Move Beyond The Limitations of Traditional Phone Service
XIPTEL Terms and Conditions
When a Customer ("You") signs a XIPTEL Customer Agreement, Customer agrees to pay for XIPTEL Service and abide by the initial and subsequent Monthly Service Orders, these Terms and Conditions, and all other XIPTEL orders, agreements, and policies referred to directly or indirectly by the XIPTEL Customer Agreement. All references to "XIPTEL Service" include, without limitation, communication transmissions, access to and use of software and the XIPTEL web site, and any other service subject to any addendum to the initial and subsequent Monthly Service Orders.
1 The Service
1.1 General Description of Service. XIPTEL Service is an alternative to traditional business telephone service. Some features of XIPTEL Service work in a similar fashion to traditional business telephone service, some do not correspond to any existing traditional service, and some features may work differently than in traditional service, or may not work at all. You are responsible for evaluating the features of XIPTEL Service as compared to traditional service. In particular, you must carefully note that 911 Emergency Calling Services using XIPTEL are not the same as traditional services, and that under certain conditions may not work at all.
XIPTEL Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal, State or Provincial telecommunications regulatory agencies.
1.2 Resale Prohibition. You are not to resell or transfer the XIPTEL Service to any other entity for any purpose, without express written permission from XIPTEL in advance.
1.3 Service Abuse. You agree that the XIPTEL Service Plans do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting. XIPTEL reserves the right to immediately terminate or modify the Service, if XIPTEL determines, in its sole discretion, that your Service is being used for any of the aforementioned activities.
1.4 Legal Use of Service. You agree to use XIPTEL Service only for lawful purposes. This means that you agree not to use it for transmitting or receiving any communication or material of any kind when in XIPTEL's sole judgment the transmission, receipt or possession of such communication or material:
(i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or
(ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law.
XIPTEL reserves the right to terminate your XIPTEL Service immediately and without advance notice if XIPTEL, in its sole discretion, believes that you have violated the above restrictions. If XIPTEL terminates your service for this reason, you will be responsible for the full month XIPTEL Service charges to the end of the current month, including without limitation unbilled charges, plus any related cancellation fees from XIPTEL suppliers, all of which immediately become due and payable.
You are liable for any and all use of XIPTEL Service by yourself and by any person making use of the Service provided to you and agree to indemnify and hold harmless XIPTEL against any and all liability for any such use. If XIPTEL, in its sole discretion believes that you have violated the above restrictions, XIPTEL may forward the objectionable material, as well as your communications with XIPTEL and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
1.5 XIPTEL Authorized Service Providers. XIPTEL provides local sales, installation, training, and maintenance directly to end users and through XIPTEL Authorized Service Providers. You may contact XIPTEL directly to verify that a particular company is a XIPTEL Authorized Service Provider.
1.6 Access To Your Premises. XIPTEL may need to install and thereafter occasionally change certain facilities at your premises in order to provide Service ("XIPTEL Facilities"). Only XIPTEL and XIPTEL Authorized Service Providers may install, rearrange, move, remove, disconnect, repair, or otherwise touch XIPTEL Facilities. You agree to maintain the proper environment for XIPTEL Facilities and to not allow any encumbrances on them. You will give us and our contractors reasonable access to your premises as needed and maintain safe working conditions for us.
1.7 Approved Equipment. You must use equipment that is compatible with XIPTEL Service, including, but not limited to, wiring, VoIP handsets, and network switches and routers. You assume all risks associated with the use of equipment that is (a) not obtained from XIPTEL or one of our authorized dealers and (b) is either not listed as compatible on our web site or not approved by us in writing before installation. You warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that equipment with XIPTEL Service and you will indemnify and hold harmless XIPTEL against any and all liability arising out of your use of such equipment with XIPTEL Service.
1.8 Alternative Local Access Facilities. The standard method of providing XIPTEL Service relies on specific local access facilities arranged through XIPTEL that connect directly to XIPTEL's managed IP Network. It is possible to use other access arrangements for your offices, at your home, or while traveling away from your offices, which result in a call made using XIPTEL Service being carried over the public Internet or other carrier networks. Although in many circumstances such calls will be of comparable quality to those made using the standard access arrangements, in some situations the quality of calls will be lower. You acknowledge that the quality of some or all calls may be lower than expected when using alternative access arrangements, and that XIPTEL will not be able be liable to you or any third parties for any resulting problems in using the service. You acknowledge XIPTEL will not be liable for damages even if XIPTEL attempts to assist you in identifying the source and possible solutions to any service problems you experience.
1.9 Loss of XIPTEL Service. You acknowledge and understand that XIPTEL Service does not function in the event of power failure. You also acknowledge and understand that XIPTEL Service requires a fully functional local access connection to XIPTEL's managed IP Network or the public Internet. In the event of an outage or termination of the local access, XIPTEL Service will not function, but you will continue to be billed for the Service unless and until you or XIPTEL terminate the Service in accordance with your Agreement with XIPTEL. Should there be an interruption in the power supply or a local access outage, the Service will not function until power is restored or the local access outage is cured. A power failure or disruption may require you to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or local access outages will also prevent dialing to emergency service numbers including 911. Should XIPTEL suspend or terminate your XIPTEL Service, your XIPTEL Service will not function until such time as XIPTEL restores your XIPTEL Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of your Agreement with XIPTEL).
1.10 Copyrights, Trademarks, Unauthorized Usage. The XIPTEL Service and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service and all Services, information, documents and materials on XIPTEL's web sites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All web sites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of XIPTEL are and shall remain the exclusive property of XIPTEL and nothing in your Agreement or use of XIPTEL Services shall grant you the right or license to use any of such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, other than a nontransferable, revocable license to use such firmware or software in unmodified object code form. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
1.11 Tampering With XIPTEL Service. You agree not to hack or disrupt the XIPTEL Service or to make any use of XIPTEL Service that is inconsistent with its intended purpose or to attempt to do so.
1.12 Theft of XIPTEL Service. You agree to notify XIPTEL immediately, in writing or by calling the XIPTEL customer support line at 415-946-3600, if you become aware at any time that your XIPTEL Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the fraudulent use of your XIPTEL Service. Failure to do so in a timely manner may result in the termination of your XIPTEL Service and additional charges to you. Until such time as XIPTEL receives notice of the theft or fraudulent use, you will be liable for any and all stolen Service or fraudulent use of the Service.
1.13 Number Transfer. Upon termination of XIPTEL Service you may request that XIPTEL release telephone numbers used in providing your XIPTEL Service to another service provider. XIPTEL will release said telephone provided that:
(i) The new service provider is able to accept such numbers, and
(ii) Your XIPTEL account has been terminated, and
(iii) Your XIPTEL account is completely current including payment for all charges and disconnect fees.
1.14 x11 Calling. XIPTEL Service may not support 211, 311, 511, 611, 711 and 811 services in one or more XIPTEL service areas. E911 service may be provided, however, XIPTEL needs to be provided with proper location information for each and every service location using XIPTEL Service. XIPTEL Service uses the electrical power in each Customer location. Customer may not be able to make 911 calls if there is a power outage, or if XIPTEL experiences network or other technical problems.
2 Acceptance, Activation, Installation, and Maintenance
2.1 Acceptance and Activation. Acceptance of a Monthly Service Order is in XIPTEL's sole discretion. We will use commercially reasonable best efforts to install facilities and activate Service by the activation date. After we accept your Order, we may place orders with our suppliers, including, without limitation, broadband access circuit providers, in order to activate Service. Any subsequent change in, or other action (including expedite requests) that you take with respect to, the Order may give rise to charges from our supplier(s), even if the supplier's circuit or service has not yet been installed, and YOU WILL BE LIABLE FOR ANY SUCH CHARGES. If you do anything that delays Service activation beyond the Activation Date, then YOU WILL BE LIABLE TO US FOR ALL SERVICE-RELATED COSTS THAT WE INCUR FROM AND INCLUDING THE ACTIVATION DATE UNTIL SERVICE IS ACTIVATED.
2.2 Installation by XIPTEL. XIPTEL's standard practice is to oversee all aspects of installation and activation of service, for which you will be charged applicable installation and activation fees. XIPTEL provides these services through XIPTEL Authorized Service Providers. You are not required to purchase installation and activation from XIPTEL.
2.3 Installation by Others. You have the right to have other providers perform installation and activation of local access and customer premise equipment. All such installations must conform to XIPTEL installation guidelines. You agree that XIPTEL will not be responsible for service problems arising from installations by others on your behalf. You further agree that XIPTEL will bill you for facilities arranged and installed by XIPTEL on your behalf, including but not limited to T-1, DSL Lines, or other broadband access methods, even if installation by other providers you have selected is delayed and prevents your use of XIPTEL Service.
2.4 Lack of Adequate Facilities. You agree that lack of technically adequate or economically feasible broadband facilities to your premises, other facilities, incomplete or inaccurate information, or other operational impediments (including technical lack of, or lack of economically feasible, local telephone numbers), may preclude or delay activation, maintenance or repair of Service.
2.5 Maintenance. We will provide support and maintenance to you under the Service Level Agreement in Section 3 below.
3 Service Level Agreement
3.1 General. This Service Level Agreement ("SLA") describes our Service availability commitment. This SLA also describes our customer support and maintenance practices for XIPTEL Service. This SLA will remain in effect during the life of the Customer Agreement to which it is attached and subsequent periods during which authorized XIPTEL Services are provided. However, changes in the marketplace or our business operations may require changes in this SLA. Consequently, we may occasionally modify this SLA, and the changes will apply to any later Service Order.
3.2 Service Availability, Credits, and Exceptions. Our goal is to provide XIPTEL Service availability of 99.9%. This is roughly equivalent to the XIPTEL Service being unavailable to you for 9 hours or less in a calendar year. XIPTEL will provide you with a credit for XIPTEL Service interruption provided that:
(i) You report the interruption using your customary process of reporting, and
(ii) The interruption lasts 15 minutes or more, and
(iii) You request the credit in writing within three days after first reporting the interruption for which credit is claimed, and
(iv) Your XIPTEL billing account is completely current.
XIPTEL will compute the amount of the credit as follows:
(v) The total minutes of an interruption will be counted beginning when you report it and ending when we restore Service, and
(vi) Credit for all separate interruptions exceeding 15 consecutive minutes that happen within a calendar day will equal 1/30 of your monthly charge for the affected Service.
Credits are not available when the interruption is due to any of the following:
(vii) Slow access, busy circuits or other network and/or switching capacity shortages that are beyond our reasonable control, or
(viii) Previously scheduled maintenance outages, or
(ix) You, your equipment or any authorized or unauthorized user of your Service, or any other cause within the your control, or
(x) Use of equipment that is not compatible with Service, or
(xi) Preventing fraud or unlawful conduct or a breach of your Customer Agreement, or
(xii) Failure or malfunction of equipment or applications not owned, managed or controlled by us (including for example, fiber cuts, tandem failures, Internet service providers, DSL/ATM/Frame Relay/T1 service providers, or telecommunications carriers), or
(xiii) Any cause beyond our reasonable control (including compliance with a governmental order).
3.3 Problem Resolution. XIPTEL will try to promptly resolve any situation or condition that has caused a Service interruption to the extent that the fault involves our network. Even if no credit is available, XIPTEL will use reasonable efforts to seek a prompt resumption of Service whenever such efforts have a reasonable likelihood of success.
3.4 Scheduled and Unscheduled Maintenance. XIPTEL will occasionally perform maintenance activities in order to maintain or improve Service. These activities include, without limitation, tests, adjustments and inspections, and substituting, changing or rearranging equipment or facilities.
These activities will occur both on a scheduled basis and in response to unanticipated Service-affecting events. XIPTEL will use commercially reasonable efforts to restrict these activities to times outside of normal business hours. However, there may be times when circumstances require that they be performed during business hours.
XIPTEL will use commercially reasonable efforts to provide you with reasonable notice of Service-affecting activities that occur in the normal operation of our business.
4.1 General. Initial and ongoing training in the use of XIPTEL Service is provided directly by XIPTEL or through XIPTEL Authorized Service Providers. You and your service provider are responsible for determining the level of training that you will need, and the fees which you will pay for that training.
5 911 Emergency Service
5.1 XIPTEL 911 Service Differs From Traditional 911 Service. You must carefully note that XIPTEL 911 Service differs in significant ways from that provided by local telephone companies.
5.2 Different Routing. A 911 Call made using XIPTEL Service may not be routed to the same Public Safety Answering Point (PSAP) or emergency personnel that you would expect to reach using traditional 911 service.
5.3 Lack of Automated Number Identification. A 911 Call made using XIPTEL Service may or may not be able to automatically provide your phone number to the Public Safety Answering Point (PSAP) that answers your call. You acknowledge and understand that PSAP and emergency personnel may or may not be able to identify your phone number. This means that they may not be able to call you back if the call is unable to be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number.
5.4 Lack of Automatic Location Identification. XIPTEL Service may be unable to transmit identification of your physical address to the Public Safety Answering Point (PSAP) and local emergency personnel for your area when you dial 911. You acknowledge and understand that you will need to state the nature of your emergency promptly and clearly, including your location, as PSAP and emergency personnel will NOT have this information. You acknowledge and understand that PSAP and emergency personnel will not be able to find your location if the call is unable to be completed, is dropped or disconnected, if you are unable to speak to tell them your location.
5.5 Unavailable During Power or Access Outage. You will not be able to call 911 if power or local access facility outage prevents the XIPTEL Service from working.
5.6 Notification to XIPTEL Service Users. You agree to advise all users and potential users of the XIPTEL Service on your premises that 911 Service may not function as expected. XIPTEL strongly suggests that you post a notice next to each handset explaining how to make 911 calls in an emergency.
5.7 Alternative 911 Arrangements. You agree that it is your responsibility to decide whether it advisable to keep one or more public telephone system lines available for 911 Emergency Service, and agree that XIPTEL will bear no liability whatsoever to you and/or third parties for your decision.
5.8 Network Congestion and Reduced Speed for Routing and Answering 911. You acknowledge and understand that there is a greater possibility of network congestion and/or reduced speed in the routing of a 911 communication made utilizing your XIPTEL Service as compared to traditional 911 dialing over traditional public telephone networks. You acknowledge and understand that 911 dialing from your XIPTEL service will be routed to the general telephone number for the local emergency service provider. This number may not be answered outside business hour. Your call will not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider's facilities when such calls are routed using traditional 911 dialing.
You acknowledge and understand that there may be a greater possibility that the general telephone number for the local emergency service provider will produce a busy signal or will take longer to answer. You acknowledge and accept that XIPTEL relies on third parties for the forwarding of information underlying such routing, and accordingly XIPTEL and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect. XIPTEL or its officers or employees, may not be held liable for any claim, damage, or loss. You hereby waive any and all such claims or causes of action, arising from or relating to 911 dialing unless it is proven that the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of XIPTEL.
6 Term and Termination
6.1 Initial Term. Your Agreement begins on the Date of the Customer Agreement Date and continues for the initial term identified in your Customer Agreement.
6.2 Customer Dissatisfaction. If you are dissatisfied with XIPTEL Service, you may terminate this Agreement upon written notice to us within 60 days after the Service Activation Date. If you terminate under this Section 6.2, we will pay you an amount equal to the reasonable installation fees you would incur to reactivate the telecommunications service, if any, you used immediately before activation of XIPTEL Service. But only to the extent to which the previous service had been terminated to allow for provision of XIPTEL Service.
6.3 Other Grounds. In addition to termination rights provided elsewhere in this Agreement, either of us may terminate this Agreement upon written notice to the other if the other:
(i) materially breaches this Agreement and does not cure the breach within 30 days after written notice of the breach or
(ii) makes an assignment for the benefit of creditors, or
(iii) is assigned a Moody's debt rating of Caa or lower or the equivalent thereof, or
(iv) makes a statement in writing of a general inability to pay debts when due.
We may also terminate this Agreement upon written notice to you if you
(v) breach your obligations under Section 1 (The Service) above; or
(vi) fail to pay any non-disputed portion of any bill on or before the Due Date, and further fail to make such payment within 15 days after written notice of nonpayment.
But, we may not treat as a breach of this Agreement any failure to comply with any amendment to either our Website Terms or Acceptable Use Policy when the failure occurs within 10 business days after the amendment is posted on our website.
6.4 Effects. Except as provided below (Extension of Service), when your Agreement terminates, we may stop providing Service to you. You will be liable for all fees and charges incurred up to the date of termination as well as any cancellation or other charges imposed on XIPTEL by its underlying suppliers in the case of early termination. You will allow us to remove Our Facilities from the your premises. If your Agreement is terminated early either by XIPTEL or by you except pursuant to the sections above, you also will be liable for a termination charge. The termination charge will be equal to the sum of
(i) any discount, rebate, waived activation fee or other incentive granted to you plus,
(ii) the product of the then current monthly service charge multiplied by the number of months (any partial month being prorated on a 30 day basis) remaining in the Agreement term.
6.5 Extension of Service. Upon your request, we will continue to provide XIPTEL Service for successive 30-day terms after your Agreement terminates ("Extension Period") at our then current monthly prices; so long as you continue to fully comply with your obligations under your Agreement. Our respective rights and duties under the section above (Effects) will apply at the end of the Extension Period, except that any termination charge that had been due when the Agreement first terminated will be reduced by amounts you will have paid for Service during the Extension Period.
7 Billing, Payment, Disputes, and Taxes
7.1 Price and Fees. The prices set forth on the XIPTEL Retail Price List will apply throughout the term of your Agreement. The prices do not include any taxes or other regulatory or governmental charges for XIPTEL Service, and you agree to pay all such other fees on the billing statement.
7.2 Billing, Payment, and Disputes. We will bill in advance for recurring charges and in arrears for any usage-overage and other nonrecurring charges, except that the first billing statement will include the first period recurring charges. Payment for nonrecurring items and equipment purchases is due upon bill receipt ("Due Date"). Any amount not paid within 10 days after the Due Date is overdue and will incur a late payment fee equal to the lesser of 1.5% per month or the maximum amount permitted by law, until paid in full. Services are invoiced on the first calendar day of each month, and payment for Services is due by the 15th of that month. You will be liable to us for any fees or expenses, including attorney's fees, which we incur in collecting any overdue charge. A billing statement is deemed correct and payable in full unless disputed in writing within 15 days after receiving the bill. In case of a dispute, you must pay the undisputed portion by the Due Date to avoid a late payment fee on that amount. The Due Date for any disputed amount that is determined to be correct will be 7 days after we notify you that the dispute as to that amount has been resolved.
7.3 Credit Verification and Deposits. . We may at any time (i) obtain your credit- related information, (ii) investigate your credit history, (iii) require you to make or increase a deposit as a payment guarantee, and/or (iv) condition provision of Service on certain payment terms and conditions. We may also provide information about you to credit agencies. A deposit will accrue interest as required by law. We may apply any deposit against any amount you owe under this Agreement, but you may not use a deposit to pay any bill without our prior written consent.
8 Limitations of Liability, Remedies and Indemnities
8.1 DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND WITH RESPECT TO ANY CAUSE WHATSOEVER: (i) OUR SUPPLIERS WILL NOT BE LIABLE TO YOU OR TO ANY PERSON USING SERVICE FOR ANY DIRECT DAMAGES AND (ii) YOU WILL NOT BE LIABLE TO US, AND WE AND OUR SUPPLIERS WILL NOT BE LIABLE TO YOU OR TO ANY PERSON USING SERVICE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS OR REVENUES) OF ANY KIND, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE AND THE FAILURE OF ANY ESSENTIAL REMEDY. EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE OR DUE TO YOUR OR OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EITHER OF OUR MAXIMUM LIABILITY TO THE OTHER AND THE OTHER'S SOLE REMEDY FOR ANY CAUSE WHATSOEVER, WILL BE LIMITED TO $10,000.
8.2 Service Security and Privacy, Message Content. You agree that communications transmitted using XIPTEL Service may not be private or secure. You also agree that we will not be liable to you or any person using XIPTEL Service for either (i) any real or perceived compromise in the privacy or security of communications, (ii) the content of any message sent using XIPTEL Service, or (iii) the content or quality of information that you or any person access using XIPTEL Service.
8.3 ACCESS TO EMERGENCY SERVICES. THE LIMITATIONS OF OUR LIABILITY AND OUR SUPPLIERS' LIABILITY SET FORTH ABOVE APPLY TO ANY LIABILITY WHATSOEVER, INCLUDING ANY CLAIM FOR INDEMNITY, WHETHER ASSERTED BY YOU OR ANY THIRD PARTY, FOR ANY PERSONAL INJURY OR DEATH OR FOR ANY PROPERTY LOSS OR DAMAGE OR FOR ANY INFRINGEMENT OR INVASION OF PRIVACY, CAUSED OR CLAIMED TO HAVE BEEN CAUSED BY THE USE OR ATTEMPTED USE OF XIPTEL SERVICE TO ACCESS AN EMERGENCY SERVICE BY DIALING 911 OR ANY OTHER NUMBER.
8.4 Calls Over Public Internet. We usually provide the voice calling capability of XIPTEL Service by means of a managed network and not the public Internet, except for the local link connecting your premises to XIPTEL’s network which may use the public Internet. If you direct us to install Service using a configuration by which voice calls and/or voice call signaling traverse(s) the public Internet ("Internet Calls"), then you acknowledge and agree that, because we cannot control the voice-quality-impacting characteristics, availability and security of the Internet, we cannot guarantee voice quality for any Internet Calls or that Internet Calls can be made or will be secure.
You also acknowledge and agree that Internet Calls will not reflect our usual Service quality, and you will make no statement to any third person that indicates that the quality of Internet Calls represents the quality of our generally available Service.
In addition, and for the reasons stated in this section, you will not, and you will advise your end users not to, use Internet Calls to access emergency service by dialing 911 or any other telephone number, and you agree that XIPTEL WILL HAVE NO LIABILITY WHATSOEVER, INCLUDING ANY CLAIM FOR INDEMNITY, TO YOU OR ANY END USER FOR ANY INJURY OR DAMAGE CAUSED OR CLAIMED TO HAVE BEEN CAUSED BY THE USE OR ATTEMPTED USE OF INTERNET CALLS TO ACCESS AN EMERGENCY SERVICE.
8.5 Uncontrollable Events. Neither of us will be liable to the other, and we and our suppliers will not be liable to you or to any person using XIPTEL Service, for any failure to perform under this Agreement (except to make payments when due) due to any event or action outside of our respective reasonable control, including without limitation, acts of God, floods, fires, hurricanes, earthquakes, acts of war, labor actions, failure of a third party supplier to us or our suppliers, malfunction of the public internet, and changes in applicable laws and regulations.
8.6 WARRANTY DISCLAIMER. XIPTEL SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR SUPPLIERS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. OUR SUPPLIERS AND WE MAKE NO WARRANTY THAT SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, PRIVATE OR ERROR FREE; NOR DO OUR SUPPLIERS OR WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED THROUGH USE OF SERVICE OR THAT ANY DEFECT IN A SERVICE WILL BE CORRECTED. ACTUAL TRANSMISSION SPEEDS AND CHARACTERISTICS OF SERVICE MAY VARY FROM THOSE EXPECTED DUE TO OPERATIONAL CHARACTERISTICS OF THE EQUIPMENT OR FACILITIES USED.
8.7.1 We will indemnify and hold harmless you and your agents, from and against any third party claim (including attorneys' fees and expenses) that XIPTEL Service infringes a third party's valid U.S. patent, copyright, trademark or trade secret; except that we will have no indemnity obligation to the extent that any claim is caused by the combination, operation or use of Service with any service, software, hardware or equipment not provided by either us, or one of our agents or suppliers when Service would not otherwise be infringing. If XIPTEL Service becomes, or in our opinion may become, the subject of an infringement claim, we may in our sole discretion either: (i) procure for you the right to use Service; (ii) replace or modify Service to make it non-infringing; or (iii), if neither (i) or (ii) is commercially feasible, terminate this Agreement, on written notice to you, subject to Term and Termination above. We will not be liable for any costs or expenses incurred by you in connection with any potential claim of infringement without our prior written consent. THIS SECTION STATES OUR SOLE AND EXCLUSIVE LIABILITY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
8.7.2 Each of us will indemnify and hold harmless the other, and you will indemnify and hold harmless any of our suppliers, and the indemnified party's agents, from and against any third party claim for any and all loss, damages, liability, claims, costs and expenses (including attorneys' fees and expenses) arising, directly or indirectly, in whole or in part, out of the indemnifying party's performance or failure to perform under your Agreement. Your indemnity obligations include, without limitation, any third party claim arising from any use of XIPTEL Service provided to you.
8.7.3 All indemnity rights under your Agreement are subject to the following: (a) the indemnitee must provide the indemnitor with prompt written notice of any claim; (b) the indemnitee must permit the indemnitor to assume and control the defense of any action; (c) the indemnitee may not enter into any settlement or compromise of any claim without the indemnitor's prior written consent, and (d) EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE, THE LIMITATIONS SET FORTH "DAMAGES" ABOVE DO NOT APPLY TO THE INDEMNITY OBLIGATIONS SET FORTH IN THIS SUBSECTION. The indemnitee may, at its own expense, participate in the defense of any claim.
8.8 Authorized Service Providers. XIPTEL's limitations of liability, including all warranty disclaimers, apply also to the liability of any authorized XIPTEL's Service Provider.
9.1 Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, but neither party shall have the right to assign or otherwise transfer its rights under this Agreement without the prior written consent of the other party; provided, however, that XIPTEL may assign this Agreement without Licensee's consent to an affiliate or to any buyer of all or substantially all of the ../assets or majority voting control of XIPTEL.
9.2 Notices. All notices hereunder must be in writing and delivered via facsimile or by registered mail or overnight courier to the addresses or facsimiles below or to such alternate address or facsimiles as may be designated by one party to the other in writing from time to time:
PO Box 10515
Pleasanton, CA 94588
Attention: CUSTOMER CARE
9.3 Dispute Resolution. Any disputes between the Parties hereto arising out of or related to this Agreement shall be resolved in accordance with the following provisions. The venue for resolution of all disputes between the Parties shall be Alameda County, California.
9.3.1 In any claim or controversy arising out of or relating to this Agreement, the Parties shall attempt in good faith to resolve the matter through negotiation. Managers of the respective Parties having knowledge of the subject matter of the Agreement shall first meet in person and make a good faith attempt to resolve such controversies or claims. If, after such good faith attempt, such managers cannot otherwise settle or resolve the claim or controversy, senior managers of each party with authority to settle the controversy and who are at a higher level of responsibility than the officers with direct responsibility for administering this Agreement shall meet in person and make a good faith attempt to resolve or settle the matter. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this clause shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
9.3.2 If the claim or controversy cannot otherwise be settled by negotiation pursuant to the requirements terms set forth in Section 9.3.1 above, the claim or controversy will be finally settled by binding arbitration in Alameda County, California (or such other location as the Parties may agree) on an expedited basis under the Rules of Arbitration of the American Arbitration Association by one arbitrator appointed in accordance with those rules. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction.
9.3.3 In any arbitration pursuant to Section 9.3.2 above, and in any subsequent court action to obtain a judgment on the award of an arbitrator pursuant to Section 9.3.2 above, the prevailing party in the arbitration shall be entitled to receive from the other party all reasonable costs and expenses awarded by a court and/or incurred by such party in enforcing its rights under this Agreement, including without limitation, its costs and reasonable attorney fees.
9.4 Representations and Acknowledgements Regarding Certain Legal Requirements. You represent and warrant that you are not a national of, or under the control of, any country that the United States has currently imposed an embargo of goods. You understand that, if you are an agency, department or entity of the U.S. Government ("Government"),
(i) use, reproduction, release, modification or disclosure of software provided under this Agreement is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies,
(ii) the software is a commercial product, which was developed at private expense, and
(iii) use of the software by any Government agency, department or other agency of the Government is further restricted as set forth in this Agreement.
9.5 Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto and may not be amended, changed, or revised except by a written agreement executed by duly authorized representatives of both parties hereto. This Agreement supersedes all previous written agreements, or unwritten agreements and understandings between the Parties hereto.
9.6 Confidentiality and Publicity. This Agreement is confidential business information and may be disclosed to a third party only (a) when necessary to further your or our business purposes and (b) when the third party has executed a written agreement which imposes comparable confidentiality obligations and use restrictions. Neither of us may disclose the terms and conditions of this Agreement to a competitor of the other. Either of us may disclose the existence of this Agreement and the other's name for ongoing business promotional purposes.
9.7 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its principles of choice of law or conflicts of law.
Last updated January 1, 2013
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