THESE TERMS AND CONDITIONS STATE IMPORTANT REQUIREMENTS REGARDING THE USE OF COMMPEAK SERVICE AND YOUR RELATIONSHIP WITH COMMPEAK. YOU SHOULD TAKE THE TIME TO READ THEM CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OURS.
This Agreement (including the General and Specific Terms set forth below) contains all of the terms and conditions between CommPeak Inc. (“we”, “us”, “our” or “CommPeak”) and you, and governs the use of the services offered at the CommPeak web site (the “Services”). You are deemed to have accepted this Agreement upon the earlier of: (a) your submission of an online order; (b) your accepting the Terms of Service electronically during registration; (c) your use of the Service (see Paragraph 3); If you do not agree to any of the terms set forth herein, you may not use the Service.
2.1. CommPeak owns and operates a Voice over IP based communications service (“Service”) and related Web Site. The Service and Site are provided to Customers according to this Agreement. The Agreement applies to the Service, Site, User Portal and any devices utilized (“Device”) used to access the Service.
2.2. By activating the Service you will affirm the following:
2.2.1. You understand and intend that the Agreement is a legally binding agreement equivalent to a signed, written contract; 2.2.2. You will use the Service in a manner consistent with all applicable laws and regulations and in accordance with the terms of this Agreement and any other applicable rules or conditions that govern the use of the Service as they may be amended from time to time.
The following requirements apply to the use of our Services: 3.1. You will not use the Service for any purpose that is unlawful, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, threatening or hateful, or in any other way that would violate any applicable governmental law. 3.2. You may not offer the Service or any part thereof for sale or transfer to another person or entity without the expressed prior written consent of CommPeak. 3.3. You may not reverse engineer, distribute, publish, display, modify or in any way exploit the configuration parameters which we provide as a means to access the Service
Unauthorized use as described in Section 4 typically results in call detail patterns which are easily recognized by automated reporting systems. CommPeak uses such systems to identify prohibited use of the Service. CommPeak reserves the right to take any and all actions it may deem appropriate with respect to such unauthorized use, including without limitation taking action to recover the costs and expenses of identifying offenders and removing them from using the Service, and levying cancellation and toll charges for the unauthorized use. CommPeak reserves at all times all rights and remedies available to it with respect to such activities at law or equity. All incoming or outgoing phone calls which are identified as unauthorized use are subject to a charge of up to 25 cents per minute (USD). The charge is due immediately, and will be deducted from the credit balance or form of payment you provided at the time of account activation. If you feel that such charge was made in error, and that the use did comply with section 3, you may dispute the charges. All such disputes must be made in accordance with section 9.15. Initiating a chargeback via your credit card company prior to pursuing the remedy described in those section 9.15 constitutes a waiver of your rights regarding the dispute.
Users may seek the services of third parties and/or other users not related to CommPeak through the use of the Site or Service. If there are any issues concerning advice and/or service received by a user from any third parties or any other user of the Site or Service unrelated to CommPeak or any claims, controversies, suits or any damages whatsoever that may arise, users must deal directly with said third parties to resolve any disputes. CommPeak will not be held responsible and expressly disclaims any liability whatsoever for any claims and/or controversies that may arise from any disputes between any users of the Site or Service. By using this Site, you do hereby represent, understand and expressly agree to hold CommPeak harmless for any claim or controversy that may arise from any disputes between users of the Site or Service.
Our services are void where prohibited by applicable laws. Our Service is offered only to individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our Service is not available to minors under the age of eighteen (18) or to anyone who may not be able to form a legal binding contract within such person’s jurisdiction. Any misstatements and/or misrepresentations regarding the age, background, experience and/or eligibility of any users of the Service are not the responsibility of CommPeak. CommPeak does hereby expressly disclaim any liability whatsoever for any misstatements and/or misrepresentations made by any users of this Site or the Service. Users do hereby represent, understand and agree to hold CommPeak harmless and to indemnify CommPeak for any misstatements and/or misrepresentations, whether made intentionally or not, made by any users of this Site or the Service.
8.1. Call Duration – The rates agreed to by CommPeak under this Agreement are based upon the condition that Customer will maintain a call duration of greater than 6 seconds in length for at least 80% of Customer’s total calls. If more than 20% of Customer’s traffic is 6 seconds or less in duration, Supplier shall has the right to suspend the service and notify the Customer of the occurance. Customer acknowledges that in any case CommPeak notifies the Customer of such such termination attributes, the service plan will be renegotiated to reflect the actual traffic type send to CommPeak by the Customer
8.2. USA Termination (RBOC/Non-RBOC Traffic) – Customer is purchasing Services at rate(s) specified in the his account’s User Portal and rate notifications for interstate calls with an understanding that there will be a minimum 80%/20% blend of minutes terminating to RBOC/non-RBOC (Regional Bell Operating Companies) OCNs per an ongoing cycle of 7 (seven) days. All non-RBOC minutes in excess of the 20% non-RBOC minutes allotted in the rate plan will have a surcharge of $0.02 per minute.
9.1. Paid Service – Payment for Service and applicable taxes is billed on a pre-pay basis. Additional charges including, but not limited to additional features and per minute charges for calls beyond those included in your Service will be billed at the end of the monthly period in which such charges are incurred. Unpaid balances for additional charges exceeding US$50.00 will be billed and become payable immediately. If charges to your credit card are declined for any reason, CommPeak reserves the right to suspend or terminate your Service until you provide a valid method of payment. Suspension or termination of your Service leaves you liable for all accrued charges and fees associated with the collection of such payment as well as all unbilled charges. You must notify CommPeak in writing, at the address in Paragraph 9.26, within 7 days after receiving your credit card statement if you dispute any CommPeak charges on that statement. We will respond to your dispute in writing, within 90 days. You are responsible for paying all charges in accordance with your Rate Plan for use of the Service associated with the Identifier(s) and Device(s) assigned to you, even if you did not use, or authorize the use of, the Device.
9.2. “900 Numbers.” You acknowledge that we have informed you that the Service does not permit calls to 900 numbers or other pay-per-call services.
9.3. Directory Assistance. You acknowledge that we have informed you that calls to Directory Assistance (411, 1-XXX-555-1212) excluding toll-free Directory Assistance (1-800-555-1212) will incur a 2.00$(USD) per call charge.
9.4. Theft. You are responsible for canceling your Service if you believe the Device is lost or stolen, or if you become aware that the Service provided to you is being stolen. Failure to do so may result in additional charges to you. You will be liable for the Replacement Fee (see Paragraph 10.6).
9.5. Service Termination and Termination Fee. CommPeak reserves the right to terminate the Service at any time with or without notice and for any reason. You agree that CommPeak shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
9.6. Pre-paid balance (excluding initial payment) is refundable within 60 days of payment. A refund will be awarded only at times when the account balance is above the sum of 100$(USD) of actual user deposited credit (not including CommPeak issued special promotions, rewards, etc.). All costs incurred by the refund process shall be deducted from the refunded sum.
9.7. Refunds for interrupted or incomplete calls. In certain cases, CommPeak may determine, at its sole discretion, that a full or partial refund should be issued to you for certain phone calls which were interrupted, not completed, or experienced audio quality issues (“Call Quality Refund”). Call Quality Refunds may take up to 90 days to appear on your account, and may, at CommPeak’s sole discretion, be issued in the form of (1) credit toward next user initiated “Top-Up” of credit; (2) check issued to you via postal mail.
9.8. Use of Device/Identifier. Except as provided otherwise by law, you have no property rights to any information, credentials, phone number or other identifier (“Identifier”) that we, our agents, or manufacturers of the Device have provisioned for use with the Service or Device, and you agree we may change any such Identifier at any time with or without prior notice to you. In the event we are required by law to transfer any Identifier to you on termination of this Agreement, we may charge you a fee. We reserve the right to refuse porting or transfer of any Identifier provisioned by us.
9.10. Release. Because we are not involved in the actual contact between users, in the event that you have a dispute with one or more users and/or any parties unrelated to CommPeak (including, but not limited to, any clients of CommPeak), you release CommPeak (and our officers, directors, principals, agents, investors, subsidiaries and employees) from all claims, demands and damages (actual and consequential) of every kind and nature whatsoever, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
9.11. Information Provided by Users. Users are responsible for providing accurate, timely and complete information to us in connection with their registration for and use of the Site. CommPeak is not responsible for any claims relating to any inaccurate, untimely or incomplete information provided to us. Users represent and warrant that they are the owner or a licensee or otherwise have the right to provide any information or materials (including pre-existing materials) that they post or transmit via our Service or Site.
9.12. Your Information. “Your Information” is defined as any information you provide to us in the registration process, through any e-mail feature, electronic submission or transaction or through traditional mail. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information. With respect to Your Information:
9.13. Your Information (or any items or contents listed therein): (a) shall not be false, inaccurate or misleading; (b) shall not be fraudulent or involve the sale of counterfeit or stolen items; (c) shall not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) shall not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) shall not be obscene or contain child pornography or, if otherwise adult in nature or harmful to minors, shall be posted only in the Adults Only section and shall be distributed only to people legally permitted to receive such content; (g) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) shall not create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other partners, affiliates, users or suppliers.
9.14. Payment terms – Customer shall pay the Charges in accordance with this clause and explicitly accepts that this clause shall apply to all Charges and payments notwithstanding any other legal or administrative regulation.
Before or upon ordering any Service, Customer shall pay through either:
(i) CommPeak’s web interface using a credit card or a PayPal account; (ii) a wire transfer on the CommPeak’s bank account, as mentioned in the agreement or on the CommPeak’s website/Web Prortal.
* By ordering any Service with CommPeak, Customer explicitly allows CommPeak to directly debit its bank account via its respective payment method, to settle any invoices.
* Charges shall accrue on the relevant Service Date. Non-recurring charges will be invoiced by CommPeak upon receipt of an order from Customer.
Prepaid credits will be invoiced by CommPeak upon receipt of an order for a usage based Service or feature from Customer.
* An invoice will automatically be generated in electronic format, sent to the customer via email and also made available to Customer through the CommPeak web portal. Any invoice shall be due and payable immediately on date of the invoice.
* If Customer has ordered a Service but fails to pay the non-recurring/pre-pay charge, the order will not be executed.
* All Charges or other sums due by Customer and payable to CommPeak are stated exclusive of value added tax and any similar sales tax or duty which, if applicable, shall be invoiced and payable by Customer at the then prevailing rate.
* At any case any payment returned for nonpayment or for any credit card chargebacks , the customer shall pay a late payment interest of 1% per month of undisputed amounts on any amount owed but not paid by the due date until payment is made in full. If CommPeak will be forced to start a legal action for the recovery of any amounts due by Customer under the Agreement, Customer shall pay to CommPeak reasonable attorneys’ fees, collection fees and any other costs actually incurred by CommPeak with a minimum of 15% of the invoice(s) due.
* Any interest earned by CommPeak on credit balances in Customer’s account will accrue to CommPeak.
* CommPeak may offset any amounts due to Customer against any amounts due by Customer. Any payment will in first instance be allocated to any interest and expenses due and in the second place to the oldest outstanding invoices.
9.15. Late Payments/Disputes. If Customer disputes in good faith any portion of any invoice, customer must within 10 calendar days following the date of such invoice pay the undisputed and disputed amounts of the invoice, together with written documentation substantiating Customer’s basis for disputing the Charges. If Customer does not dispute in writing within such 10 calendar days period, Customer shall irrevocably have waived its right to dispute that invoice.
CommPeak may, without notice to you, suspend Service and/or terminate this Agreement, in addition to all other remedies. All amounts due, including disputed amounts, must be paid by the due date regardless of the status of any objection. All communications concerning disputed amounts owed, including any instrument tendered as full satisfaction of the amounts owed, or stipulating any other conditional action, agreement or proposed resolution of any dispute must be (i) in writing, (ii) marked “Billing Dispute” on the outside of the envelope, (iii) sent to the address provided in the Notices section below, and (iv) received by us within 21 days after posting of the invoice. Customer shall pay a late payment interest of 1% per month of undisputed amounts on any amount owed but not paid by the due date until payment is made in full.
9.16. Notices. We may send you notice by mail or electronic means, in our sole discretion. Notices to you shall be effective (1) 3 days following the date deposited in the Mail or delivered to a nationally recognized courier or delivery service to your address as kept in our files and/or (2) immediately upon our transmission using an electronic means such as email or text messaging service. You are responsible for notifying us of any changes in your mailing or email address. Written notice to us shall be effective when directed to CommPeak Limited, 1906 Lee Garden One, 33 Hysan Avenue, Causeway Bay, Hong Kong, and received by us. Your notice must contain specific information adequate to identify you and your Service. Oral and electronic notices shall be deemed effective on the date reflected in our records.
9.17. No Liability. User agrees not to hold CommPeak, CommPeak’s principals, agents and employees, officers, directors, or participants liable for any advice, representations and/or services delivered which originated through the Site or were otherwise provided by any user. All users of this Site or the Service release CommPeak, CommPeak’s principal’s, agents, officers, directors, and employees from claims, demands and damages (actual or consequential) of every kind and nature, known and unknown, disclosed and undisclosed, arising out of or in any way connected with any such disputes that may arise through the use of this Site or the Service.
9.19. Community Areas. If the Site contains bulletin board services, chat areas, news groups, forums, prices, quotes and other information regarding products and/or services offered by any parties other than CommPeak, communities and/or other message or communication facilities, Users agree to use the community areas only to send and receive messages and material that are proper and related to the particular forum. By way of example, and not as limitation, Users agree not to:
Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others. Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information. Use the Site for any purpose which is in violation of local, state, national or international law. Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party. Upload files that contain viruses, corrupted files, or any other similar software or Services that may damage the operation of another’s computer. Advertise or offer to sell any goods or services for any commercial purpose on the Site which are not relevant to the services offered on the Site or are in any manner incorrect, inaccurate, false misleading or otherwise illegal. Conduct or forward surveys, contests, pyramid schemes or chain letters. Impersonate another person or allow any other person or entity to use a user’s profile, information and/or identification to post or view comments. Post the same note repeatedly (referred to as ‘spamming’). Spamming is strictly prohibited. Download any file posted by another user that user either knows, or reasonably should know, cannot be legally distributed through the Site. Restrict or inhibit any other user from using and enjoying the Community areas. Learner Information. All users agree that all information supplied by any user or any member of user’s household is true and accurate. CommPeak is not responsible for the accuracy or legality of any information so provided.
9.20. Modification of the Terms of this Agreement. CommPeak reserves the right to make changes to this Agreement from time to time. CommPeak shall provide notice to User of any substantive and/or material changes to this Agreement or any policies posted on the Site. It is, however, the responsibility of the user to review the terms of this Agreement each time any users view the Site. CommPeak is not responsible for any damage that may result should user fail to review this User Agreement following any modifications that may be implemented herein.
9.21. Term of Agreement. This Agreement will become effective immediately upon any use by all users of the Site or Service and shall remain effective unless terminated by either party as provided hereunder. Either party may terminate this Agreement by providing the other with written or email notice of such termination which shall be effective immediately upon delivery of such notice to the other party and subject to the conditions set forth in the section TERM. Furthermore, CommPeak may terminate this Agreement between any user immediately for any breach of this Agreement or any applicable policy of CommPeak as posted on the Site from time to time. No reimbursements for any fees charged in connection with services offered on the Site shall be issued where reason for termination is due to the violation of any of the terms and conditions set forth herein or in any other policy posted on this Site. In the event of termination or expiration, the following sections shall survive: TERM; Term of Agreement; Ownership; Disclaimer; Limitation of Liability; Notice; and Miscellaneous.
9.22. Intellectual Property Rights. All text, graphics, editorial content, data, formatting, graphs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively, “Proprietary Material”) that Users see or read on the Site is owned by CommPeak or is used with permission of the rightful owner. This Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. CommPeak owns all Proprietary Material as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. Users may not copy, download, use redesign, reconfigure or re-transmit anything from the CommPeak Site without CommPeak’s prior express written permission. Furthermore, Users are not allowed to post or distribute any material they do not own, or which they do not have permission to use. Violation of this policy may result in copyright, trademark or other intellectual property rights violations, and subject Users to termination from the use of this Site or civil or criminal penalties.
9.23. In addition, the Site contains material protected by the domestic and international laws of copyright, patents or other proprietary rights and laws. Any use of such Proprietary Material, other than as permitted herein, is expressly prohibited without the prior permission of CommPeak and/or the relevant right holder.
9.25. Copyright Complaints and Copyright Agent. CommPeak respects the intellectual property of others, and asks Users to do the same. CommPeak is in compliance with the Digital Millennium Copyright Act. In order to protect intellectual property from misuse, we ask Users to help us. If Users believe, in good faith, that any materials on the Site infringe upon Users’ copyrights, please provide CommPeak’s Copyright Agent with the following information: 1. An electronic or physical signature of the owner of the copyright or of the person authorized to act on behalf of the owner of the copyright interest; 2. A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Site where the material that you claim is infringing is located. Include enough information to allow CommPeak to locate the material and explain why you believe an infringement has taken place; 3. A description of the location where the original or an authorized copy of the copyrighted work exists — for example, the URL (Internet address) where it is posted or the name of the book in which it has been published; 4. Your address, telephone number and email address; 5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and 6. A statement by you, made under penalty of perjury, that the information in your Notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
9.26. CommPeak’s Copyright Agent for Notice of claims of copyright infringement can be reached as follows:
By postal mail at: Commpeak Limited 1906 Lee Garden One, 33 Hysan Avenue, Causeway Bay, Hong Kong.
By email: [email protected]
9.27. CommPeak will terminate access to the Site and Service of those who engage in repeated acts of infringement.
9.28. Limited License. CommPeak grants its users a nonexclusive, revocable right to use the Site provided that users do not (1) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, (2) modify or attempt to modify the Site in any manner or form.
9.29. Modifications to the Site. CommPeak reserves the right in its sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Site or Service or any content or information on the Site with or without notice to user. Users agree that CommPeak shall not be liable to any user or any third party for any modification or discontinuance of the Site or Service.
9.30. Privacy. CommPeak’s Privacy Statement located on its Site as modified by CommPeak from time to time shall govern any disclosure or use of user’s personal information. By using this Site or the Service, you do hereby represent, understand and agree that you have reviewed and agree to those terms.
9.31. Learner account, password and security. Users are responsible for maintaining the confidentiality of any password and account number provided by themselves or CommPeak for accessing the Site or Service, and are fully responsible for all activities that occur under user’s password or account. User agrees to immediately notify CommPeak of any unauthorized use of a user’s password or account or any other breach of security.
9.32. No Agency. You and CommPeak are not legally affiliated in any way by virtue of your membership or usage of CommPeak’s Site or Service or intellectual property other than the terms and conditions stated in this User Agreement and no independent contractor, agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. CommPeak is not an employment service and does not serve as an employer of any parties that may use this Site. As such, CommPeak expressly disclaims any liability that may arise between users of its Site.
9.33. Disclaimer of Warranties. USER EXPRESSLY AGREES THAT THE USE OF THE SITE AND SERVICE IS AT USER’S SOLE RISK. NEITHER COMMPEAK NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR MERCHANDISE PROVIDED THROUGH THE SITE. THE SITE AND SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER COMMPEAK NOR ITS LICENSORS WARRANT OR GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THE INFORMATION APPEARING ON THE SITE. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OF YOUR USE OF THE INFORMATION. COMMPEAK AND AFFILIATES DO NOT WARRANT THAT THE SITE IS FREE OF VIRUSES, WORMS , TROJAN HORSES OR OTHER HARMFUL COMPONENTS. COMMPEAK AND AFFILIATES TAKE REASONABLE MEASURES TO ENSURE THAT INFORMATION PROVIDED BY USERS IS DISCLOSED ONLY TO THOSE SPECIFIED BY USERS. COMMPEAK CANNOT AND DOES NOT, HOWEVER, GUARANTEE THAT THE PERSONAL INFORMATION ENTERED BY USERS WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS. USERS AGREE NOT TO HOLD COMMPEAK, PRINCIPALS, AGENTS, CONTRACTORS EMPLOYEES AND AFFILIATES LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH MISAPPROPRIATION, INTERCEPTION, DELETION, DESTRUCTION OR USE OF INFORMATION PROVIDED THROUGH THE SITE. COMMPEAK AND AFFILIATES ARE NOT AND SHALL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING FROM THE USE OR INABILITY TO USE THE SITE OR SERVICE. SHOULD ANY INTERRUPTION OCCUR WITH THE SITE OR SERVICE, WHETHER WITHIN THE CONTROL OF COMMPEAK OR NOT, COMMPEAK EXPRESSLY DISCLAIMS ANY LIABILITY WHATSOEVER FOR ANY DAMAGES, INCIDENTAL OR CONSEQUENTIAL THAT MAY RESULT TO ANY PARTY INCLUDING ANY USER (WHETHER A PAYING MEMBER/USER OR NOT) OF THE SITE OR SERVICE. WE MAKE NO EXPRESS WARRANTY REGARDING THE SERVICE OR THE DEVICE OR ANY SERVICES PROVIDED BY ANY THIRD PARTIES, AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTY ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. WE ARE NOT THE MANUFACTURER OF THE DEVICE AND ANY STATEMENT REGARDING IT SHOULD NOT BE INTERPRETED AS A WARRANTY. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
9.34. Limitation of Liability. Under no circumstances will CommPeak or its Affiliates be liable to any party for any indirect, incidental, consequential, special or exemplary damages arising from any provision of this Agreement. Furthermore, the aggregate liability of CommPeak or its Affiliates arising with respect to this Agreement and the Site will not exceed the total amounts paid by user in the previous __**twelve (12) months under this Agreement**__. Any notice or other communication to be given hereunder will be in writing and given by facsimile, postpaid registered or certified mail return receipt requested, or electronic mail.
9.36. Miscellaneous. Nothing in this Agreement shall be construed as making either party the partner, joint venture, agent, legal representative, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. This Agreement shall be interpreted in accordance with the laws of Hong Kong (excluding any rules governing choice of laws) and any legal proceeding arising out this Agreement will occur in Hong Kong. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. This Agreement (and the policies referenced herein and incorporated by reference) constitutes the entire agreement between CommPeak and any user with respect to the subject matter hereof, and users have not relied upon any promises or representations by CommPeak with respect to the subject matter except as set forth herein.
CommPeak does not route calls to emergency agencies such as 911. CUSTOMER is solely responsible
to handle all of its emergency and government agency calls and route them, accordingly, to the appropriate city, state, or government agencies. CommPeak and its officers, directors, employees, agents and affiliates will have no liability with respect to its inability to route and complete any of its CUSTOMER emergency calls.
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