IX. Limitation of Liability and Indemnification
1. Limitation of Liability
Execulink Telecom and/or its directors, officers, employees, contractors or agents, shall not be liable in any way or manner whatsoever to the Customer, or to any person, firm or corporation whatsoever, including, but not limited to the following reasons:
a) Any delay, loss or damage (whether direct or indirect or founded in tort or contract or otherwise at law or in equity) resulting from, or arising out of the provision of the Services, or any defect in or the delay, failure, inoperability or malfunctioning of Execulink Telecom equipment or facilities as contemplated by these Terms, including, without limitation, any indirect, consequential or economic loss, whether or not the same was or may have been reasonably foreseeable by Execulink Telecom, excepting only the liability of Execulink Telecom to the Customer for any rebates or credits contemplated in any Service-specific agreement.
b) Execulink Telecom does not guarantee uninterrupted operation of the Services, including emergency 911 services, or of its equipment, facilities, connections or network and, Execulink Telecom is not liable for any disruption or unavailability of the Services, including without limitation, any act or omission of any third party, including any other local telephone company, any connecting carrier, competitive access provider or other provider of connections, facilities or service whose facilities are used in establishing connections to points that Execulink Telecom does not directly serve.
c) Defamation or copyright infringement arising from material transmitted or received over Execulink Telecom facilities.
d) Infringement of patents arising from combining Customer provided facilities with Execulink Telecom facilities or otherwise from the use of Customer-provided facilities.
e) Customer conduct, acts or omissions, or the operation or failure of Customer equipment or facilities.
g) Delay or failure, for any reason, to activate any Service on the activation date requested by the Customer.
h) Any defacement of, or damage to, Customer premises resulting from the attachment of any instruments, apparatus or associated wiring or equipment furnished by Execulink Telecom on Customer premises, or removal thereof, when such defacement or damage is not wholly caused by Execulink Telecom gross negligence.
i) Execulink Telecom liability (if any) for negligence, breach of contract, including fundamental breach, or other causes of action, or any loss, omissions, delays, errors, defects or failures in Execulink Telecom Services, equipment or facilities, or for any other action or inaction of Execulink Telecom, is limited to a refund of charges for the affected Services proportionate to the length of time the problem existed, upon request. In the event of a service interruption, please notify Execulink Telecom as soon as possible. If Services continue to be interrupted for a period of at least 48 hours after notice by you to Execulink Telecom, a credit proportionate to the length of time the interruption existed shall be granted by Execulink Telecom to you, upon request. No allowance shall apply to any non-recurring charges.
Under no circumstances shall Execulink Telecom be liable for any indirect, special, consequential, exemplary or punitive damages whatsoever, including any loss or interruption of business or lost profits, even if such damages were reasonably foreseeable. No agents or employees of other carriers shall be deemed to be agents or employees of Execulink Telecom.
In subscribing for Execulink Telecom Services, you obtain no proprietary right or interest in, any particular facility, Service, equipment, telephone number or code associated with the Services.
2. Indemnity by Customer
a)The Customer shall indemnify and save Execulink Telecom and its directors, officers, employees, contractors, agents or shareholders harmless from and against all damages, suits, claims, judgments, costs or expenses of any kind, including legal fees, howsoever arising in connection with the provision of the Services or equipment to the Customer pursuant to this Agreement, including without limitation with respect to the violation of any law or regulation or copyright or trademark infringement which may arise in relation to the provision of the Services and/or equipment. This section shall survive the termination of this Agreement.
b) In addition, the Customer agrees to indemnify and hold Execulink Telecom harmless from all claims, including fees and expenses of counsel, resulting from the Customer's use (or the use by others with the Customer's explicit or implicit consent) of Execulink Telecom Services, or Customer codes, facilities or equipment, which causes direct or indirect damage or harm to another party or the property of another.
c) If Execulink Telecom equipment or facilities are presently located at or are to be installed on property or premises occupied by the Customer, but not owned by the Customer, the Customer agrees to be responsible for obtaining and maintaining the consent of the owner or landlord to place such facilities or equipment on the property or Premises. The Customer agrees to indemnify and save harmless Execulink Telecom from any and all actions, causes of action, claims, actions or demands arising or resulting from any lack of such consent.
d) The Customer must not use, in any manner or circumstances whatsoever, Execulink Telecom trademarks, trade names, logos or designs, and has no authority to act on behalf of Execulink Telecom.
3. Force Majeure
Execulink Telecom and/or its directors, officers, employees, contractors or agents, shall not be liable for any delay in the performance or for non-performance in whole or in part, of the Services and periods set out for performance of responsibilities as a result of any event beyond the reasonable control of Execulink Telecom including acts of God, floods, war, fires, natural disasters, famine, earthquake, embargoes, labor disputes, casualties, civil disturbances, acts of civil and military authorities, fibre, cable, equipment or other material or component failures, fibre cuts, lack of or delay in transportation, shortages, unavailability or delay in delivery not resulting from the responsible party's failure to timely place orders therefore, government codes, permits, ordinances, laws, rules, regulations or restrictions, or any other contingency beyond its reasonable control.
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