FILES, PROGRAMS, CUSTOMER EQUIPMENT, PROCEDURES OR INFORMATION
THROUGH ACCIDENT, NEGLIGENCE, FRAUDULENT MEANS OR DEVICES, OR
ANY OTHER METHOD, REGARDLESS OF THE CAUSE OF SUCH DAMAGE.
CUSTOMER AGREES THAT THE SERVICE AND CONSOLIDATED
COMMUNICATIONS FACILITIES ARE PROVIDED ON AN “AS IS” AND “AS
AVAILABLE” BASIS, THAT THE SPEED AND UNINTERRUPTED USE OF THE
SERVICE ARE NOT GUARANTEED, AND THAT THE SPECIFICATIONS AND
PERFORMANCE OF THE CONSOLIDATED COMMUNICATIONS FACILITIES ARE
NOT GUARANTEED OR WARRANTED TO BE ERROR FREE. CONSOLIDATED
COMMUNICATIONS DOES NOT WARRANT THAT THE SERVICE OR
CONSOLIDATED COMMUNICATIONS FACILITIES WILL MEET YOUR NEEDS,
PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT
RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. IF AT ANY
TIME DURING THE TERM OF THIS AGREEMENT CONSOLIDATED
COMMUNICATIONS OR A THIRD PARTY ACTING ON OUR BEHALF OR
INSTRUCTION PROVIDES YOU WITH FREE OR FOR-FEE SOFTWARE,
HARDWARE OR EQUIPMENT, YOU AGREE THAT YOUR SOLE RIGHT TO
RECOURSE, IF ANY, INCLUDING BUT NOT LIMITED TO DAMAGES FOR
FAILURE OF SUCH SOFTWARE, HARDWARE OR EQUIPMENT TO PERFORM, IS
AGAINST THE MANUFACTURER OF SUCH SOFTWARE, HARDWARE OR
EQUIPMENT. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF
CERTAIN WARRANTIES. IN THESE JURISDICTIONS OUR LIABILITY SHALL BE
LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.
11. Disclaimer of Consequential Damages and Limitation on Liability.
11.1 EXCEPT FOR (A) PAYMENT BY CUSTOMER OF AMOUNTS OWED TO CONSOLIDATED
I.
COMMUNICATIONS FOR SERVICE PROVIDED UNDER THIS AGREEMENT (INCLUDING
CHARGES, TAXES AND SURCHARGES) AND (B) CUSTOMER INDEMNIFICATION
OBLIGATIONS HEREUNDER (C) BREACH BY YOU OF LICENSE TERMS APPLICABLE
TO HARDWARE, EQUIPMENT OR SOFTWARE PROVIDED BY, ON BEHALF OF OR AT
THE INSTRUCTION OF CONSOLIDATED COMMUNICATIONS, (D) UNAUTHORIZED
ACCESS, ALTERATION, THEFT, DAMAGE OR DESTRUCTION BY CUSTOMER OR ITS
AGENTS, CONTRACTORS, OR USERS OF THE CONSOLIDATED COMMUNICATIONS
FACILITIES OR ANY OF CONSOLIDATED COMMUNICATIONS’S DATA FILES,
SERVICE, OR OTHER SOFTWARE, HARDWARE, EQUIPMENT, OR INFORMATION,
WHETHER THROUGH ACCIDENT, FRAUDULENT OR MALICIOUS MEANS OR DEVICES,
OR ANY OTHER METHOD, AND REGARDLESS OF WHETHER ANY OF THE
FOREGOING OCCURS AS A RESULT OF NEGLIGENCE OF CONSOLIDATED
COMMUNICATIONS OR ITS NETWORK SERVICE SUPPLIER(S) OR OTHER SUPPLIERS,
NEITHER PARTY IS LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL,
EXEMPLARY, SPECIAL, INCIDENTIAL OR PUNITIVE DAMAGES, INCLUDING
WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR
GOODWILL OR LOSS OR DAMAGE TO DATA, ARISING IN CONNECTION WITH THIS
AGREEMENT, OUT OF THE USE OR INABILITY TO USE THE SERVICE OR ANY
CONSOLIDATED COMMUNICATIONS FACILITIES, UNDER ANY THEORY OF TORT,
CONTRACT, INDEMNITY, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF
THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CONSOLIDATED COMMUNICATIONS’S LIABILITY TO CUSTOMER FOR ANY OTHER
DAMAGES DUE TO USE OF OR INABILITY TO USE THE SERVICE OR CONSOLIDATED
