EXWIRE PROPHONOS Hosted PBX TERMS AND CONDITIONS / END USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and EXWIRE, Inc. (“EXWIRE”) for EXWIRE software products, which includes computer software and may include associated hosted online services and access to same, media, printed materials, and “online” or electronic documentation (“Product”). By using the Product or the associated hosted service, and any related service, application, plug-in, component, functionality, or program created by EXWIRE, you are agreeing to the following terms and conditions. Please read them carefully before using this Product or hosted service. By downloading the Product and/or by completing the registration process for the hosted services, you represent and warrant that you have read, understand, have the legal capacity to, and hereby agree to be legally bound by these terms and conditions. PROPHONOS and all other EXWIRE products are available ONLY TO USERS 18 YEARS OF AGE OR OLDER.
1. Orders and Payments
a. Orders: Orders are not binding until accepted by EXWIRE, in its sole discretion. Except in the case of a breach, as provided in Section 10, once an order is accepted by EXWIRE, it may be changed or cancelled only with the written consent of the parties.
b. Payments: Fees are exclusive of any freight, taxes (sales, use, personal property tax, etc.), duties or imposts, all of which are your responsibility. To the extent you choose to incur monthly recurring fees for your use of the PROPHONOS, you agree to pay all amounts due upon receipt of invoice. Failure to pay all amounts due within ten (10) days of receipt of an invoice may result in termination of your access to the hosted service.
c. Final Sale: All PROPHONOS sales are non-refundable
2. Disclaimer of Warranties; Limitation of Liability
a. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, EXWIRE PROVIDES THE PRODUCT AND THE HOSTED SERVICE “AS IS” AND WITH ALL FAULTS. EXWIRE HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE AND NONINFRINGEMENT, WITH REGARD TO THE
PRODUCT OR THE HOSTED SERVICE. WITHOUT LIMITING THE FOREGOING, EXWIRE DOES NOT WARRANT THAT THE PRODUCT
OR HOSTED SERVICE WILL BE FREE OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS. Please note that EXWIRE resells but does not provide telecommunications services. Your telecommunications service provider is responsible for compliance with E911 services.
Depending on your specific installation and service provider, your Product installation may not send and receive E911 calls reliably, and may not pass correct location information to emergency services. It is
the sole responsibility of the installer and user to ensure compliance with all local codes, and to inform users of any limitations or issues regarding 911 use. EXWIRE is not liable for any resulting damages related to 911 use.
b. Disclaimer of Certain Damages: IN NO EVENT WILL EXWIRE BE LIABLE FOR THE COST OF COVER OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, INFORMATION, REVENUE, PROFIT OR BUSINESS) ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE PRODUCT OR HOSTED SERVICE OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA, THE PRODUCT, OR THE HOSTED SERVICE, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY EVEN IF EXWIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. Limitation of Liability: EXWIRE’S LIABILITY ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE PRODUCT OR HOSTED SERVICE OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA, THE PRODUCT, OR THE HOSTED SERVICE IS LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE HOSTED SERVICE REGARDLESS OF THE AMOUNT OF DAMAGES YOU MAY INCUR AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY. The foregoing disclaimer of warranties, disclaimer of certain damages and limitation of liability will apply to the maximum extent permitted by applicable law. The laws of some states/jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages. To the extent that those laws apply to this EULA, the exclusions and limitations set forth above may not apply to you. You may have other rights which vary from state to state or province to province. For further warranty information, you may contact EXWIRE at PO Box 10449, Truckee, CA 96162
You agree to hold harmless and defend EXWIRE, at your expense, from and against any and all third party claims, actions proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by EXWIRE arising out of or relating to your (a) violation or breach of any term of this license agreement, or (b) misuse of the Product or hosted service.
4. Your Registration Obligations
To obtain and use the hosted service, you will be required to register with EXWIRE by signing a quote or contract form. When providing information to EXWIRE you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Product or hosted service (or any portion thereof).
You are responsible for maintaining the confidentiality of any user ID or passwords assigned or chosen, and are fully responsible for all activities that occur under your user ID or password. You agree to immediately notify EXWIRE of any unauthorized use of your user ID or password or any other breach of security. EXWIRE cannot and will not be liable for any loss or damage arising from any unauthorized use of your account.
5. USER CONDUCT/ACCEPTABLE USE POLICY
You may not use the hosted service in any way that violates applicable federal, state, or international law, or for any unlawful purpose. In addition, EXWIRE reserves the right to terminate your access to and use of the Services if, in our view, your conduct fails to meet any of the following guidelines for User conduct:
1. You may not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the EXWIRE website, computer systems and network, or the Product or hosted service.
2. You may not attempt to interfere with any other person’s use of the Product or hosted service.
3. You may not misrepresent your identity or impersonate any person.
4. You may not attempt to gain access to any account, computers or networks related to the Product or hosted service without authorization.
5. You may not attempt to obtain any data through any means from the Product or hosted service, except if we intend to provide or make it available to you.
6. You may not use the Product or hosted service to participate in pyramid schemes or chain letters.
7. You may not use the Product or hosted service to send, either directly or indirectly, any unsolicited bulk e-mail or communications or unsolicited commercial e-mail or communications.
8. You may not use the Product or hosted service for defaming, abusing, harassing, stalking, threatening or otherwise violating the legal rights of others.
9. You may not use the Product or hosted service to send or otherwise make available, any material protected by intellectual property laws unless you own or control the rights to such material or have received all necessary consents.
10. You may not use the Product or hosted service to send or otherwise making available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another’s computer or property.
11. You may not use the Product or hosted service to violate any code of conduct or other guidelines, which may be applicable to the Product or hosted service.
12. You may not use the Product or hosted service to harvest or otherwise collecting information about others, including e-mail addresses.
13. You may not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by EXWIRE in connection with the Product or hosted service.
All judgments concerning the applicability of these guidelines shall be at the sole and exclusive discretion of EXWIRE.
6. Confidential Information
1. Nondisclosure: All intellectual property and confidential information (“Confidential Information”) disclosed by EXWIRE pursuant to this EULA shall not be distributed, disclosed, or disseminated in any way or form to anyone except your own employees who have a reasonable need to know such Confidential Information and who have been advised of the confidential nature and are required by written agreement to observe the terms and conditions hereof, nor shall Confidential Information be used by you for your own purpose, except for the purposes of exercising its rights or fulfilling its obligations under this EULA. If you are required by a subpoena or court order to disclose Confidential Information, you shall disclose only that amount of information requested to comply with such subpoena or court order and shall provide EXWIRE with prior sufficient notice to allow EXWIRE to seek a protective order.
a. Exclusions: The obligations of Section 6(a) shall not apply, however, to any information which:
i. is already in the public domain or becomes available to the public through no breach of this EULA by you;
ii. was in your possession prior to receipt from EXWIRE as proven by your written records;
iii. is received independently on a non-confidential basis from a third party free to disclose such information to you;
iv. is independently developed by you as proven by your written records prior to receipt from EXWIRE; or
v. is licensed under the GNU General Public License (“GPL”).
2. Return of Confidential Information: Upon request of EXWIRE, or upon any expiration or termination of this EULA, you shall promptly return all copies and embodiments of the Confidential Information to EXWIRE.
The Product and hosted service are valuable property of EXWIRE and is protected by copyright and other intellectual property laws and treaties. EXWIRE owns all right, title and interest in and to the Product and hosted service and all copyright and other intellectual property rights in the Product and hosted service.
8. Intellectual Property Rights and Notices
All contents of the EXWIRE’s website, product and hosted service, including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement (“Content”) are: Copyright © 20010 EXWIRE, Inc., and/or the proprietary property of its suppliers, affiliates, or licensors. Content may not be reproduced, modified, derivative works created
from, displayed, performed, published, distributed, disseminated, broadcasted or circulated to any third party (including, without limitation, the display and distribution of the material via a third party websites or other networked computer environment) without the express prior written consent of EXWIRE and/or it suppliers, affiliates, or licensors. All rights reserved.
EXWIRE, PROPHONOS, EXWIRE.com, the EXWIRE logo, and the PROPHONOS logo are, including without limitation, either trademarks, service marks or registered trademarks of EXWIRE, and may not be copied, imitated, or used, in whole or in part, without EXWIRE’s prior written permission or that of our
suppliers or licensors. Other product and company names may be trade or service marks of their respective owners. This EULA does not grant you any rights in connection with any trademarks or service marks of EXWIRE.
EXWIRE may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that are part of the Product and/or hosted services. Unless we have granted you licenses to our intellectual property in these terms and conditions, our providing you with such Product and/or hosted service does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.
Without prejudice to any other rights, EXWIRE may terminate this EULA if you do not abide by the terms and conditions contained herein. Upon termination of this EULA, you must cease use of the Product and hosted service, and destroy all copies of the Product and all of its component parts. No delay or omission to exercise any right, power, or remedy upon a breach or default under this Agreement shall impair any such right, power, or remedy of the non-defaulting party or be construed as a waiver of any such breach or default.
10. Export Restrictions
You acknowledge that the Product is subject to U.S. export restrictions. You agree to comply with all applicable laws and regulations that apply to the Product, including without limitation the U.S. Export Administration Regulations.
11. U.S. Government License Rights
All Product provided to the U.S. Government is provided with the commercial license rights and restrictions described in this EULA. By installing, copying or using the Product, the U.S. Government agrees that the Product is “commercial computer software” or “commercial computer software documentation” within the meaning of DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any
use, modification, reproduction release, performance, display or disclosure of the Product by the U.S. Government shall be governed solely by the term of this license agreement and shall be prohibited except to the extent expressly permitted by the terms of this License Agreement.
12. Governing Law; Jurisdiction
Unless expressly prohibited by local law, this EULA and all orders hereunder shall be governed by and construed under the laws of the State of California, U.S.A. without regard to any conflict of law principles to the contrary. The 1980 U.N. Convention on Contracts for the International Sale of Goods or any successor thereto does not apply. You hereby irrevocably submit to jurisdiction of the state and federal courts located in Sacramento or Auburn California with respect to any proceeding under this EULA or relating to the Product. You will not prosecute any action, suit, proceeding or claim arising under or by reason of this EULA except in such courts.
13. Attorney’s Fees
In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees.
14. English Language
It is the express wish of the parties that this Agreement and all related documents be drawn up in English.
15. Entire Agreement
This EULA sets forth the entire agreement of EXWIRE and you with respect to the Product, the hosted service, and the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements whether written or oral. No amendment, modification or waiver of any of the provisions of this EULA will be valid unless set forth in a written instrument signed by the party to be bound thereby.
If any provision of this EULA is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, the remainder of this EULA will remain in full force and effect and shall control.
Any notice required or permitted to be sent under this Agreement shall be delivered by first class mail, return receipt requested, or via an international courier service (e.g. FedEx, DHL, UPS, etc.) to the addresses of the parties set forth in this order. Notice so sent will be deemed effective three days following deposit in the mail, proper postage prepaid or one day following delivery to an international courier, prepaid for overnight delivery.
We reserve the right, at our sole discretion, to change, modify or otherwise alter these terms and conditions at any time. You can find the latest terms and conditions on the Exwire website. Such modifications shall become effective immediately upon the posting thereof. Therefore, we encourage you to check the date of our terms and conditions whenever you visit the Exwire website to check if they have been updated. You must review this agreement on a regular basis to keep yourself apprised of any changes. If you do not agree to the revised terms and conditions, your sole recourse is to immediately stop all use of the Product and/or hosted service. Your continued use of the Product and/or hosted service following the posting of modifications will constitute your acceptance of the revised terms and conditions. Should you have any questions, please contact us:© 2010 EXWIRE, Inc. All rights reserved. Unauthorized duplication is a violation of applicable laws.