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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 the Service.

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.

 

1. Term 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 policies referred to in this Agreement (including our Privacy Policy), 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.

 

2. DEFINITIONS AND CHANGES TO SERVICE.

1. "Broadband Services" means Xchange-provided Internet services (whichever applies), also known as "High Speed Internet" ("HSI").

2. "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

3. "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.

4. "Equipment" means the modem, router and/or other equipment provided by Xchange for use with the Service.

5. "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.

6. "Skywire" and "Skywire Service" means Xchange Telecom provided fixed wireless service.

7. "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.

 

3. REVISIONS 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.

 

4. AUTHORIZED USER, ACCOUNT USE, AND RESPONSIBILITIES.

1. 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.

2. 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).

3. 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.

4. 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.

5. Broadband Accounts. Additional User IDs provided for Broadband customers' email boxes may not be used as dial-up connections.

 

5. PRIVACY POLICY; LEGAL COMPLIANCE.

Personal information you provide to Xchange is governed by our Privacy Policy, which is posted on the 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.

 

6. AVAILABILITY OF AND CHANGES TO SERVICE.

1. 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 control.

2. Skywire Service Limitations. Skywire is a fixed wireless service that provides data if you subscribe to a data plan and voice service. Voice service is provided as Voice over Internet Protocol or "VoIP" service. VoIP Service may not be available at any or all times in all areas. Even within coverage areas, and for a veriety of reasons that may be beyond Xchange’s reasonable control, service availability, quality, signal strength, and network speeds may vary, be lower than advertised, or be insufficient for your desired use of the Service. At the time you purchase Service, you agree to provide Xchange with the address of the primary place where you intend to use this service. That address will be used to determine whether adequate coverage should be avaialbe based on Xchange’s coverage maps. Coverage maps only approximate Xchange’s anticipated wireless coverage area outdoors; actual Service area, coverage and quality may vary and change without notice, depending on a variety of factors, some of which are discussed below. You agree that Xchange is not liable for any problems relating to Skywire service availability or quality, regardless of the cause(s) of these problems. You further agree to promptly notify Xchange of any changes in the primary Service address.

3. 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.

4. 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.

5. Maintenance. To provide the best possible service to its customers, Xchange periodically performs maintenance on its network. In some cases, this may require Xchange to conduct either a planned or unplanned interruption of the Service. Xchange will use commercially reasonable efforts to schedule maintenance outages in a way that minimizes the impact on customers, but Xchange cannot guarantee that your Service will not be interrupted and cannot always give advance notice of such outages. You acknowledge and agree that Xchange shall not be responsible for any losses or damages (of any kind) that may be suffered by you as a result of any Service interruptions due to maintenance outages.

6. Network Management. Xchange reserves the right to engage in reasonable network management to protect the overall integrity of its network, including detecting malicious traffic patterns and attempting to prevent the distribution of viruses or other malicious code, and through techniques such as reducing the aggregate bandwidth available to excessive bandwidth users during periods of congestion. While the determination of what constitutes excessive use depends on the specific state of the network at a particular location at any given time, excessive use will be determined primarily by resource consumption. For further information, please refer to Xchange's Acceptable Use Policy (attachment A) which forms a material part of, and is incorporated by reference within, these Terms.

7. E911 Noitfication If you use a voice over IP product, in the event of a power outage, and provided that you do not have battery backup installed, you will not have E911 service. If your service is disconnected or interrupted, you will not have E911 service. If you relocate and of the equipment to a different address, you must notify Xchange in advance to update E911 service. During the initial 72 hours of service at your new address, you may be required to provide the E911 operator with your new service address.

8. Security and Medical Alert System Limitations If you use a voice over IP product, yYou acknowledge that Xchange does not support the use of any Voice service as a connection for (i) emergency medical alert systems, (ii) all high security monitoring systems (UL 681 or similar) or (iii) fire alarm systems (UL 864 or similar). You acknowledge that it is your sole responsibility to contact your central station monitoring provider to test and verify that your security system is in good working order and that you are responsible for any additional work required to ensure the proper operating of your security system.

 

7. SOFTWARE LICENSES AND THIRD PARTY SERVICES.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 Service.

6. 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 the Agreement.

 

8.PRICING; BILLING: CHANGES TO SERVICE PLANS AND PAYMENT.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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. Xchange will not process any credit or pricing promotion if you are past due on any of your accounts with Xchange.

9. 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.

10. 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.

 

9. TERMINATION OR SUSPENSION OF SERVICE.

1. Termination of Service.

1. 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.

2. 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.

 3. 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.

 

 2. 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, VOICEMAILS, DATA, ADDRESS BOOK AND WEB STORAGE CONTENT) STORED IN OR FOR YOUR ACCOUNT WITHOUT FURTHER NOTICE TO YOU. ALSO UPON TERMINATION OF SERVICE FOR ANY REASON, IF YOU HAVE BEEN AN XCHANGE PHONE SERVICE CUSTOMER WHOSE TELEPHONE NUMBER (ASSOCIATED WITH THAT SERVICE) PREVIOUSLY HAD BEEN TRANSFERRED TO XCHANGE FROM ANOTHER VOICE SERVICE PROVIDER, THEN (IN ACCORDANCE WITH APPLICABLE FEDERAL REGULATIONS) SUCH TELEPHONE NUMBER MAY BE AUTOMATICALLY AND PERMANENTLY RETURNED FOR REASSIGNMENT TO THE NUMBERING POOL OF THE ORIGINAL VOICE SERVICE PROVIDER OR XCHANGE; IT SPECIFICALLY BEING UNDERSTOOD THAT XCHANGE MAY NOT BE ABLE TO RECOVER SUCH TELEPHONE NUMBER EVEN IF YOU (I) DECIDE TO REINSTATE YOUR SERVICE WITH XCHANGE (OR WITH AN ACQUIRER, TRANSFEREE OR ASSIGNEE OF, OR SUCCESSOR TO, XCHANGE’S PHONE SERVICE) OR (II) EXPRESS YOUR INTENT TO ESTABLISH INTERNET PHONE SERVICE WITH ANOTHER VOICE SERVICE PROVIDER. YOU AGREE THAT XCHANGE WILL HAVE NO LIABILITY WHATSOEVER FOR (A) THE LOSS OF ANY SUCH DATA, NAMES, ADDRESSES, OR OTHER INFORMATION AND/OR (B) IF YOU HAVE BEEN A XCHANGE PHONE SERVICE CUSTOMER, THE INABILITY (FOR WHATEVER REASON) TO MAINTAIN YOUR EXISTING TELEPHONE NUMBER OR TO TRANSFER SUCH TELEPHONE NUMBER TO A NEW VOICE SERVICE PROVIDER.

 

3. 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.

 

10. MANAGEMENT OF YOUR DATA AND COMPUTER.

1. 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 PARTY'S SERVERS.

 2. 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 access.

 3. 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.

 4. 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 and agents.

 

11. LIMITATIONS ON USE OF THE SERVICE.

 1. 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.

 2. 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.

 3. 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 results pages.

 4. 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.

 5. 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.

 6. 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.

 7. 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.

 8. 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 is prohibited.

 

12. WARRANTIES AND LIMITATION OF LIABILITY.

1. 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.

2. 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, THE CONDITIONS OF THE WIRELESS NETWORK RELATING TO COVERAGE, 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). ADDITIONALLY, XCHANGE DOES NOT WARRANT OR GUARANTEE THAT SERVICE THAT IS ONCE AVAILABLE TO A PARTICULAR LOCATION WILL ALWAYS BE AVAILABE TO THAT LOCATION. COVERAGE MAY CHANGE WITHOUT NOTICE.

3. THE SPEED AND BANDWIDTH AVAILABLE TO EACH COMPUTER OR DEVICE CONNECTED TO THE XCHANGE NETWORK, AND HENCE THE QUALITY OF THE SERVICE, MAY VARY FOR MANY REASONS, WITHIN OR BEYOND XCHANGE'S CONTROL, INCLUDING WITHOUT LIMITATION: (i) THE NUMBER OF USERS, COMPUTERS OR DEVICES CONNECTED SIMULTANEOUSLY TO THE NETWORK, AND THE TYPES OF USAGE IN WHICH THEY ARE ENGAGED; (ii) THE AMOUNT OF DATA BEING TRANSFERRED OVER THE NETWORK, (iii) NETWORK SIGNAL QUALITY; (iv) PERFORMANCE CAPABILITIES OF YOUR EQUIPMENT AND THE EQUIPMENT OF THIRD PARTIES; (v) TERRAIN AND FOLIAGE; (vi) WEATHER AND ATMOSPHERIC CONDITIONS; AND (vii) BUILDING STRUCTURE AND MATERIALS. NEITHER XCHANGE, NOR ITS AFFILIATES, AGENTS OR SUPPLIERS, WARRANT OR REPRESENT THAT THE EQUIPMENT OR SERVICE (A) WILL MEET YOUR REQUIREMENTS, (B) WILL BE UNINTERRUPTED, WITHOUT DELAY, ERROR-FREE, OR FREE FROM SERVICE DEGRADATION OR (C), WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE. 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.

4. 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.

5. 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.

6. 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.

7. 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.

 

13. INDEMNIFICATION.

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.

 

14. NOTICES.

 1. 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.

2. 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.

 

15. GENERAL PROVISIONS.

1. 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 such termination.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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 at Xchange.

8. 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.

 

ATTACHMENT A – ACCEPTABLE USE POLICY

1. 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 Policy ("AUP").

2. 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.

3. 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.

4. 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.

5. Theft or Fraudulent Use of the Service; Loss or Theft of Equipment. If your Equipment is lost or stolen, or if you become aware at any time that the Service has been stolen or is being fraudulently used, it is very important that you notify Xchange immediately, so that Xchange can suspend your Service (and the ability to use any Equipment that you have purchased or leased for use in association with that Service) in order to prevent further usage and limit your liability. You can do this by calling Xchange's customer service department at (646) 722-7200. Once you notify Xchange, Xchange will suspend your Service (i.e., until you possess replacement Equipment usable with the Service or such fraudulent activity has ceased, as applicable), and you will not be responsible for charges incurred with the lost or stolen Equipment during that period of suspension. If a Term Commitment applies to your Service, then you will be obligated to fulfill the remainder of your Term Commitment, which will be deemed extended by the full duration of the period that your Service is suspended; and, if you do not fulfill the remainder of your Term Commitment, then the Early Termination Fee (or the restocking fee, as applicable) will become due and will be chargeable automatically by Xchange to your Card (or through an EFT, if and as applicable).

 

ATTACHMENT B – ADDITIONAL SERVICES TERMS

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 the Agreement.

 

1. EMAIL AND EMAIL MESSAGING SERVICE.

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 messages.

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.

 

2. FREE MINUTES

Xchange offers free minutes with several of the plans. Free minutes are credited at the end of the billing month. If you switch away, or change plans in the middle of the month, you will be charged per minute for the free minutes.

 

3. 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.

 

4. E911

Please note. If you use VOIP to acess Xchange Telecom phone service, your 911 may not work properly under the following circumstances:

Relocation of your device- Since you use IP to connect to Xchange, if you relocate your phone to a different address, you must contact Xchange customer service to change the address.

Use by the end user of a non-native telephone number – 911 uses your caller id to identify you. If you change or mask your caller ID, even temporarily, the 911 service center may not get your information.

Broadband connection failure- Since the call needs an IP connection to go through, it will not work if your connection is down

Loss of electrical power – Since most VOIP devices need power to operate, and the internet needs power to operate, if you experience a loss of power, your service may not function and you will not be able to make a 911 phone call.

Other Delays – it may take a few days to update a new address in the system. Don’t wait for the last second.

 

5. Internet Filtering and Monitoring Services (JNET)

1. For the purposes of this section, the JNET refers to the suite of internet filtering services offered by Xchange, and when used to refer to an organization, any Xchange owned or affiliated entity providing such services.

2. License to download. If you ordered a service that allows downloading of software, this Agreement constitutes a license for you, the Account Administrator (herein referred to as "User"), to download and use The JNET Software as intended herein. Under the terms of this license, The JNET Software, intellectual property, advertising, copyrighted material, or any other The JNET product may not be re-sold without the express written consent of the JNET. All Users of The JNET Software must read and agree to the terms of this privacy policy and User agreement.

3. Use of The JNET Software by Children. Children under the age of 13 must have consent of parent(s) or legal guardian to use The JNET Software and/or The JNET Accountability Reports. All Accountability Partners of children under the age of 13 must have consent of parent(s) or legal guardian to act as Accountability Partners.

4. Acknowledgement of User to use and pay for services; payment schedule. You, as the User of The JNET Software, agree that you are 18 years old or older and are the owner of all computers and mobile digital devices, or have been authorized by the owner of all said devices, on which The JNET Software is to be installed. Because other people may use said devices, it is incumbent upon you, the User, to ensure that all other Users of said devices have read and agree to this User-Privacy agreement. You also agree to pay a monthly or annual recurring fee for the services of The JNET Software, to be billed in advance, before the beginning of the service period. Credit cards will be charged in advance of the service, typically 5 to 7 days before the beginning of the next period of service. The JNET will provide a statement by e-mail to the e-mail address provided in the signup procedure detailing charges that have been made. In the event of termination by you, the User, charges already processed will not be refunded.

5. Cancellation of service; identification of User. Service may be cancelled at any time by you, the User, for any reason or no reason at all upon notice to The JNET. Uninstalling The JNET Software does not constitute cancellation of service. In order to cancel, you must call the Customer Support team. The JNET reserves the right to cancel service for breach of this contract. Moreover, The JNET, at any time, without advance notice, with or without cause, at its sole discretion, reserves the right to refuse, cancel, and/or discontinue service to any individual or organization. Failure on the part of you, the User, to provide payment for the service of The JNET will result in termination of service by The JNET, and until proper Uninstall procedures (provided by The JNET) are followed, may result in an inability to access the Internet by computers owned and/or operated by User (for the purposes of this agreement, "computer(s)" includes all cell phone devices and/or Personal Digital Devices). In the event The JNET receives a request to verify any username or password, to cancel any account, or to receive the uninstall code, such will be provided upon our judgment (and solely upon our judgment) that the Account Administrator or other authorized person is the person making such request; it is your responsibility to ensure the security and accuracy of all identification information on your account (including your verification question and its subsequent answer) in this regard.

6. Refund policy. From the date of first service, users who cancel within the first 30 days of service will, upon request, be refunded the entire amount billed during that first 30 days. Beyond the first 30 days of service, in the event of termination by you, the User, charges already processed will not be refunded once the term of service has begun. Only the User or the person whose name is on the account’s credit card can have requests for refunds honored. Any member creating accounts with the intention of bypassing accountability shall forfeit any right for a refund.

7. Privacy; use of information provided to The JNET. The JNET is committed to protecting your privacy concerning any information collected under the terms of your agreement(s). In acknowledging your agreement with this policy, you as the User have agreed to allow The JNET to monitor and/or filter your use of the Internet at your own computer. Certain levels of internet filtering provided by the JNET require you to assign a person or group of people that will monitor your Internet usage, called Accountability Partners. If you subscribe to such a service, You, the User, agree that your Internet use may be monitored and reported to you and/or your Accountability Partners; monitored Internet use includes, among other things, web browsing, newsgroups, FTP, IP addresses, times of use, and may also include recording and reporting of additional The JNET accounts owned by you which may have different Accountability Partners. If one or more Accountability Partners are deleted, or if the account is canceled, Accountability Partners may be provided with a then-current report of activity up to the time of deletion or cancellation. In turn, The JNET promises that any information collected will only be provided to you or your Accountability Partner(s) as per this agreement, except upon specific request by you or your active Accountability Partner(s), and limited to the purposes of said request. Except as noted above, and in paragraph 15, use by The JNET will be expressly limited to internal use only for the purposes of database management or systems operations; in the event that The JNET uses any data collected for such internal purposes, no such data will be preserved in any format that is associated with your name or account. Accountability data is kept for 30 days, after which it is permanently and irretrievably deleted from our databases. After deletion, the data cannot be recovered by The JNET. If a permanent record is desired, it is incumbent upon members and/or Accountability Partners either to make an electronic copy or hard copy of detailed logs or other data. Information which will be retained securely and indefinitely by The JNET includes names, usernames, passwords, billing information (including credit card), demographics (including IP addresses), and other account information. The JNET will never share any information gathered under this contract with any third party unless requested by you, the User, or unless required to do so by a court of law; this information includes all information regarding your Internet use, demographic data, your personal address/phone/e-mail information, your credit card information, or any other information gathered under the terms of this agreement. In the event that you sign up for The JNET Software through any organization which is affiliated with The JNET (including The JNET affiliates, strategic partners, resellers, or licensees), you agree to any/all of the said organization’s User/Privacy Agreement(s), which may include the release of your personal contact information to said organization(s). In the event that the person signing up for The JNET Software is different from the person, persons, and/or organization responsible for payment of the credit card used on the account, it is understood that the phrases "you," "your," and/or "you, the User" shall include the person, persons, and/or organization responsible for payment of the credit card used on the account.

8. Restriction against re-selling license to use The JNET Software. You, as the User, agree not to purchase and then resell The JNET Software, nor include the JNET Software as any package which you otherwise sell or market, without express written consent of The JNET.

9. Voluntary provision of information and agreement to disclose; protection of password. You, as the User, are voluntarily providing The JNET with certain information and with permission to monitor and record use of the Internet at your computer. You, as the User, agree that all users of your computer and User ID will be informed that monitoring/recording is being made, and that in so being informed, other users will not have their privacy invaded. You should recognize the value of your User ID, and that casually allowing others to use your ID can lead to inappropriately ascribing Internet use to your own account; and you, the User, agree that The JNET is not responsible for maintaining the privacy of the User ID information either of you or your Accountability Partners (see also paragraph 5).

10. Agreement to comply with laws and restrictions on harmful transmissions. You, as the User, agree that you will comply with all applicable laws regarding Internet use, both now and in the future as laws are generated which may affect use of the Internet. You also agree not to attempt to pursue in any way any transmission of information to The JNET servers or other equipment which could be harmful to its database or other functions. The transmission of any material in violation of any state or United States regulations is expressly prohibited, and will result in immediate termination of use.

11. No warranty or guarantee of service. The JNET makes no warranties, express or implied, including, but not limited to, those of merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, nondeliveries, misdeliveries or service interruption however caused. The JNET does not guarantee continuous or uninterrupted monitoring of Internet use. Routine maintenance and periodic system repairs, upgrades and reconfigurations, public emergency or necessity, force majeure, restrictions imposed by law, acts of God, labor disputes and other situations, including mechanical or electronic breakdowns may result in temporary impairment or interruption of service. Every effort will be made to perform routine maintenance between 3 a.m. and 8 a.m. (EST).

12. Limitations on security of e-mail transmissions. The security of any/all e-mail messages sent by The JNET cannot be guaranteed on the Internet as information can be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The JNET does not accept liability for any errors, omissions or viruses in the contents of e-mail correspondence sent to you or your Accountability Partner which arise as a result of e-mail transmission.

13. Data provided not to be construed as interpretation of the data. Reports and other data provided by The JNET to you, the User, or to your Accountability Partners consist of data without interpretation. The analysis of sites provided by The JNET proprietary rating procedures and algorithms is, in itself, data corresponding to results of those procedures and algorithms. Similarly, the summaries of reports, which The JNET refers to as the "Quick Look," are also data corresponding to a proprietary procedure and algorithm, and are not, nor are they intended to be, an interpretation of any data. The statements "Report Looks Good," "Review Suggested," and "Close Review Recommended" are summaries of data collected and given in the report, are based wholly on the data of individual sites in the report, and do not indicate a pattern of behavior or intent on the part of the User. It is entirely up to you as the User and to your Accountability Partners to interpret the data (including the Quick Look) in terms of the actual content of any particular site or sites, the appropriateness for the User viewing those sites, or any motivation or pattern of viewing by the User.

14. Disclosure as to accuracy of rating. Owing to the ever-changing nature of the Internet, no rating system and/or filter application will perform without error 100% of the time. The JNET does not accept liability and makes no warranties, express or implied, including, but not limited to, incorrect ratings, which may also result in incorrect blocking and/or allowing websites when the filter is in use, whether the rating is claimed to be too high or too low, of any/all website source code, websites, website domains, website URLs, website titles, and electronic transmissions through any/all Internet protocols. The JNET strives for perfection in its Dynamic Scoring Filter and Accountability Software applications. Occasionally, but rarely, a website may be rated incorrectly. If you believe a website is rated incorrectly, you may request a rating change. The JNET reserves the right to accept or deny any/all rating change requests. Final judgment on the rating of any particular website will remain at the sole discretion of The JNET.

15. Rating Change Request constitutes request to view report. When a rating change request or request by phone, e-mail, or other means for assistance in understanding an Accountability Report is submitted by the User and/or other members on this account and/or an Accountability Partner, said request constitutes permission by you, the User, to allow The JNET to view said member report for the purpose of analysis. The said request itself shall be retained by The JNET indefinitely, but the associated report will not be retained, in compliance with paragraph #5 above; however, any portions of reports included in e-mail correspondence between the member or Accountability Partner and The JNET will be retained by The JNET for the purposes of documenting the correspondence. The JNET will not make interpretations of data provided in reports.

16. Indemnification, limit of liability. You shall indemnify The JNET, its shareholders, affiliates, officers, directors, licensees and licensers from any and all claims and expenses, including, without limitation, attorney’s fees arising from any cause. Furthermore, liability of The JNET shall in any case be limited to and shall not exceed the total amount of monies paid by you, the User, to The JNET for use of the The JNET Software. The parties agree that any dispute arising from this agreement shall have as its venue Brooklyn, NY, wherein are located the offices of The JNET.

17. Amendments to this agreement. This Agreement may be amended from time to time by The JNET without notification to users; such amendments may be made either by changes in this Agreement on the Xchange Telecom website, or by e-mail.

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