services are activated, may not be used to access any third-party services equivalent to Services we provide or can make available, even if you declined to purchase such Services from us. Your telephone line contains programming designed to enable access to our Services only. You may not use any manual or electronic means to circumvent any restrictions placed on your telephone line to modify, without authorization, any programming supplied by us.

 

15. Access and Installation; Repair and Maintenance. You agree that you are responsible for acquiring and maintaining the right-of-way necessary to allow installation and maintenance of Services. Failure to acquire and maintain necessary right-of-way may result in delay of installation or termination of Services by ClearSource. Upon notice, we may make tests and inspections to determine you are complying with the requirements of these terms, or for routine and emergency maintenance of the equipment and facilities. We may take action to protect our facilities and equipment. We may substitute, change, or rearrange any Equipment or facility at any time. We may limit or allocate use of existing facilities, when necessary, due to a lack of facilities or a cause beyond our reasonable control.

 

16. Privacy and Customer Proprietary Network Information. You authorize us to monitor and record communications, from you to us, regarding your account or the Services, for purposes of quality assurance. For online orders, we may implement reasonable procedures, including, but not limited to, validating information provided by you or restricting the amount of Services purchases online. We reserve the right to cancel or reject online orders at any time for security or privacy reasons.

To provide Services to you, we maintain certain customer proprietary network information (“CPNI”). CPNI includes information that relates to the quantity, technical configuration, type, destination, location, and amount of use of any telecommunications Service we provide to you, and which we obtain because of the carrier-customer relationship between us. CPNI also includes information contained in your bill. We may use and share your CPNI without your permission for the following purposes:

To protect our rights or property, or those of other customers or carriers, from fraudulent, abusive, or unlawful use of or subscription to the Services you get from us;

To initiate, render, bill, and collect for your Services;

To provide information telemarketing, referral, or administrative services to you, when you call us, if you give us permission to do so;

To provide call location information regarding the user of a wireless mobile Service to certain other parties in an emergency situation;

To provide information requested by law enforcement or a third-party pursuant to a subpoena or other method of requesting information. We will not give you notice of any subpoena or court or administrative orders related to your account, IP address, contact information, or use of Services unless required to do so by law.

If you do not want us to provide your information to other ClearSource entities, please notify us by calling 888-824-2484 and asking for the Customer Liaison Officer.

When you view your account information or shop for Services online, you agree that we may display your CPNI online, after proper verification by you, to fill orders or allow you to make account changes.

17. Theft and Fraud. You agree to keep all passwords, Member ID’s, IP addresses, and computer names confidential. If your Services are lost, stolen, or fraudulently used, then you are responsible for all usage incurred before we receive notice from you of such loss or theft. If we choose to pursue investigation or prosecution of the loss or theft, you agree to cooperate in the investigation of fraud or theft, and to provide us with such information and documentation as we may request (including affidavits and police reports).

 

18. LIMITATION OF LIABILITY. FOR PURPOSES OF THIS SECTION AND THE DISCLAIMER OF WARRANTIES AND EMERGENCY/CRITICAL LINES SECTIONS, “OUR” OR “WE” INCLUDES CLEARSOURCE’S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, VENDORS, AND ANY ENTITY ON WHOSE BEHALF THE COMPANY RESELLS SERVICES. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR: ANY ACCIDENT OR INJURY CAUSED BY SERVICES; ANY DAMAGE OR LOSS RESULTING FROM THE INSTALLATION, MAINTENANCE, OR REMOVAL OF THE SERVICES; ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (SUCH AS LOST PROFITS, LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, AND LOSS OF BUSINESS DATA); ANY PUNITIVE OR EXEMPLARY DAMAGES; THE COST OF ALTERNATIVE SERVICE; OR FOR ANY SERVICE INTERRUPTIONS, DELAY, OR FAILURE TO PERFORM UNDER THIS AGREEMENT DUE TO CAUSES BEYOND OUR REASONABLE CONTROL. SUCH CAUSES INCLUDE, BUT ARE NOT LIMITED TO, STRIKES, LOCKOUTS, OTHER LABOR UNREST, NATURAL DISASTERS, ACTS OF GOD, CABLE CUTS, OR COMMON CARRIER DELAYS. YOU AGREE THAT THE PRICING OF SERVICES REFLECTS THE INTENT OF BOTH YOU AND US TO LIMIT OUR LIABILITY AS PROVIDED HEREIN.

 

19. DATA SERVICES. YOU ACKNOWLEDGE THAT THE INTERNET IS A VOLATILE ENVIRONMENT AND WE ARE NOT LIABLE FOR CONFIDENTIAL INFORMATION STORED ON OR TRAVERSING OUR NETWORK. YOU MUST TAKE ALL APPROPRIATE PRECAUTIONS TO SECURE CONFIDENTIAL INFORMATION, INCLUDING ENCRYPTING, IF YOU DEEM NECESSARY.

 

20. DISCLAIMER OF WARRANTIES. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: WARRANTIES OF TITLE OR NON-INFRINGEMENT; IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; WARRANTY ARISING BY COURSE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE; ANY WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; OR ANY WARRANTY REGARDING THE QUALITY, CONTENT, ACCURACY, OR VALIDITY OF THE INFORMATION OR DATA RESIDING ON, PASSING THROUGH, OR OVER THE NETWORK. ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, BROADBAND SPEEDS, TRANSMISSION QUALITY, NETWORK SECURITY OR RELIABILITY, AND ACCURACY OF ANY DIRECTORY LISTINGS ARE NOT GUARANTEED. NO ORAL OR WRITTEN ADVICE OR INFORMATION BY COMPANY’S EMPLOYEES, AGENTS, OR CONTRACTORS SHALL CREATE A WARRANTY, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION. CLEARSOURCE DOES NOT GUARANTEE YOUR SERVICE CAN OR WILL BE INSTALLED BY A PARTICULAR DATE. ANY INSTALLATION DATE PROVIDED IS ONLY AN ESTIMATE.

 

21. Indemnification. You agree to indemnify and hold ClearSource and its subsidiaries, affiliates, officers, agents, co-branders, licensors or other partners, and employees harmless from any claim or demand, including those for reasonable attorneys’ fees or those made by any third-party due to or arising out of: content you submit; post; transmit; or otherwise make available through the Service, your use of the Service, your connection to the Service, your violation of this Agreement, including, without limitation, the Acceptable Use Policy, or your violation of any rights of another.

You acknowledge that you are responsible for all use of the Service, by your account (including use by subaccounts), and that this Agreement (including, without limitation, the Acceptable Use Policy and Privacy Policies, as amended from time to time) applies to any and all usage of your account. You agree to abide by these terms, and you agree to defend, hold harmless, and indemnify ClearSource from and against any and all claims stemming from usage of this account and any subaccounts, whether or not such usage is expressly authorized by you.

 

22. Emergency/Critical Lines. CUSTOMER ACKNOWLEDGES THAT CERTAIN SERVICES MAY NOT PROVIDE ACCESS TO 911, OR TRANSMIT THE LOCATION OR EXTENSION, IF CUSTOMER ATTEMPTS TO ACCESS 911 IN AN EMERGENCY. Examples include voice over Internet protocol (VoIP). Additionally, VoIP can cease operating during a power outage, you should have a basic business or copper line for elevator, alarm, E911, and other critical functions. By proceeding with use of Services, you assume all responsibility and risk of harm, loss, or damage in the event that 911 access fails, is not possible, or does not provide the address, correct address, extension, or other information to emergency authorities.

 

23. Changes to these Terms and Conditions. We may change these Terms, including any change in any charge or fee, and the imposition of a new charge or fee, at any time, if we give you notice of the change. If we make a change to these Terms and Conditions that is material, and you do not wish to accept such material change, then you may terminate the affected Service by giving us 30-days’ notice, in which case you will not be subject to an early cancellation fee. You will, however, still be responsible for all charges for Services provided before you terminated your Agreement. A material change is ONLY a change that (a) terminates or substantially reduces the availability of a Service for you or (b) results in the increase of any charge by more than 10% of the monthly access charge for that Service. Material changes in your Service DO NOT include the increase in or imposition of (1) any charge required to be collected by any governmental authority (such as taxes or surcharges) or (2) any charge not prohibited by any governmental authority to recoup our expense incurred to comply with a governmental requirement.

As noted in Section 10, if ClearSource makes future changes to the arbitration provision in that Section (other than a change to the notice addresses), you may reject this change by sending ClearSource written notice within 30 days of the change to the Arbitration Notice Address. By rejecting the change, you agree that you will arbitrate any dispute between us in accordance with the language in Section 10, existing prior to the change.

 

24. Applicable Law. Your Agreement and our provision of Services to you are subject to (a) the laws of the state identified in the billing address that you have provided us and (b) any applicable federal laws, including, but not limited to, the Federal Arbitration Act, 9 U.S.C. § 1 et seq. In the event of an inconsistency between any governmental requirement and these Terms regarding the provision of a Service that is subject to the governmental requirement, the provisions of the governmental requirement will apply to the extent necessary to avoid the inconsistency.

 

25. Assignment. We may assign this Agreement to another entity without any advance consent from or notice to you. You may not assign this Agreement without our consent.

 

26. No Waiver; Severability. If we do not enforce any right or remedy available under this Agreement, that failure is not a waiver. If any part of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in force.

 

27. Product Bundles – Specific Terms and Conditions (alphabetically). Product Descriptions, generally, can be found at www.theclearsource.com. Some Services have certain system requirements. Please see the relevant product description for details.

Within 30 days of subscribing, you and ClearSource will agree on the specific features, functions, and minimum lines and groups to be provisioned. We will base charges on the agreed minimum lines. We will have the right to bill you at hourly rates for all programming, installation, or other labor associated with any adjustments to features and functions at initial installation and when changes are made later.

Fax to Email. You must have an email address to Send/Receive faxes via this Service, but email is not included with this Service. If you exceed your page limit per month, a minimum per page charge will apply. Overages are billed at $0.10/per page.

*Online Backup. ClearSource partners with a third-party vendor to provide this Service. As a result of this, you may be required to accept certain terms and conditions of the Service as required by the third-party. The purchase and use of Service requires you to be an active ClearSource, residential or small-business, High-Speed Internet customer. Service is intended for the backup of laptops or PCs, and does not support stand-alone or network servers. Minimum system requirements: Windows XP (SP3 or higher) or Windows Vista (SP1 or higher), and Internet Explorer 6.0 or later. This service is activated through the ClearSource Service Agent. ClearSource reserves the right to alter this Service in any way, including, but not limited to, changing the third-party provider of this Service or discontinuing this Service at any time.

*Personal Computer Offers. ClearSource resells personal computers that are manufactured and warranted by a third-party. All support and warranties are provided by the manufacturer.

*Voice Over Internet Protocol (VoIP)-Based Services. In order to access or use any VoIP Services, you must sign the 911 Disclosure form, which warns of and has you acknowledge certain 911 limitations for VoIP Services.