APACHE NETWORKS TERMS OF SERVICE
These Terms of Service constitute the agreement ("Agreement") between Apache Networks ("we," "us" or "Apache Networks") and the user ("you," "user" or "Customer") of Apache Networks Residential communications services or Business communications services and any related products or services ("Service"). This Agreement governs both the Service and any devices, such as an IP phone, Analog Telephone Adapter or any other IP connection device, ("Device" or "Equipment") used in conjunction with the Service. By activating the Service, you acknowledge that you have read and understood, and you agree, to the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms. If you have purchased Equipment from a retail store or dealer that sells equipment compatible with the Service, you will be deemed a "Retail Customer" and will be governed by certain Retail Customer terms and conditions as set forth herein.
Service is offered on a monthly or yearly basis for a term which begins on the date that Apache Networks activates your Service and ends on the day before the same date in the following month/year. Subsequent terms of this Agreement automatically renew on a monthly basis unless you give Apache Networks written notice of non-renewal at least fourteen (14) days before the end of the monthly term in which the notice is given. If you are purchasing the Service on full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, plus a termination fee, all of which immediately become due and payable. If you are purchasing the Service for a full yearly term, meaning that if you attempt to terminate Service prior to the end of the yearly term, you will be responsible for the full month's charges to the end of the then-current month, including without limitation unbilled charges, plus a termination fee, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
1.2.1 Residential Use of Service and Device
If you have subscribed to Apache Networks Residential services, the Service and Device are provided to you as a residential user, for your personal, residential, non-business and non-professional use. This means that you are not using them for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, telecommuting, telemarketing (including without limitation charitable or political solicitation or polling), autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal residential usage patterns. This also means that you are not to resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without express written permission from Apache Networks in advance. You agree that your use of the Service and/or Device, or the use of the Service and/or Device provided to you by any other person for any commercial or governmental purpose will obligate you to pay Apache Networks higher rates for commercial service on account of all periods, including past periods, in which you use, or used, the Service for commercial or governmental purposes. Apache Networks reserves the right to immediately terminate or modify the Service, if Apache Networks determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use.
1.2.2 A Basic Business Use of Service and Device - Prohibition on Resale
If you have subscribed to Apache Networks services, the Service and Device are provided to you as a business user. This means that you are not to resell or transfer the service or device to any other person for any purpose, without express written permission from Apache Networks in advance. You agree that the Apache Networks Business Plans do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting. Apache Networks reserves the right to immediately terminate or modify the Service, if Apache Networks determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities.
1.2.3 Business Enhanced Use of Service - Prohibition on Resale
If you have subscribed to Apache Networks Business Enhanced services, the Service is provided to you as a business user. This means that you are not to resell or transfer the service or device to any other person for any purpose, without express written permission from Apache Networks in advance. Apache Networks reserves the right to immediately terminate or modify the Service, if Apache Networks determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities. Sections 1.8, 4.6, 4.7.1 and 5.5 of this agreement do not apply to Business Enhanced customers.
1.3 Lawful Use of Service and Device
1.3.1 Prohibited Uses
You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in Apache Networks sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. Apache Networks reserves the right to terminate your service immediately and without advance notice if Apache Networks, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a termination fee, all of which immediately become due and payable. You are liable for any and all use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless Apache Networks against any and all liability for any such use. If Apache Networks, in its sole discretion believes that you have violated the above restrictions, Apache Networks may forward the objectionable material, as well as your communications with Apache Networks and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
1.3.2 Use of Service and Device by Customers outside the United States
While we encourage use of the Service within the United States to other countries, Apache Networks does not presently offer or support the Service to customers located in other countries. If you remove the Device to a country other than the United States and use the Service from there, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all such use of the Service and/or Device by yourself or any person making use of the Service or Device provided to you and agree to indemnify and hold harmless Apache Networks against any and all liability for any such use. Should the removal from the United States of the Device violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless Apache Networks against any and all liability for such violation. Apache Networks reserves the right to terminate your Service immediately and without advance notice if it determines that you are using it outside the United States.
1.4 Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by Apache Networks
You acknowledge and understand that the Service does not function in the event of power failure. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which is not provided by Apache Networks) and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider ("ISP") and/or broadband provider, the Service will not function, but that you will continue to be billed for the Service unless and until you or Apache Networks terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP outage, the Service will not function until power is restored or the ISP outage is cured. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or ISP outages will also prevent dialing to emergency service numbers including the 911 calling feature. Should Apache Networks suspend or terminate your Service, the Service will not function until such time as Apache Networks restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement).
1.5 Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software
The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on Apache Networks website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of Apache Networks are and shall remain the exclusive property of Apache Networks and nothing in this Agreement shall grant you the right or license to use any of such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that Apache Networks will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. If you decide to use the Service through an interface device not provided by Apache Networks, which Apache Networks reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless Apache Networks against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
1.6 Tampering with the Device or Service
You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from Apache Networks in each instance which Apache Networks may deny in its sole discretion. Apache Networks reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a termination fee, all of which immediately become due and payable. You agree not to hack or disrupt the service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so.
1.7 Theft of Service
You agree to notify Apache Networks immediately, in writing or by calling the Apache Networks customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as Apache Networks receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service.
1.8 Return of Device
The Device may be returned to Apache Networks within fourteen (14) days of the termination of Service to receive a credit for the $80.00 termination fee, if applicable (refer to section 4.6 of this document regarding termination fees), provided: (i) you have retained, and return along with the Device, proof of purchase and original packaging; (ii) contents are undamaged and in original condition, reasonable wear and tear excluded; and (iii) all parts, accessories, documentation and packaging materials are returned. If you receive cartons and/or Devices that are visibly damaged, you must note the damage on the carrier's freight bill or receipt and keep a copy. In such event, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier.
1.9 Number Transfer on Service Termination
Upon termination of the Service, Apache Networks may, at its sole discretion, release a telephone number that was ported in from a previous service provider to Apache Networks by you and used in connection with your Service provisioned by Apache Networks to your new service provider, if such new service provider is able to accept such number, and provided that (i) your account has been terminated; (ii) your Apache Networks account is completely current including payment for all charges and termination fees; and (iii) you request the transfer upon terminating your account.
1.10 Service Distinctions
You acknowledge and understand that the Service is not a telephone service. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone service and the Service offering provided by Apache Networks. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal, State or Provincial telecommunications regulatory agencies.
1.11 Ownership and Risk of Loss
You shall be deemed the owner of the Device, and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned by you pursuant to Section 1.8 and has been received by Apache Networks.
1.12 0+ Calling; 00 Dialing
Apache Networks Service does support 0+ and 00 calling (including without limitation collect, third party billing or calling card calling). Apache Networks Service does support 311, (other than 911, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
2. EMERGENCY SERVICES- 911 DIALING
2.1 Availability of Traditional 911 or E911 Dialing Service
Apache Networks provides E911 services on VoIP lines. However if you need to move your ATA the number will always be tied to the physical address provided by you, the customer, at the time of the installation. E911 information can be updated if you move to another location, but can take up to two (2) weeks before it is updated in the E911 system.
2.11 Alternative 911 Arrangements
You should always have an alternative means of accessing traditional E911 services.
3. CHANGES TO THIS AGREEMENT
Apache Networks may change the terms and conditions of this Agreement from time to time. Such changes will become binding on Customer, on the date posted and no further notice by Apache Networks is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service, including without limitation any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including without limitation any written terms enclosed within the packaging of the Device.
4. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION
You must give us a valid application form when the Service is activated. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which Apache Networks decides to bill in arrears), including but not limited to: activation fees, monthly Service fees, international usage charges, advanced feature charges, equipment purchases, termination fees and shipping and handling charges. Any usage charges will be billed in increments that are rounded up to the nearest minute.
4.2 Billing Disputes
You must notify Apache Networks in writing if you dispute any Apache Networks charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:
PO Box 209
Mescalero, NM 88340
Apache Networks accepts payments by credit card, cash, or personal check
4.4 Termination/Discontinuance of Service
Apache Networks reserves the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in its sole discretion. If Apache Networks discontinues providing the Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service or Device (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of Apache Networks or of a third party provider to which Apache Networks is subject), you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus the termination fee set forth in Section 4.6, all of which immediately become due and payable.
You are responsible for, and shall pay, any applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide Apache Networks with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date Apache Networks receives such certificate.
4.6 Termination Fee
Customer will be charged a termination fee of $80.00 per voice line upon termination of Service for any reason or for convenience by Customer. The termination fee becomes due and payable immediately upon termination and will billed directly to Customer's. If Customer has multiple lines, Customer will be charged a termination fee of $75.00 per line for each line disconnected. To receive a credit for the termination fee, Customer must return the Device(s) undamaged and in original condition within fourteen (14) days of termination as set forth in Section 1.8. Apache Networks will not credit Customer if the Device(s) is damaged or not in its original condition as received by the Customer or if Customer has otherwise failed to comply fully with the requirements of Section 1.8. In the event Customer disconnects multiple lines, Apache Networks will issue Customer a credit for all termination fees upon receipt of all Devices (including without limitation Multimedia Terminal Adapters) in accordance with this Section and Section 1.8.
4.7 Money Back Guarantee; Limitations and Conditions
4.7.1Apache Networks offers a 14-day Money Back Guarantee (the "Warranty Period"), applicable only to Users first-ordered line per account, not to additional or secondary lines. Under terms of this Money Back Guarantee, Apache Networks refunds the activation fee, first month of service, shipping charges and termination fee after Apache Networks receives the returned equipment, and provided the terms described below are satisfied. Federal excise taxes and any other applicable taxes cannot be refunded. Apache Networks reserves the right to terminate or revoke this Money Back Guarantee at any time, without prior notice.
In order to be entitled to this Money Back Guarantee, User (i) must cancel service within the number of days in the Warranty Period after the account activation; (ii) must return all Devices within 14 days after cancellation pursuant to Sections 1.8 and 4.6; and (iii) must not have exceeded 500 minutes of usage. User remains responsible for any charges for domestic usage in excess of the amount included within the Plan to which User subscribes, international usage (including the charges described in Section 4.9), payphone calls to Apache Networks toll free numbers and directory assistance. THIS MONEY BACK GUARANTEE DOES NOT APPLY TO ACCOUNTS EXCEEDING 250 MINUTES OF USAGE AND SUCH ACCOUNTS ARE NOT ELIGIBLE FOR REFUND OF ANY OF THE CHARGES DESCRIBED HEREIN.
In addition to the requirements set forth in Section 1.8, all returned Devices must be in the original packaging. All components, manuals and registration card(s) must be included. THE MONEY BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO MEET ALL SUCH REQUIREMENTS.
4.7.2 Business Enhanced Money Back Guarantee
Apache Networks offers Business Enhanced subscribers a 14 day Money Back Guarantee from date of activation of service (such 14 day period, the "Warranty Period"), applicable only to User first-ordered service package, not to additional or secondary orders. Under terms of this Money Back Guarantee, Apache Networks refunds the activation fee and first month of service, provided the terms described below are satisfied. Federal excise taxes and any other applicable taxes cannot be refunded. Apache Networks reserves the right to terminate or revoke this Money Back Guarantee at any time, without prior notice.
In order to be entitled to this Money Back Guarantee, User (i) must cancel service within the 14 day Warranty Period after the account activation; (ii) must not have exceeded 500 minutes of usage. User remains responsible for any charges for domestic usage in excess of the amount included within the Plan to which User subscribes, international usage (including the charges described in Section 4.9), payphone calls to Apache Networks toll free numbers and directory assistance. THIS MONEY BACK GUARANTEE DOES NOT APPLY TO ACCOUNTS EXCEEDING 500 MINUTES OF USAGE AND SUCH ACCOUNTS ARE NOT ELIGIBLE FOR REFUND OF ANY OF THE CHARGES DESCRIBED HEREIN.
4.8 Charges for Directory Calls
Apache Networks will charge .60 cents for each call made to Apache Networks directory assistance.
5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of Liability
Apache Networks shall not be liable for any delay or failure to provide the Service, including 911 dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
1.) Act or omission of an underlying carrier, service provider, vendor or other third party;
2.) Equipment, network or facility failure;
3.) Equipment, network or facility upgrade or modification;
4.) Force major events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
5.) Equipment, network or facility shortage;
6.) Equipment or facility relocation;
7.) Service, equipment, network or facility failure caused by the loss of power to Customer;
8) Outage of Customer ISP or broadband service provider;
9) Act or omission of Customer or any person using the Service or Device provided to Customer; or
10) any other cause that is beyond Apache Networks control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including without limitation 911 dialing) to be connected or completed, , or degradation of voice quality.
Apache Networks aggregate liability for (i) any failure or mistake; (ii) any claim with respect to Apache Networks performance or nonperformance hereunder or (iii) any Apache Networks act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period.
5.2 Disclaimer of Damages
IN NO EVENT SHALL APACHE NETWORKS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT APACHE NETWORKS WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
Customer agrees to defend, indemnify, and hold harmless Apache Networks, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service, relating to this Agreement, the Services, including 911dialing, or the Device. This paragraph shall survive termination of this Agreement.
5.4 No Warranties on Service
APACHE NETWORKS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER¿S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, APACHE NETWORKS DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER APACHE NETWORKS NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO APACHE NETWORKS OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF APACHE NETWORKS OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY APACHE NETWORKS OR APACHE NETWORKS AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
5.5 No Warranties, or Limited Warranties, for Devices
If Customer received the Device new from Apache Networks and the Device included a limited warranty at the time of receipt, Customer must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If Customer's Device did not include a limited warranty from Apache Networks at the time of receipt, Customer agrees that it accepts its Device "as is" and that Customer is not entitled to replacement or refund in the event of any defect, Apache Networks will provide a limited warranty on the Device as to manufacturing defects only for a period of one (1) year from the date of purchase. This Retail Customer limited warranty shall not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, shall not apply to any defect caused by damage in transit, retailer handling or Retail Customer handling. Retail Customers sole remedy for any breach of this Retail Customer limited warranty is to obtain a repaired or replacement Device, by following the return procedures set forth in Section 1.8. Retail Customer must include with the returned Device a letter stating that the Retail Customer is returning the Device for warranty repair or replacement and stating the nature of the defect. This Retail Customer limited warranty shall also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Retail Customer than that contained herein. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, APACHE NETWORKS MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE, DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET CUSTOMER¿S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. DEVICE WARRANTIES DO NOT APPLY TO BUSINESS PLUS CUSTOMERS.
5.6 No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. Apache Networks reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if Apache Networks determines that such use or content does not conform with the requirements set forth in this Agreement or interferes with Apache Network’s ability to provide Services to you or others or receives notice from anyone that your or Users' use or Content may violate any laws or regulations. Apache Networks actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold Apache Networks against any and all liability arising from the content transmitted by or to you or to Users using the Services. A "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
6. GOVERNING LAW / RESOLUTION OF DISPUTES
6.1 Mandatory Arbitration
Any dispute or claim between Customer and Apache Networks arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.2 Governing Law
The Agreement and the relationship between you and Apache Networks shall be governed by the laws of the State of New Mexico. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.1, you and Apache Networks agree to submit to the personal and exclusive jurisdiction of the courts located within the state of New Mexico and waive any objection as to venue or inconvenient forum. The failure of Apache Networks to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6.3 Entire Agreement
This Agreement and the rates for Services constitute the entire agreement between you and Apache Networks and govern your use of the Service, superseding any prior agreements between you and Apache Networks and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No amendment to this Agreement shall be binding upon Apache Networks unless and until posted in accordance with Section 3 hereof.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
Apache Networks Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Apache Networks is not liable for any lack of privacy which may be experienced with regard to the Service.
Last Updated: May 24, 2005