The following terms and conditions are applicable to all Sales Orders for Xtel Services:
1. Term and Renewal.
These Terms and Conditions, any Sales Order(s), and/or any Change Order(s), and/or any Statement of Work (together the “Agreement”) are effective on the “Effective Date”, set forth as either the date of customer signature on the Sales Order or MACD (moves, adds, or changes) Order or Service Installation Date (as defined below), whichever occurs last. For all Voice and Hosted PBX services, the Service Installation Date is defined as the date which voice calls can be successfully made and completed. For all Data and Internet services, the Service Installation Date is the date the circuit is physically installed at the customer location. If any combination of Voice, Hosted PBX, Data circuits, or Internet services are incorporated within this Agreement, then multiple Service Installation Dates may apply.
The Agreement will continue for the term set forth in the Sales Order (the “Term”) from the Effective Date or until either terminated pursuant to Section 18 below or replaced with a new agreement. Upon expiration of the Term, this Agreement will automatically renew for consecutive periods equivalent to the initial Term (each, a “Renewal Term”) until either party provides the other party with written notification of their intent not to renew. Such notification must be provided within ninety (90) days prior to the end of the Term then in effect. In the event a Customer provides written notice of its intent not to renew but does not terminate Services (defined as any combination of Voice, Hosted PBX, Data, Internet, or any other service offered by Xtel) hereunder, Xtel shall have the option of continuing to provide such Services on a month-to-month basis, priced at Xtel’s then current monthly rates. In the event Customer elects to disconnect the Service, Customer shall provide written notice to Xtel specifying the services to be disconnected (Letter of Disconnect) directly to the email address: disconnect@xtel.net and the disconnect shall be effective forty-five (45) days from the date of Xtel’s receipt thereof. Customer will continue to be billed for the Service for forty-five (45) days after Xtel receives the Letter of Disconnect.
Xtel makes no representations or warranties with respect to the eligibility or ineligibility of the Service(s) for federal E-Rate support or for other governmental and quasi-governmental telecommunications/Internet discounts or entitlements (collectively “E-Rate Funding”).
2. Charges for Services.
Billing and Payment; Credits.
2.1. Customer is responsible for paying all charges that apply to the Services ordered on a Sales Order or used on a per-use basis by Customer, including items such as features, installation, labor, repair, long distance, and directory or operator assistance as specified on the Sales Order or set forth in Xtel’s Price Lists or Tariffs.
2.2. Customer is responsible for all shipping charges, sales and use taxes, and all other taxes, regulatory charges, surcharges, fees, and assessments that apply to this Agreement and the sale and use of Services which may be levied at any time during a customer’s initial or Renewal Term.
2.3. Customer may be required to pay a deposit or prepay for services, as set forth in Section 5.
2.4. Xtel will bill Customer monthly for the Services ordered, payable on receipt of the bill notice. Billing at a location will begin upon the Installation Date (which may be the date that an access circuit is installed). If multiple Customer locations will have service installations, billing may commence for a location regardless of the installation status at the other locations.
2.5. Billing may commence thirty (30) days after delivery of the applicable facility and/or equipment to the Customer premises (if the delay in connection of the facility and/or equipment is due to Customer or its agent). Equipment sold to the Customer will be billed upon the signature date of the Sales Order. Xtel may choose to bill in full monthly increments with no proration for partial service periods when service either starts or ends in the middle of a billing cycle. Paper bills are available only upon request and for a monthly charge and billing for usage will round up to the next cent. If Customer authorizes payment by credit or debit card, then Xtel will not obtain further consent or provide additional notice before invoicing the credit or debit card for all amounts due and owing. All taxes, surcharges, rates, fees, and product fees are subject to change without notice based on changes to Federal and State guidelines and regulations and all applicable tariffs and publicly available terms and conditions, as well as increased network and billing charges.
2.6. In the event Xtel is subject to additional fees or costs from a provider of any of its resold Services, such increase (exclusive of applicable taxes) shall be passed to Customer effective the monthly bill notice following such increase.
2.7. Xtel may adjust the charges for Services upon the expiration of the initial or Renewal Term or by giving Customer at least thirty (30) days’ prior written notice, which may be satisfied by including notice of a monthly recurring charge modification in a Customer bill. Customer shall have thirty (30) days from receipt of such notice to cancel the applicable Service without further liability. Should Customer fail to cancel within such timeframe, Customer shall be deemed to have accepted the modified Service pricing.
2.8. Xtel may, in its sole discretion, assess reasonable time and material charges if a Customer reports an issue to Xtel that requires a service dispatch and no trouble is found in Xtel’s or its partners’ facilities and/or network, or with any Xtel managed customer premise equipment.
3. Disputes.
To dispute a charge, Customer must timely pay all undisputed charges and deliver to Xtel in writing the specific basis for such dispute, together with all substantiating documentation, within thirty (30) days after the date on the bill. If Customer does not follow this dispute process, the dispute shall be deemed waived. Each party has the right to discuss issues directly with the other party and Xtel may refuse to discuss issues through Customer’s external representative.
4. Partial Payments; Late Payments.
All amounts due Xtel are payable in full within thirty (30) days from the date of the invoice. If Xtel does not receive full payment when due or does not receive payment in immediately available funds, Xtel will add a late payment fee of 1.5%, or the maximum rate allowable by law, to the amounts owed and will calculate such fee as the total owed times the interest rate. A returned check fee of $35 may additionally apply. Xtel may accept any payments Customer marks as being “payment in full” or as being settlement of any dispute without waiving any rights Xtel has to collect the full payments from Customer. Customer is responsible for paying all costs and fees Xtel incurs as a result of collecting Customer’s unpaid charges, including attorney’s fees.
5. Credit and Deposits.
Customer authorizes Xtel to ask credit-reporting agencies for Customer’s credit information. Xtel, in its sole discretion, may deny Services based upon an unsatisfactory credit history or require Customer to submit an initial security deposit and/or advance payment. An additional deposit and/or advance payment may be required if Customer increases Services or Customer’s credit rating changes. The deposit will not bear interest unless explicitly required by law. The deposit will be refunded if satisfactory credit has been established or upon termination of this Agreement for any reason, except that Xtel at its discretion may apply the deposit to any amount due and unpaid by Customer.
6. Services Location; Moves.
Customer is responsible for providing an environment that is suitable for the Services, including equipment that is compatible with Xtel’s network. Customer shall provide Xtel with the correct address to obtain Services because Xtel relies on such information to determine which taxes, fees, surcharges and assessments apply to Services. If Customer does not provide a valid or correct address, Customer will be responsible for any resulting taxes, fees, surcharges, assessments and penalties related thereto. Customer will notify Xtel if Customer’s address changes, in which case Xtel may either (a) terminate the affected Services; or (b) allow Customer to provide sixty (60) days’ advance notice to Xtel to move Services to a new location and pay any applicable installation charges. Customer will enter into a new Agreement for such new location or Xtel will apply the liquidated damages set forth in Section 19 for the terminated location. Charges could apply and monthly fees may be affected for moves.
7. Xtel-Provided and Owned Equipment.
Any equipment installed by Xtel on Customer’s premises that is not the subject of a sale or lease to Customer (such as the switches, gateway devices, routers, phones and interface cards, if applicable) shall remain at all times the property of Xtel. At any time, Xtel may remove or change Xtel equipment in its sole discretion in connection with providing the Services. Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Xtel equipment or permit others to do so, and shall not use the Xtel equipment for any purpose other than that authorized by the Agreement. Xtel shall be responsible for the maintenance and repair of the equipment unless it is damaged as a result of the action or inaction of Customer or its employees or agents, in which case Customer shall reimburse Xtel for the cost of any necessary repairs or replacement. Customer shall provide Xtel reasonable access to the equipment for purposes of repair, maintenance, removal or otherwise. If Xtel does not have access to Customer’s premises within thirty (30) days after Customer terminates with Xtel, Customer shall reimburse Xtel for the full purchase price of the equipment as well as any attorney’s fees and costs. Xtel equipment, including but not limited to leased equipment, shall be used exclusively for the purpose of providing the Services pursuant to this Agreement unless otherwise agreed to in writing by the parties.
8. Customer-Provided Equipment and Equipment Sold to Customer.
Xtel shall have no obligation to install, maintain, repair, or replace Customer-provided equipment or equipment sold to Customer unless otherwise agreed to in writing by the parties. If, on responding to a Customer-initiated service call, Xtel determines that the cause of the service deficiency was a failure, malfunction or inadequacy of equipment other than Xtel’s equipment, Customer shall compensate Xtel for actual time and materials expended during the service call. All manufacturer-expressed warranties for Customer-provided equipment or equipment sold to Customer, and the enforcement of manufacturer warranties, are solely up to the manufacturer and the Customer. Xtel shall have no obligation to enforce manufacturer-expressed warranties.
9. Disconnection of Current Provider; Special Construction; Third Party Charges.
Customer is solely responsible for disconnecting Services with its current service provider. Xtel is not responsible for any charges assessed against Customer by such provider. Customer shall pay all charges if Xtel or a third party provider is required to undertake special construction for Customer, including but not limited to extending the demarcation point or creating a fiber pathway. Unless Xtel specifically agrees in writing to undertake equipment installation and maintenance work, Customer is responsible for all charges assessed by its phone system vendor and other third parties in connection with the installation of the Services and Xtel shall have no responsibility for maintenance or repair of same.
10. Internet.
Xtel cannot guarantee speeds or uninterrupted, error-free service. Internet speeds are distance and location-sensitive and speed will vary based on factors such as the condition of wiring inside a specific location, computer configuration, network or Internet congestion, the server speed of the Web sites accessed, and other factors.
11. IP Address Allocation Policy.
Xtel assigns IP addresses to its customers for use with certain IP/data-based Services. The Customer must be able to exhibit at least 80% utilization of all assigned IP addresses. Xtel reserves the right to repossess IP Addresses if utilization falls below 80% utilization. Xtel shall retain any assigned public IP address when a Customer’s service is terminated. Xtel and Customer agree that assigned addresses are “non-portable” and other providers are not allowed to route these addresses. Customer who has their own IP addresses, which are allocated directly from American Registry for Internet Numbers (ARIN), will be ported/routed by Xtel where reasonably possible. However, Xtel cannot guarantee the portability/routability of these addresses beyond its own backbone and to the Internet in general. Xtel reserves the right to modify its IP Address allocation Policy without notice.
12. Acceptable Use Policy.
Xtel supports the free flow of information and ideas over the Internet. Xtel does not actively monitor nor does Xtel exercise editorial control over the content of any website, electronic mail transmission, mailing list, News Group or other material created or accessible over Xtel networks. However, Xtel reserves the right to remove any materials, that, in Xtel’s sole discretion, are potentially illegal, may subject Xtel to liability, or violate this Acceptable Use Policy (“AUP”). Such materials may include, but are not limited to, material that is inappropriate, obscene (including child pornography), defamatory, libelous, threatening, abusive, hateful, or excessively violent and/or material that infringes, misappropriates, or otherwise violates anyone’s rights (including intellectual property, privacy, personality, publicity, or otherwise).
In addition to the prohibitions described above, Services, (including any device, system, network, or account used in connection with the Services) may not be used for the following purposes:
• The exploitation of minors or vulnerable persons;
• Auto-dialing or traffic pumping;
• The transmission of any material that contains viruses, Trojan horses, malware, spyware, or any other similar programs;
• Selling, reselling, or sublicensing Services;
• Harvesting or collecting information about third parties;
• Bypassing, exploiting, disabling, or otherwise circumventing limitations or security features of the Services;
• Intercepting, monitoring, modifying, decrypting, or redirecting any communication or data for any purpose; or
• Misleading any person as to Customer’s identity by creating a false caller ID, forging addresses, or headers, or fraudulently undertaking any measures to misrepresent the origin or identity of the sender.
Any violation of this Policy may result in the suspension or cancellation of Xtel services without liability to Xtel. Channeling any part of any such activity through Xtel’s network resources shall constitute a violation of this Policy. XTEL WILL IN NO EVENT BE LIABLE OR RESPONSIBLE FOR THE INTERNET OR ANY INFORMATION CONTAINED THEREON. XTEL DOES NOT WARRANT AND DOES NOT ASSUME ANY LIABILITY FOR ANY CONSEQUENCES SUFFERED BY ANY PERSON AS A RESULT OF OBTAINING INTERNET ACCESS, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM INTERNET CONTENT OR FROM COMPUTER VIRUSES.
Using Xtel services and equipment for illegal purposes or in support of illegal activities is strictly prohibited. Xtel reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrong. Activities, which are in violation of any local, state, or federal laws, statutes, regulations, treaties and/or tariffs, would constitute a flagrant violation of the AUP. Should any Customer activity threaten the integrity of or threaten to adversely affect Xtel’s network, Xtel shall be allowed to take steps to reduce or contain the damage, including termination or suspension of the DIA Service.
13. SPAM.
Xtel prohibits the transmission, distribution, or storage of unwanted or offensive content.
Prohibited transmissions include, without limitation, viruses, trojan horse programs, messages that include character sequences intended to control the recipient’s computer or display screen, make-money fast schemes, pyramid or chain letters, fraudulent offers, threats, harassment, defamation, postings to a newsgroup in violation of its rules, charter or FAQ, unsolicited advertising (whether commercial or informational) and unsolicited e-mail (“SPAM”). Xtel strongly opposes SPAM, which floods the Internet with unwanted and unsolicited e-mail and deteriorates the performance and availability of the Xtel network. All forms of SPAM, and all activities that have the effect of facilitating SPAM, are strictly prohibited. Violation of this provision will result in termination of any applicable Service Attachment and/or Customer’s entire Master Agreement. Xtel shall be allowed to take any action it deems necessary to prevent the transmission, distribution, or storage of SPAM.
14. Fraud and Network Security.
Xtel is not liable for any damages Customer may incur as a result of the unauthorized use of Customer’s network facilities. In no event will Xtel be liable for protection of Customer’s network, transmission facilities or equipment from unauthorized access, or for any unauthorized access to or alteration, theft or destruction of Customer’s data files, programs, procedure, information or other network elements or content through fraudulent means or devices. Xtel shall have the right, but not the obligation, to immediately deactivate Customer’s services in the event Xtel reasonably believes such service is the subject of theft or fraud.
15. Privacy.
Xtel limits the information collected from Customer to what is needed for conducting business, including the offering of products and services by Xtel or by third parties that might be of interest to Customer. Customer may choose to provide personal information to Xtel in a number of ways: in person, telephonically or electronically via email or our websites. Xtel does not sell Customer’s personal information to any third parties. Xtel is not liable for any lack of privacy that may be experienced with regard to Xtel-provided services or third-party-provided services.
16. American Recovery and Reinvestment Act (ARRA).
Customer must notify Xtel of all restrictions, requirements, and reporting obligations to which Xtel could become subject pursuant to the ARRA before Xtel provisions Services to Customer. Customer will not use ARRA or stimulus funds, grants, or loans, in whole or in part, to support its performance under this Agreement without Xtel’s prior written consent regarding any specifically applicable ARRA terms. If Customer fails to provide such prior written notice to Xtel of ARRA or stimulus funding or if Xtel does not consent to the use of such funding, then Xtel has the right, in its sole discretion, to reject any order or terminate this Agreement and/or any applicable Services, without liability or obligation to Xtel.
17. Documents Incorporated by Reference; Entire Agreement; Counterparts; Execution.
This Agreement, the documents incorporated by reference and any Customer Addendums entered between the parties constitute the Parties’ entire Agreement. This Agreement and any Addendums hereto may be amended only in writing and signed by authorized representatives of each party. This Agreement and its incorporated documents supersede any and all statements or promises made to Customer by any Xtel employee or agent. This Agreement may be signed in counterparts, and facsimile or electronic scanned copies may be treated as original signatures. Xtel also may execute this Agreement via a verifiable electronic signature.
18. Termination.
Xtel may terminate this Agreement by providing at least ninety (90) days notice prior to the end of the initial Term or a Renewal Term or if the Customer is in breach of any material provision of this Agreement and fails to cure within thirty (30) days after written notice. Customer may terminate this agreement pursuit to Section 1, Term and Renewal. Customer may also terminate this Agreement if Xtel is in breach of any material provision of this Agreement and fails to cure within thirty (30) days after written notice. Notwithstanding, unless prohibited by law, in the event of Customer’s nonpayment, Customer shall have 10 days to cure after written notice. Customer’s right to terminate for cause is limited to termination of the affected Services at the affected location only. Xtel may limit, interrupt or terminate Services immediately if: (a) after any required notice, Customer has not paid for Services; or (b) if in Xtel’s sole discretion it determines that Customer or others have used the Services in an adverse manner that affects Xtel’s network or other customers; or (c) if in Xtel’s sole discretion it determines that Customer or others have used the Services fraudulently or unlawfully while on Customer’s premises or while the Services are under Customer’s control; or (d) if in Xtel’s sole discretion it determines that Customer or others have used the Services in an excessive, abusive, or unreasonable manner that is not customary for the type of Services, including but not limited to excessive usage or minutes in an unlimited Service;; or (e) Customer resells any Services or uses the Services to aggregate other persons’ traffic; or (f) Customer uses the Services for its own end users and/or customers as a telecommunications provider or any other kind of provider. In addition to the termination rights of Xtel set forth above, if in Xtel’s sole discretion it determines that Customer or others have used the Services in an excessive, abusive, or unreasonable manner that is not customary for the type of Services (including, but not limited to, circumstances in which Xtel is receiving traffic from Customer that originates from a location other than the local calling area associated with the Customer’s service location, when 10% or more of Customer’s calls are 6 seconds or less, and/or when more than 40% of call attempts are uncompleted per trunk group and DS0/DS0 equivalent), Xtel may: (v) charge long-distance charges for such traffic and any additional charges necessary to recoup its administrative costs and any charges from other carriers; (w) charge an additional price per minute in Xtel’s discretion for each call that violates this provision; (x) restrict or cancel use or convert Customer to another plan; (y) require Customer to pay for the excessive use immediately and make a deposit; and/or (z) void any applicable price guarantee. Xtel may restore service if Customer corrects the violation and pays all outstanding amounts owed, including restoration charges.
For Ethernet Internet Access services, MPLS, Ethernet Private Line, Virtual Private Network/Virtual LAN Services, or any bundled Service which includes such services as a component, Xtel shall verify the availability of facilities, and if Xtel determines in its sole discretion that facilities are not economically or technically feasible, Xtel has the right to terminate this Agreement without liability.
19. Effect of Termination.
a. Pre-Installation– If Customer terminates this Agreement after the Effective Date but prior to the installation of Service(s), Customer will pay Xtel a Pre-Installation Cancellation Charge (Cancellation Charge) equal to three months of monthly recurring charges (“MRC”), except that if Xtel’s costs to other providers are greater than this amount, Customer shall also reimburse Xtel for such costs. Customer agrees that the Cancellation Charge is a reasonable measure of the administrative costs and other fees incurred by Xtel to prepare for installation. The Cancellation Charge set forth in this Section 19(a) is in lieu of the charges set forth in 19(b) below for post-installation cancellations.
1. Post-Installation –
CUSTOMER UNDERSTANDS THAT ITS RATES ARE BASED UPON ITS COMMITMENT TO PURCHASE SERVICES FOR THE TERM OR RENEWAL TERM. AS SUCH, IF CUSTOMER TERMINATES THIS AGREEMENT ORMORE THAN 20% OFTHE DOLLAR VALUE OF ANY SERVICES (EXCLUDING INTERNET ACCESS SERVICES) PROVIDED HEREUNDER AFTER INSTALLATION DURING THE INITIAL OR RENEWAL TERM FOR ANY REASON OTHER THAN FOR CAUSE, OR AS A RESULT OF XTEL’S TERMINATION FOR CUSTOMER’S BREACH, CUSTOMER SHALL PAY TO XTEL AS LIQUIDATED DAMAGES, AND NOT AS A PENALTY, AN AMOUNT EQUAL TO 100% OF THE MRC MULTIPLIED BY THE NUMBER OF MONTHS REMAINING IN THE THEN-CURRENT TERM OR RENEWAL TERM, OR IN THE CASE OF A CUSTOMER TERMINATION OF MORE THAN 20% OF SERVICES THE PRO-RATA CALCULATION OF THE MRC (“LIQUIDATED DAMAGES”). CUSTOMER ACKNOWLEDGES THAT ACTUAL DAMAGES WOULD BE DIFFICULT TO DETERMINE AND SUCH LIQUIDATED DAMAGES REPRESENT A FAIR AND REASONABLE ESTIMATE OF THE DAMAGES WHICH MAY BE INCURRED BY XTEL, INCLUDING BUT NOT LIMITED TO ACTUAL EXPENSES INCURRED BY XTEL TO INITIATE OR TERMINATE THE SERVICES, THIRD PARTY COSTS, USE OF LIMITED NETWORK RESOURCES, INSTALLATION CHARGES WAIVED AND ANY DISCOUNTS OR CREDITS GRANTED. If Customer’s Proposal includes Monthly Minimum Charges or Fees (“MMC” or “MMF”) and Customer terminates or disconnects less than the entirety of its Services such that its actual usage at a location falls below the MMC or MMF for that location, Customer will pay the MMC or MMF every month in lieu of the Liquidated Damages set forth above. If Customer’s Proposal does not include MMC or MMF and Customer terminates or disconnects less than the entirety of its Services such that its actual usage at a location falls below 100% of its original contracted rate for that location, Customer will pay 100% of the MRC every month in lieu of the Liquidated Damages set forth above. Additionally, if Customer received a bundled rate for the disconnected Service(s), then Customer’s charges may be adjusted by Xtel to the unbundled service rates.
2. Limitation of Liability and Indemnity.
20.1. XTEL’S LIABILITY FOR SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER FORESEEABLE OR IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED CUSTOMER’S MRC DURING ONE (1) MONTH PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED. IF CUSTOMER’S SERVICE IS INTERRUPTED, XTEL’S LIABILITY WILL BE LIMITED TO A PRO-RATA CREDIT FOR THE PERIOD OF INTERRUPTION. UNDER NO CIRCUMSTANCES WILL XTEL BE LIABLE FOR: (i) ANY ACCIDENT OR INJURY CAUSED BY SERVICES; (ii) ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS DATA); (iii) ANY PUNITIVE OR EXEMPLARY DAMAGES; (iv) THE COST OF ALTERNATIVE SERVICE; (v) ATTORNEY’S FEES; OR (vi)ANY DELAY OR FAILURE TO PERFORM UNDER THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO SERVICE INTERRUPTIONS) DUE TO CAUSES BEYOND XTEL’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO, STRIKES, LOCKOUTS, OTHER LABOR UNREST, CABLE CUTS OR COMMON CARRIER DELAYS.
20.2. IN NO EVENT SHALL XTEL, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, VENDORS, OR ANY ENTITY ON WHICH BEHALF XTEL RESELLS SERVICES, BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (ii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; (iii) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT; (iv) MISUSED OR STOLEN SERVICES, OR; (iv) LOSSES OR DAMAGES TO CUSTOMER’S BUSINESS OR DATA ARISING OUT OF THE FAILURE OF XTEL FIREWALL SERVICES.
20.3. EACH PARTY WILL DEFEND, INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY, AND ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, FROM AND AGAINST ALL THIRDPARTY CLAIMS ARISING OUT OF THE INDEMNIFYING PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT.
21. Disclaimer of Warranties.
SERVICES ARE PROVIDED ON AN“AS IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY ARISING BY COURSE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, XTEL DOES NOT WARRANT THAT ITS SERVICES, EQUIPMENT, OR ANY SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY. XTEL FURTHER DOES NOT WARRANT THAT ANY CYBER-SECURITY SERVICES, INCLUDING FIREWALL SERVICES, WILL PREVENT ALL UNAUTHORIZED ACCESS BY THIRD PARTIES. NO ORAL OR WRITTEN ADVICE OR INFORMATION BY XTEL’S EMPLOYEES, AGENTS, CONTRACTORS, VENDORS, AND/OR ANY ENTITY ON WHICH BEHALF XTEL RESELLS SERVICES SHALL CREATE A WARRANTY, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION.
22. Emergency Critical Lines.
CUSTOMER ACKNOWLEDGES THAT CERTAIN SERVICES MAY NOT PROVIDE ACCESS TO 911 OR TRANSMIT THE LOCATION OR EXTENSION IF CUSTOMER ATTEMPTS TO ACCESS 911 IN AN EMERGENCY. Examples include voice-over Internet protocol, Hosted PBX, SIP Trunks, Centrex, and private branch exchange. Additionally, because T1s, VoIP, and Hosted PBX can cease operating during a power outage, Customer should have a basic business or copper line for elevator, alarm, E911 and other critical functions. By signing this Agreement, Customer acknowledges that Customer has read this disclosure. By proceeding with use of Services, Customer assumes all responsibility and risk of harm, loss, or damage if 911 access fails, is not possible, or does not provide the address, correct address, extension, or other information to emergency authorities.
23. Confidentiality.
Except when required to be filed with a governmental authority or as may otherwise be required by local, state, or federal freedom of information laws, the parties agree that the Sales Order(s), Change Order(s), and Statements of Work, contain proprietary and confidential information and shall not be disclosed publicly to any third party except such dealer(s) or agent(s) of Xtel that are negotiating with Customer in order to execute this Agreement.
24. Telephone Numbers.
In no event shall Xtel be liable for (i) any telephone numbers published or distributed by Customer prior to acceptance of Service at all of the locations covered under the Agreement; or (ii) for any directory publishing error.
25. Force Majeure.
Neither party shall be liable for damage or cost reimbursement for any failure of performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God, pandemic, fire, explosion, vandalism, cable cut, flood, storm, or other similar catastrophe, any law, order, regulation, direction, action or request of the government, or any department, agency, commission, court, or bureau of a government, or any civil or military authority, national emergency, insurrection, riot, war, strike, lockout, or work stoppage (each, a “Force Majeure Event”). The party claiming relief under this Section shall notify the other party of the occurrence or existence of the Force Majeure Event and of the termination of such event. In the event Xtel is unable to deliver Services as a result of a Force Majeure Event, Customer shall not be obligated to pay for the Services so affected for as long as Xtel is unable to deliver the Services. In any event, each party shall cooperate to enable Xtel to remove its equipment, if any, and otherwise to cease providing Service(s) without undue cost or delay.
26. Miscellaneous.
26.1. Notices and Electronic Communications. Any notice pursuant to this Agreement must be in writing and will be deemed properly given if hand delivered, mailed, or faxed to Customer at the address populated above or to Xtel at Xtel Communications, Inc., 10000 Midlantic Drive, Suite 410e, NJ 08054, or at such other address provided to the other party. CUSTOMER AGREES THAT XTEL MAY SEND ELECTRONIC MESSAGES TO CUSTOMER CONCERNING XTEL’S SERVICES.
26.2. Governing Law:
The parties will negotiate in good faith in an effort to resolve any dispute, disagreement, or claim without resort to formal legal proceedings. This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by the laws of the State of New Jersey.
26.3. Waiver of Jury Trial.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
26.4. Right to Equitable Relief.
The parties agree that a material breach of the conditions of this Agreement may result in substantial damages to Xtel, which would be difficult, if not impossible, to ascertain and, by reason of that fact, the parties agree that in the event of any material breach, Xtel, its successors and assigns, shall have the right at its sole discretion to enforce the provisions of this Agreement by injunction or other proceedings in equity.
26.5. Assignment.
Either party may assign this Agreement to an affiliate or acquirer of all or substantially all of its assets without any advance consent from the other party, but Customer shall provide Xtel with notice and complete all paperwork necessary to effectuate any change in ownership or other account changes. Otherwise, Customer may not assign its rights and obligations under this Agreement without Xtel’s advance written consent. Any attempted assignment in violation of this provision is void.
26.6. Third Party Beneficiaries.
No third party shall be deemed a beneficiary of this Agreement.
26.7. Waiver.
Either party’s failure to enforce any right or remedy available under this Agreement is not a waiver.
26.8. Severability.
If any part of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect.
26.9. Survival.
Sections 19 through 25 survive after this Agreement ends.
26.10. Handwritten Changes.
Handwritten changes are not binding on either party.
26.11. Use of Products in U.S.
Customer acknowledges that the transfer and use of products, services and technical information outside the United States are subject to U.S. export laws and regulations. Customer shall not use, distribute, transfer, or transmit the products, services, or technical information (even if incorporated into other products) except in compliance with U.S. export laws and regulations. At Xtel’s request, Customer shall sign written assurances and other export-related documents as may be required for Xtel to comply with U.S. export regulations.
26.12. Representation on Authority of Parties/Signatories.
Each person signing this Agreement represents and warrants that he or she is duly authorized in accordance with its corporate governance documents and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized in accordance with its corporate governance documents and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.
