XCHANGE TELECOM CORP. TERMS OF SERVICE - RESIDENTIAL
This Agreement is between you as our Subscriber and Xchange Telecom
Corp. (or its affiliates (“Xchange”)) and it sets forth the terms
and conditions under which you agree to use and we agree to provide
THIS IS A CONTRACT. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT
AGREE TO THESE TERMS DO NOT USE THE SERVICE AND CONTACT US IMMEDIATELY
TO TERMINATE IT.
and Acceptance of Agreement; Agreement Terms Generally Included.
The term of this Agreement will
be either month-to-month or for the term specified for the Service or
Bundled Service plan you select (the "Term"). The Term begins
when you accept this Agreement and ends when you or we terminate this
Agreement as permitted herein.
Acceptance by you of this Agreement occurs upon the earlier of: (a)
your acceptance of this Agreement electronically during an online order,
registration or when installing the Software or the Equipment; (b) your
use of the Service; or (c) your retention of the Software or Equipment
we provide beyond thirty (30) days following delivery. If you change
Service plans, your term and monthly rate may change (depending on the
plan you select), but all other provisions of this Agreement will remain
in effect unless otherwise noted.
This Agreement consists of the terms below, plus (a) the specific elements
of your Service or Bundled Service plan (including the plan's pricing,
duration and applicable Early Termination Fee ("ETF"), all
as described in the information made available to you when placing and
confirming your order); (b) our Acceptable Use Policy (Attachment A)
and Additional Services Terms (Attachment B); and (c) other Xchange
all of which are incorporated herein by reference. A current version
of this Agreement and related policies are posted online at http://www.xchangetele.com/termsofuse.aspx
("Website"). You can also receive a paper copy of this Agreement
by writing to Xchange Telecom, P.O. Box 190433, Brooklyn, NY 11219-0433,
Attention: Customer Service.
AND CHANGES TO SERVICE.
- "Broadband Services"
means Xchange-provided Internet services (whichever applies), also known
as "High Speed Internet" ("HSI").
- "Bundled Service(s)"
means a combination or "bundle" of a Broadband Service with
one or more other eligible Xchange services, including but not limited
to telephone service
- "Content" means
content provided by Xchange or its third party licensors or suppliers
and accessible on the Service, including without limitation images,
photographs, animations, video, audio, music, and text in any format.
- "Equipment" means
the modem, router and/or other equipment provided by Xchange for use
with the Service.
- "Service" means
all Xchange dial-up, Broadband Service and Wi-Fi wireless Internet access
services (where applicable), Software, Equipment, Content, Additional
Services as defined in Attachment B, technical support, email, domain
name server ("DNS") and related services, Xchange Web Sites
and other products and services provided by Xchange under the pricing
plan applicable to your Service.
- "Xchange Web Site(s)"
mean the site located at http://www.Xchangetele.com, and any other Xchange
Telecom affiliated sites, which are comprised of various web pages,
tools, information, software, content, and features operated by Xchange.
TO THIS AGREEMENT.
From time to time we may make revisions
to this Agreement and the policies relating to the Service. We will
provide notice of such revisions by posting revisions to the Website
Announcements page, or sending an email to your primary email address,
or both. You agree to visit the Announcements page periodically to review
any such revisions. We will provide you with at least thirty (30) days
notice of any price increase prior to the effective date of any increases
to the monthly price of your Service or Bundled Service plan (excluding
other charges as detailed in Sections 8.1(a)-(d)); revisions to any
other terms and conditions shall be effective on the date noted in the
posting and/or email we send you. By continuing to use the Service after
revisions are effective, you accept and agree to abide by them.
USER, ACCOUNT USE, AND RESPONSIBILITIES.
- You acknowledge that you
are eighteen (18) years of age or older and that you have the legal
authority to enter into this Agreement. You agree promptly to notify
Xchange whenever your personal or billing information changes.
- You are responsible for
all use of your Service and account, whether by you or someone using
your account with or without your permission, including all secondary
or sub-accounts associated with your primary account, and to pay for
all activity associated with your account. You agree to comply with
all applicable laws, regulations and rules regarding your use of the
Service and to only use the Service within the United States (unless
otherwise permitted by this Agreement).
- Restrictions on Use.
Unless otherwise noted in your contract, the Service is a consumer grade
service and is not designed for or intended to be used for any commercial
purpose. You may not resell the Service, use it for high volume purposes,
or engage in similar activities that constitute such use (commercial
or non-commercial). If you subscribe to a Broadband Service, you may
connect multiple computers/devices within a single home to your modem
and/or router to access the Service, but only through a single Xchange-issued
IP address. You also may not exceed the bandwidth usage limitations
that Xchange may establish from time to time for the Service, subject
to the terms of Xchange’s Open Network Policy. Violation of this
section may result in bandwidth restrictions on your Service or suspension
or termination of your Service.
- Dial-Up Accounts.
If you subscribe to Dial-up Service, your Service may be subject to
log-off automatically and without notice if your account is idle for
fifteen minutes. An account session may be deemed to be idle if there
appears to be no interactive, human generated data received from your
computer system within a prescribed amount of time. Use of automatic
re-dialer, script or other programs for the purpose of avoiding inactivity
disconnects is a violation of this Agreement. You may only use your
account for one log-on session per connection type at a time and you
may not use more than one IP address for each log-on session.
- Broadband Accounts.
Additional User IDs provided for Broadband customers' email boxes may
not be used as dial-up connections.
POLICY; LEGAL COMPLIANCE.
Personal information you provide
Website and is subject to change from time to time. Xchange reserves
the right to provide account and user information, including email,
to third parties as required or permitted by law (such as in response
to a subpoena or court order), and to cooperate with law enforcement
authorities in the investigation of any criminal or civil matter. Such
cooperation may include, but is not limited to, monitoring of the Xchange
network consistent with applicable law. In addition, Xchange is required
by law to report any facts or circumstances reported to us or that we
discover from which it appears there may be a violation of the child
pornography laws. We reserve the right to report any such information,
including the identity of users, account information, images and other
facts to law enforcement personnel.
OF AND CHANGES TO SERVICE.
- Service and Bandwidth
Availability and Speed. The Service you select may not be available
in all areas or at the rates, speeds, or bandwidth generally marketed,
and some locations may not qualify for the Service even if initial testing
showed that your line was qualified. We will provision qualified HSI
lines at the maximum line rate available to your location based on our
standard line qualification procedures, unless you have selected a level
of service with a lower maximum line rate. Bandwidth is provided on
a per-line (not a per-device) basis. The bandwidth available to each
device connected to the network will vary depending upon the number,
type and configuration of devices using the Service and the type of
use (e.g., streaming media), among other factors. The speed of the Service
will vary based on network or Internet congestion, your computer configuration,
the condition of your telephone line and the wiring inside your location,
among other factors. We and our suppliers reserve the right, at
any time, with or without prior notice to you, to restrict or suspend
the Service to perform maintenance activities and to maintain session
- Changes to your local
voice telephony service. If you change your local telephone company
or discontinue your local telephone service, we may in our discretion
either terminate your Service or continue to provide Broadband Service
without local Xchange voice service at the then-current rates, terms
and conditions applicable to your new Service plan and you agree to
pay any new or higher monthly fee that may apply to your new Service
plan. If we elect to terminate your Service under this Section 6.2,
then we reserve the right to charge any early termination fees and to
apply the Equipment return terms under Section 9.
- Changes to Service or
Features. Xchange reserves the right to change any of the features,
content or applications of the Service at any time with or without notice
to you. This includes the portal services we may make available as part
of the Service or for an additional charge.
LICENSES AND THIRD PARTY SERVICES.
- We may provide you, for
a fee or at no charge, software for use in connection with the Service
which is owned by Xchange or its third party licensors, providers and
suppliers ("Software"). We reserve the right periodically
to update, upgrade or change the Software remotely or otherwise and
to make related changes to the settings and software on your computer
or Equipment, and you agree to permit such changes and access to your
computer and Equipment. You may use the Software only in connection
with the Service and for no other purpose.
- Certain Software may be
accompanied by an end user license agreement ("EULA") from
Xchange or a third party. Your use of the Software is governed by the
terms of that EULA and by this Agreement, where applicable. You may
not install or use any Software that is accompanied by or includes a
EULA unless you first agree to the terms of the EULA.
- For Software not accompanied
by a EULA, you are hereby granted a revocable, non-exclusive, non-transferable
license by Xchange or its applicable third party licensor(s) to use
the Software (and any corrections, updates and upgrades thereto). You
may not make any copies of the Software. You agree that the Software
is confidential information of Xchange or its third party licensors
and that you will not disclose or use the Software except as expressly
permitted herein. The Software contains copyrighted material, trade
secrets, patents, and proprietary information owned by Xchange or its
third party licensors. You may not de-compile, reverse engineer, disassemble,
attempt to discover any source code or underlying ideas or algorithms
of the Software, otherwise reduce the Software to a human readable form,
modify, rent, lease, loan, use for timesharing or service bureau purposes,
reproduce, sublicense or distribute copies of the Software, or otherwise
transfer the Software to any third party. You may not remove or alter
any trademark, trade name, copyright or other proprietary notices, legends,
symbols, or labels appearing on or in copies of the Software. You are
not granted any title or rights of ownership in the Software. You acknowledge
that this license is not a sale of intellectual property and that Xchange
or its third party licensors continue to own all right, title and interest,
including but not limited to all copyright, patent, trademark, trade
secret, and moral rights, to the Software and related documentation,
as well as any corrections, updates and upgrades to it. The Software
may be used in the United States only, and any export of the Software
is strictly prohibited.
- Your license to use the
Software or any Additional Services will remain in effect until terminated
by Xchange or its third party licensors, or until your Service is terminated.
Upon termination of your Service, you must cease all use of and immediately
delete the Software from your computer.
- If you subscribe to or otherwise
use any third party services offered by Xchange, your use of such services
is subject to the EULA of that third party provider. Violation of those
terms may, in our sole discretion, result in the termination of your
- All title and intellectual
property rights (including without limitation, copyrights, patents,
trademarks and trade secrets) in and to the Xchange Web Sites (including
but not limited to, related software, images, photographs, animations,
video, audio, music, text, and content), are owned by Xchange, its affiliates
or licensors. All title and intellectual property rights in and to the
information and content which may be accessed through use of the Xchange
Web Sites are the property of the respective content owner and may be
protected by applicable copyright or other intellectual property laws
and treaties. This Agreement does not grant you any rights to use such
content, nor does it grant any rights to the Xchange Web Sites, other
than the right to use the Xchange Web Sites according to the terms of
BILLING: CHANGES TO SERVICE PLANS AND PAYMENT.
- Prices and Fees; Billing.
You agree to pay the fees applicable to your Service or Bundled Service,
either on a monthly or prepaid basis, as applicable, and to pay: a)
applicable taxes, b) surcharges, c) recovery fees, d) telephone charges,
e) activation fees, f) installation fees, g) set-up fees, h) equipment
charges, i) ETFs, and j) other recurring and nonrecurring charges associated
with the Service plan you have selected. The taxes, fees and other charges
detailed in a)-d) above may vary on a monthly basis. Surcharges and
recovery fees are not taxes and are not required by law, but are set
by Xchange and may change. You also agree to pay any additional charges
or fees applied to your account, including interest and charges due
to insufficient credit or insufficient funds. Non-recurring charges
such as set up, activation and installation fees, and equipment charges,
will be included in your first bill. Monthly Service and Bundled Service
recurring charges will be billed one month in advance; any usage charges
will be billed in arrears. Pre-paid pricing plans for Additional Services
will be billed in advance. Based on your election and subject to our
approval, Xchange or its agent will bill you directly, or bill your
charge card or local Xchange telephone bill (where available). IF YOU
ELECT TO BE BILLED ON YOUR XCHANGE PHONE BILL, BY USING THE SERVICES
YOU AGREE TO HAVE ALL SERVICE CHARGES INCLUDED ON YOUR PHONE BILL. IF
YOU SUBSCRIBE TO A BUNDLED SERVICE PLAN, THEN ALL OF THE SERVICES INCLUDED
IN THE BUNDLED SERVICE PLAN MUST BE BILLED ON YOUR XCHANGE PHONE BILL.
Billing for Dial-up Service will automatically begin upon registration
of your account. Billing for Broadband Services will automatically begin
on the date provisioning of your Broadband Service is complete ("Service
Ready Date"). Billing for Additional Services will begin on your
Service Ready Date if you are also ordering a new Broadband Service
or other service. Otherwise, billing for Additional Services will begin
upon submission of your order, unless otherwise noted. We may, at our
election, waive any fees or charges. If you cancel any component of
a Bundled Services plan, the monthly charges for the remaining services
on your account will automatically convert to the applicable existing,
non-discounted month-to-month service rate.
- Plans with Minimum Terms.
If you choose a Service or Bundled Services plan with a minimum term
commitment, you agree to maintain your Service for the term of that
plan (a "Term Plan"). For Broadband Services, your Term Plan
begins on the later of: (a) the date you change your existing Broadband
Service plan to a Term Plan; or (b) your Service Ready Date; for Bundled
Services, your Term Plan begins once all Bundled Services have been
provisioned. You will begin receiving any discount associated with a
Bundled Services plan once all Bundled Services have been provisioned.
At the end of any Term Plan you may be given the option to select a
new Term Plan. If you do not select a new Term Plan, your Service may
be converted to a month-to-month Service plan at a monthly fee that
may be higher than your current rate. If you select a new Term Plan,
the terms of that plan will apply.
- Pre-paid Service Plans
for Additional Services. You may be given the option to select a
pre-paid service plan for Additional Services ("Prepaid Service
Plan") which will begin on the later of: (a) the date of your order,
or (b) the date you change to the Prepaid Service Plan. There will be
no refunds for Prepaid Service Plans. At the end of any Prepaid Service
Plan, you may be given the option to select a new Prepaid Service Plan.
If you do not select a new Prepaid Service Plan, your Service will automatically
convert to the then-current month-to-month rate for the Additional Service.
- Money Back Guarantee.
If we provide a money back guarantee ("MBG") for your Service,
it will begin on your Service Ready Date. During this MBG period you
may cancel your Service and receive a full refund of all monthly, one-time
and equipment charges paid to Xchange (provided you return all Equipment
and packaging in good working condition). If you fail to return the
Equipment, an unreturned Equipment fee will apply. ETFs will not apply
to Service terminated within the MBG period. The MBG does not apply
to customers who change between or renew bundle, monthly, term or other
pricing plans. The MBG is limited to one per Subscriber per Service
type per Service address.
- Discontinuation of Service
for Nonpayment. We may discontinue your Service without notice if
Service charges on your telephone bill or charge card are refused for
any reason, or if you fail to make payment when due or to provide us
with a new charge card expiration date before the existing date expires.
- Late Fees. If any
portion of your bill is not paid by the due date, XChange may charge
you a late fee on unpaid balances and may also terminate or suspend
your Service without notice. The late fee will be the lesser of 1.5
% per month, or the highest rate permitted by law. If Xchange uses a
collection agency or legal action to recover monies due, you agree to
reimburse us for all expenses we incur to recover such monies, including
attorneys' fees, as allowable by law.
- Local Telephone, Toll
and Long Distance Charges. XCHANGE IS NOT RESPONSIBLE FOR ANY CHARGES,
INCLUDING BUT NOT LIMITED TO, LONG DISTANCE AND METERED LOCAL OR TOLL
CHARGES INCURRED WHEN YOU ACCESS THE SERVICE. YOU SHOULD CHECK WITH
THE LOCAL PHONE COMPANY TO DETERMINE WHETHER A DIAL-UP NUMBER YOU HAVE
SELECTED IS A LOCAL CALL FROM YOUR LOCATION AND WHETHER ANY CHARGES
APPLY. XCHANGE DOES NOT GUARANTEE THAT ANY DIAL-UP ACCESS NUMBERS WE
PROVIDE WILL BE A LOCAL CALL FROM YOUR LOCATION. ADDITIONAL CHARGES,
WHICH MAY BE SUBSTANTIAL, APPLY TO REMOTE DIAL UP ACCESS, WHICH IS AVAILABLE
FROM CERTAIN LOCATIONS ONLY.
- Limitation on Special
Pricing Promotions. You may only take advantage of one special pricing
promotion during any consecutive twelve (12)-month period. Xchange
may, in its discretion, allow additional promotion pricing.
- Refundable Deposit.
We may require that you provide us with a refundable deposit, which
will be specified at the time of your order ("Subscriber Deposit").
We may also require an additional deposit after activation of the Service
if you fail to pay any amounts when due. Within ninety (90) days after
termination of your Service, we -will return your Subscriber Deposit,
less any unpaid amounts due on your account, including any amounts owed
for unreturned or damaged Equipment. Amounts held on deposit will not
accrue interest except as required by law.
- Credit Related Matters.
We may evaluate your credit history before modifying or providing you
Service. In order to establish an account with us and/or obtain or modify
Service, we may obtain a report from a consumer credit agency or exchange
information with our affiliates in connection with determining your
creditworthiness. If you fail to pay your bill, we may submit a negative
credit report to a credit reporting agency, which will negatively affect
your credit report.
OR SUSPENSION OF SERVICE.
- Termination of Service.
- Subscribers with Month-to-Month
Accounts. If you are a month-to-month Service customer, either you
or Xchange may terminate this Agreement any time by giving notice to
the other as set forth in this Agreement. Termination by you will be
effective upon your notice to us. Activation or set-up fees paid at
the initiation of your Service, if any, are not refundable, except during
any applicable 30-day MBG period.
- Subscribers with Term
Plans; Early Termination Fee. EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT, IF YOUR BROADBAND SERVICE IS TERMINATED BY YOU OR BY US BEFORE
COMPLETING YOUR TERM PLAN, THEN YOU AGREE TO PAY XCHANGE THE ETF SET
FORTH IN THE PRICING PLAN YOU HAVE CHOSEN. If you terminate Service
at your location, your existing Term Plan cannot be carried over to
a new Service location.
- Termination and/or Suspension
by Xchange. Xchange reserves the right to change, limit, terminate,
modify or temporarily or permanently cease providing the Service or
any part of it with or without prior notice if we elect to change the
Service or a part thereof or if you violate the terms of this Agreement.
If Xchange terminates your Service under this Section 9.1.3, you must
immediately stop using the Service and you will be responsible for the
applicable fees and/or Equipment charges set forth in Sections 8.5,
9.1.1, or 9.1.2. If the termination is a result of violation by you
of the terms of this Agreement, you also shall be liable to pay the
ETF. If Xchange terminates or ceases to offer service to your location,
you shall not be liable to pay the ETF. If your Service is reconnected,
a reconnection fee may apply.
- Deletion of Data upon
Termination. YOU AGREE THAT IF YOUR SERVICE IS TERMINATED FOR ANY
REASON, XCHANGE HAS THE RIGHT TO IMMEDIATELY DELETE ALL DATA, FILES
AND OTHER INFORMATION (INCLUDING EMAILS, ADDRESS BOOK AND WEB STORAGE
CONTENT) STORED IN OR FOR YOUR ACCOUNT WITHOUT FURTHER NOTICE TO YOU.
- Return of Equipment upon
Termination. If your Service is terminated for any reason prior
to the end of the first year of service and you received Equipment at
no charge from Xchange, you must return the Equipment to Xchange or
you will be charged for the Equipment.
- MANAGEMENT OF YOUR DATA
- Your Responsibilities
Regarding Management of Your Computer and Data. You are solely responsible
for obtaining, maintaining and updating all equipment and software necessary
to use the Service, and for management of your information, including
but not limited to back-up and restoration of your data. YOU AGREE THAT
XCHANGE IS NOT RESPONSIBLE FOR THE LOSS OF YOUR DATA OR FOR THE BACK-UP
OR RESTORATION OF YOUR DATA REGARDLESS OF WHETHER THIS DATA IS MAINTAINED
ON OUR SERVERS OR YOUR DEVICE(S). YOU SHOULD ALWAYS BACK-UP ANY IMPORTANT
INFORMATION SEPARATELY FROM DATA STORED ON XCHANGE’S OR ANY THIRD
- Content and Data Management
by Xchange. We reserve the right to: (a) use, copy, display, store,
transmit and reformat data transmitted over our network and to distribute
such content to multiple Xchange servers for back-up and maintenance
purposes; and (b) block or remove any unlawful content you store on
or transmit to or from any Xchange server. We do not guarantee the protection
of your content or data located on our servers or transmitted across
our network (or other networks) against loss, alteration or improper
- Your Responsibilities
Regarding Security. You agree that you are solely responsible for
maintaining the security of your computer(s) and data, including without
limitation, encryption of data and protection of your User ID, password
and personal and other data. WE STRONGLY RECOMMEND THE USE (AND APPROPRIATE
UPDATING) OF COMMERCIAL ANTI-VIRUS, ANTI-SPYWARE AND FIREWALL SOFTWARE.
- Monitoring of Network
Performance by Xchange. Xchange automatically measures and monitors
network performance and the performance of your Internet connection
and our network. We also will access and record information about your
computer and Equipment's profile and settings and the installation of
software we provide. You agree to permit us to access your computer
and Equipment and to monitor, adjust and record such data, profiles
and settings for the purpose of providing the Service. You also consent
to Xchange’s monitoring of your Internet connection and network performance,
and to our accessing and adjusting your computer settings, as they relate
to the Service, Software, or other services, which we may offer from
time to time. We do not share information collected for the purpose
of network or computer performance monitoring or for providing customized
technical support outside of Xchange or its authorized vendors, contractors
- LIMITATIONS ON USE OF
- You acknowledge and agree
that Xchange (a) is not responsible for invalid destinations, transmission
errors, or the corruption of your data; and (b) does not guarantee your
ability to access all websites, servers or other facilities or that
the Service is secure or will meet your needs.
- You acknowledge that the
Service will allow access to information which may be sexually explicit,
obscene or offensive, or otherwise unsuitable for children. You agree
that the supervision of use of the Service by children is your responsibility
and that Xchange is not responsible for access by you or any other users
to objectionable or offensive content. XCHANGE STRONGLY RECOMMENDS THE
USE OF COMMERCIALLY AVAILABLE CONTENT FILTERING SOFTWARE.
- You understand and agree
that if you type a nonexistent or unavailable Uniform Resource Locator
(URL), or enter a search term into your browser address bar, Xchange
may present you with an advanced web search page ("AWS Page")
containing suggested links based upon the query you entered in lieu
of your receiving an NXDOMAIN or similar error message. Xchange’s
provision of the AWS Page may impact applications that rely on an NXDOMAIN
or similar error message and may override similar browser-based search
- You are not authorized to
use any Xchange name or mark as a hypertext link to any Xchange Web
site or in any advertising, publicity or in any other commercial manner
without the prior written consent of Xchange Licensing Company.
- You agree that Xchange assumes
no responsibility for the accuracy, integrity, quality completeness,
usefulness or value of any Content, advice or opinions contained in
any emails, message boards, chat rooms or community services, or in
any other public services or social networks, and that Xchange does
not endorse any advice or opinion contained therein, whether or not
Xchange provides such service(s). Xchange does not monitor or control
such services, although we reserve the right to do so.
- You represent that when
you transmit, upload, post or submit any content, images or data using
the Service you have the legal right to do so and that your use of such
data or content does not violate the copyright or trademark laws or
any other third party rights.
- Websites linked to or from
the Service are not reviewed, controlled, or examined by Xchange and
you acknowledge and agree that Xchange is not responsible for any losses
you incur or claims you may have against the owner of third party websites.
The inclusion of any linked websites or content from the Service, including
websites or content advertised on the Service, does not imply endorsement
of them by Xchange.
- If you choose to access
the Xchange Web Sites from locations outside the United States, you
do so on your own initiative and you are responsible for compliance
with all applicable local use controls, laws and regulations, including
those relating to the transmission of technical data exported from or
imported to the United States or the country in which you reside. Xchange
makes no representation that materials on the Xchange Web Sites are
appropriate or available for use in locations outside the United States
and accessing them from territories where their contents are illegal
AND LIMITATION OF LIABILITY.
- YOU ACKNOWLEDGE AND AGREE
THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN "AS IS"
OR "AS AVAILABLE" BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE
SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY
SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT PROVIDED BY
XCHANGE (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT),
XCHANGE (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES)
(COLLECTIVELY THE "XCHANGE PARTIES"), ITS THIRD PARTY LICENSORS,
PROVIDERS AND SUPPLIERS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS
FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY
OF COMPUTER SYSTEMS, COMPATIBILITY OF SOFTWARE PROGRAMS, INTEGRATION,
AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING
UNDER STATUTE. ALSO, THERE IS NO WARRANTY OF WORKMANLIKE EFFORT OR LACK
OF NEGLIGENCE. NO ADVICE OR INFORMATION GIVEN BY XCHANGE OR ITS REPRESENTATIVES
SHALL CREATE A WARRANTY WITH RESPECT TO ADVICE PROVIDED.
- XCHANGE DOES NOT WARRANT
OR GUARANTEE THAT SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT
PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF XCHANGE
HAS ACCEPTED YOUR ORDER FOR SERVICE. THE PROVISIONING OF SERVICE IS
SUBJECT TO NETWORK AVAILABILITY, CIRCUIT AVAILABILITY, LOOP LENGTH,
THE CONDITION OF YOUR TELEPHONE LINE AND WIRING INSIDE YOUR LOCATION,
AND YOUR COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER
FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER
YOU NOR XCHANGE SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT
(OTHER THAN YOUR OBLIGATION TO RETURN ANY XCHANGE-PROVIDED EQUIPMENT).
- XCHANGE DOES NOT WARRANT
THAT THE SERVICE OR EQUIPMENT PROVIDED BY
XCHANGE WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT
RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES,
WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE. XCHANGE SHALL
NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES,
OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER
THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE.
- IN NO EVENT SHALL THE XCHANGE
PARTIES OR XCHANGE THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS BE
LIABLE FOR: (A) ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE,
LOSS OF PROGRAMS OR INFORMATION OR DAMAGE TO DATA ARISING OUT OF THE
USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, OR RELIANCE ON OR
PERFORMANCE OF THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE
OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING
UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF XCHANGE
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B)
ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
- THE LIABILITY OF THE XCHANGE
PARTIES, OR (SUBJECT TO ANY DIFFERENT LIMITATIONS OF LIABILITY IN THIRD
PARTY END USER LICENSE OR OTHER AGREEMENTS) OUR THIRD PARTY LICENSORS,
PROVIDERS OR SUPPLIERS, FOR ALL CATEGORIES OF DAMAGES SHALL NOT EXCEED
A PRO RATA CREDIT FOR THE MONTHLY FEES (EXCLUDING ALL NONRECURRING CHARGES,
REGULATORY FEES, SURCHARGES, FEES AND TAXES) YOU HAVE PAID TO XCHANGE
FOR THE SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM
AROSE, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY REGARDLESS OF THE
TYPE OF CLAIM OR NATURE OF THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS
SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW, AND ARE NOT INTENDED
TO ASSERT ANY LIMITATIONS OR DEFENSES WHICH ARE PROHIBITED BY LAW.
- ALL LIMITATIONS AND DISCLAIMERS
STATED IN THIS SECTION 12 ALSO APPLY TO XCHANGE’S THIRD PARTY LICENSORS,
PROVIDERS AND SUPPLIERS, AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.
- THE REMEDIES EXPRESSLY SET
FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY
HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH
DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR
LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR
LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify
and hold harmless the Xchange Parties from and against all liabilities,
costs and expenses, including reasonable attorneys' and experts' fees,
related to or arising from your use of the Service (or the use of your
Service by anyone else), (a) in violation of applicable laws, regulations
or this Agreement; (b) to access the Internet or to transmit or post
any message, information, software, images or other materials via the
Internet; (c) in any manner that harms any person or results in the
personal injury or death of any person or in damage to or loss of any
tangible or intangible (including data) property; or (d) claims for
infringement of any intellectual property rights arising from or in
connection with use of the Service.
- Notices required under this
Agreement by you must be provided to us at P.O. Box 190433, Brooklyn,
NY 11219-0433, Attention: Customer Service in the manner set forth in
the Contact Us section of the Website. Notice by Xchange to you (including
notice of changes to this Agreement under Section 3) shall be deemed
given when: (a) transmitted to your primary email address; or (b) mailed
via the US mail or hand-delivered to your address on file with us; or
(c) when posted to the Announcements page of the Website.
- If you send us an email,
you agree that the User ID and/or alias contained in the email is legally
sufficient to verify you as the sender and the authenticity of the communication.
- All obligations of the parties
under this Agreement, which, by their nature, would continue beyond
the termination of this Agreement, including without limitation, those
relating to Limitation of Liability and Indemnification, shall survive
- Xchange will not be liable
for delays, damages or failures in performance due to causes beyond
its reasonable control, including, but not limited to, acts of a governmental
body, acts of God, acts of third parties, fires, floods, strikes, work
slow-downs or other labor-related activity, or an inability to obtain
necessary equipment or services.
- You may not assign or otherwise
transfer this Agreement, or your rights or obligations under it, in
whole or in part, to any other person. Any attempt to do so shall be
void. We may freely assign all or any part of this Agreement with or
without notice and you agree to make all subsequent payments as directed.
- Except as otherwise required
by law, you and Xchange agree that the substantive laws of the
State of New York, without reference to its principles of conflicts
of laws, will be applied to govern, construe and enforce all of the
rights and duties of the parties arising from or relating in any way
to the subject matter of this Agreement. YOU AND
XCHANGE CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE
IN A COURT LOCATED IN KINGS COUNTY,
NEW YORK FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY
OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE SERVICE.
Except as otherwise required by law, including
New York laws relating to consumer transactions, any cause of action
or claim you may have with respect to the Service must be commenced
within one (1) year after the claim or cause of action arises or such
claim or cause of action is barred.
- Use, duplication or disclosure
by any Government entity is subject to restrictions set forth, as applicable,
in subparagraphs (a) through (d) of the Commercial Computer-Restricted
Rights clause at FAR 52.227-19, FAR 12.212, DFARS 227.7202, or in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause
of DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement.
Contractor/manufacturer is Xchange or its licensors and suppliers. The
use of Software and documentation is further restricted in accordance
with the terms of this Agreement.
- Xchange’s failure at any
time to insist upon strict compliance with any of the provisions of
this Agreement shall not be construed to be a waiver of such terms in
the future. If any provision of this Agreement is determined to be invalid,
illegal or unenforceable, the remaining provisions of this Agreement
shall remain in full force and effect and the unenforceable portion
shall be construed as nearly as possible to reflect the original intentions
of the parties.
- This Agreement, including
all Policies referred to herein and posted on the Website, constitutes
the entire agreement between you and Xchange with respect to the subject
matter hereto and supersedes any and all prior or contemporaneous agreements
whether written or oral. No changes by you to this Agreement shall be
effective unless agreed to in a writing signed by an authorized person
- Severability. If
any term of this Agreement is held to be invalid, illegal or unenforceable,
the other agreement terms shall not be impaired or affected.
- General Policy: Xchange
reserves the sole discretion to deny or restrict your Service, or immediately
to suspend or terminate your Service, if the use of your Service by
you or anyone using it, in our sole discretion, violates the Agreement
or other Xchange policies, is objectionable or unlawful, interferes
with the functioning or use of the Internet or the Xchange network by
Xchange or other users, or violates the terms of this Acceptable Use
- Specific Examples of
AUP Violations. The following are examples of conduct which may
lead to termination of your Service. Without limiting the general policy
in Section 1, it is a violation of the Agreement and this AUP to: (a)
access without permission or right the accounts or computer systems
of others, to spoof the URL, DNS or IP addresses of Xchange or any other
entity, or to penetrate the security measures of Xchange or any other
person's computer system, or to attempt any of the foregoing; (b) transmit
uninvited communications, data or information, or engage in other similar
activities, including without limitation, "spamming", "flaming"
or denial of service attacks; (c) intercept, interfere with or redirect
email or other transmissions sent by or to others; (d) introduce viruses,
worms, harmful code or Trojan horses on the Internet; (e) post off-topic
information on message boards, chat rooms or social networking sites;
(f) engage in conduct that is defamatory, fraudulent, obscene or deceptive;
(g) violate Xchange’s or any third party's copyright, trademark, proprietary
or other intellectual property rights; (h) engage in any conduct harmful
to the Xchange network, the Internet generally or other Internet users;
(i) generate excessive amounts of email or other Internet traffic; (j)
use the Service to violate any rule, policy or guideline of Xchange;
(k) use the service in any fashion for the transmission or dissemination
of images containing child pornography or in a manner that is obscene,
sexually explicit, cruel or racist in nature or which espouses, promotes
or incites bigotry, hatred or racism; or (l) download or use the Service
in Cuba, Iran, North Korea, Sudan and Syria or to destinations that
are otherwise controlled or embargoed under U.S. law, as modified from
time to time by the Departments of Treasury and Commerce.
- Copyright Infringement/Repeat
Infringer Policy. Xchange respects the intellectual property rights
of third parties. Accordingly, you may not store any material or use
Xchange's systems or servers in any manner that constitutes an infringement
of third party intellectual property rights, including under US copyright
law. In accordance with the Digital Millennium Copyright Act (DMCA)
and other applicable laws, it is the policy of Xchange to suspend or
terminate, in appropriate circumstances, the Service provided to any
subscriber or account holder who is deemed to infringe third party intellectual
property rights, including repeat infringers of copyrights. In addition,
Xchange expressly reserves the right to suspend, terminate or take other
interim action regarding the Service of any Subscriber or account holder
if Xchange, in its sole judgment, believes that circumstances relating
to an infringement of third party intellectual property rights warrant
such action. These policies are in addition to and do not affect or
modify any other rights Xchange may have under law or contract. If you
believe that copyrighted material has been used in violation of this
policy or otherwise been made available on the Service in a manner that
is not authorized by the copyright owner, its agent or the law, please
follow the instructions for contacting Xchange’s designated Copyright
Agent as set forth in Xchange’s Copyright Policy located at http://www.xchangetele.com/termsofuse.aspx.
- Xchange may, but is not
required to, monitor your compliance, or the compliance of other subscribers,
with the terms, conditions or policies of this Agreement and AUP. You
acknowledge that Xchange shall have the right, but not the obligation,
to pre-screen, refuse, move or remove any content available on the Service,
including but not limited to content that violates the law or this Agreement.
If you subscribe to any of the following
services ("Additional Services"), the terms and conditions
below apply to your use of the service(s) in addition to the terms of
- EMAIL AND EMAIL MESSAGING
- Email Service. Use
of Xchange email service is subject to Xchange’s email and anti-spam
policies, which include important information about limitations on use
of the email service such as the storage capacity and deletion of stored
- Email Security. Xchange
reserves the right in our sole discretion to provide the level of security
we deem appropriate to safeguard our network and customers, and other
Internet users, against Internet threats or abuses, including viruses,
spam and phishing threats. These security measures may include, but
are not limited to, the use of firewalls and blocklists to block potentially
harmful or abusive emails or attachments, anti-spam filters, anti-virus
and anti-spyware software, and blocking selected ports. Such activities
may result in the blocking, filtering or non-delivery of legitimate
and non-legitimate email sent to or from your email account. By using
any Xchange-provided email service, you agree that delivery and receipt
of email is not guaranteed and to Xchange’s use of such Internet and
email security measures we in our sole discretion deem appropriate.
- Email Aliases. Xchange
will issue email aliases (alternate email addresses) based upon availability.
You will surrender your alias by changing it or if your account is terminated
for any reason and we will not forward emails addressed to that alias.
If your Service is reinstated we cannot guarantee your alias will still
be available to you.
- Unlimited Voice Service.
- Unlimited Voice Service is subject to the following limitations: Local service is limited to 2,500 minutes of use per month; local toll service is limited to 1,000 minutes of use per month; and domestic long distance is limited to 1,500 minutes of use per month. Customers who exceed this allotment will be charged according to rates described in this tariff's rate schedule.
- Unlimited Voice Service does not include calls to hotlines, chatlines, conference calls and other premium services.