PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THEY IMPOSE LEGAL OBLIGATIONS ON YOU AND AFFECT YOUR LEGAL RIGHTS WITH RESPECT TO PEAK COMMUNICATIONS, INC., INCLUDING REQUIRING MANDATORY ARBITRATION OF DISPUTES, AND LIMITING PEAK COMMUNICATIONS, INC.’S LIABILITY. PEAK COMMUNICATIONS, INC. IS WILLING TO PROVIDE YOU SERVICES ONLY ON THE CONDITION THAT YOU AGREE TO THESE TERMS. THE TERM “WEB SITE”, AS USED BELOW, SHALL REFER TO PEAK COMMUNICATIONS, INC.’S INTERNET WEB SITE, THE HOME PAGE OF WHICH IS LOCATED AT HTTP://WWW.PEAKCOMM.COM.
This Agreement (together with all exhibits, appendices and other agreements, documents, rules and regulations, attached or linked hereto or referenced herein, as the same may be amended from time to time, including as posted on the Web Site, the “Agreement” or the “Customer Terms of Service”) is made by and between Peak Communications, Inc (“we,” “us,” “Company,” or “Peak”) and the user (“you,” “user” or “Customer”) of Peak’s local-toll, toll-free, calling card, intrastate and interstate telecommunications services, any related Equipment (as defined below), services, features and functionalities described on the Web Site (together with any related documentation, the “Service”). By subscribing to, activating and/or using the Service, you acknowledge that you have read and understand these terms and conditions and agree to be bound by them and by the terms of Peak’s applicable state and/or federal tariffs, rate schedules, and public disclosures, if any, which are incorporated into this Agreement by reference. You also represent that you are at least 18 years of age and are legally capable and authorized to enter this Agreement and become bound by its terms as an individual or as an authorized representative of an organization.
Peak Communications reserves the right to change rates, terms and conditions, without notice, at any time. Material changes to service rates and Plan options will be posted on the Peak website at www.peakcomm.com at least 10 days before such changes are implemented. Peak, at its option, may also notify you of such changes by mail, email, telephone or newspaper advertisement.
- Undertaking of the Company.
The Company’s services and facilities are furnished for communications originating at specified points within the United States under the terms of this Agreement. The Company installs, operates and maintains the communications services provided herein in accordance with the terms and conditions set forth in this Agreement. The Company will resell long distance services to customers within the United States. The Company may act as the Customer’s agent for ordering access connection facilities provided by other carriers or entities when authorized by Customer, to allow connection of a Customer’s location to the Company’s network. The Customer shall be responsible for all charges due to such service arrangement. The Company’s Services are available twenty-four hours per day, seven days per week.
- Limitations of Service.
All Service is offered subject to availability of the necessary facilities of underlying carriers, to the provisions of this Agreement, the Company’s tariffs, and to applicable law.
Except as indicated otherwise herein, the Company reserves the right to refuse or discontinue Service immediately to Customers without incurring liability:
- For insufficient or fraudulent billing information, invalid or unauthorized telephone numbers, credit card numbers or pre-arranged account code numbers;
- For any violation by a Customer related to the request for such Service of either the provisions of this Agreement, the Company’s tariffs, or any applicable laws, rules, regulations, or policies of any governmental authority;
- By reason of any order or decision of a court or other governmental authority which prohibits the Company from furnishing such Service;
- If the Company deems such refusal necessary to protect itself or third parties against fraud or to otherwise protect its personnel, agents, or Services;
- If such refusal or discontinuance is otherwise made necessary by conditions beyond the Company’s control.
The Company may discontinue service to a Customer for nonpayment of disputed charges or other violation of this Agreement or provisions of applicable law upon 10 days’ written notice to the Customer without incurring any liability for damages due to the loss of telephone service.
The Customer may not transfer or assign its rights or duties under this Agreement without the express written consent of the Company. All regulations and conditions contained in this Agreement shall apply to all such assignees or transferees that the Company has authorized.
- Liabilities of the Company.
Except as stated in this Subsection, the Company shall have no liability for damages of any kind arising out of or related to events, acts, rights, obligations, or privileges contemplated by this Agreement. This Agreement does not limit the liability of the Company for willful misconduct.
The liability of the Company to its Customer(s) resulting in whole or in part from, or arising in connection with, the furnishing of Service under this Agreement, including, but not limited to, mistakes, omissions, interruptions, delays, errors or other defects or misrepresentations, shall not exceed an amount equal to the lesser of $500 or the charge applicable under this Agreement and associated prices listed on the Website to the call or calls affected. No other liability in any event shall attach to the Company, including liability resulting from the unavailability of Service due to the failure or inoperability of any Customer-provided communications equipment.
The Company shall not be liable for any failure of performance hereunder due to causes beyond its control, including, but not limited to: Acts of God, fires, flood or other catastrophes; any law, order, regulation, directive, action or request of the United States Government, or any other government, including state and local governments having jurisdiction over the Company, or of any department, agency, commission, bureau, corporation or other instrumentality of any one or more of said governments, or of any civil or military authority; national emergencies, insurrections, riots, wars or labor difficulties.
The Company shall not be liable for any claim or loss, expense or damage arising out of the provision of Service (including direct, special or consequential damages, attorney fees or court costs), or for any interruption, delay, error, omission, or defect in any Service, facility or transmission provided under this Agreement, if caused by any person or entity other than the Company.
The Customer shall defend, indemnify and save harmless the Company from and against any suits, claims, losses or damage, including punitive damages, attorney fees and court costs, brought or caused by the Customer or third parties and arising out of any act or omission of the Customer in the course of any authorized use, unauthorized use or misuse of the Company’s Services, or the Customer’s equipment or facilities. Unauthorized use or misuse of the Customer’s equipment or facilities includes, but is not limited to, the unauthorized use or misuse of such equipment or facilities by the Customer’s agent(s) or other third parties. The Company does not warrant or guarantee that it can prevent such unauthorized use or misuse, and the Customer is responsible for controlling access to, and use of, its own equipment and facilities.
The Company shall not be liable for, and shall be fully indemnified and held harmless by the Customer against, any claim or loss, expense or damage (including indirect, special or consequential damages, attorney fees or court costs) for defamation, libel, slander, invasion of privacy, infringement of copyright or patent, unauthorized use of any trademark, tradename or service mark, unfair competition, interference with or misappropriation or violation of any contract, proprietary or creative right, or any other injury or harm to any person, property or entity arising out of the material, data, information, or other content revealed to, transmitted, or used by the Company under this Agreement; or for any act or omission of the Customer.
NEITHER PEAK NOR ANY OF THE PEAK INDEMNITIES WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR NETWORK, FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT, DAMAGE OR DESTRUCTION OF, ANY DATA, TEXT MESSAGES, PROGRAMS, OR OTHER INFORMATION OR PROPERTY THROUGH ACCIDENT, FRAUDULENT MEANS, DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF THE NEGLIGENCE OF PEAK OR ANY PEAK INDEMNITY. IN NO EVENT SHALL PEAK OR ANY OF THE PEAK INDEMNITEES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY LOST REVENUE, PROFITS, DATA OR USE, LOSS OF GOODWILL OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND OF ANY OTHER THIRD PARTIES BEYOND OUR CONTROL.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, YOUR SOLE AND EXCLUSIVE REMEDIES FOR DELAYS IN INSTALLATION, ACTIVATION, COMMENCEMENT, OR RESTORATION OF THE SERVICE, FOR MISTAKES, ACCIDENTS, OMISSIONS, MISTRANSLATIONS, DELIVERY FAILURES, INTERRUPTIONS, DELAYS, ERRORS OR DEFECTS IN TRANSMISSION OR THE PROVISION OF SERVICE HEREUNDER, OR FOR ANY OTHER CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE SHALL BE THE EXPRESS REMEDIES SET FORTH IN THIS AGREEMENT. IN THE EVENT ANY OF THE FOREGOING LIMITATIONS ARE FOUND TO BE UNENFORCEABLE, AND FOR ALL OTHER PURPOSES, IN NO EVENT SHALL OUR MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR THE SERVICE EXCEED THE AMOUNT ACTUALLY PAID BY YOU IN THE PREVIOUS TWELVE MONTHS FOR SERVICES PROVIDED HEREUNDER.
PEAK RESERVES THE RIGHT TO INVESTIGATE AND TAKE APPROPRIATE LEGAL ACTION AGAINST ANYONE WHO, IN PEAK’S SOLE DISCRETION VIOLATES THESE TERMS, INCLUDING, WITHOUT LIMITATION, REMOVING OFFENDING CONTENT FROM ITS SERVICES, SUSPENDING AND TERMINATING ACCESS OF SUCH VIOLATORS AND REPORTING YOU TO THE LAW ENFORCEMENT AUTHORITIES.
No agent or employee of any other carrier shall be deemed to be an agent or employee of the Company unless the Company or a duly authorized agent or employee of the Company so authorizes in writing.
By providing Services, Peak does not require or intend to access Customer data, including any confidential health related information of Customer’s clients, which may include group health plans, that constitutes Protected Health Information (“PHI”), as defined in 45 C.F. R. §164.501 under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA Rules”). To the extent that any exposure to PHI is incidental to Peak’s provision of Services and not meant for the purpose of managing the PHI or creating or manipulating the PHI, such exposure is allowable under 45 CFR 164.502(a)(1)(iii).
Customer-provided communications equipment at the Customer’s premises for use in connection with Service provided hereunder shall be so constructed, maintained and operated as to work satisfactorily with the Service and facilities of the Company, and/or the Company’s Underlying Carriers. Such Customer-provided equipment shall be in compliance with all applicable rules and regulations of the Federal Communications Commission, and requirements of the Communications Act of 1934, as amended.
The Company shall not be responsible for the installation, operation or maintenance of any Customer-provided communications equipment. Where such equipment is connected to Service furnished pursuant to this Agreement, the responsibility of the Company shall be limited to the furnishing of Services under this Agreement in the proper manner. Subject to this requirement, the Company shall not be responsible for:
- the through transmission of signals generated by Customer-provided equipment or for the quality of, or defects in, such transmission;
- the reception of signals by Customer-provided equipment; or
- network control signaling where such signaling is performed by Customer-provided network control signaling equipment.
- Payment for Service.
The Customer is responsible for the payment of all charges for Services furnished to the Customer and Customer’s agent(s) or patrons of the Customer, and for all calls placed by or through Customer’s equipment directly or via any remote access features. The Customer is also responsible for the payment of charges for calls originated at the Customer’s numbers which are not collect, third party, calling card or credit card calls.
The Company’s bills are due upon receipt. If full payment is not received within 30 days after the bill is issued, a late payment penalty on the unpaid balance shall be assessed at the rate of 1.5% per month or at the maximum permissible rate under applicable law, whichever is greater.
If a billing dispute arises, Customer may request, and the Company will provide, a review of the disputed amount. The undisputed portion of the relevant bill and all subsequent bills must continue to be paid on a timely basis.
Customers may refer billing disputes and any other complaints to the Company at (877) 851-7325.
The Customer will be liable to the Company for the cost of collection of all charges owed to the Company. Collection fees on unpaid charges will accrue at a rate of 1.5% per month. Collection fees on unpaid charges shall begin to accrue when the account is assigned to an outside collection agency. Such collection fees are separate and distinct from attorney’s fees and other costs incurred in collecting charges owed to the Company.
If the Company initiates legal proceedings to collect any amount due hereunder and the Company substantially prevails in such proceedings, then the Customer shall pay the reasonable attorneys’ fees and costs of the Company in prosecuting such proceedings and appeals therefrom. In the event that the Company suspends the provision of Services to the Customer pursuant to the provisions of this Agreement, the Company will re-connect the Customer to such Services only when all debts of the Customer to the Company, including accrued interest and other expenses and costs of collection, have been fully discharged to the satisfaction of the Company.
All applicable taxes, fees, charges, exactions, or the like which must be paid to any governmental authority – federal, state, local, municipal or otherwise – for the provision of telecommunications services and which, pursuant to the rules and regulations governing such applicable taxes, fees, charges, exactions or the like, may be charged directly to the Customer, will be separately stated on the Customer’s bill and charged to, and collected from, the Customer. It shall be the responsibility of the Customer to pay these taxes, and to accept the liability of any such unpaid taxes that may subsequently become applicable retroactively.
A return check charge of $25.00 will be assessed for checks returned for insufficient funds.
- Billing Entity Conditions.
When billing functions on behalf of the Company are performed by local exchange telephone companies, or others, the payment conditions and regulations of such companies apply, including any applicable interest and/or late payment charge conditions.
When customer is directly billed, payment is due within 30 days of your invoice date and will be subject to a late fee penalty of 1.5% of the total amount due or $5.00, whichever is lower.
- Liability of the Customer.
The Customer, and not the Company, shall be liable for damage to the Underlying Carrier’s facilities utilized to provide Service under this Agreement that are caused by the negligence or willful act of the Customer or its agent(s), or that result from the improper use of the Underlying Carrier’s facilities by the Customer or its agent(s). Nothing in the foregoing sentence shall be interpreted to hold one Customer liable for another Customer’s actions.
You agree to use the Service only for lawful purposes. Peak reserves the right to terminate your Service immediately and without advance notice if Peak, in its sole discretion, believes that you have violated the above restrictions, in which case you will be responsible for paying the Default Charges, as outlined in Section 13, below. You are liable for any and all use of the Service by any person making use of the Service and agree to indemnify, defend and hold harmless the Peak Indemnities from and against any and all claims, losses, damages, fines, penalties, costs, liabilities and expenses (including, without limitation, attorney fees and costs, including costs on appeal) incurred or suffered by any of such Peak Indemnities (collectively, “Indemnifiable Damages”) arising out of any such use that fails to comply with this Section. If Peak, in its sole discretion, believes that you have violated the above restrictions, Peak may forward the objectionable material, as well as your communications with Peak and your personally identifiable information to the appropriate authorities for investigation and prosecution.
You agree to notify Peak immediately, by calling the Peak customer service line, if you suspect or become aware at any time that Service is being stolen, tampered with or fraudulently used. You will be liable for all use of the Service using any access code, password or the like lost by or stolen from you and any and all stolen Service or fraudulent use of the Service until Peak is informed of the loss or theft.
- Use of Service.
The Service offered hereunder may be used to transmit communications of the Customer in a manner consistent with the terms of this Agreement, the Company’s tariffs, the policies and regulations of the Federal Communications Commission, and the requirements of the Communications Act of 1934, as amended.
The use of the Company’s services without payment for service and any attempt to avoid payment for service by fraudulent means or devices, schemes, false or invalid numbers, or false calling or credit cards is prohibited.
Some of Peak’s plans and other Services are offered on an “unlimited minutes” basis. All unlimited plans:
- Are subject to a Typical Usage Policy as defined by the monthly calling minutes used by at least 75% of Peak’s active residential or business customers. Customers exceeding this amount may be suspended or terminated without notice or, upon prior notice, may be converted to a metered calling plan that charges higher usage rates.
- May only be used for normal residential purposes, or normal business purposes, depending upon your plan, not including call centers.
- Are provided only for dialog between two individuals at any given time per extension.
- Exclude international calling, which is available for an additional fee.
- Are issued on a “single concurrent call basis”, meaning that in case of concurrent (simultaneous) calls only the first call will be unlimited and other concurrent calls will be assessed minutes. The term “Unlimited Minutes” applies only to calls that are terminated or initiated from a Peak access line defined as an “Unlimited Minutes Line” or “Unlimited Line”, and does not overlap with any calls to the same line.
Unlimited plans also may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses applicable to all Services):
- Trunking or forwarding your number to (an)other phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system that is billed on a per minute basis only, unless otherwise specifically agreed.
- Spamming or blasting (e.g., sending one hundred (100) or more bulk and/or junk voicemail or faxes simultaneously).
- Bulk call-in lines (e.g., customer support or sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.).
- Auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls).
Inbound toll free calls from a toll free number assigned to this account will be billed separately. Peak reserves the right to add to, modify or amend this Use Policy at any time for any reason at its sole discretion.
Customer represents that it is not a reseller of any telecommunication services provided under this Agreement as described in the Telecommunications Act of 1996, as amended, or applicable state law and acknowledges it is not entitled to any reseller discounts under any laws.
- Interruption of Service.
Without incurring liability, the Company may interrupt the provision of services at any time in order to perform tests and inspections to assure compliance with this Agreement, the Company’s tariffs, regulations and applicable law, and may continue such interruption until any items of non-compliance so identified are rectified. The Company will consider customer requests for credit for faulty or incorrect connections and for other problems experienced by customers in the use of the Company’s services on a case-by-case basis, and will provide reasonable credit in those cases in which it determines that the request is justified and the Company was at fault. All credit allowances shall be subject to the provisions of Section 3 above. It is your obligation to notify the Company immediately of any service problems for which a credit allowance is desired. Before giving such notice, you will ascertain that the problem experienced is not being caused by any action or omission by you within your control.
- Billing Arrangements.
The Customer will either be billed directly by the Company or its intermediary, or charges will be included in the Customer’s regular telephone bill pursuant to billing and collection agreements established by the Company or its intermediary with the applicable telephone company. Company may refuse to complete calls made by persons who receive regular telephone bills from a telephone company where for economic, technical and/or operational reasons the Company or its intermediary does not have an effective billing and collection agreement.
Customers may be provided the option of electronic billing.
Customer is responsible for all charges, including any third-party charges, incurred for all types of calls, authorized or unauthorized, placed by or through Customer’s equipment or software via any remote access feature, transferring capability, or call forwarding, even when such calls are placed fraudulently. Customer’s responsibility for these charges applies in all instances.
Customer bills are issued monthly. The Subscriber will receive its bill on or about the same day of each month. Months are presumed to have 30 days. The billing date is dependent on the billing cycle assigned to the Subscriber. Each bill contains monthly recurring charges billed in advance, usage charges billed in arrears, and the last date for timely payment. The Company may adjust its billing cycles upon notice to the customer, and may prorate the monthly recurring charges to equalize payments owed.
The Company may require an applicant or an existing customer to post a deposit as a guarantee for the payment of charges as a condition to receiving service or additional services. The Company reserves the right to review an applicant’s or a Customer’s credit history at any time to determine if a deposit is required.
Deposits will not be required by the Company based on race, sex, creed, national origin, marital status, age, number of dependents, condition of physical handicap, source of income, or geographical area of business.
The amount of the deposit shall not exceed the charges for two months of service based on the customer’s average bills during the previous twelve months, or the amount of the deposit may be estimated from past toll usage, customer estimated anticipated usage, or the Company’s network average toll usage considering the type and nature of the customer’s service. The Carrier will pay interest on all deposits eat the rate prescribed by the Commission.
Upon discontinuance or termination of the service, the Company will credit the deposit to the charges stated on the final bill. The balance, if any, will be returned to the customer within 21 days of rendition of such final bill.
After prompt and timely payment of all Charges for twelve consecutive billing periods, within 30 days, the Company will credit the deposit against charges stated on subsequent bills and refund any balance. Payment of a charge is satisfactory if received prior to the date that the charge becomes delinquent provided that it is not returned for insufficient funds or closed account. The Company may withhold a refund of a deposit pending the resolution of a dispute with respect to charges secured by such deposit.
- Advanced Payments.
For Customers whom the Company feels an advance payment is necessary, the Company reserves the right to collect an amount not to exceed one (1) month’s estimated charges as an advance payment for services to be held in trust or escrow. The advance payment will be applied against the next month’s charges and, if necessary, a new advance payment will be collected for the following month.
We reserve the right, in our sole discretion, to modify, suspend, or terminate the Service without notice for any reason, including without limitation, for your failure to pay any sum due hereunder, for suspected fraud or other activity, for your termination of the Service prior to the end of the then current Term, and/or for any other breach of this Agreement (each, a “Default”). We reserve the right to determine, in our sole discretion, what constitutes a Default and you agree that our determination is final and binding on you. In the event of a Default, you shall pay Peak all Default Charges within fifteen (15) calendar days of your receipt of a bill for such charges, and shall reimburse Peak for all attorney, court, collection and other fees and costs incurred by Peak in the enforcement of its rights hereunder. Notwithstanding the foregoing, you may switch to a higher cost plan at any time without being in Default. In the event you make such a switch during a Term, you immediately will be billed a prorated amount of the difference between your previous monthly or annual plan fee and that associated with your new plan based on the amount of time left in the current Term.
Should you decide to cancel your all or part of your Service with Peak (Long Distance, Local Toll, Calling Card and Toll-Free number service), call our Customer Service Center at 877.851.7325 and request that your Peak Service be cancelled and you will no longer incur the monthly recurring charge (“MRC”) associated with the Plan. When you call us to cancel your plan, please be aware that you must then select another long-distance provider; if you do not, you will be charged a non-preferred rate by our underlying provider, CenturyLink, until you do. In addition, switching to another Long Distance/Local Toll provider will not automatically cancel the Calling Card and/or Toll Free number service portions of the plan, nor the MRC. Also, be aware that depending on when you call to cancel your Plan, due to billing cycles, you may be charged a MRC for the month in which you cancel service. If your Plan includes a minimum term, please note you will be billed a Default Charge equal to the total of the MRCs for the remaining months in the term should you terminate your service prior to the end of the minimum term. Peak Communications reserves the right to block or cancel your service without notice, and for any reason, at any time.
- Timing of Calls and Rates for Calls.
The chargeable time for a call is determined by the duration of the call. Chargeable time begins when connection is established between the calling station and the called station. When the called party picks up is determined by hardware answer supervision, in which the local telephone company sends a signal to the switch or the software utilizing digital format or audio tone detection. In any case, an unanswered call will not be billed. Chargeable time ends when the calling station hangs up or otherwise terminates the call. If the called station hangs up or otherwise terminates the call but the calling station does not, chargeable time ends when the connection is released either by automatic timing equipment in the telecommunications network or by the Underlying Carrier’s operator.
Unless otherwise specified in this Agreement or the Website, the minimum call duration for billing purposes is 2 minutes for a connected call. Calls beyond 2 minutes are billed in 1 minute increments. If the computed charge for a call or for any taxes and/or surcharges, includes a fraction of a cent, the fraction will be rounded up to the nearest whole cent. You may be charged for dialing an International phone number regardless of whether the called party answers the call. Higher toll charges may apply to calls made to International mobile numbers, information services or premium rate telephone numbers. Peak reserves the right to prevent calls to certain international destinations.
Rates for Peak’s services can be found here http://peakcomm.com/index.php/services/ or can be mailed to you, upon request. Peak Communications reserves the right to change rates, terms and conditions, without notice, at any time. Material changes to service rates and Plan options will be posted on the Peak website at www.peakcomm.com at least 10 days before such changes are implemented. Peak, at its option, may also notify you of such changes by mail, email, telephone or newspaper advertisement.
The listed rates do not include additional service fees. Such fees include:
Bill Statement Fee $1.99 Paper Bill Fee $1.99 Carrier Cost Recovery Fee $0.99
All taxes and governmental fees, such as federal and state Universal Service charges will be assessed separately.
- Entire Agreement.
This Agreement constitutes the entire agreement between you and Peak with respect to the subject matter hereof and expressly supersedes and replaces any prior or contemporaneous agreements, written or oral, relating to the Service. Without limiting the generality of the foregoing, the terms and conditions of this Agreement are in lieu of and replace any and all terms and conditions set forth in any documents that may be issued by you, such as, but not limited to, purchase orders. ANY OTHER TERMS OR CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY YOU AT ANY TIME (INCLUDING ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS) ARE HEREBY OBJECTED TO BY PEAK AND SHALL NOT BE BINDING IN ANY WAY ON PEAK.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, you shall not assign, delegate, or transfer any of your rights or obligations hereunder without the prior written consent of Peak.
- Waiver and Severability.
Peak’s failure at any time to require your performance of any provision of this Agreement shall in no way affect our right at a later time to enforce the same. In addition, no waiver by Peak of a breach of any provision of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of such breach of any other term of this Agreement. In any case, no act or omission by Peak shall be construed as a waiver of any provision of this Agreement unless it is confirmed in a writing signed by an authorized officer of Peak. If any part of any provision of this Agreement shall be invalid or unenforceable under applicable law or conflict with any law, such provision shall be restated to reflect the original intentions of the parties in accordance with applicable law or, if such restatement is not possible, severed from the Agreement. In any case, the remaining parts of such provision and/or the remaining provisions of this Agreement shall remain in full force and effect.
- No Third-Party Beneficiaries.
This Agreement is for the benefit of the parties hereto and is not intended to confer any rights or benefits on any third party. There are no third-party beneficiaries as to this Agreement or any part or specific provision of this Agreement.
Any provision of this Agreement that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this Agreement or the Service.
- Force Majeure.
Without limiting the generality of any of the other limitations contained in this Agreement, Peak shall not be liable for any delay or failure 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 causes beyond Peak’s control.
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