Terms and Conditions

SERVICES. Upon acceptance and approval of this Service Agreement (“Agreement”), Clementine agrees to make commercially reasonable efforts to provide the services you have selected, and you agree to use those services, in accordance with the terms and conditions of this Agreement. You understand and agree that you must provide the e-mail, pager, fax or other telecommunications service that will be used to deliver messages to you, except for the voice mail service that Clementine will provide upon request at an additional charge. All telephone numbers provided or arranged by Clementine remain the property of Clementine upon any termination of this Agreement. The services provided by Clementine are propriety to and the property of Clementine, and the title thereto remains in Clementine. All applicable rights in copyrights, trademarks and trade secrets in the services are owned by Clementine. You agree not to sell, transfer or otherwise make available any service provided by Clementine to any third parties, without the prior written approval of Clementine, in its sole discretion. Services provided by Clementine are provided for use only by you and any authorized agents. You agree to provide Clementine with at least 48 hours prior written notice before any known increases in call volume.

BILLING AND PAYMENT. Monthly recurring charges are billed in arrears, and usage charges in excess of the monthly allowance are billed during the month on a periodic basis. You are responsible for payment of all charges for any services performed on your behalf by Clementine. Payments are due in Clementine’s offices on or before the due date. Clementine reserves the right to require payment outside the regular monthly billing cycle. If your bill is not paid before the due date, a late fee in the amount of two percent (2%) of the unpaid balance will be applied to your account. You agree that a late fee is a reasonable pre-estimate of Clementine’s damages for late payments. You will be assessed a charge of twenty-five dollars ($25.00) for each check or other payment to Clementine, which a financial institution refuses to honor for any reason.

TERM AND TERMINATION. This Agreement shall be in effect for a minimum term of ninety (90) days and will remain in force on a month-to-month basis thereafter until terminated by either party upon thirty (30) days written notice. Clementine reserves the right to increase any of its rates or charges at any time upon thirty (30) days written notice. If you fail to pay any bill within ten (10) days of its due date, Clementine may restrict or terminate this Agreement, in its sole discretion. You must give Clementine written notice of cancellation as set forth above. You will not use the services for any unlawful purpose and only use the services in accordance with the terms and conditions of this Agreement. You understand that Clementine may immediately restrict or disconnect your service without notice for any violation thereof. If you fail to meet your service agreement, you may be debited an early termination fee for 20% percent of your remaining recurring charges for the ninety (90) day service agreement or $99.99, whichever is higher.

DISPUTE RESOLUTION. You will send Clementine a written notice of any dispute on any bill within thirty (30) days after the statement date, or such statement shall be deemed to be correct and payable in full. You will provide detailed information regarding any dispute, and you agree to cooperate with Clementine in an investigation of disputed matters. If Clementine initiates legal proceedings to collect any amount due hereunder and Clementine prevails in such proceedings, then you will pay Clementine’s costs and reasonable attorneys’ fees incurred in such proceedings and any appeals. You waive any and all rights you may have to a jury trial in connection with any proceedings concerning this Agreement.

LIMITED WARRANTIES, REMEDIES, AND DAMAGES. Clementine does not warrant that it will have sufficient resources to handle unexpected increases in call volumes. Clementine does not warrant the service is error-free, or will operate without delays or interruptions. Clementine is not responsible for transmission errors, corruption of data, or the security of information carried over telecommunication services. Subject to the foregoing limitations, Clementine will use commercially reasonable efforts to provide the services, and if Clementine fails to do so, your sole remedy will be, at Clementine’s sole discretion, either: (1) the correction of the failure to provide the services, or (2) a refund of the monthly recurring charges you paid to Clementine for such services during the period of time that the services were affected. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, CLEMENTINE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVIDED HEREUNDER. CLEMENTINE SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY LIABILITY HEREUNDER WILL BELIMITED TO DIRECT DAMAGES, AND NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOST REVENUE, OR LOSS OF GOODWILL) FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT , STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT. CLEMENTINE’S ENTIRE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID TO CLEMENTINE FOR SUCH SERVICE DURING THE TWELVE (12) MONTHS PRECEDING SUCH FAILURE TO PROVIDE THE SERVICE. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.

INDEMNIFICATION. You agree to indemnify and hold Clementine and its employees, representatives, agents, affiliates, officers, members and managers, successors and assigns (the “Parties”) harmless from any damage, loss, or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Parties alleging that you have breached any provision in this Agreement. If you have to indemnify us under this section, Clementine will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Clementine’s express written permission.

MISCELLANEOUS. This Agreement and all claims relating to the relationship between the parties will be governed by, enforced, and interpreted under the laws of the State of Michigan without regard to its choice of law principles. In the event of legal action to interpret or enforce this Agreement, you agree that the exclusive venue will be in appropriate state or federal court, which has jurisdiction over actions brought in Wayne County, Michigan. This Agreement may not be assigned by you without the written consent of Clementine, in its sole discretion. The provisions of this Agreement will be deemed severable, and the invalidity or unenforceability of any provision will not affect the validity or enforceability of any other provision. The terms and conditions of this Agreement may be amended or waived only by a written instrument signed by the parties, except as otherwise provided herein. No failure or delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. This Agreement contains the entire terms and agreements in connection with the services provided by Clementine and supersedes all prior or contemporaneous written or oral commitments, arrangements or understandings between the parties with respect to such subject matter. If any of the foregoing terms or provisions shall be invalid or unenforceable, the remaining terms and provisions hereof shall not be affected thereby. The terms of the Dispute Resolution; Limited Warranties, Remedies, Indemnification and Miscellaneous sections will survive any termination of service.

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