XIPTEL Terms and Conditions
When a
Customer or User ("You") enters into a service
relationship with XIPTEL , Customer/ User agrees
to pay for XIPTEL Service and abide by these Terms and Conditions, and all other
related XIPTEL orders, agreements, and policies referred to directly or
indirectly by the XIPTEL service documents. 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 initial and
subsequent 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 very similar to but not exactly the same
as traditional services, and that YOU will be required to provide
the physical location address associated with your telephone number,
and from time to time, may be responsible to confirm the physical
address associated with your telephone number.
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 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
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,ATAs, and network switches and routers. You assume all risks
associated with the use of equipment that is (a) not obtained from
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 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.
2 Acceptance, Activation, Installation, and Maintenance
2.1 Acceptance and Activation. 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 or DSL Lines, 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. 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 wiring within three days after first
reporting the interruption for which credit is claimed, and
(iv) Your XIPTEL 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 Training
4.1 General. Initial and ongoing training in the use of XIPTEL
Service is provided 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 E911 Emergency Service
5.1 XIPTEL E911 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. With E911
service, when you dial 911, your telephone number and registered
address is simultaneously sent to the local emergency center
assigned to the physical location that is associated with the
address information provided by YOU.
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. This may be due to the information YOU provided to
describe the location that is to be associated with your XIPTEL
provided telephone number.
5.3 Lack of Automated Number Identification(ANI). 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. This can happen if you activate a feature to
block the automated number identification feature associated with
outbound calls from your telephone number. As a standard feature,
XIPTEL provides ANI on all outbound calls using XIPTEL provided
services. 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. If your calling
number is blocked (see Sect. 5.3), XIPTEL Service may be unable to
transmit identification of your registered 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
may NOT have this information when the calling number is blocked.
YOU acknowledge and understand that PSAP and emergency personnel
will not be able to find your registered physical address due to
calling number being blocked and the caller being unable to tell
them the 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.
5.7 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 YOU acknowledge and accept that XIPTEL relies on information
provided by YOU and third parties for the forwarding of information
underlying 911 call 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 30 days
after the Service Activation Date, or thereafter, if XIPTEL fails to meet
the SLA, or the customer has reported service outages during three or more
occasions during a 30 day period. Customer may also terminate this Agreement
at any time after the Service Activation Date and during the Term if
dissatisfied with the Call Quality of the Service, providing a trouble
ticket was opened with an adequate description of the issues(s), and XIPTEL
has been unable to satisfactorily solve the cause of the problem within 30
days from the trouble ticket date.
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 will 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 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 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 is due upon bill
receipt ("Due Date"). Any amount not paid within 30 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. 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 30 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. 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.
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 Indemnities.
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 Miscellaneous
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:
To:
XIPCOM, Inc. dba XIPTEL
6900 Koll center Parkway Suite 413
Pleasanton, CA 94566
Attention: CUSTOMER CARE
Facsimile:
(415) 223-3497
E-mail:support@XIPTEL.com
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 San Francisco,
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 San Francisco, 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 July 1, 2008
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