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b. Post-Installation-CUSTOMER UNDERSTANDS THAT ITS RATES ARE BASED UPON ITS COMMITMENT TO PURCHASE SERVICES FOR
<br /> THE TERM OR RENEWAL TERM.AS SUCH,IF CUSTOMER TERMINATES THIS AGREEMENT OR ANY SERVICES PROVIDED HEREUNDER AFTER
<br /> INSTALLATION DURING THE INITIAL OR RENEWAL TERM FOR ANY REASON OTHER THAN FOR CAUSE,OR AS A RESULT OF WINDSTREAM'S
<br /> TERMINATION FOR CUSTOMER'S BREACH,CUSTOMER SHALL PAY TO WINDSTREAM AS LIQUIDATED DAMAGES,AND NOT AS A PENALTY,
<br /> AN AMOUNT EQUAL TO ONE HUNDRED PERCENT(100%)OF THE MRCS APPLICABLE TO THE TERMINATED SERVICES MULTIPLIED BY THE
<br /> NUMBER OF MONTHS REMAINING IN THE THEN-CURRENT TERM OR RENEWAL TERM("LIQUIDATED DAMAGES").CUSTOMER
<br /> - ACKNOWLEDGES THAT ACTUAL DAMAGES WOULD BE DIFFICULT TO DETERMINE AND SUCH LIQUIDATED DAMAGES REPRESENT A FAIR
<br /> AND REASONABLE ESTIMATE OF THE DAMAGES WHICH MAY BE INCURRED BY WINDSTREAM,INCLUDING BUT NOT LIMITED TO ACTUAL
<br /> EXPENSES INCURRED BY WINDSTREAM TO INITIATE OR TERMINATE THE SERVICES,THIRD PARTY COSTS,USE OF LIMITED NETWORK
<br /> RESOURCES,INSTALLATION CHARGES WAIVED AND ANY DISCOUNTS OR CREDITS GRANTED. If Customer's service order includes Monthly
<br /> Minimum Charges or Fees("MMCs"or"MMFs")and Customer terminates or disconnects less than the entirety of its Services such that its actual usage at a
<br /> location falls below the MMC or MMF for that location,Customer will pay the MMC or MMF every month in lieu of the Liquidated Damages set forth above.If
<br /> Customer's service order does not includes MMCs or MMFs and Customer terminates or disconnects less than the entirety of its Services such that its
<br /> actual usage at a location falls below fifty percent(50%)of its original contracted rate for that location,Customer will pay fifty percent(50%)of the MRCS
<br /> every month in lieu of the Liquidated Damages set forth above.Additionally,if Customer received a bundled rate for the disconnected Service(s),then
<br /> Customer's charges may be adjusted by Windstream to the unbundled service rates.
<br /> 16. Limitation of Liability.FOR PURPOSES OF THIS SECTION,AND THE FOLLOWING SECTIONS DESCRIBING INDEMNITY,DISCLAIMER OF
<br /> WARRANTIES,AND EMERGENCY.CRITICAL LINES SECTIONS,"WINDSTREAM"INCLUDES ITS OFFICERS,DIRECTORS,SHAREHOLDERS,
<br /> EMPLOYEES,AGENTS,SUBCONTRACTORS,VENDORS,AND ANY ENTITY ON WHICH BEHALF WINDSTREAM RESELLS SERVICES.
<br /> A. WINDSTREAM'S LIABILITY FOR SERVICES PROVIDED UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF:(1)
<br /> CUSTOMER'S MRCS DURING THE PERIOD IN WHICH THE DAMAGE OCCURS,OR(II)CUSTOMER'S MRCS MULTIPLIED BY SIX(6).IF
<br /> CUSTOMER'S SERVICE IS INTERRUPTED,WINDSTREAM'S LIABILITY WILL BE LIMITED TO A PRO-RATA CREDIT FOR THE PERIOD OF
<br /> INTERRUPTION.CUSTOMER AGREES THAT THE PRICING OF SERVICES REFLECTS THE INTENT OF THE PARTIES TO LIMIT WINDSTREAM'S
<br /> LIABILITY AS PROVIDED HEREIN.UNDER NO CIRCUMSTANCES WILL WINDSTREAM BE LIABLE FOR ANY ACCIDENT OR INJURY CAUSED BY
<br /> SERVICES,ANY INCIDENTAL,SPECIAL OR CONSEQUENTIAL DAMAGES(SUCH AS LOST PROFITS,LOST BUSINESS OPPORTUNITIES,
<br /> BUSINESS INTERRUPTION,LOSS OF BUSINESS DATA),ANY PUNITIVE OR EXEMPLARY DAMAGES,THE COST OF ALTERNATIVE SERVICE,OR
<br /> ATTORNEY'S FEES OR FOR ANY DELAY OR FAILURE TO PERFORM UNDER THIS AGREEMENT(INCLUDING BUT NOT LIMITED TO SERVICE
<br /> INTERRUPTIONS)DUE TO CAUSES BEYOND WINDSTREAM'S REASONABLE CONTROL.WINDSTREAM IS NOT RESPONSIBLE OR LIABLE IF
<br /> SERVICES ARE LOST,STOLEN OR MISUSED,EXCEPT WHEN DUE SOLELY TO WINDSTREAM'S GROSS NEGLIGENCE OR WILLFUL
<br /> MISCONDUCT.CUSTOMER IS RESPONSIBLE FOR ALL USAGE,CHARGES,AND LIABILITY INCURRED FOR SUCH LOSS,MISUSE,OR THEFT OF
<br /> SERVICES WHILE IN CUSTOMER'S CONTROL,REGARDLESS OF WHETHER/WHEN WINDSTREAM NOTIFIES CUSTOMER OF INCREASED
<br /> USAGE.
<br /> B. ENTRY ONTO WINDSTREAM'S PREMISES IS AT CUSTOMER'S OWN RISK,AND WINDSTREAM ASSUMES NO LIABILITY
<br /> WHATSOEVER FOR ANY HARM ARISING FROM ANY CAUSE OTHER THAN WINDSTREAM'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
<br /> RESULTING IN PERSONAL INJURY TO CUSTOMER DURING SUCH VISIT.WINDSTREAM IS NOT RESPONSIBLE IF EQUIPMENT IS LOST,STOLEN
<br /> OR MISUSED,EXCEPT WHEN DUE SOLELY TO WINDSTREAM'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.CUSTOMER IS
<br /> RESPONSIBLE FOR ALL LOSS INCURRED FOR MISUSE,MISHANDLING OR PROVISIONING OF CUSTOMER EQUIPMENT INCOMPATIBLE WITH
<br /> THE SERVICES,CHANGES MADE TO THE SERVICES BY CUSTOMER OR A THIRD PARTY NOT AUTHORIZED TO MAKE CHANGES,OR BY
<br /> WINDSTREAM AT THE DIRECTION OF CUSTOMER.IN NO EVENT SHALL WINDSTREAM BE RESPONSIBLE FOR ANY THIRD-PARTY EQUIPMENT,
<br /> INCLUDING ANY DAMAGES THAT MAY ARISE AS A RESULT OF DEFECTS OR ISSUES RELATED TO THE THIRD-PARTY EQUIPMENT.TO THE
<br /> EXTENT WINDSTREAM IS LIABLE FOR DAMAGE TO,OR LOSS OF,CUSTOMER EQUIPMENT,SUCH LIABILITY WILL BE LIMITED TO THE THEN-
<br /> CURRENT BOOK VALUE OF THE DAMAGED EQUIPMENT.EACH PARTY IS RESPONSIBLE FOR INSURING THE EQUIPMENT AND PROPERTY IT
<br /> OWNS WITH COVERAGE CONSISTENT WITH INDUSTRY STANDARDS.
<br /> 17. Indemnity.EACH PARTY WILL DEFEND,INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY,AND ITS RESPECTIVE DIRECTORS,OFFICERS,
<br /> EMPLOYEES,AND AGENTS,FROM AND AGAINST ALL THIRD-PARTY CLAIMS ARISING OUT OF THE INDEMNIFYING PARTY'S GROSS
<br /> NEGLIGENCE OR WILLFUL MISCONDUCT WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT.FURTHER,CUSTOMER WILL
<br /> DEFEND,INDEMNIFY AND HOLD HARMLESS WINDSTREAM FROM AND AGAINST ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH(1)
<br /> ANY FAILURE BY CUSTOMER OR CUSTOMER'S END USERS TO COMPLY WITH WINDSTREAM'S ACCEPTABLE USE POLICY OR APPLICABLE
<br /> LAW,OR(11)CLAIMS OF OWNERSHIP OR SUPERIOR RIGHTS TO CUSTOMER EQUIPMENT OR OTHER INTELLECTUAL PROPERTY BY A THIRD
<br /> PARTY.
<br /> 18. Force Majeure.Windstream shall be excused from,and shall have no liability with respect to,any delay or failure to perform hereunder caused by any event
<br /> beyond its reasonable control,including but not limited to,(i)cable cuts or common carrier delays;(ii)actions,failures to act or delays by Customer or others
<br /> authorized by the Customer to use the Service;(iii)failure of power,equipment,services or systems not provided by Windstream including but not limited to
<br /> other providers'networks and interconnections to or from and connectivity with other Intemet Service Providers'networks;(iv)Customer owned or leased
<br /> equipment or facilities(i.e.,Customer's PBX,Local Area Network(LAN);(v)during any period in which Windstream or its agents are not afforded access to
<br /> the premises where access lines associated with the Services are terminated or the Customer elects not to release the Services for testing and/or repair and
<br /> the Customer continues to use Services;(vi)maintenance(planned or emergency)or implementation of a Customer order that requires a Services
<br /> interruption(Windstream reserves the right to schedule maintenance and upgrades to the network seven(7)days a week from 12a.m.to 6a.m.in the local
<br /> time zone of the area being worked on without prior notice to Customer or upon reasonable advance notice outside these time frames);(vii)when a Service
<br /> Outage has not been reported to Windstream or where there is a trouble reported,but no trouble found;and(viii)labor difficulties,governmental orders,civil
<br /> commotion,acts of God and other circumstances beyond Windstream's reasonable control.
<br /> 19. Disclaimer of Warranties.EXCEPT AS OTHERWISE PROVIDED HEREIN,SERVICES,EQUIPMENT,AND THE DESIGNATED CUSTOMER AREA ON
<br /> WINDSTREAM'S PREMISES,IF APPLICABLE,ARE PROVIDED ON AN"AS IS"AND"AS-AVAILABLE"BASIS WITHOUT WARRANTIES OF ANY
<br /> KIND,EXPRESS OR IMPLIED,INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF
<br /> MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,WARRANTY ARISING BY COURSE OF TRADE,COURSE OF DEALING OR
<br /> COURSE OF PERFORMANCE,ANY WARRANTY THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR ANY WARRANTY
<br /> REGARDING THE QUALITY,CONTENT,ACCURACY OR VALIDITY OF THE INFORMATION OR DATA RESIDING ON OR PASSING THROUGH OR
<br /> OVER THE NETWORK AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED.WITHOUT LIMITING THE FOREGOING,BROADBAND SPEEDS,
<br /> UNINTERRUPTED OR ERROR-FREE SERVICE,TRANSMISSION QUALITY,AND ACCURACY OF ANY DIRECTORY LISTINGS ARE NOT
<br /> GUARANTEED.EXCEPT AS EXPRESSLY PROVIDED IN WINDSTREAM'S PRIVACY POLICY,WINDSTREAM HAS NO OBLIGATION TO PROVIDE
<br /> SECURITY OR PROTECTION FOR CUSTOMER'S PRIVACY,CONFIDENTIAL INFORMATION OR DATA.NO ORAL OR WRITTEN ADVICE OR
<br /> INFORMATION BY WINDSTREAM'S EMPLOYEES,AGENTS OR CONTRACTORS SHALL CREATE A WARRANTY,AND CUSTOMER MAY NOT RELY
<br /> ON ANY SUCH INFORMATION.
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