Vertu Ascent Ti Reference Manual page 21

incomplete, incorrect or inaccurate or arising from their late arrival or non-arrival, or any
other fault of you.
Vertu shall not be liable to you or be deemed to be in breach of these Terms and
Conditions by reason of any delay in performing, or any failure to perform, any of Vertu 's
obligations in relation to the VC services, if the delay or failure was due to any cause
beyond Vertu's reasonable control.
Except in respect of death and personal injury caused by the negligence of Vertu and
subject to the provisions of these Terms and Conditions, Vertu's maximum liability to
you for breach of any of its obligations hereunder shall be limited to the value of the
annual subscription fee, if any, and the relevant charge for the VC services to be
provided.
The limitations of liabilities set out herein apply only to the maximum extent permitted by
law.
22. Governing Law and Arbitration of Disputes
Any and all claims, except claims for monies due to Vertu, arising out of or relating to the
use of VC must be commenced within one (1) year after the date either you or Vertu
knew or should have known of the facts giving rise to such claim, after which such
actions shall be barred. If acceptance of your membership request or a particular
service request takes place within Europe, Middle East or Africa, the governing law shall
be English law. All disputes arising out of or in connection with these Terms and
Conditions shall be finally settled under the Rules of Arbitration of the International
Chamber of Commerce by one arbitrator appointed in accordance with the said Rules.
The arbitration proceedings shall be conducted in London, England in the English
language. The arbitration decision shall be final and binding. Provided that the parties
shall have the right to take proceedings in any other jurisdiction for the purposes of
enforcing a judgment or order obtained from the courts of England and Wales.
If acceptance of your membership request or a particular service request takes place
within Asia Pacific, the governing law of these Terms and Conditions shall be Singapore
law. All disputes arising from or connected to these Terms and Conditions shall be
settled finally and exclusively in Singapore under the Rules of the Singapore
International Arbitration Centre (SIAC Rules). The arbitration shall be conducted in
English in Singapore. The award shall be final and binding on both parties. Provided that
the parties shall have the right to take proceedings in any other jurisdiction for the
purposes of enforcing the arbitral award.
If acceptance of your membership request or a particular service request takes place
within the Americas region, all disputes and matters relating to arbitration shall be
governed by the Federal Arbitration Act (9 U.S.C. §§1 et. seq.). Except to the extent
governed by applicable U.S. federal law, any transactions with VC and its Suppliers
shall be governed by the laws of the State of Texas, excluding its conflict of law rules.
Any and all claims, except claims for monies due to Vertu, arising out of or relating to
your membership and use of VC shall be barred unless an action or legal proceeding is
commenced within eighteen (18) months after the date you or Vertu knew or should
have known of the facts giving rise to such claim. Any dispute relating in any way to your
membership and use of VC and any orders placed through VC, shall be submitted
(together with any counterclaims and disputes under or in connection with other
transactions and/or agreements between you and Vertu) to final and binding,
confidential arbitration to the Dallas, Texas office of the American Arbitration
Association (the "AAA"), with such arbitration to be held in Dallas County, Texas, except
that, to the extent you have in any manner violated or threatened to violate any Vertu or
Vertu affiliates' or licensors' intellectual property rights, Vertu may seek injunctive or
other appropriate relief in any state or federal court in the state of Texas or, at Vertu's
option, any other appropriate state or country, and you consent to exclusive jurisdiction
and venue of such court. Arbitration under these Terms and Conditions shall be
conducted under the then prevailing Wireless Industry Arbitration Rules of the AAA
(except as such rules may be modified by the terms of these Terms and Conditions),
unless otherwise agreed in writing by the parties and shall be heard by a single
arbitrator. Subject to any terms contained in these Terms and Conditions limiting or
excluding damages, the arbitrator may award any relief that the arbitrator deems proper,
including without limitation equitable relief, provided that no award of exemplary,
special, consequential or punitive damages shall be permitted. The prevailing party, as
determined by the arbitrator, shall pay the AAA arbitration fees and the arbitrator's fees
and expenses, as applicable. The arbitrator's award shall be binding and may be
entered as a judgment and enforceable in any court of competent jurisdiction. To the
fullest extent permitted by applicable law, the arbitration shall be conducted on an
individual, not a class-wide basis, and no arbitration under these Terms and Conditions
shall be consolidated with or joined to an arbitration involving any other person or entity,
whether through class arbitration proceedings or otherwise, without the prior written
consent of you and Vertu.
23. Force Majeure
Vertu shall not be liable for loss or damage caused by any delay or failure to perform its
obligations under these Terms and Conditions caused by failure of any machine, system
of authorization, data processing or communications system, transmission link, strikes,
lockouts, riots, war, fire, acts of God, accidents, material or transportation shortages,
governmental restrictions or injunctions, or denial of import or export licenses, or
compliance with any law, regulation or order, or due to any other circumstances or
causes that have the effect of frustrating performance of these Terms and Conditions,
or any other cause beyond the control of Vertu.
24. General Provisions
Headings - The headings of each of these Terms and Conditions are for convenience of
reference only and shall not form part of these Terms and Conditions. Such headings
shall be ignored in the interpretation or construction of any of these Terms and
Conditions.
Severability - If any provision or provisions of these Terms and Conditions shall be held
to be invalid, illegal or unenforceable, such provision shall be enforced to the fullest
extent permitted by applicable law, and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
No Waiver - Vertu's failure to insist on performance of any term or condition contained in
these Terms and Conditions, or failure to exercise any of Vertu's rights hereunder, shall
not constitute a waiver of any of Vertu's rights or remedies under these Terms and
Conditions.
Entire Agreement - These Terms and Conditions constitute Vertu's and your complete
and final statement of the parties' agreements and understandings relating to the
subject matter of these Terms and Conditions, and supersedes any related prior
agreements, understandings and discussions, oral or written.
Notices - Each party (i.e. you or Vertu) may send notices or communications to the other
by personal delivery, e-mail, regular mail or fax. Notices or communications must be sent
to the latest contact details specified by the receiving party. Notices and
communications will be considered received by the addressee (as applicable): (1) If by
courier or other mode of personal delivery, on the date of personal delivery to such
addressee's address as last specified by that addressee before dispatch; or (2) if by
posting, 5 working days after the date of registered posting (by airmail, delivery receipt
requested) to the addressee's address last specified by the addressee before posting;
or (3) if by facsimile, contemporaneously with facsimile transmission to the facsimile
number last specified by the addressee before transmission, with delivery being
evidenced by an appropriate successful transmission contact report. E-mail
communications shall be considered received by the addressee on the earlier of (1) the
earliest time at which the e-mail is accessible by the addressee; (2) receipt by the
sender of a delivery receipt message indicating successful delivery to the intended
addressee's e-mail address, or (3) the expiry of 48 hours from the sending of the e-mail;
provided that if at any point the sender receives notification that the e-mail has not been
successfully transmitted to an addressee then the e-mail shall not be deemed to have
been received by that addressee. Order cancellations by you via e-mail shall only be
effective upon express acceptance thereof by Vertu.
Telephone - Vertu may at its option accept orders and acknowledge, accept or effect
other communications by telephone. Telephone communications by Vertu shall be as
effective as written communications.
English
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