Payment Terms
All invoice terms are due on receipt. Failure to pay within 30 days of invoice date will result in an automatic 2% late fee compounded every 30 days. We accept Visa, Mastercard, AMEX, Discover, checks, ACH, and cash for your convenience.
TERMINATION DUE TO NON-PAYMENT
- After 60 days of non-payment, the services provided to the user will be temporarily suspended. During this period, the user will be unable to access or utilize any service in which they are engaged. This includes and is not limited to:
- Telephone numbers and lines of service
- Fax numbers
- Computer security protection
- Email accounts and messages within the email accounts
- Websites and website content
- Domain names
- Any consulting services from Luna Tech, LLC
- If payment is not received within 30 days of the initial suspension (90 days of late payments total), all services will be permanently canceled, and the user’s access to the aforementioned services will be terminated indefinitely.
Upon permanent cancellation due to 90 days total of non-payment, the user will remain responsible for any fees or charges incurred prior to the termination.
VoIP Terms and Conditions
This Agreement (“Agreement”) is between Luna Tech, LLC (Luna Tech), and the Customer. The parties agree as follows:
Important Information
The Customer acknowledges that this is a Voice over Data Network service, and as such, it is dependent on the Customer’s connection to the data network and the data network itself. The Customer’s service may therefore cease to function if there is a power failure or a failure in the underlying data network.
The Customer understands and acknowledges that this service allows calls to the emergency services number 911 and that calls to these services may fail if there is a power outage or if the customer’s broadband connection fails.
The customer understands and acknowledges that the address provided by the customer will be passed to the Emergency Services and will be used in location finding during a 911 call. The customer understands and acknowledges that the address provided is the location that the service will be used and that it is the customer’s responsibility to notify Luna Tech of any changes to this information. Further details on the Enhanced 911 service are outlined below.
Services
Subject to the terms and conditions of this Agreement, Luna Tech will provide to the Customer, the telecom services and/or related services described in the specific package of services chosen by you. Luna Tech shall take all due care in the provision and maintenance of the service to provide quality and reliability. In the event of any failure or malfunction within our networks Luna Tech shall then correct any failure or malfunction as soon as is reasonably practical.
Term
The initial term of this Agreement shall be as stated in the Order (“Initial Term”). The Initial Term shall begin upon commencement of Service to the Customer, provided, however, no Service shall commence unless and until Luna Tech receives and accepts a completed Order from the Customer plus payment in full for Services to be rendered during the Initial Term and any setup charges.
Luna Tech reserves the right to reject any submitted Order for any or no reason prior to acceptance by Luna Tech. After the Initial Term, unless otherwise agreed to by the parties, this Agreement shall automatically renew for successive terms of equal length as the Initial Term unless terminated or cancelled by either party only as provided in Paragraph 9 below. The Initial Term plus all successive renewal periods during which Service is provided shall be collectively referred to as the “Term.”
Fees And Payments
All fees for Services rendered or provided to the Customer shall be in accordance with Luna Tech’s price list then in effect. A price list setting forth Luna Tech’s current rates for Services is available on the web site.
Luna Tech may, at any time, amend the Services and/or the rates and fees it charges for the Services. Fees for renewal periods after the Initial Term shall be due and owing immediately upon the first day of such renewal period.
All users signing up for the Luna Tech VoIP service will be asked to read and agree to our terms and conditions before registration is completed. By agreeing to these terms and conditions the user agrees to abide to the terms and conditions.
When the user purchases services or sets up an auto payment method, the user grants Luna Tech continuous authority on the users debit or credit card until such time as the service(s) or auto payments are cancelled by the user and any outstanding monies have been paid. This includes all administration and porting fees. Should the user choose to cancel the user’s monthly service(s) or auto payments then Luna Tech’s continuous authority is immediately ceased.
In the event that Luna Tech are unable to take a continuous authorized payment from the user’s payment method then the user will be informed by email and will be prompted to make a payment via “Your Account” in order for their services to continue. Unpaid items will be marked as expired and the user prompted to renew. A notice of expired items will also be displayed in “Your Account”.
In the event that any amount due to Luna Tech remains unpaid, Luna Tech, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of Luna Tech) shall be paid by the Customer.
The customer will pay for all calls made from his account whether authorized or unauthorized. This includes, but is not limited to, calls made from fraudulent use of the account caused by hacking or any other form of unauthorized intrusion or use.
Security Of Service
The customer is wholly responsible for the safety and security of their Luna Tech account and the equipment used by them to access the Luna Tech network and services and must put in place such safeguards as necessary to prevent unauthorized use. The customer is responsible for all persons who use their username and password to access the service, whether authorized or not. Luna Tech accepts no responsibility for costs incurred by the customer from unauthorized usage of a customer’s account
Luna Tech reserves the right, but no obligation to check the security of a customer’s equipment or devices used to connect to its network if it reasonably believes that equipment on the customer’s network may be at risk from external attack (hacking) or if they believe that its terms and conditions of use are not being followed.
Content And Customer’s Responsibility
Luna Tech will exercise no control whatsoever over, nor have any responsibility or liability whatsoever for, the content of the information passing through its network. Luna Tech shall make no effort to validate any information passing through its network for content, correctness, usability or for any other reason.
Any users causing inappropriate cpu (central processor unit) usage, system load, performing any illegal activities or misusing 911 services will be immediately suspended.
Any users found on our servers which fit any of the descriptions above will be immediately disabled, removed, and are subject to a $450 clean-up and service fee upon termination. On such accounts all monies outstanding must be paid and refunds for any remaining days will not be given.
Customer conduct: Luna Tech will not tolerate bad language, verbal or threatening behavior either via phone, email or any other form of communication. Luna Tech expects that their customers and support representatives act in a polite and courteous manor at all times.
Luna Tech reserves the right to determine what constitutes abuse of their staff or services.
Music on Hold. Licenses: Luna Tech’s custom Music on Hold service is a storage only system. You are wholly responsible for ensuring that you have the appropriate rights and licenses to play the music that you upload. If in doubt, please consult the Performing Rights Society.
Take Down. We will remove any content that is contrary to United States law, or considered inappropriate or indecent without consultation or prior notice and at our sole discretion.
From time to time, Luna Tech will email its customers with information that it judges necessary for the ongoing upkeep and maintenance of their accounts and with information about changes, updates and new services that have become available. The Customer agrees to accept these emails unless and until they cancel all active services on their account.
No Warranty
The Customer agrees to use all Luna Tech Services and facilities, and any information obtained through or from Luna Tech, at Customer’s own risk. Customer acknowledges and understands that neither Luna Tech, nor any of its employees, representatives, agents or the like, warrant that the Services offered or provided hereunder will not be interrupted or be error free, nor do they make any warranty or representation as to the results that may be obtained from the use of the Service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Service, unless otherwise expressly stated in this Agreement. Luna Tech specifically disclaims all warranties of any kind, including, without limitation, the warranty of merchantability and fitness for a particular purpose, whether expressed or implied, for the Service it is offering or providing hereunder.
Limited Liability
Under no circumstances, including negligence, shall Luna Tech, its officers, agents or anyone else involved in creating, producing or distributing the Service hereunder be liable to the Customer or any third party, for any claims, causes of action or direct, indirect, incidental, special, or consequential, trebled, or punitive damages, that result or have alleged to have resulted from the use of or inability to use the Service; or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Luna Tech’s’ records, programs or services.
Luna Tech further shall have no responsibility whatsoever to the Customer or any third party for the accuracy or quality of information obtained through or in connection with its Services provided hereunder. Notwithstanding the above, Customer’s exclusive remedies for all damages, losses, costs or causes of actions from any and all claims, whether in contract, quasi-contract, statutory, tort including negligence, or otherwise, shall not exceed the amount which the Customer paid during the month immediately preceding the claim or the term of this Agreement, whichever is less.
Indemnification
The Customer shall defend, indemnify, save and hold Luna Tech harmless from any and all damages, demands, liabilities, losses, costs and claims, including, without limitation, reasonable attorneys’ fees, compensatory damages, punitive damages, trebled damages, and statutory damages (hereinafter “Liabilities”) asserted against Luna Tech, its agents, its Customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed by the Customer, its agents, employees or assigns or any product distributed, offered or sold by the Customer, its agents, employees or assigns.
Termination
This Agreement may be terminated: (i) by either party, without cause, by giving the other party 30 days prior written notice; (ii) by Luna Tech, at any time, upon 20 days’ prior notice if in the sole judgment of Luna Tech, The Customer breaches any material provision of this Agreement and has not cured same by the end of the 20 days; (iii) by Luna Tech in the event of non-payment by the Customer as provided in Paragraph 3 above; and (iv) by Luna Tech, at any time, without notice, if, in Luna Tech’s sole judgment, the Customer is in violation of any terms or conditions of Luna Tech’s Usage Policy.
Additional Terms And Conditions
The Customer hereby acknowledges that the Customer has seen and reviewed a copy of Luna Tech’s “Usage Policy” provided on the Luna Tech website and that the terms of the Usage Policy are incorporated herein by reference. Luna Tech reserves the right to amend these terms & conditions and the Usage Policy from time to time and the Customer shall be bound by any such amendments. The Customer shall have the obligation to periodically visit Luna Tech’ Web site to review the terms and conditions and its Usage Policy and to make certain that the Customer is in full compliance therewith. In the event of any inconsistencies between this Agreement and the Usage Policy, the terms of the Usage Policy shall govern.
Notice
All notices must be sent either in writing or by email, except as otherwise expressly provided herein that a notice must be in writing. All notices to Luna Tech shall be delivered to its address stated below or its email address as provided. All notices to the Customer shall be delivered to its mailing address or its email address as provided on the Order. The parties may change their respective address by notice delivered to the other party. All notices delivered in writing must be sent either by overnight courier or certified mail, return receipt requested. Evidence of successful transmission of all notices delivered by email must be retained by the delivering party.
Miscellaneous
This Agreement sets forth the entire agreement between Luna Tech and The Customer with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any other prior writing between the parties. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless continue in full force and effect. The Customer may not transfer or assign this Agreement without Luna Tech’ prior written consent. This Agreement shall be governed by the laws of the state of Texas and all claims concerning this Agreement shall be brought exclusively in Texas courts located in Auburn, Texas. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defenses concerning said forum. The Customer is deemed to have agreed to this Agreement, when commencing use of any of Luna Tech’s services.
Refund And RMA Policy
Equipment Purchase. Luna Tech will honor their money back guarantee when the Customer has returned all equipment that has been supplied to them. If you have simply changed your mind about any item ordered, and you wish to return it, you can do so provided you inform us of your decision within 14 days of receipt. The item must not be used and must be ‘as new’ when returned to us. Customers can contact Luna Tech via phone, email, or contact submittal form on the website for technical support of the product. If we can’t resolve the problem with you directly, you will be issued with an RMA number. You then have 28 days to return the goods to the address provided to you.
Once we have received the item, we will issue a refund for the product. All equipment must be returned complete and in its original packaging and in an “as new condition” With the exception of goods delivered incorrectly or that are faulty on arrival, the cost of return carriage is your responsibility
Calling credit and Services. Luna Tech bills its VoIP services one month in advance. No refunds will be given on cancellation for prepaid calling credits, or any of our monthly services.
Dormant Accounts
Any calling credit and any other assets left on an account that has been dormant for longer than 6 months will be deleted and is not refundable.
Call Recording
Please note that calls to Luna Tech may be recorded to help us in dispute resolution and for training purposes.
Cancellation Of VoIP Service
Luna Tech’s VoIP services can be cancelled at any time but must be done by the customer calling our offices at the numbers listed below. After cancellation, Luna Tech services will continue until the expiry of the balance of the 30 day billing period. Part month refunds are not given.
Porting Numbers Away From Luna Tech
We will only accept porting instructions from the individual named on the Luna Tech account.
In the event of a dispute over the customer’s right to port, the original name on the account will be taken as ownership and the customer may be asked for proof of identity before any porting request is accepted.
Arbitration Agreement
If you are a Luna Tech customer in the United States (including its possessions and territories), you and Luna Tech agree that any dispute, claim or controversy arising out of or relating in any way to the Luna Tech service, these Terms of Use and this Arbitration Agreement, shall be determined by binding arbitration or in small claims court. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Luna Tech are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your Luna Tech membership.
If you elect to seek arbitration or file a small claim court action, you must first send to Luna Tech, by certified mail, a written Notice of your claim (“Notice”). The Notice to Luna Tech must be addressed to our headquarters listed below (“Notice Address”). If Luna Tech initiates arbitration, it will send a written Notice to the email address used for your service account. A Notice, whether sent by you or by Luna Tech, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Luna Tech and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Luna Tech may commence an arbitration proceeding or file a claim in small claims court.
You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after Luna Tech receives notice at the Notice Address that you have commenced arbitration, Luna Tech will not reimburse you for your payment of the filing fee. You will be responsible for filing fees.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless Luna Tech and you agree otherwise, any arbitration hearings will take place in the county of Luna Tech headquarters.
YOU AND LUNA TECH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Luna Tech agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
e911 Terms & Conditions
Definitions:
911: Emergency call service typically used for delivering emergency calls to a public safety access point.
PSAP: Public Safety Answering Point
VoIP: Voice over IP
e911 Terms & Conditions
Due to FCC rulings and regulations, all customers who are using Luna Tech VoIP services as their primary residential or business telephone carrier must activate 911 Emergency Services on at least one of their DIDs.
Enhanced 911, the portion of our 911 service which delivers physical address information to your local PSAP is not guaranteed. It is possible that your physical address information may not be passed to the PSAP dispatcher. On occasions such as this, you will be required to give the dispatcher the location of your emergency in order to receive emergency service assistance.
Enhanced 911 service is not available to every location within the United States at this time. For locations where e911 is not currently available, you will be required to announce the location of your emergency to the PSAP dispatcher.
Due to the nature and instability of VoIP networks, we cannot and do not guarantee your emergency call will complete. Loss of power, Internet access and or several other conditions may cause 911 to be inoperable. We have no control over those types of situations and therefore are not held liable. Luna Tech will do everything within their power to prevent service outages within its network.
In order for e911 address information to be passed to your local PSAP dispatcher, you must set your outbound caller ID value to the specific DID you are purchasing e911 service for. Therefore, by agreeing to these Terms & Conditions, you the customer, agree to set the outbound Caller ID number to the DID you have enabled e911 services for when making an outbound 911 emergency call. Failure to set the correct caller ID value will result in a non-refundable $85 surcharge per 911 call.
By using Luna Tech Enhanced 911 service, Customer agrees that Luna Tech, its contractors, executives, members, customers, agents, employees, carriers, 911 providers, and any anyone else associated with Luna Tech is not held liable for emergency calls failing, even if it is determined that it is the fault of Luna Tech or its associates. Customer further agrees that they will notify their customers, contractors, agents, employees, associates, shareholders, partners, and anyone who may use the Luna Tech 911 service of our limitations and will only permit use of the Luna Tech service by persons who agree to not hold Luna Tech or Customer liable.
Customer will be charged a regulatory recovery fee of $2.00 per month for each DID submitted to the e911 database. This fee is non-refundable. Failure to enable e911 service will result in a non-refundable $85 surcharge per 911 call.
Dispute Resolution & Contact Information
In the event of a dispute between Luna Tech and the Customer, the Customer should contact Luna Tech directly. Full company details are shown below.
Luna Tech
13359 N Highway 183
Ste 406 PMB 2010
Austin, TX 78750
United States of America
Telephone: +1 (844) 803-5862
Fax: +1 (530) 653-1933
Luna Tech Computer Consulting Terms and Conditions / Service Guarantee
By agreeing to hire Luna Tech or any of its affiliates, you are acknowledging that you have read and understand, and agree to the computer repair terms and conditions agreement below. BY SIGNING THE WORK ORDER YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS.
You have requested service from Luna Tech, LLC, hereafter referred to as “Luna Tech”. Luna Tech will diagnose and service your computer for a fee as set forth in the estimate/work order provided. A “computer” can mean Laptop, Smartphone, Tablet, Server, PC, Xbox, PlayStation, camera, printer, fax machine, stereo, tv, monitor or any electronic device or system we agree to work on, all of which referred to as “computer” for the purpose of this contract.
Work is guaranteed for 15 days after date of service. This genuinely ensures all problems are solved concerning the flawless performance of a program or process. There will be no monetary refund of work performed. If the written quotation for service is not performed to a customer’s standards, we will continue to work to make it right in the agreed upon amount. Verbal quotations or service expectations are not binding. A customer is welcome to request written quotation of work to be performed at any time
The guarantee is void if significant changes to an operating system or network were made after the service call. Significant changes include, but are not limited to:
- Installation or removal of new hardware (printers, network, video, or sound cards)
- Installation or removal of new devices on network (routers, modems, PCs, printers)
- Installation or removal of software programs
Loss and Damages. You agree and understand that it is your (the customer’s) responsibility to maintain copies of all important data from your computer, and to save such copies, aka backups, prior to authorizing Luna Tech to commence its services for you. You are responsible for backing up your data before calling us and it is common policy for must users to backup data daily, weekly or monthly. Luna Tech takes every precaution possible to protect your computer, its parts and the data/software inside of it. However, we cannot be held responsible for any damage that occurs to either the hardware, software or data on your computer or for any losses or expenses associated with any such loss. In any case that your computer and/or network should be damaged while on our premises, Luna Tech and our insurance company can only be held responsible for the cost of replacing with similar hardware, not for any loss of data stored on your computer and/or network. NO MATTER WHAT, YOUR ONLY REMEDY IS TO SEEK RECOVERY OF DAMAGES AGAINST Luna Tech IN AN AMOUNT NOT TO EXCEED WHAT YOU PAID Luna Tech FOR THE SERVICE.
Data Ownership. When service involves transferring information or installing software, you represent that you have the legal right to copy the information and/or to use/install software. You agree to the terms of the software license, and you authorize Luna Tech to accept such terms on your behalf in performing the service. Luna Tech can not be held responsible for accidentally reporting hacked or illegal software or content.
Partial Invalidity. If any portions of this contract are found to be invalid, only such sections shall be void and the rest of the contract will remain active and in full force.
Luna Tech Backup Service
1. Backup Security
Luna Tech has implemented administrative, physical and technical safeguards designed to secure your customer account and customer content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat our safeguards or use the customer account and customer content for improper purposes. You provide your customer account details and customer content to us at your own risk. You are solely responsible for safeguarding, and ensuring that your authorized users safeguard their respective access credentials.
2. HIPAA Business Associate Agreement.
If you are subject to the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), as a Covered Entity or Business Associate (as defined in HIPAA) and use the Backup Service in a manner that causes Luna Tech to create, receive, maintain, or transmit Protected Health Information on your behalf, please contact a sales representative in order to use the Backup Service in a compliant manner. Unless otherwise agreed in writing, (i) Luna Tech does not intend that your use of the Backup Service will create obligations for Luna Tech to comply with HIPAA, (ii) Luna Tech makes no representations that the Backup Service satisfy HIPAA requirements, and (iii) you agree not to use the Backup Service in connection with any Protected Health Information (as defined in HIPAA).
3 General Backup Service Disclaimers.
THE USE OF “LUNA TECH BACKUP” MEANS LUNA TECH, ITS AFFILIATES, PARTNERS, PROCESSORS, SUPPLIERS, AND LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES). THE BACKUP SERVICE ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, LUNA TECH SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. LUNA TECH DOES NOT WARRANT (AND SPECIFICALLY DISCLAIMS) THAT THE BACKUP SERVICE ARE ACCURATE, RELIABLE OR CORRECT, THAT THE BACKUP SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE BACKUP SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DEFECT, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, THAT THE BACKUP SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE OR THAT THE BACKUP SERVICE GENERALLY WILL BE SECURE. LUNA TECH DOES NOT WARRANT THAT THE BACKUP SERVICE: (i) WILL RUN PROPERLY ON ALL HARDWARE OR INFORMATION TECHNOLOGY ENVIRONMENTS; OR (ii) WILL MEET YOUR NEEDS OR REQUIREMENTS OR THOSE OF YOUR AUTHORIZED USERS; OR (iii) WILL OPERATE IN COMBINATIONS THAT MAY BE SELECTED FOR USE BY YOU OR YOUR AUTHORIZED USERS.
4. Specific Backup Service Disclaimers.
(a) YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION AND USE OF AND RESULTS OBTAINED FROM THE BACKUP SERVICE.
(b) YOUR ACCESS TO AND USE OF THE BACKUP SERVICE ARE AT YOUR SOLE DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR ENVIRONMENT, ANY HARDWARE PROVIDED AS PART OF THE BACKUP SERVICE, AND THE LOSS OR DAMAGE OF YOUR CUSTOMER CONTENT.
(c) DEPENDING ON THE BACKUP SERVICE YOU CHOOSE TO UTILIZE, YOUR CONTENT MAY NOT BE AVAILABLE OR RESTORABLE IF:
(i) THE PRODUCTS OR SERVICES HAVE NOT COMPLETED COPYING, SYNCING, TRANSFERRING, OR UPLOADING (COLLECTIVELY, “BACKUP”) YOUR CUSTOMER CONTENT;
(ii) FOR FILES, FOLDERS, DATABASES, SERVERS, OR DRIVES THAT THE BACKUP SERVICE DO NOT AUTOMATICALLY BACK UP PURSUANT TO THE DOCUMENTATION, YOU DO NOT MANUALLY SELECT FOR BACKUP OR YOU DESELECT CERTAIN FILES, FOLDERS, DEVICES, DATABASES, SERVERS OR DRIVES FOR BACKUP;
(iii) YOU DELETE CERTAIN CUSTOMER CONTENT FROM YOUR DEVICE AND DO NOT RESTORE IT AFTER DELETION PURSUANT TO LUNA TECH’S OR YOUR OWN DATA RETENTION POLICIES, OR YOU DELETE A DEVICE, DATABASE, DRIVE, OR SERVER FROM CUSTOMER’S ACCOUNT;
(iv) YOU MOVE CUSTOMER CONTENT TO A LOCATION ON YOUR DEVICE THAT IS NOT AUTOMATICALLY SCANNED TO SELECT FILES FOR BACKUP, OR YOU UPGRADE YOUR OPERATING SYSTEM RESULTING IN CHANGES TO YOUR FILE MAPPING;
(v) CUSTOMER’S CONTENT IS CORRUPTED;
(vi) YOUR DEVICE IS UNABLE TO ACCESS THE INTERNET OR NETWORK SERVICE OR HAS EXPERIENCED INTERMITTENT OR SLOW INTERNET CONNECTION;
(vii) ANY HARDWARE PROVIDED TO YOU AS PART OF THE BACKUP SERVICE IS UNABLE TO CONNECT TO YOUR DEVICES AND YOU DO NOT TAKE STEPS NECESSARY TO CORRECT SUCH PROBLEM;
(viii) YOUR DEVICE OR HARDWARE IS UNABLE TO MAKE A CONNECTION WITH LUNA TECH’S SERVERS OR NETWORK;
(ix) YOU FAIL TO PERIODICALLY TEST YOUR BACKUPS AND RESTORES OR TO ENSURE THAT CERTAIN CUSTOMER CONTENT IS BACKED UP; OR
(x) YOU TERMINATE OR FAIL TO RENEW YOUR SUBSCRIPTION TO ANY PRODUCT OR SERVICE, OR YOUR ACCESS TO THE BACKUP SERVICE HAS OTHERWISE BEEN TERMINATED OR SUSPENDED.
(d) THE BACKUP SERVICE MAY ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT LUNA TECH DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (i) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR COMPONENTS; OR (ii) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR CUSTOMER CONTENT, WEBSITES, DEVICES AND NETWORKS; (iii) YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING YOUR OWN INTERNET AND DATA CONNECTIONS; AND (iv) COMPONENTS OF THE BACKUP SERVICE THAT ARE ACCESSED OR USED THROUGH INTERNET CONNECTIONS MAY BE SUBJECT TO YOUR INTERNET SERVICE PROVIDER’S FEES AND DOWNTIME. YOU ACKNOWLEDGE AND AGREE LUNA TECH IS NOT RESPONSIBLE FOR SUCH ACTIVITIES.
(e) YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF THE CUSTOMER ACCOUNT, CUSTOMER’S CONTENT, DEVICES AND ANY HARDWARE PROVIDED AS PART OF THE BACKUP SERVICE. YOU ACKNOWLEDGE AND AGREE THAT LUNA TECH SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM YOUR FAILURE TO MAINTAIN ACCURATE CUSTOMER ACCOUNT INFORMATION OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, YOUR FAILURE TO RECEIVE CRITICAL COMMUNICATION ABOUT THE BACKUP SERVICE.
(g)YOU ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LUNA TECH OR ANY LUNA TECH EMPLOYEE, PARTNER OR AGENT WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF LUNA TECH’S OBLIGATIONS HEREUNDER.
5. Disclaimers of and Limitations on Certain Remedies.
(a) No Consequential and Similar Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL LUNA TECH BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR ANY OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA, LOSS OF CUSTOMER CONTENT, LOSS OF USE, LOST REVENUE, BUSINESS INTERRUPTION OR PROPERTY OR ENVIRONMENT DAMAGE ARISING OUT OF OR RELATED TO YOUR USE OF THE BACKUP SERVICE, EVEN IF LUNA TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE).
(b) No Procurement of Substitute Services or Customer Content. IN NO EVENT WILL LUNA TECH BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE PRODUCTS OR SERVICES, CUSTOMER CONTENT, LOST OR DAMAGED CUSTOMER CONTENT OR THE COST OF RETRIEVING LOST CUSTOMER CONTENT. UNDER NO CIRCUMSTANCES WILL LUNA TECH BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE BACKUP SERVICE, YOUR CUSTOMER ACCOUNT OR THE CUSTOMER CONTENT.
(c) Limitation on Aggregated Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF LUNA TECH FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER ARISING IN CONTRACT, BREACH OF WARRANTY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY)) WILL BE LIMITED TO THE LESSER OF: (i) THE FEES PAID BY YOU TO LUNA TECH IN THE THREE (3) CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING; OR (ii) FIVE HUNDRED DOLLARS ($500.00). IF THE BACKUP SERVICE ARE PROVIDED TO YOU WITHOUT CHARGE IE. INCLUDED IN A MANAGED SERVICE AGREEMENT, THEN LUNA TECH WILL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING LIMITATIONS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES.
(d) YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE BACKUP SERVICE AND LUNA TECH’S WILLINGNESS TO PROVIDE YOU THE BACKUP SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, THEREFORE SOME OF THE FOREGOING TERMS MAY NOT APPLY TO YOU.
(e)THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
Legal/Arbitration. This agreement shall be construed under the laws of the State of Texas. In the event any dispute arises under this agreement or in any manner concerning the subject matter thereof, the parties agree that any such dispute shall be subject to binding arbitration only, and the customer expressly waives any and all rights they may have to otherwise proceed with such dispute resolution in a court of law. Any and all binding arbitration proceedings shall be undertaken as “fast track” proceedings and shall only be commenced in Williamson County, Texas. Each party shall bear its own costs and expenses of such proceedings, including any and all resulting attorney fees; provided, however, that the prevailing party in such proceedings may have the right to recover attorney fees against the opposing party if such fees are otherwise recoverable in disputes of that type under the laws of the State of Texas. This paragraph is intended to be and shall be construed as a forum selection clause, and the parties agree to bound hereto.