This agreement ("Agreement") is between Clarity Communication Advisors, Inc. ("Clarity"), a Michigan Corporation, whose address is 27600 Northwestern Highway, Suite 250, Southfield, Michigan 48034 and the purchaser ("Customer") of any Clarity services or products ("Services"). By purchasing the Services, CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
1. TERM. The term of this Agreement ("Term") and Services ordered pursuant to this Agreement, begins on the date that Customer purchases Services and, unless terminated earlier as set forth herein, shall continue thereafter for the longer of 30 days or the Term as set forth in the Order. After the Term has expired, the Agreement will automatically renew for one month terms for each subsequent month. Unless noted as a "New Agreement" in the Order, additional Services purchased by Customer are co-terminus with the Term of Customers active Agreement with Clarity.
2. 911 SERVICE LIMITATIONS. CUSTOMER ACKNOWLEDGES THAT CLARITY'S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THE 911 DIALING STATEMENT, AND CUSTOMER AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER'S SERVICES, OF THE 911 LIMITATIONS DESCRIBED THEREIN.
3. METHOD OF COMMUNICATION. Clarity communicates with customers primarily via email. You agree that sending a message to your contact email address is our agreed upon means of providing notification. Your email account is used to communicate vital information about your services, billing, service outages, and enhancements or changes to your existing services. This information is time-sensitive in nature. It is required that you read any email sent to your account to avoid any potential interruptions in your service. Customer may find contact information at Clarity's web site at www.clarityvoice.com/contact, or Customer may contact Clarity by telephone at (800) 786-6160 or (248) 327-4390 or by U.S. Postal mail at: 27600 Northwestern Highway, Suite 250, Southfield, MI 48034.
4. CHARGES. Billing for recurring services shall commence upon the date service was activated ("Activation Date"). Billing for activation, equipment and other services listed in the "Today's Charge" column of the Order are due upon placement of Order. For recurring and usage charges, Clarity will invoice on the first calendar day of each month, in advance for recurring charges and in arrears for usage and any other non-recurring charges, except that the first billing statement will include the first billing period's pro-rated recurring charges in arrears. Customer shall pay for all Services and Products that Clarity furnishes to Customer at the applicable prices set forth in Customer's Order and the fee schedule ("Fee Schedule"). The Fee Schedule is viewable on the Clarity web site www.clarityvoice.com/fee_schedule.htm and has prices for Services not listed on Customer's Order. Customer agrees to pay for usage charges not specified in Customer's Order or this Agreement including without limitation international calls and directory assistance, whether fraudulent or not.
5. PAYMENT METHOD. Customer agrees to provide Clarity with a valid email address and valid electronic payment method (Visa, MasterCard, American Express, Discover or ACH bank draft). Customer authorizes Clarity to automatically bill any payment method Customer provides for charges. Customer is responsible to notify Clarity immediately of email address changes and/or payment method changes or expiration. Failure to comply may result in the immediate termination of Service and applicable Disconnect Fees. Clarity may charge a $10 fee for each declined credit or debit card transaction and a $35 fee for each declined ACH bank draft.
6. CANCELLATION. It is Customer's responsibility to notify Clarity of cancellation at least 3 business days prior to the start of the next calendar month to avoid Service charges for the next calendar month. CUSTOMER MUST CANCEL SERVICES BY SENDING AN EMAIL TO firstname.lastname@example.org. Clarity will provide Customer with an email confirming request to cancel Service. Failure to cancel Service in accordance with this Section will result in ongoing Service fees. Customer will not receive any refund or partial refund or credit for any charges already billed to Customer's account. Customer's Failure to pay, porting out of telephone number(s) does NOT constitute notification of Service cancellation. Cancellation of Service before the end of the Term may result in Disconnection Fees as set forth below.
7. CREDITS. Customer acknowledges and agrees that the Services are provided "as is, where-is. and credit allowances for interruption of the Services shall not be provided.
8. TAXES. Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by you and will be added to any amounts otherwise charged to you unless you provide Clarity with an appropriate exemption certificate. If any amounts paid for the Services are refunded by Clarity, applicable taxes may not be refundable.
9. REGULATORY FEE. A fee may be charged monthly to offset costs incurred by Clarity 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.
10. OVERDUE CHARGES. Payment is due upon the invoice date. Unless otherwise agreed, any amount not paid by the 16th day after the invoice date is overdue and subject to a late payment fee of $25 or 1.5% of the overdue amount, whichever is greater. Service to Customer may be suspended without notice if any undisputed charges are not paid within 30 days of invoice date. A reinstatement charge equal to one time the Total Monthly charges may be levied to reinstate suspended service. Customer will be responsible for any expenses (including attorney's fees and court costs) that Clarity incurs to collect overdue charges.
11. RATE CHANGES. Clarity may change the prices for the Services from time to time. Clarity may change prices, plans, taxes, or fees without any advance notice. Service prices will not be increased on Customers with remaining Term greater than 30 days, with the exception of tax or fee changes, international toll calling rates and Fee Schedule items not explicitly listed on Customer's Order.
12. DISPUTED CHARGES. Customer may dispute any part or all of an invoice if Customer provides written notice to Clarity within thirty (30) days from the date of an invoice. All undisputed portions of an invoice must be paid in a timely manner. Within ten (10) days receipt of a written notice of dispute, Clarity will use good faith efforts to determine the validity of a dispute and notify Customer of Clarity's final determination. Any amounts due as a result of Clarity's final determination will be due.
13. CREDIT LIMIT. All Service provided to Customer and covered by the Agreement shall at all times be subject to approval or review by Clarity. Clarity, in its sole discretion and judgment, may discontinue credit at any time without notice, require a deposit, or bill immediately for charges using any Payment Method Clarity has on file for Customer.
14. RIGHT TO TERMINATE SERVICE. Clarity may modify the terms of this Agreement or the Service at any time upon notice to you. In the event Clarity materially modifies the Agreement or the Services, Customer may terminate the Service within 30 days without Disconnect Fees. Customer's continued use of the Service after 30 days. notice from Clarity constitutes Customer's agreement to those modified terms. Clarity may terminate this Agreement and any Services at any time, upon 30 days. notice to Customer. Customer obligation to pay accrued charges and fees shall survive any termination of this Agreement.
15. PHONE NUMBERS. Clarity permits porting out of telephone numbers and directory listings of telephone numbers listed on the current invoice issued by Clarity to Customer, provided the Customer.s account is in good standing. Customer acknowledges that their voluntary transfer of ownership of ported in telephone numbers to another Clarity Customer is immediate and permanent. Customer acknowledges that in the event of any account termination or cancellation, ownership of all numbers associated with Customer account is released to Clarity.
16. ANCILLIARY SERVICES. List and publish and caller name identification (i.e., caller ID with name) Services provided by Clarity are based on availability of such Services from Clarity's underlying providers. Clarity does not guarantee that such Services are available for all numbers in all serving areas. Clarity submits Directory Listing updates as a courtesy to Customer without obligation or guarantee that Directory Listings will be published.
17. UNLIMITED USAGE PLAN. Unlimited voice services are provided solely for live dialog between two individuals. Unlimited voice services may not be used for conference calling, call forwarding, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, or other connections which do not consist of uninterrupted live dialog between two individuals. If Clarity finds that you are using an unlimited voice service offering for other than live dialog between two individuals, Clarity may, at its option, terminate your service or change your plan to one with metered usage. Clarity will provide notice that it intends to take any of the above actions. Notwithstanding the foregoing, you shall be entitled to use Clarity conference calling services such as three way calling and Clarity-provided conference calling bridges.
18. MONITORING. Clarity and its suppliers have no obligation to monitor the Services, but may do so and disclose information regarding use of the Services if Clarity or its supplies, in their sole discretion, believes it is commercially reasonable to do so, including to: (i) satisfy laws, regulations, or governmental or legal requests; (ii) operate the Services properly; or (iii) protect itself and its other users and customers. Clarity may immediately remove Customer's material or information from Clarity's services, in whole or in part, if Clarity, in its sole and absolute discretion, determines that such content infringes another party's property rights, is illegal or if Clarity determines such content violates Acceptable Use.
20. DISCONNECT FEES. Upon Termination of Services by Customer, in whole or part, Clarity may immediately charge Customer Disconnect Fees. Unless noted otherwise noted on Agreement, Disconnect Fees will be equal to the total Monthly Recurring Charges remaining in the Agreement Term.
21. EQUIPMENT WARRANTY. Unless otherwise specified, all equipment comes with a twelve (12) month limited manufacturer's warranty from the date of purchase. The terms of the limited warranty are included in the equipment packaging. Equipment purchased that does not have a manufacturer's warranty is provided "as is" and without warranty of any kind, including implied warranties of merchantability and fitness for a particular use. Customer must obtain authorization from Clarity before returning any equipment for any reason.
22. DISCLAIMER OF WARRANTY. Unless specifically noted otherwise, Clarity provides Services and any software and equipment hereunder on as "AS IS" basis, and Customer's use thereof is at its own risk. Clarity does not make and hereby disclaims, any and all express and implied warranties, including, but not limited to, warranties of merchantability, fitness of a particular purpose, non-infringement and title, any warranties arising from a course of dealing, usage or trade practice. Clarity does not warrant that Services will perform, will be uninterrupted, will be error-free or completely secure.
23. LIMITATION OF LIABILITY AND LIQUIDATED DAMAGES. IN NO EVENT SHALL CLARITY OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY PARTY FOR ANY DAMAGES RESULTING FROM LOSS OF BUSINESS OR PROFITS (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA), OR THE INTERRUPTION OR LOSS OF USE OF SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR INDIRECT OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT. CLARITY AND CUSTOMER AGREE THAT IF CLARITY SHOULD BE FOUND LIABLE FOR LOSS OR DAMAGE DUE FROM FAILURE OF CLARITY TO PERFORM ANY OF THE OBLIGATIONS HEREIN, CLARITY'S LIABILITY FOR DAMAGES SHALL BE LIMITED TO ONE MONTH OF CUSTOMER'S MONTHLY RECURRING SERVICE CHARGES AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, AND THIS LIABILITY SHALL BE EXCLUSIVE. THE PROVISIONS OF THIS SECTION SHALL APPLY IF LOSSES OR DAMAGES, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULT DIRECTLY OR INDIRECTLY TO PERSONS OR PROPERTY, FROM PERFORMANCE OR NON-PERFORMANCE OF THE OBLIGATIONS IMPOSED BY THIS CONTRACT, OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF CLARITY, ITS AGENTS, ASSIGNS OR EMPLOYEES.
24. INDEMNIFICATION. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS CLARITY, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS' FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF, OR IN ANY MANNER RELATED TO (A) CUSTOMERS USE OF THE SERVICES, (B) ANY OTHER PERSON'S USE OF ANY ACCOUNT CUSTOMER MAINTAINS, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY CUSTOMER, OR (C) CUSTOMER'S PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. CUSTOMER HEREBY AGREES TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, CUSTOMER SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF CLARITY OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES. THIS INDEMNIFICATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
25. SOFTWARE COPYRIGHT. Any software used by Clarity to provide the Service and any software provided to Customer in conjunction with providing the Service is protected by copyright law and international provisions. Customer may not copy the software or any portion of it.
26. FORCE MAJEURE. Clarity 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 Clarity as may occur in spite of Clarity's best efforts.
28. ELECTRONIC RECORDING. Customer accepts responsibility for compliance with federal and state statutes governing the use of electronic, mechanical or other device recordings. Clarity is not legally responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of recording services by Customer or other party whether legal or illegal.
29. CHOICE OF LAW AND BINDING ARBITRATION. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the law of the State of Michigan and the United States without regard to conflicts of law's provisions thereof. Any waivers or amendments shall be effective only if made in writing and signed by an executive officer of Clarity who is authorized to enter into such amendments. Binding arbitration shall be the sole and exclusive remedy for resolution of Disputes between the parties. Such Dispute shall be submitted for arbitration in Southfield, Michigan, under the rules of the American Arbitration Association ("AAA"). The arbitrator's decision will be final and entered into any court of competent jurisdiction. The prevailing party will be entitled to recover its attorney's fees and costs in connection with such arbitration. Should either party bring a Dispute in a forum other than AAA, the arbitrator may award the other party its reasonable costs and expenses, including attorneys' fees, incurred in staying or dismissing such proceedings or in otherwise enforcing compliance with this Dispute resolution provision. Customer understands that Customer would have had a right to litigate Disputes through a court, and the Customer has expressly and knowingly waived that right and agreed to resolve any Disputes through binding arbitration. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq. For the purposes of this section, the term "Dispute" means any dispute, controversy, or claim arising out of or relating to (i) this Agreement, its interpretation, or the breach, termination, applicability or validity thereof.
30. CONSENT TO ELECTRONIC SIGNATURES AND RECORDS. Clarity provides access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking .I Agree. or .I Accept. anywhere on a Clarity website: (a) You agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement; (b) You have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, and any policies and any amendments hereto or thereto; (c) You agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter; (d) You are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto; and, (e) You agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.