PeakPTT Terms Of Service
Peak PTT Terms and Conditions of UsePlease Note: Unauthorized Use, Tampering, or Removal Of Data SIMs outside of the Peak PTT devices will result in immediate termination of account services, a $100 per SIM charge, and a $10 per MB usage fee.
This Peak PTT Terms and Conditions of Use (this “Agreement”) sets out the terms and conditions pursuant to which LiveViewGPS Inc. dba Peak PTT, a California corporation (“Peak PTT”), will make the Peak PTT Service (as defined herein) available on a hosted basis to you, the customer (“Customer”).
BY USING THE SERVICE, CUSTOMER AGREES TO THE FOLLOWING TERMS AND CONDITIONS AND AGREES TO BE BOUND HEREBY:
Peak PTT Service.
(a) During the term of this Agreement (as set forth in Section 24 hereof) and in accordance with the terms hereof, Peak PTT will provide Customer access to and use of the Peak PTT services, and Peak PTT shall provide and Customer shall be entitled to receive related services that are provided for herein (such Peak PTT services are collectively referred to as the “Service” or the “Peak PTT Service”).
(b) The Peak PTT Service consists of a hosted web enabled application, data access and storage, wireless network and a variety of wireless applications. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Peak PTT Service, and for paying all access charges (e.g., ISP, telecommunications) incurred while using the Peak PTT Service.
(c) Upon your acceptance of this Agreement, Peak PTT will provide Customer with login access to the Peak PTT Service for the term of the Agreement.
(d) At the commencement of the Agreement, Customer must purchase a Peak PTT PTT device with included activated data SIM card. If Installation is required for (hardwired) vehicle radio devices; installation and any associated costs are the sole responsibility of Customer. Installation instructions are provided with each vehicle “hardwired” radio at the time of purchase and may also be available on the Peak PTT Site. Portable battery powered devices do not require installation.
License. Subject to the provisions of this Agreement, Peak PTT hereby grants to Customer a personal, non‑exclusive, non‑sublicensable, non-transferable, revocable license (the “License”) to use the Peak PTT Service only in accordance with the terms of this Agreement and the applicable end user documentation related thereto (“Documentation”), if any, during the term of this Agreement. The License allows for Customer and any person authorized by Customer (collectively, “Users”) to access remotely and use (only through remote access) the Peak PTT website currently located at www.Peak PTT.com and www.Peak PTT.net (collectively, the “Peak PTT Site”) for Customer’s use only and otherwise in accordance with this Agreement.
- Restrictions. Customer will not, and will not allow its Users, or agents to, directly or indirectly:
(a) reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code or underlying ideas or algorithms from the Peak PTT Site or any software or any component thereof;
(b) copy, reproduce, modify, translate or create derivative works of, the Peak PTT Service, or any software or component thereof other than as expressly agreed to in this Agreement;
(c) sell, lease, sublicense, market, distribute, assign or otherwise transfer rights to or commercially exploit in any way the Peak PTT Service, or any software or any component thereof other than as expressly agreed to in this Agreement
(d) use, or permit the use of, the Peak PTT Service or any component thereof to perform information processing or any other function whatsoever for any other person, entity or business including providing information processing for a third party in any service bureau, time sharing, lease, distribution, resale, rental, service provider agreement or any other arrangement;
(e) remove any proprietary, copyright, patent, trade mark, design right, trade secret, or any other proprietary rights legends from the Peak PTT Materials (as defined herein);
(f) disclose or grant access to any User Access Code (as defined herein), the Peak PTT Service or any component thereof to any third party other than one to whom Peak PTT has consented in writing;
(g) make more than one copy of the Documentation per User; or
(h) use the Peak PTT Service (i) for any unlawful, unsafe, malicious or abusive purpose, (ii) for interfering with others' use of the Service, (iii) in such a way as to defraud Peak PTT or any third party or (iv) to create damage or risk to Peak PTT’s business, network or facilities or to third parties.
(i) It is the responsibility of the Customer to ascertain and comply with all applicable Local, State, and Federal laws in regard to the possession and use of any items purchased, used or activated from Peak PTT, Inc. Please consult with an attorney regarding such laws if you have any questions. Customer acknowledges that he or she is of legal age and agrees to use the product only in a lawful manner.
- User Account, Password and Security. To open an account for usage of the Peak PTT Service, Customer must complete the registration process by providing Peak PTT with current, complete and accurate information as requested by Peak PTT. Inaccurate details may result in suspension or termination of the Peak PTT Service. Peak PTT will assign an account name to Customer and Customer will choose a password. Customer is entirely responsible for maintaining confidentiality with regard to its password and account information. Furthermore, Customer is entirely responsible for any and all activities that occur under its account. Peak PTT is not liable for any third party claims and/or actions taken with respect to services offered, all of which liability shall be solely borne by Customer.
Access to Peak PTT Service. Customer shall access the Peak PTT Service by means of the browser that is recommended by Peak PTT and using equipment obtained by Customer as further described in Section 13 hereof. Customer shall access the Peak PTT Service through the Peak PTT Site and by entering Customer’s account name and password (the “User Access Code”). Customer will be solely responsible for any use of any User Access Code. For greater certainty, Peak PTT will not be responsible for the use or misuse of any User Access Code.
Fees. In consideration for providing the Service and the License, Customer shall pay to Peak PTT a one-time activation fee for each radio device and ongoing service fees, all as set out in Customer’s application for Service documentation (collectively, the “Fees”), without any set-off or deductions of any kind, as such Fees may be amended from time to time in accordance with the terms hereof. Peak PTT shall have the right to increase the Fees at any time during the Term of this Agreement in accordance with the terms of Section 30(f) hereof. The increase in the Fees shall be effective on the date stipulated in such notice. Customer is responsible for paying any governmental taxes imposed on Customer’s purchases and use of the Service, including sales, use or value-added taxes. All sales of Peak PTT Service are final. All charges from those sales are nonrefundable.
- Method of Payment. All payments must be made by VISA, MasterCard, Discover, or AMEX , AUTO ACH DEBIT (any of which may be removed by Peak PTT at any time in its sole discretion). Unless expressly agreed in writing by Peak PTT, Peak PTT does not accept any other payment form. By submitting Customer’s application for Service documentation to Peak PTT, Customer authorizes Peak PTT to charge Customer’s card as may be required for Customer to pay Peak PTT any and all amounts that may be due from Customer under this Agreement. Customer’s card issuer agreement governs Customer’s use of Customer’s designated card, and Customer should refer to that agreement to determine Customer’s rights and liabilities as a cardholder. CUSTOMER, AND NOT Peak PTT, IS RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO CUSTOMER’S CARD BY A THIRD PARTY. Customer agrees to pay all Fees and charges incurred in connection with Customer’s purchases and use of the Services (including any applicable taxes) at the rates in effect when the charges were incurred. Unless Customer notifies Peak PTT of any discrepancies within thirty (30) days after they first appear on Customer’s credit card statement, Customer agrees that such charges shall be deemed accepted by Customer for all purposes. If Peak PTT does not receive payment from Customer’s credit card issuer or its agent, Customer agrees to pay all amounts due upon demand by Peak PTT.
7.5 Cancellation Of Service. Customer can cancel service by emailing info@PeakPTT.com. Cancellation requests must be received by the last business day of the month, by 12:00 pm PST. Service cancellation requests received later than this date/time/day, shall be charged for service for the following month and cancelled at the end of that month.
- Late Payment. If amounts are not paid when due or if Peak PTT does not receive payment from Customer’s applicable credit card company, such amounts will be subject to a late payment charge at the rate of one and one‑half percent (1.5%) per month or the highest charge allowable by law (whichever is less), payable monthly, on the amounts outstanding from the time such amounts become due until payment in full is received by Peak PTT. Any amount received by Peak PTT while late payment charges are outstanding will be applied first to late payment charges. NSF payments will be subject to a $25.00 handling fee for each defaulted payment.
Taxes. Prices set out herein are exclusive of all taxes and Customer shall pay (and Peak PTT shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with this Agreement, including any federal, provincial, state and local sales, use, goods and services, value-added and personal property taxes on any payments due Peak PTT in connection with the Service provided hereunder, except for tax based solely on the net income of Peak PTT.
Remedies in the Event of Failure to Pay. If Customer defaults in payment of any amount when due or any interest thereon, then Peak PTT may, in addition to any other rights or remedies at law or under this Agreement, and in its sole discretion, (i) suspend or deny Customer’s access to or use of the Service or the performance of any of its obligations under this Agreement until such failure is remedied, subject to such conditions as Peak PTT may require; and/or (ii) terminate this Agreement. Furthermore, delinquent accounts with outstanding balances due past 30 days, will be submitted to collections for processing.
Ownership of Intellectual Property. Customer acknowledges and agrees that Peak PTT shall retain and own all right, title and interest and all intellectual property rights (including copyrights, trade secrets, trademarks and patent rights) in and to the Peak PTT software, Documentation and the Peak PTT Site (collectively, the “Peak PTT Materials”) and all copies thereof, and that nothing herein transfers or conveys to Customer any ownership right, title or interest in or to the Peak PTT Materials or to any copy thereof or any license right with respect to same not expressly granted herein. Customer agrees that it will not, either during or after the termination of this Agreement, contest or challenge the ownership of the intellectual property rights in the Peak PTT Materials by Peak PTT.
Ownership of Customer Data. Peak PTT acknowledges that all Customer data, including data transmitted by Customer to Peak PTT for processing using the Peak PTT Service (“Customer Data”) and Customer systems used by Customer to access the Peak PTT Service shall be and remain the property of Customer. Peak PTT shall have the right to use and reproduce Customer Data solely to the extent necessary to provide the Service and fulfill its obligations to Customer hereunder.
Access to Peak PTT Service. Customer is responsible for obtaining all hardware, software and services which are necessary to connect to the Peak PTT siite and access the Service including all computers, web browsers, and services provided by an Internet service provider. All such facilities and services shall comply with Peak PTT’s specifications for the Service described in the Documentation or as otherwise required by Peak PTT.
- Member Privacy. It is Peak PTT’s policy to respect Customer’s privacy. Peak PTT will never rent, lease, sell or give away any Customer information to third parties for marketing purposes. Peak PTT will not monitor, edit, or disclose any personal information about Customer or Customer’s Peak PTT account, including its contents, without Customer’s prior permission unless Peak PTT has a good faith belief that such action is necessary to: (a) conform to legal requirements or comply with legal process; (b) protect and defend the rights or property of Peak PTT; (c) enforce this Agreement or protect Peak PTT's business or reputation, including upon termination, cancellation or suspension of this Agreement by Peak PTT; (d) respond to any request for identification in connection with claim of copyright or trademark infringement by Customer; (e) prevent imminent physical injury or harm to any person or prevent any suspected infringing, illegal or improper activity; in either of which event, such information shall be disclosed to any law enforcement agency making such request in regards to criminal activity; or (f) act to protect the interests of Customer or others. Customer agrees that Peak PTT may access its account, including its contents, as stated above or to respond to service or technical issues.
CUSTOMER HEREBY GRANTS Peak PTT THE RIGHT TO SEND CUSTOMER COMMUNICATIONS VIA E-MAIL OF ANY UPDATES, UPGRADES, NOTICES, OR OTHER INFORMATION RELATING TO THE SERVICE THAT Peak PTT DEEMS IMPORTANT FOR CUSTOMER TO KNOW.
- Customer Security Responsibilities. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Service to Customer and any of Customer’s authorized Users. Customer shall notify Peak PTT immediately if there is a security breach or unauthorized use of the Service. Customer shall permit Peak PTT to review/audit Customer’s use of the Peak PTT Site and the Peak PTT Service.
- Customer Data. Peak PTT will not be responsible or liable for any loss or damage to Customer’s Data or any inconvenience suffered by Customer or by any third person arising out of the use of the Service by Customer.
- Customer Systems. Peak PTT shall have no responsibility for the performance, adequacy, accuracy, concurrency or other matters related to Customer systems.
- Export. Customer agrees that it shall not export or re-export the Peak PTT tracking device or any software or any copies thereof, either directly or indirectly, outside of the jurisdiction in which Customer accesses such materials, except in compliance with all applicable laws, ordinances and regulations. Customer shall have the exclusive obligation to ensure that any such export is in compliance with all applicable export laws and the laws of any foreign country.
- Provision of Releases. At its sole option, Peak PTT shall be entitled to prepare new versions of any Peak PTT software that Peak PTT generally makes available to Customers (“Update Releases”). Peak PTT exclusively shall determine whether Update Releases shall be included in any Peak PTT software provided pursuant to the Service. At any time, Peak PTT may install any Update Releases and use same to provide the Service.
- Right to Modify the Peak PTT Service. Peak PTT may from time to time, in its sole discretion, change some or all of the functionality or any component of the Peak PTT Service or make any modification for the purpose of improving the performance, service quality, error correction or to maintain the competitiveness of the Service.
- AS IS, WITH ALL FAULTS. Peak PTT provides the Peak PTT Site and Service to Customer on an “AS IS” and “WITH ALL FAULTS” basis.
- Warranty Disclaimer.
(a) Peak PTT EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LICENSORS AND SUPPLIERS OF Peak PTT MAKE NO DIRECT WARRANTY OF ANY KIND TO CUSTOMER UNDER THIS AGREEMENT.
(b) Peak PTT DOES NOT REPRESENT OR WARRANT THAT: (i) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS; (ii) THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE OR RELIABLE; OR (iii) ALL DEFICIENCIES IN THE SERVICE CAN BE FOUND OR CORRECTED. FURTHER, THE SERVICE MAY BE INTERRUPTED OR UNAVAILABLE FOR THE PURPOSES OF PERFORMING MAINTENANCE OR UPGRADES. Peak PTT WILL NOT BE RESPONSIBLE FOR: (a) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CUSTOMER OR ANY USER; (b) INTEROPERABILITY OF SPECIFIC CUSTOMER APPLICATIONS OR EQUIPMENT; (c) INABILITY OF CUSTOMER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET; (d) INTERACTION WITH OTHER SERVICE PROVIDERS, NETWORKS, USERS OR INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE INTERNET; (e) SERVICE PROVIDED BY OTHER SERVICE PROVIDERS; OR (f) PERFORMANCE IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET.
- Limit of Liability.
(a) FOR ANY BREACH OR DEFAULT BY Peak PTT OF ANY OF THE PROVISIONS OF THIS AGREEMENT, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO, Peak PTT’S ENTIRE LIABILITY SHALL IN NO EVENT EXCEED THE LESSER OF THE FOLLOWING: (i) THE FEES PAID TO Peak PTT BY CUSTOMER PURSUANT TO THIS AGREEMENT IN THE CALENDAR MONTH IMMEDIATELY PRECEDING THE CLAIM, OR (ii) IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS MADE UNDER OR RELATED TO THIS AGREEMENT, THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT.
(b) IN NO EVENT WILL Peak PTT BE LIABLE FOR DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF COVER, DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PERSON, EVEN IF Peak PTT HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
(c) Peak PTT SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF ANY DATA, EQUIPMENT OR SERVICES, INCLUDING THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.
(d) Peak PTT SHALL BE LIABLE TO CUSTOMER ONLY AS EXPRESSLY PROVIDED IN THIS AGREEMENT BUT SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE TO CUSTOMER. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY CUSTOMER, INCLUDING BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE ADDITIONAL RIGHTS NOT STATED IN THIS DOCUMENT.
(e) Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.
(f) Neither party may bring an action, regardless of form, arising out of or related to this Agreement (other than to recover fees or expenses due to Peak PTT) more than one year after the cause of action has arisen or the date of discovery of such cause, whichever is later.
(g) Customer agrees to indemnify and hold Peak PTT, its affiliates, employees, officers, directors and shareholders harmless from and against any claims, suits, actions or proceedings (“Claims”) brought and damages, costs (including attorneys’ fees) or judgments awarded against Peak PTT that arise from or in connection with: (i) Claims by any person or entity to the extent that such Claims are based upon or arise out of Customer’s use of the Service or Customer’s actions; (ii) breach by Customer of this Agreement; or (iii) Customer’s failure to comply with all applicable laws. Peak PTT shall give Customer prompt written notice of such Claims, permit Customer to defend (with counsel reasonably acceptable to Peak PTT) and/or settle such Claims (upon terms reasonably acceptable to Peak PTT), and give Customer all information and assistance reasonably requested by Customer in connection with such Claims.
- Term. The standard term of this Agreement is calendar month to calendar month, together with any partial calendar month resulting from the commencement of the Agreement after the first day of the initial calendar month. The term shall be automatically extended on the first day of each succeeding calendar month, unless terminated by Customer or Peak PTT in accordance with the terms of this Agreement. Other terms, may be offered to the Customer i.e. Quarterly, Annual, and terms will be specifically laid out under those agreements if applicable.
(a) This Agreement may be terminated or Service suspended by Peak PTT (i) if Customer fails to make any payment when due or any interest thereon to Peak PTT, or (ii) immediately, without notice or liability to Peak PTT, in the event of a breach by Customer of any of Customer’s obligations under this Agreement.
(b) by either party providing the other party by the 25th day of the current month service termination is requested. The effective date of any such termination shall be the last business day of a calendar month. For the purpose of clarity, this means that any notice of termination provided after the 25th day of a calendar month shall be effective on the last business of the next succeeding calendar month.
(c) by either party in the event the other party materially breaches any of its duties, obligations or responsibilities under this Agreement (other than breaches covered in Section 25(a) hereof), and fails to cure such breach within thirty (30) days after receipt by the breaching party of written notice specifying the breach; or
(d) by either party in the event: (i) a receiver, trustee, administrator, or administrative receiver is appointed for the other party or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings should be commenced against the other party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within thirty (30) days from the date of commencement thereof; or (iv) the other party is liquidated or dissolved.
(e) By Peak PTT if Customer removes, tampers of uses Peak PTT data SIMs in any manner or fashion other than intended with Peak PTT devices.
- Effect Of Termination. Except to the extent agreed to in writing by the parties, upon the termination of this Agreement:
(a) Peak PTT shall be entitled to immediately cease providing the Service;
(b) Peak PTT shall be entitled to immediately terminate Customer’s access to the Peak PTT Site;
(c) Customer shall forthwith pay to Peak PTT all amounts owing under this Agreement as of the effective date of termination;
(d) if this Agreement is terminated by Peak PTT under Section 25(a), 25(c) or 25(d), all amounts that would have become due under this Agreement shall automatically accelerate and become immediately due and payable by Customer to Peak PTT;
(e) Peak PTT shall have no obligation to refund any amounts to Customer
(f) Customer shall, and shall cause its Users to, immediately and permanently cease to use, in any manner whatsoever, the Peak PTT Service, the User Access Codes and the Documentation; and
(g) the License granted under Section 2 will automatically terminate.
(h) In the event of SIM tampering/removal/or use of Peak PTT outside of designated Peak PTT device, Customer shall pay Peak PTT a fee of $100 per compromised SIM card as well as a $10.00 per megabyte (MB) usage fee for all data transfer used in the unauthorized manner.
- Survival. The parties hereto agree that the provisions hereof requiring performance or fulfillment after the expiry or earlier termination of this Agreement shall survive such expiry or earlier termination. The provisions of this Agreement that by their nature are intended to survive the expiration or earlier termination, including those provisions relating to ownership, confidential information, warranty disclaimer, and limits of liability shall survive the expiration or earlier termination of this Agreement.
- Not Insurers; Limitations and Indemnification. Customer acknowledges and agrees that the Peak PTT Service uses industry standard cellular wireless communications services to communicate with Peak PTT tracking devices. Therefore, tracking devices must be within cellular coverage to communicate. Customer further acknowledges and agrees that Peak PTT is not the underlying wireless carrier and that Peak PTT may contract with third parties from time to time in connection with the provision of the Service. Accordingly, Customer acknowledges and agrees:
(a) Peak PTT AND THE THIRD-PARTY PROVIDERS ARE NOT INSURERS AND THE AMOUNTS PAID TO Peak PTT HEREUNDER ARE FOR THE SERVICE PROVIDED BY Peak PTT AND NOT FOR THE VALUE OF ANY PROPERTY, LOSS OR INJURY. IN THE EVENT OF ANY LOSS OR INJURY TO ANY PERSON OR PROPERTY BEING MONITORED BY THE SERVICE, CUSTOMER AGREES TO EXCLUSIVELY LOOK TO ITS INSURER TO RECOVER DAMAGES, AND CUSTOMER WAIVES ALL RIGHTS OF SUBROGATION OR ANY OTHER RIGHT OF RECOVERY AGAINST Peak PTT AND THE THIRD-PARTY PROVIDERS THAT ANY INSURER OR OTHER PERSON MAY HAVE AS A RESULT OF PAYING ANY CLAIM FOR LOSS OR INJURY TO ANY OTHER PERSON. IN ADDITION, CUSTOMER AGREES THAT CUSTOMER SHALL NOT BRING ANY CLAIM OR ACTION AGAINST ANY THIRD-PARTY PROVIDER ARISING FROM CUSTOMER’S USE OF THE SERVICE. FOR PURPOSES OF THIS AGREEMENT, “THIRD-PARTY PROVIDER” MEANS ANY PERSON OR COMPANY THAT SUPPORTS OR MAINTAINS THE SERVICE, AND INCLUDES SOFTWARE AND EQUIPMENT OPERATORS AND SUPPLIERS, WIRELESS CARRIERS, MAPPING DATA PROVIDERS AND PSAP DATA VENDORS.
(b) EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICE, ALL RELATED SOFTWARE AND ALL SERVICES ARE PROVIDED BY Peak PTT “AS-IS” “WHERE IS” AND “WITH ALL FAULTS.” Peak PTT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE AS TO THE SERVICE, AND ANY RELATED SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, Peak PTT DOES NOT WARRANT THAT THE SERVICE OR ITS OPERATION WILL BE ACCURATE, RELIABLE, UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL AGENTS. CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS SUPPORTED BY SATELLITE AND OVER LOCAL EXCHANGE, INTER-EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES AND OTHER DEVICES OWNED, MAINTAINED AND SERVICED BY LOCAL AND LONG DISTANCE CARRIERS, UTILITIES, SATELLITE COMPANIES, COMMUNICATIONS COMPANIES, INTERNET SERVICE PROVIDERS AND OTHER THIRD PARTIES, ALL OF WHICH ARE BEYOND Peak PTT’S CONTROL. CUSTOMER ACCEPTS ALL RISK ARISING OUT OF OR RELATING TO THE DELAY, FAILURE, INTERRUPTION, OR CORRUPTION OF THE SERVICE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL Peak PTT OR ANYONE ELSE INVOLVED IN ADMINISTERING, MAINTAINING OR PROVIDING THE SERVICE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING PERSONAL INJURY, DEATH, LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, SERVICE INTERRUPTIONS, SERVER DOWNTIME, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR FAILURE OF PERFORMANCE, OF THE SERVICE, EVEN IF Peak PTT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) CUSTOMER AGREES THAT IT WOULD BE EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL AMOUNT OF DAMAGES RESULTING FROM ANY FAILURE OF THE SERVICE, AND THEREFORE, CUSTOMER AGREES THAT DESPITE THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY CONTAINED HEREIN, IN THE EVENT THAT Peak PTT OR ANY THIRD-PARTY PROVIDER IS FOUND LIABLE FOR DAMAGES FOR ANY REASON OR FOR ANY CAUSE OF ACTION, THE AGGREGATE AMOUNT OF ALL DAMAGES PAYABLE BY Peak PTT OR ANY THIRD-PARTY PROVIDER HEREUNDER SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE DURING THE CALENDAR MONTH IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
(d) CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS Peak PTT AND THE THIRD-PARTY PROVIDERS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AND AGENTS (EACH, AN “INDEMNITEE”) AGAINST ANY AND ALL CLAIMS, INCLUDING CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THIS AGREEMENT OR THE USE, FAILURE TO USE, OR INABILITY TO USE THE SERVICE, EXCEPT WHERE THE CLAIM RESULTS FROM SUCH INDEMNITEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
(e) CUSTOMER UNDERSTANDS THAT Peak PTT AND THE THIRD-PARTY PROVIDERS CANNOT GUARANTY THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICE.
(f) THE SERVICE IS FOR CUSTOMER’S USE ONLY AND CUSTOMER MAY NOT RESELL THE SERVICE TO ANY OTHER PARTY.
(a) Notice. Peak PTT may give notice by means of a general notice through the Service, electronic mail to Customer’s e-mail address on record in Peak PTT's account information, or by written communication sent by first class mail to Customer’s address on record in Peak PTT's account information. Customer may give notice to Peak PTT at any time by any of the following: electronic mail to info@Peak PTT.com; letter sent by confirmed facsimile to Peak PTT at the following fax number: (800) 557-4314, Attention: Peak PTT Customer Service; letter delivered by nationally recognized overnight delivery service to Peak PTT at the following address: Peak PTT, Inc., 29021 Avenue Sherman, Suite 103, Valencia, California 91355, Attention: Peak PTT Customer Service, with a copy to the Legal Department.
(b) Force Majeure. If the performance of this Agreement, or any obligation thereunder except the making of payments hereunder is prevented, restricted, or interfered with by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers; war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall promptly resume performance hereunder whenever such causes are removed.
(c) Customer Rights. Nothing in this Agreement shall create or vest in Customer any right, title, or interest in the Peak PTT Service or the Peak PTT Materials other than the limited right to use the Service under the terms and conditions of this Agreement. All such rights shall remain in Peak PTT.
(d) Severability. To the extent that any provision or portion of this Agreement is deemed to be invalid, illegal or unenforceable, such provision or portion shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of this Agreement, as the case may be, shall remain binding upon the parties.
(e) Assignment. Customer may not, without Peak PTT's prior written consent (which may be given or withheld in its sole discretion), assign or transfer this Agreement, or any of its rights or obligations under this Agreement to any third person (an “Assignee”). Peak PTT may assign this Agreement to any person or entity without the consent of Customer. Peak PTT may delegate to affiliates of Peak PTT and to agents, suppliers and contractors of Peak PTT any of the obligations herein imposed upon Peak PTT and Peak PTT may disclose to any such persons any information required by them to perform the duties so delegated to them.
(f) Amendment and Waiver. Peak PTT reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time. Continued use of the Service for more than thirty (30) days after any such change shall constitute your consent to such changes. A failure or delay by Peak PTT to enforce any right under this Agreement shall not at anytime constitute a waiver of such right or any other right, and shall not modify the rights or obligations of either party under this Agreement.
(g) Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to conflict or choice of law rules or principles. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the court of the State of California located in Los Angeles County or in the United States District Court for the Central District of California for the purposes of any suit, action or other proceeding arising out of this Agreement or the subject matter hereof brought by any party hereto; and (b) hereby waive and agree not to assert as a defense or otherwise, in any such suit action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced by such court.
(h) Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) references to one gender include all genders, (iii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iv) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (v) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
(i) Attorneys’ Fees. If any legal action is necessary in order to enforce any of the terms of this Agreement or the relationship between Customer and Peak PTT, the prevailing party in any such action shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party.
(j) Entire Agreement. This Agreement sets forth the entire agreement of the parties, and supersedes prior agreements between the parties, relating to the subject matter contained herein and merges all prior discussions between them, and neither party shall be bound by any definition, condition, provision, representation, warranty, covenant or promise other than as expressly stated in this Agreement or as contemporaneously or subsequently set forth in writing and executed by a duly authorized officer or representative of the party to be bound thereby.
(k) Agreement Update. This Agreement was last updated on May 22rd 2018.