WILDIX TERMS AND CONDITIONS
Thank you for selecting the Wildix Advanced Unified Communications and Collaboration System (“Wildix System” or “System”) that is virtualized and maintained at Amazon Web Services “AWS”, one of the most reliable data cloud service providers in the world. Please review this Terms and Conditions Agreement (“Agreement”) thoroughly because they regulate the usage of your new Wildix System.
This Agreement is a legal agreement between Xiologix, LLC., your Wildix vendor (“Xiologix”), and the users of the Wildix System and Licenses (“Client” or “You” or “Your”). Xiologix and Client may be individually referred to as a “Party” or collectively as the “Parties.” The Descriptive Wildix Communication System Proposal (“Contract”), signed by You, is expressly incorporated herein and constitutes part of this Agreement. Your signature on Your Contract means that you accept these Terms and Conditions even if You choose not to read them. If You do not accept the Terms and conditions stated herein, do not enter into a contract with Xiologix to use the Wildix System. We reserve the right to revise these Terms and conditions at any time by updating this posting. You should visit this page periodically to review these Terms and conditions. If at any time you do not agree to any of the Terms of this Agreement, you shall immediately stop using the Wildix System, but You will still be subject to the Contract Terms and the payments due thereunder.
If You are entering into this Agreement on behalf of a company, organization, or another legal entity (“Entity”), You are agreeing to this Agreement for that Entity and are representing to Xiologix that You have the authority to bind such Entity and its affiliates to this Agreement. If You do not have such authority, or if You do not agree with this Agreement, you must not accept this Agreement and may not use the Wildix System or any of the features.
Each end-user of Your Wildix System requires a Wildix License (“License”) to enable use and access to communication and collaboration features, Wildix hardware, and the Wildix web portal. Xiologix does not order, supply, provision, service, or repair any dial tone or internet services, and Your Contract pricing does NOT include the cost of these services. Such services are provided to You by a third-party carrier of Your choice under a separate contract and Terms. You are responsible to order and pay for these required services. If there is a support issue, please call Xiologix first so we can diagnose Your issue, and if necessary, to the resolution of Your issue, we will direct You to call Your carrier.
I. 911 and e911 Notice and Disclosure.
There are differences between the 911 and E911 access capabilities available through Your System (“VoIP 911 and E911 Service”) as compared to the 911 and E911 access capability available with traditional wired non-VoIP telephone systems. By executing this Agreement and activating your Licenses, You affirmatively acknowledge that (i) You have read and understand this Section and Your dial tone carrier’s 911 and e-911 warnings, (ii) You may not be able to contact emergency services by dialing 9-1-1 using the VoIP 911 and E911 Service and (iii) You must inform Users of the Services that they may not be able to contact emergency services by dialing 9-1-1 using the VoIP 911 and E911 Service. Your dial tone carrier provides You access to emergency calling services, allowing You to access either basic 911 or Enhanced 911 (E911) service. Your access may differ depending on Your location or the device You are using, and emergency calling services work differently than traditional wireline or wireless telephones. It is strongly recommended that You have an alternative means for placing emergency calls available at all times. Wildix IP Desk Phone or Soft Phones (“Phones”) can dial 911. Calls to 911 placed through the Wildix Mobile Application on a smartphone are automatically routed to the native dialer on the smartphone, and the call will be handled by Your wireless service provider if wireless service is available. The Wildix Mobile Application cannot place emergency calls over Wi-Fi access. Emergency dialing is not available through the Wildix Mobile Application on tablets or other mobile devices without a native phone dialer and a wireless service plan.
A. How it Works.
When a Wildix user dials 911 on an IP Desk or Softphone, your phone number and the Registered Address You have provided to your dial tone carrier is sent to the local emergency center serving Your location. Your “Registered Address” is the address of the physical location where You will use Your Wildix Phones. Xiologix does not control whether or not the emergency operator receives Your telephone number and Registered Address.
B. Service limitations.
911 service will not function in the event of an Internet or power outage, if You do not have cellular service (on the Wildix Mobile Application), or if Your broadband, ISP, or Licenses are terminated or expire. The Wildix Mobile Application cannot send emergency calls over Wi-Fi access.
C. Registering Your Location.
Prior to the activation of Your Wildix System, You agree to register with Your Dial Tone provider, the address of the physical location where You will use the Wildix System for each Phone. You must register the address of where any remote phones are physically located. You acknowledge that if You do not update the Registered Address, any 911 calls made from the device may be sent to the wrong emergency response center and will not transmit Your current location information to emergency responders, delaying emergency assistance to You.
D. Notification of Employees, Guests, or Other Users.
You agree to notify any employees, contractors, guests, or persons who may place calls using the System or may be present at the physical location where the System may be used, of the limitations of 911 Service from Your Wildix Phones. You and Your End Users should always have an alternative means for placing 911 calls.
E. Disclaimer of Liability for Emergency Call Response.
You acknowledge and agree that Your use and use by Your employees and/or guests or other third parties, of 911 Services are subject to the limitations described herein.
To the extent permitted by applicable law, You hereby release, discharge, and hold harmless Xiologix from and against any and all liability relating to or arising from any acts or omissions of such third parties or other third parties involved in the handling of or response to any emergency or 911 call. You agree to indemnify and hold harmless Xiologix from any and all third party claims, losses, damages, fines, or penalties arising out of: (i) Your provision of incorrect information to Xiologix or Your carrier, including physical addresses, or Your failure to update Your Registered Address; (ii) Your failure to properly notify any person who may place calls using the Wildix System and the 911 limitations; or (iii) the absence, failure, or outage of emergency service dialing using the System for any reason; and (iv) the inability of any User of the System to be able to dial 911 or access emergency service personnel for any reason.
II. Wildix System Order and Contract Term
A. Contract Execution
Client and Xiologix entered into a contract that identifies the Wildix equipment purchased and the Licenses requested by Client, along with the pricing for each. Licenses are only available on subscription and paid for on a recurring monthly basis. Any deposits paid pursuant to that Contract are non-refundable because everything is special ordered. That Contract is incorporated into and forms a part of this Agreement. The Licenses ordered will be activated the date they are uploaded to the System for programming (“Start Date”). Billing for the Licenses will commence on the Start Date. Client may order additional Licenses and equipment by contacting Your sales representative.
Client may purchase or rent equipment from Xiologix for use with the Wildix System. The Terms and conditions that govern any such transactions are found in Your Contract for the Wildix System. Whether You are purchasing or renting the Wildix phones and/or any ancillary equipment (“Equipment”) connected to the System, Xiologix will at all times remain the property owner of such Equipment until such time that Client has paid for the Equipment in full. All IP devices, including phones and/or Wildix System Equipment, shall be provided to You by Xiologix. All Equipment purchased from Xiologix, LLC, including but not limited to Wildix Equipment, handsets, headsets, PoE switches, routers, etc., come with a one-year Equipment guarantee as described in your Contract.
C. End-User Licenses
Your Wildix System is a virtualized cloud-based System that includes enterprise-level features. The System is entirely web-based and accessible via a browser in your PC, MAC, Tablet, or iPad. Your System offers a Per-User licensing model. You choose the number of Licenses You need in your System and the profile level of each user. The licensing profiles are Basic, Essential, Business, or Premium; each level has a different feature set. Pursuant to Your Contract, You are subscribing to a certain number of Wildix Licenses for a certain initial contract Term (“Initial Term”), and You are agreeing to use and pay for them as set forth in this Agreement for that entire Initial Term and any auto renewal Terms (“Renewal Terms”). You agree to be financially responsible for Your use of the Licenses, including the authorized or unauthorized use of Your System. You may upgrade a License profile at any time during Your initial or Renewal Term, but not downgrade or terminate a License during a current Initial or Renewal Term. Your monthly recurring fee will be increased to reflect the new License cost for the remainder of the Initial or Renewal Term. In order to use the Licenses, you must have properly configured and working Dial Tone AND Internet service or broadband connection as set forth in Section “V. Service Requirements and Limitations, Section A, IP Network Sufficiency”, below. Xiologix does not supply Internet or Dial Tone services.
D. Client’s Obligations for Installation
Client represents and warrants that it is the owner of Client’s said premises or has the authority from the owner or any other person in control of Client’s facility to permit Xiologix to install the Equipment and cabling at Your facility which may include, but is not limited to, drilling holes, driving nails, making attachments or doing such other things as may be necessary or related to the installation of the System. Client acknowledges that Xiologix has no way of knowing of the existence of hidden pipes, wires or other obstructions within walls, ceilings, doors or any other concealed spaces or a condition which differs from those originally encountered or an unexpected condition that affects the cost of the installation, and that is the obligation of You to make Xiologix aware of such conditions in advance, failing which Xiologix shall has no responsibility whatsoever for any damage that may be caused or any additional costs that may be required to complete the installation as per Contract. Client agrees, at its expense, at all other times during the period of installation and maintenance services to: (i) allow Xiologix employees access to the areas where the Equipment is to be installed; ii) assure that Your premises meet all temperature, humidity control and A/C for the Equipment and that it will be free from dust and other hazards so as not to damage the Equipment; (iii) provide all patching, painting, concrete, and other openings, floor reinforcements and ceiling tiles; (iv) provide ample electric current and electrical support and back up of proper voltage for any necessary purpose, terminating in rooms where required; (vi) accept the risk of loss for any damage or destruction of Your Equipment installed and/or left on-premises to be installed, at the time of delivery to Your premises, except with respect to damage or destruction resulting from the negligence of a Xiologix technician.
E. Installation of Equipment and Delay of Installation
Our non-union crew will install this System during normal workdays and hours. The Contract price for Your System and its deployment is priced to include a specified time frame for installation. If a technician must make an unscheduled site visit or return to the site during the period of installation, or for the maintenance or repair of Your System thereafter, including but not limited to the following reasons, (i) required cabling is missing, (ii) Client’s network is not properly configured or has an issue, (ii) Client’s network is missing required Equipment (router, QOS, PoE switch), (iv) no internet access, (v) Client’s IT vendor is not available and needed during deployment, (vi) any other delay that is caused by the Client, or (vii) if Client does not fulfill its obligations as defined in the preceding paragraph, II, D., will result in additional charges on a time and material basis at Xiologix’s then-current rate. Charges will apply to the real-time lost by Xiologix technicians including travel time and time on site.
E. Purchase of Additional Licenses
Your Licenses are set forth in Your Contract. Each additional License added to Your Account is subject to the terms of this Agreement. The term of any additional License(s) will run conterminously with the Term of Your initial purchase.
F. Term and Automatic Renewal
Your Licenses are provided for the Initial Term and any subsequent Renewal Terms. Your Initial Term commences on the first of the subsequent month. The Initial Term for Your License subscription will renew automatically for successive Renewal Terms of the same length, without further action by or notice to You; if You wish to cancel or terminate your Licenses, You must notify Xiologix in writing of your intent not to renew at least thirty (30) days before the end of the Initial Term or then-current Renewal Term. The Initial Term together with any Renewal Terms are collectively the “Term”. Regardless of the date You terminate, your termination will be effective on the date Your current Term was designated to expire, and You will be responsible for all recurring payments due through the expiration date of Your current Term.
III. Invoicing and Payment
A. Recurring License Fees
Your Contract sets forth the recurring monthly fees for the Licenses uploaded to Your Wildix System. Any applicable initiation charges, monthly recurring charges, sales, and use taxes, and other fees are billed in full in advance. Terminations are billed in arrears. No refund, transfer, or proration shall be made of any unused License Term.
B. Prices and Charges
Additional charges may result if Client activates additional Licenses or purchases additional Equipment. Recurring charges for the Licenses begin on the Start Date and will continue for the Term. Recurring License charges will once incurred, remain in effect for the then-current Term. Xiologix will provide notice of any proposed increase in such charges no later than thirty (30) days before the end of the Initial Term or then-current Renewal Term, and any such increase will be effective on the first day of the next Renewal Term.
You are responsible for the implementation and cost of all internet service and dial tone service, including but not limited to the service itself, any penalties or fees billed for early contract termination, or for any fraudulent or unauthorized calls made from the Wildix System any time after installation. To minimize unauthorized use, Client should (a) disable international calling for all dial tone lines with Your dial tone carrier or (b) restrict international calling destinations to those that are needed and authorized.
C. Billing for Mid-Year Transactions
In the event that a subscription, transaction, or event involving or resulting in an annually-incurred License occurs subsequent to the beginning of an annual billing cycle, Xiologix may at that time bill You a pro-rated amount for the remainder of the then-current Term and thereafter bill You conterminously with each subsequent Term.
D. System Availability
You acknowledge and agree that the products or features, including without limitation the Licenses, may not be available one hundred percent (100%) of the time. There will be no credit allowances for the interruption of the Licenses or Your System.
E. Billing and Payment
All Licenses and Equipment must be paid for by check or ACH. To keep License costs down, credit cards are not accepted at this time. Bounced checks incur a $50 returned bank fee. Unless otherwise stated at the time of purchase or on the billing statement, payment is due in full, without deduction or set-off, within thirty (30) days of the date on the billing statement. You agree and acknowledge that time is of the essence for payment of all fees and charges. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by law. Xiologix’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly) will not waive, limit, or prejudice in any way Xiologix’s rights to collect any amount due. Xiologix reserves the right to suspend or terminate Your Licenses, and/or Your access to the System for non-payment if any fees or charges are not paid within thirty (30) days of the due date. If Your payment is not received by the due date, Xiologix will use reasonable efforts to contact You and advise You of the past due payment. Notwithstanding the foregoing, if any amount owed by You under this Agreement is past due more than 45 days, Xiologix reserves the right to disconnect Your License and terminate Your Account. Xiologix reserves the right to pursue any other legal remedies available to Xiologix, and You agree to pay all attorney fees, collection fees, and court costs in connection with any collection efforts.
In addition to the charges included herein, You agree to pay any sales and use taxes, fees, permit fees, or charges for the installation and use of the Licenses provided for under this Agreement, which are authorized or imposed by any governmental body or agency.
G. Billing Disputes
If a Client reasonably and in good faith disputes any portion of Xiologix’s charges, it must provide written notice to Xiologix within thirty (30) days of the billing date, identifying the reason for the dispute and the amount being disputed. Client’s dispute as to any portion of the billing statement will not excuse Client’s obligation to timely pay the undisputed portion of the billing statement. Upon resolution, Client must pay any unpaid amounts within thirty (30) days.
A. Professional Services
On occasion, you may request work to be performed by a certified Xiologix technician beyond the scope of implementation or repair of the System (“Professional Services”). Any moves, adds, or changes in programming that are not related to implementation or a malfunction in the System is billable to You on a time and material basis. The fee for these additional services will be based on Xiologix’s then prevailing rates for programming and materials.
B. Technical Support
Xiologix will provide Client technical support relative to any System malfunction at no additional charge to You if it is included in the cost of Your Licenses. Service requests do not cover 1) adds, moves, or changes in Equipment, services or features relating to this system 2) any programming “changes” after 30 days of installation, (3) damage or destruction resulting from, but not limited to, power failures/surges/spikes, liquids or airborne contaminants, flood, storms, wind, lightning or other acts of nature, fire or smoke, accidental, faulty, or willful or negligent maintenance of Equipment, misuse, accident, tampering, intrusion, abuse or theft, (5) after hour emergency service, (6) repairs or programming that were not performed by a Xiologix employee, (7) Equipment or cabling that was not installed by Xiologix, (8) the repair of dial tone or internet Carrier services (“Carrier”), (9) any Carrier actions that adversely affect the System; modifications, additions or deletions to its service or Equipment (added services or static IP changes, etc.), (10) fraudulent or unauthorized calls, (11) any computer or network Equipment or network issues that affect your System, (12) any dial tone lines or Equipment not connected to the System (fax and credit card lines/machines, printers, fax and alarm lines etc.), (13) manufacturer defects in materials or workmanship or software bugs, (13) manually performed upgrades to the System and (14) any data network or internet QOS issues. These exclusions are all billable support services.
You understand that all of Your Licenses must be active and paid for in order for You to obtain technical support. In Xiologix’s sole discretion, support shall consist of telephone or electronic support to correct any malfunctions. Xiologix highly suggests calling the office to report any System issues to a representative; this will ensure Your issue is correctly reported and received. Such support will be provided during local business hours Monday through Friday from 9:00 AM to 5:00 PM. Xiologix highly suggests calling the office to report any System issues to a representative; this will ensure Your issue is correctly reported and received. Such support will be provided during local business hours Monday through Friday from 9:00 AM to 5:00PM. Xiologix is available for Best-Effort emergency support. If no Xiologix support agreement is in place, all emergency support will be billed on a time and material differential basis. Xiologix will charge Client our Professional Service rate for its time and expense in investigating and attempting to remedy network, internet, or dial tone issues which are not covered by Your guarantee or technical support coverage. Xiologix agrees to provide You from time to time software updates and upgrades as it deems necessary in order to provide the most optimal services to Client. Automatic System updates and or upgrades are included in the tech support coverage provided by Xiologix, but manual software updates/upgrades are billable on a time and material basis at Xiologix’s then-current rate for programming.
V. Service Requirements and Limitations
A. IP Network Sufficiency
The Wildix System is dependent upon Client’s maintenance of sufficient Internet access, dial tone, valid Licenses, networks, and power. Xiologix will not be responsible for any deficiencies in the provision of the Wildix System if Client’s network does not meet Xiologix’s Technical Sufficiency Criteria. You acknowledge and agree that the Wildix System requires (i) dial tone to be provided by a Carrier (ii) requires a properly-configured, high performance, enterprise-grade broadband IP network and connection; any lesser network, services, or connection may result in partial or complete System unavailability, interruption, or underperformance of the System or other services utilizing the same network, services, or connection; (iii) requires each end User to have a valid License, (iv) given the nature of IP and telecommunication networks, it is impossible to provide an uninterrupted or error-free communication system and (v) 3G, LTE or 4G networks are not recommended for use with the System for your main dial tone. Accordingly, you agree to provide and maintain, at Your cost, dial tone, an IP network, high-speed internet service, and connection meeting the foregoing standard and all Equipment necessary for the System to connect to and use such network, services, and connection. Xiologix is not liable for any unavailability, interruption, or underperformance of the System related to Your dial tone, IP network or internet connection.
VI. IMPORTANT INFORMATION:
A. Internet Service and Power
If You IP network or internet connection fails; Your System will not work. Your System may cease to function if there is a power loss or failure. These failures are caused by reasons outside of Xiologix’s control. You may institute failover features to these issues such as back up internet sources, DIDs, or using Your Mobile Application that will enable you to make or receive calls depending on the back up option implemented. Any License other than a Basic will allow you to direct your calls to the Wildix cell phone app.
B. Caller ID Display Limitations
You acknowledge and agree that the Caller ID (name and number) is a feature controlled by your dial tone carrier, and Xiologix has no control over it. If there is an error in Your Caller ID name, You must contact your dial tone carrier for support.
C. Use of Third-Party Devices
Xiologix does not guarantee or make any representation or warranty that any IP Desk Phones and/or other Equipment which is not purchased through or supplied by Xiologix will work or be compatible with the Wildix System or support the License’s full performance or quality of service potential or range of features and functionalities.
D. Use of Mobile Application
The Wildix Mobile Application can be configured to make or receive calls on Your 3G, LTE, or 4G network using Your data service, and may result in additional data usage fees from Your mobile service provider. You can disable 3G/LTE/4G calling by configuring the Mobile Application to make/receive calls only over a Wi-Fi connection. Configuring the Mobile Application to disable VoIP calling will result in Xiologix making/receiving calls using Your voice connection from Your mobile service provider; this may result in additional voice minute usage fees from Your mobile service provider.
VII. Use Policies
A. Recording Conversations or Calls
Certain features of the Licenses may allow You or Users of the Licenses to record calls or other communications. The notification and consent requirements relating to the recording of calls and/or other communications may vary from state to state, and there are federal statutes as well. You should consult with an attorney prior to recording any communication, as some jurisdictions may require the prior consent of all parties to a recorded communication. Xiologix expressly disclaims all liability with respect to Your recording of telephone or video conversations. Xiologix is not responsible for the content of any audio or visual recordings within the use of or aid of or stored on or within the Wildix System or anything connected to it. You acknowledge and agree that any Wildix Equipment or Equipment related to the Wildix system are prohibited from use in connection with any offensive, sexual, defamatory, or illegal conduct. You agree to indemnify and hold harmless Xiologix from any and all third-party claims, losses, damages, fines, or penalties arising out of Your violation or alleged violation of any call recording Laws. Xiologix expressly disclaims all liability and all warranties with respect to recording of conversations and/or calls.
B. No Storage of Personal Health Information.
You represent and warrant that neither Your System nor any ancillary product or service that is a part thereof will be used for such purpose. XIOLOGIX SPECIFICALLY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT YOUR SYSTEM COMPLIES OR WILL COMPLY WITH HIPAA OR ANY OTHER LAW OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA OR ANY OTHER LAW.
You hereby release, discharge, and hold harmless Xiologix from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section VII.
VIII. The Number Porting Process
In order to request the porting of Your telephone or fax numbers to a new dial tone carrier, you must follow the instructions specified by that carrier, and you must provide all information. You acknowledge and agree that: (i) the porting of telephone or fax numbers requires Your provision of specific and detailed information to Your carrier and completion of certain steps and procedures, as well as third parties’ completion of certain steps; and (ii) numbers may not be ported until You are able to provide certain specific information that matches other information on record with Your new carrier. For these and other reasons, the completion of any number port request and the timing of and date by which any such request may be completed depend on a number of factors outside of Xiologix’s control, including without limitation the acts and omissions of both You and third parties, including without limitation other services providers. You acknowledge and agree that Xiologix has no responsibility or liability due to such port-outs. You agree, represent and warrant that all information or representations provided in connection with any request to port in or port out numbers by You, any End User, or any party acting on behalf of, at the direction or request of, or with the permission or knowledge of any of the foregoing shall be accurate. You acknowledge that You are solely responsible for working with a third-party provider to port out any numbers prior to termination or cancellation of Your current dial tone provider.
IX. Termination of System or Licenses
Either Party may terminate this Agreement and any Licenses hereunder in whole or part by giving written notice to the other Party if the other Party: i) breaches any material Term of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice; or ii) upon the commencement by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings or an assignment for the benefit of creditors.
B. Early Termination
If this Agreement or Client’s Wildix Licenses are canceled or terminated before the end of Client’s Initial Term or then-current Renewal Term, Client shall pay Xiologix immediately upon termination, pay an amount equal to the monthly or annual recurring charges associated with the terminated Licenses, including any applicable taxes, multiplied by the number of months then remaining in the terminated Term. Any reduction in the number of Licenses shall be treated as an early termination of the License for the purposes of this paragraph, and the early termination costs shall be calculated based on the reduction in monthly recurring charges attributable to such reduction or downgrading for the remainder of the Term. Client acknowledges that the License rates offered to Client are based upon Client’s Agreement to a subscription for a certain Term, and such rates would have been substantially higher absent such a Term agreement.
C. Effect of Termination
Upon any cancellation, termination or suspension of Your right to use the Wildix System, Xiologix will deactivate Your Licenses to the Wildix System. If You or Xiologix terminate or suspend Your right to use the Wildix System, you shall not be entitled to any refund or proration of any pre-paid amounts or other amounts paid to Xiologix prior to the termination or suspension date. Xiologix shall not be liable to You or any third party for any reason for terminating or suspending Your use or access to the Wildix System.
X. Intellectual Property
A. Limited License
Subject to, and conditional upon Client’s compliance with, the Terms of this Agreement, Client and its End Users, have a limited, personal, revocable, non-exclusive, non-transferable License made available by Xiologix to the Client as part of the Wildix System to the extent reasonably required to use the Licenses as permitted by this Agreement, only for the duration that Client is entitled to use the Wildix System and subject to You being current on Your payment obligations.
B. Erroneous Product Information
In its marketing, advertising, offering, and sale of the System, Xiologix attempts to describe the features as accurately as possible. Nevertheless, Xiologix does not warrant that any such information about the System is accurate, complete, reliable, current, or error-free. It is possible that such may be inaccurate or out-of-date, or referring to services or features that are no longer available. Such information is provided only for clients’ convenience and is not part of these Agreement, any agreement for the purchase of the System, or any other agreement with Xiologix.
XI. Limitation of Liability
A. Excluded Damages
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL XIOLOGIX, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, OR PARTNERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, REPUTATIONAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, (1) DAMAGES FOR LOST OR ANTICIPATED PROFITS, LOSS OF USE, BUSINESS, OR GOODWILL; (2) LOSS OR CORRUPTION OF DATA, EQUIPMENT, OR PRODUCTS; (3) COST OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (4) LOST OPPORTUNITY; (5) ANY OTHER INTANGIBLE LOSSES, EVEN IF XIOLOGIX WAS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR ARISING OUT OF THE USE OF ANY GOODS OR SERVICES PROVIDED BY XIOLOGIX WHETHER IN ANY OF THE FOREGOING, HOWEVER CAUSED, ARISING UNDER WRITTEN OR ORAL CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF XIOLOGIX HAS BEEN INFORMED IN ADVANCE OF- COULD HAVE BEEN REASONABLY FORESEEN – SUCH COSTS, DAMAGES OR LOSSES OR SUCH DAMAGES.
B. Cap on Damages
EXCEPT AS SET FORTH HEREIN, THE TOTAL AGGREGATE CUMULATIVE LIABILITY OF DAMAGES (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL IN NO EVENT EXCEED THE MONTHLY AMOUNT OF FEES PAYABLE UNDER THIS AGREEMENT FOR 6 MONTHS, FOR THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SUB-SECTION DOES NOT APPLY TO LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW. THIS SECTION SHALL NOT DISCLAIM, LIMIT, OR CAP CLIENT’S OBLIGATION TO PAY ANY FEES OR CHARGES OR OTHER AMOUNT OWED TO XIOLOGIX OR ANY DAMAGES TO WHICH XIOLOGIX IS ENTITLED UNDER APPLICABLE LAW.
C. Survival & Essential Purpose
The limitations of liability contained in this Section XI (Limitation of Liability) will survive termination or expiration of this Agreement and will apply to the maximum extent permitted by applicable law, in any and all circumstances (except as expressly set forth above), including without limitation in the event any remedy fails for its essential purpose.
A. Indemnification Obligations
To the maximum extent permitted by applicable Law, You shall indemnify and hold harmless, individually and collectively, Xiologix, its affiliates, agents, resellers, employees and other providers who furnish goods and services to You in connection with the System, and their officers, directors, managers, and employees (the “Indemnified Parties”) from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from or related to: (i) the use of or reliance upon the System, Software and Licenses by You or any third party acting with Your permission, knowledge, authority or direction; (ii) a breach of this Agreement by You, or any User; (iii) any negligent acts, omissions to act or willful misconduct by You or any third party acting with Your permission, knowledge, authority or direction; (iv) the inability to use the System, or the failure or outage of the System and/or Software or Licenses for any reason, including but not limited to those related to calling, “911” or other emergency responders; (v) the use of the System in connection with a violation of any applicable law, code, regulation, or ordinance by the Client or its End Users in connection with the use of the Wildix System ; or (vi) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Xiologix. Further, Client will indemnify and hold harmless Xiologix against all damages, costs, and legal fees finally awarded against Xiologix by a court of competent jurisdiction or in arbitration in connection with such third-party claim or agreed to in a written settlement agreement approved in writing by the Client.
B. Defense and Indemnification Procedures
If Xiologix becomes an Indemnified Party, Xiologix will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed) unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each Party bringing such third-party claim.
A. Disclaimer of Warranties
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE WILDIX SYSTEM IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND XIOLOGIX MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, XIOLOGIX SPECIFICALLY DISCLAIMS ANY WARRANTY: (i) THAT ANY PRODUCT OR LICENSE WILL MEET ANY PARTICULAR REQUIREMENTS; OR (ii) THAT THE SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN THE SYSTEM OR SOFTWARE WILL BE CORRECTED; THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT XIOLOGIX CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
XIV. Dispute Resolution
A. Good Faith Attempt to Settle Disputes
In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer with the other Party before either Party brings legal action, to make a reasonable and good faith effort to settle or otherwise resolve such dispute.
B. Resolution in Small Claims Court.
In the event the dispute is not resolved and the claim falls within the dollar limit allowed by New Jersey Superior Court, Small Claims Court, along with any other jurisdictional requirements, either Party may seek to have that dispute resolved in Small Claims Court in New Jersey.
C. Binding Arbitration.
If negotiations fail to resolve the dispute within thirty (30) calendar days, and small claims court is not a valid option due to the size or nature of the claim, all disputed claims must be resolved by binding arbitration before a single arbitrator in accordance with the commercial rules of the American Arbitration Association (“AAA”) (available on the AAA website, www.adr.org/aaa) in effect as of the date this Agreement goes into effect. This Agreement to arbitrate is intended to be given the broadest possible meaning under Applicable Laws. The place of arbitration will be in Bergen County, New Jersey. The complaining Party shall notify the other Party in writing thereof. Within thirty (30) days of such notice, management level representatives of both Parties shall meet at an agreed location to attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining Party shall seek remedies exclusively through arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after one year from when the aggrieved Party knew or should have known of the controversy, claim, dispute or breach. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful Party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this Section by bringing suit in any court of competent jurisdiction. The parties agree that the arbitrator shall have authority to grant injunctive or other forms of equitable relief to any party. This Section shall survive the termination or cancellation of this Agreement. Judgment may be entered on the arbitrator’s award in any court having jurisdiction.
Except where otherwise expressly stated in the Agreement, all notices or other communications must made in writing and delivered in person, upon delivered email, facsimile, or overnight courier service, and addressed as follows: to Xiologix at 8050 SW Warm Springs Street Suite 100, Tualatin, Or 97062.
All notices to be valid must be confirmed by Xiologix as received. Client agrees that all electronic notices have the full force and effect of paper notices.
B. Force Majeure
Excluding either Party’s payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party’s reasonable control, including without limitation any act of nature; national emergency; third-party telecommunications networks; riot; war; terrorism; governmental act or direction; change in Laws; fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disaster; strike or labor disturbance; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party.
C. No Waiver
In no event shall any failure or delay by Xiologix to: (i) assert or exercise any right; (ii) demand fulfillment or performance of any obligation; or (iii) avail itself of any remedy under these Agreement, in whole or in part, be deemed a waiver of any right or remedy under these Agreement on such occasion or any other occasion.
D. Headings, Interpretation
The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined Terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural and vice versa.
E. Governing Law
This Agreement and Your use of the Licenses shall be governed by and construed under the laws of the State of Oregon without regard to its conflict of law rules.
F. Entire Agreement
The Agreement, together with any exhibits, Orders, and Attachments, and Your Contract, each of which is expressly incorporated into this Agreement with this reference, constitutes the entire Agreement between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject. If there is a conflict in terms, Your Contract Controls.
G. Future Changes to this Agreement
We may change the Terms of this Agreement from time to time. We will not provide You with written notice. You will be responsible to check the Xiologix website for any modifications to this Agreement. Continued use of the Licenses will constitute Your acceptance of the modified Terms. If the Terms of this Agreement are amended, and You do not wish to accept the modified Terms, You may terminate this Agreement only in accordance with Section IX, titled Termination of System and Licenses.
H. Severability and Waiver
In the event any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision(s) will be stricken, and the remainder of this Agreement will remain legal, valid and binding. The failure by either Party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right or to operate so as to bar the exercise or enforcement of any such or other right on any later occasion. Except as otherwise expressly stated in this Agreement, all rights and remedies stated in the Agreement are cumulative and in addition to any other rights and remedies available under the Agreement, at law, or in equity.
Each Party represents and warrants that: (a) it possesses the legal right and capacity to enter into the Agreement and to perform all of its obligations thereunder; (b) the individual executing an Electronic Signature regarding the Agreement on that Party’s behalf has full power and authority to execute and deliver the same, and (c) the Agreement will be a binding obligation of that Party.
The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, definitions, and miscellaneous.
Wildix® Subscriber Agreement 01012020