k) any act or omission of any third party or independent contractor that offers
products or services in conjunction with or through the Services; or
l) your negligent or intentional act or omission.
NO CONSEQUENTIAL OR OTHER DAMAGES. UNDER NO CIRCUMSTANCES ARE WE
LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF OR IN
CONNECTION WITH PROVIDING OR FAILING TO PROVIDE SERVICES, PHONES
OR OTHER EQUIPMENT USED IN CONNECTION WITH THE SERVICES,
INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS, OR
COST OF REPLACEMENT PRODUCTS AND SERVICES. THIS SECTION SURVIVES
TERMINATION OF THIS AGREEMENT.
Indemnification. You indemnify and defend us, our partners, directors, officers,
employees and agents from and against any claim, action, damage, liability and
expense arising out of or in connection with: (1) your acts or omissions that occur
in connection with your use of the Services or equipment used in connection with
the Services, and (2) any communications you make or receive using the Services.
This indemnification extends to and includes any attorney’s fees and costs incurred
by us arising from any actions or claims to which this indemnification applies, or
from the contesting of the applicability of this provision. This section survives
termination of this Agreement.
MANDATORY ARBITRATION OF DISPUTES. ANY CLAIM, CONTROVERSY OR
DISPUTE OF ANY KIND BETWEEN THE CUSTOMER AND THE COMPANY AND/OR
ANY OF ITS EMPLOYEES, AGENTS, AFFILIATES OR OTHER REPRESENTATIVES,
WHETHER SOUNDING IN CONTRACT, STATUTE, OR TORT, INCLUDING FRAUD,
MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR ANY OTHER LEGAL OR
EQUITABLE THEORY AND REGARDLESS OF THE DATE OF ACCRUAL OF SUCH
CLAIM, CONTROVERSY OR DISPUTE SHALL BE RESOLVED BY FINAL AND
BINDING ARBITRATION AS PRESCRIBED IN THIS SECTION. THE FEDERAL
ARBITRATION ACT, NOT STATE LAW, GOVERNS THE QUESTION OF WHETHER A
CLAIM IS SUBJECT TO ARBITRATION. HOWEVER, NOTHING CONTAINED IN
THIS ARBITRATION PROVISION SHALL PRECLUDE THE CUSTOMER FROM
RESOLVING ANY CLAIM, CONTROVERSY OR DISPUTE IN SMALL CLAIMS COURT
HE OR SHE OTHERWISE WOULD HAVE THE RIGHT TO PURSUE.
A single arbitrator engaged in the practice of law will conduct the arbitration. The
arbitrator will be selected according to the rules of CPR or, alternatively, may be
selected by agreement of the parties, who shall cooperate in good faith to select the
arbitrator. The arbitration will be conducted by, and under the then-applicable
rules of the CPR Institute for Dispute Resolution. All expedited procedures
prescribed by the applicable rules will apply. Any required hearing fees and costs
shall be paid by the parties as required by the applicable rules or as required by
applicable law, but the arbitrator shall have the power to apportion such costs as
the arbitrator deems appropriate.The arbitrator’s decision and award will be final
and binding (subject to the appeal clause below), and judgment on the award
rendered by the arbitrator may be entered in any court with jurisdiction.
Section 4B: Terms & Conditions / Warranty 261
