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Terms of Service - Residential

This Agreement is between you as our Subscriber and Xchange Telecom LLC (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/terms.html ("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/terms.html.

  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.
    1. 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.
    2. 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.
    3. 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. 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.
    18. JNET SSL Services.
      1. The following terms apply to the JNET SSL Filtering Services
      2. With SSL filtering, the filter examines your SSL-encrypted communications. This means that the filter has access to data which may be sensitive and/or of highly personal nature. This includes, but is not limited to, data from financial institutions, credit card transactions, passwords, merchant accounts, and other accounts. After examination, the information is re-encrypted, and sent to your browser. This patch allows your browser to accept the data, after it has been examined by the filter.
      3. Jnet is committed to safeguarding your sensitive information. The filter system does not retain any of the information it examines, and the data is not available to anyone. The systems are hardened, and protected from hacking. However, it is impossible to anticipate all possible circumstances.
      4. You additionally agree to appoint Xchange Telecom, the JNET and its affiliates as an authorized agent to access any such websites and perform the filtering services on those websites. You agree that it is your sole responsibility to determine whether using the JNET SSL filter would comply with the website’s terms of services, and you agree to only use the JNET SSL filter for lawful purposes.
      5. By requesting SSL filtering, and installing the software, you agree that you have read and understood the above information. You agree to indemnify and hold harmless Xchange Telecom, the JNET and its affiliates, for any damages, costs, liabilities, and attorney’s fees we may incur from any claim arising from your use of these services. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITH ALL FAULTS. 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. 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. Telerific and other Voice over IP Services
    1. A high speed internet connection is required in order to use Xchange’s Telerific or VOIP phone service; Wi-Fi or 3G/4G may be required for our mobile applications. Our service may not be compatible with home security systems, TTY, and other systems. Your use of our services constitutes acknowledgment of these limitations.
    2. Unlimited calling and other services are subject to normal use.
    3. e911 Service
      1. Xchange e911 service is different from traditional wireline 911 and cellular/wireless 911, but it is a safe and reliable means of emergency dialing that may differ depending on where you are located, and the device used, when using your Telerific service.
      2. Xchange customers have access to Enhanced 911 (E911), basic 911 or our national emergency call center. With E911 service, when you dial 911 your Xchange phone number and registered address is sent to the local emergency center serving your location, and emergency operators have access to this information in order to send help and call you back if necessary. With basic 911, when you dial 911, local emergency operators answering the call may not see your Xchange telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your Xchange telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. Once local emergency centers are capable of receiving our customers' information, we automatically upgrade customers with basic 911 to E911 service.
      3. If you do not have access to either basic 911 or E911 for any reason, your 911 call will be sent to the Xchange national emergency call center, where a trained agent will ask for your name, telephone number, and location, and then transfer you to the local emergency center nearest to your location.
      4. We require you to provide the physical address where you will be using our service for 911 purposes. For E911 and basic 911, this address is used to route 911 calls to your local emergency center. When you initially provide your physical address, it can take up to 24 hours to verify your address and activate 911 service at this address. You will receive an email letting you know when 911 service is activated.
      5. If you move this device to another location, you must update your address. You may register only one location at time. If you do not update your location, your 911 calls may be sent to an emergency center near your old address. When you update your location, it can take several hours to activate 911 service at the updated address. You will receive an email letting you know when 911 service is activated at the updated address.
      6. Please note that our 911 Dialing service will not function in the event of a broadband or power outage or if your broadband, Internet Service Provider (ISP), or Xchange phone service is terminated.
      7. 911 Dialing from Mobile Applications. Xchange mobile applications are not a replacement for your cellular service and you cannot make emergency (e.g., 911) calls using the software. If you attempt to make a 911 call from the mobile application the mobile application will close and the call will be placed over your cellular carrier's network. However, this does not prevent you from using your mobile phone for making emergency calls via your cellular provider as normal. If you dial internationally recognized emergency service numbers while using a mobile application, the mobile application will close, the native dialer will be launched, and the call will be placed over your carrier's cellular network. Neither your phone number nor your location will be reported to an emergency operator when dialing an internationally recognized emergency service number.
    4. Service Distinctions. Our service may be subject to different regulatory treatment than traditional voice telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies. Our service requires high speed broadband or, for certain mobile applications, a WIFI or other data connection (e.g. 3G/4G) which we do not provide unless separately ordered. Certain of our other services may be used with devices such as wireless telephones, mobile telephones, smartphones, PDA's, tablets or pads which we may or may not provide. Events beyond our control may affect our service, such as power outages, fluctuations in the Internet, your underlying ISP or broadband service, system maintenance or acts of God. We will act in good faith using commercially reasonable efforts to minimize disruptions to your use of and access to our service.
    5. Residential and Mobile Use of Service and Device. Xchange Telerific and VOIP service is a single (and not extended or multi-) family residential voice service. It is engineered to process and deliver traffic profiles and utilization levels of our typical residential customers' calling patterns (also referred to as "normal use" by residential plan customers). "Typical" refers to the calling patterns of at least 95% of our customers on a particular calling plan. Normal residential traffic profiles and utilization may arise from business, multiple or extended family, community or fraudulent use. "Unlimited" does not refer to those types and levels of usage. Telephone utilization that is indicative of, or arising from, impermissible business, multiple family, community or fraudulent use, as outlined herein, on a residential class of service line may create network congestion that will manifest itself in increased busy signals for themselves and others. Xchange’s residential unlimited service plans and features are for single (and not extended or multi-) family residential (or personal, non-commercial) or co-branded use only. Co-branded use is defined as Xchange service that is provided by a third party partner under that third party partner's marketing brand, with or without reference to Xchange. This means that only the account holder and residential family members (as defined below), may use Xchange’s residential unlimited service plans. "Residential family members" refer to those members of your immediate family who reside in your personal residence - e.g., spouse, domestic partner, parents and/or children. If your residential service plan allows you to extend the service or feature(s) to another residential or mobile number, all use under that service plan is aggregated and must conform to single ( and not extended or multi-) family residential (or personal, non-commercial) or co-branded use. Xchange’s Telerific mobile unlimited service plans and features are for normal, personal non-commercial use and are device specific. Use of Xchange’s unlimited mobile plans must be in accordance with this Reasonable Use Policy and these Terms of Service, and consistent with other typical customers on the same mobile calling plan. Unauthorized or excessive use beyond that normally experienced by typical mobile customers on the same plan may cause busy signals and may result in service termination.
    6. Use Inconsistent with Normal Use. If you use the service, any feature and/or any device (including, but not limited to, your personal computer(s), mobile phone(s) or Xchange equipment) in a way that is inconsistent with the normal use for your service, feature or plan, you will be required, at Xchange's sole discretion, to (a) pay the rates for the service, feature or plan that would apply to the way you used the service, feature or device, (b) change to a more appropriate plan or (c) terminate the plan. For example, if you subscribe to one of our residential service plans, and your aggregate usage is inconsistent with normal residential or personal use, you may thereafter be required to pay our applicable, higher rates for service for all periods in which your use of our service or the device was inconsistent with normal residential use. Unlimited voice services are provided primarily for continuous live dialogue between two individuals. Lack of continuous dialogue activity, unusual calling patterns, excessive conferencing or call forwarding, excessive numbers dialed and/or consistent excessive usage (which may also apply to features such as Directory Assistance) will be considered indicators that your use may be inconsistent with normal use by other Xchange customers aggregating their usage under a similar service plan, or that impermissible use as set forth in Section 10 and/or in the Reasonable Use Policy may be occurring and may trigger an account review or further action by us.

      A non-exhaustive list of examples of uses of our service that are generally considered to be impermissible and inconsistent with normal residential or co-branded use, include, but are not limited to, use:

      1. by or for others who do not live with you
      2. operating a business, even if operating from the residence
      3. at a multi-residential address for more than one single residence

      A non exhaustive list of examples of uses of our service that are generally considered to be impermissible and inconsistent with either single (and not extended or multi-) family residential or small or home business use, or co-branded use, include, but are not limited to, use:

      1. operating any other enterprise, including not-for-profit or governmental
      2. operating a call center
      3. resale to others
      4. auto-dialing or fax/voice blasts
      5. telemarketing
      6. without live dialogue, including as a monitor, intercom or for transcription

      Xchange evaluates customer usage in comparison to similarly situated customers, e.g., residential use under residential service plans or small business use under small business service plans or affiliate use under co-branded service offers or plans. For example, over ninety five per cent (95%) of Xchange's residential unlimited calling plan customers use less than three thousand (3000) minutes per month and do not have any unusual calling patterns. We may conclude that a customer's aggregate usage is outside of normal use if it exceeds 3000 minutes per month IN COMBINATION with one or more of the following, including, but not limited to, excessive:

      1. number of unique numbers called
      2. call lengths
      3. frequency of call forwarding/transferring
      4. conference calling
      5. excessive calls to conference bridges
      6. short duration calls or chats
      7. calls made during business hours
      8. number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame; or
      9. other abnormal calling patterns indicative of an attempt to evade enforcement of these Terms of Service and our Reasonable Use Policy

      Xchange may also determine that abnormal, unreasonable or impermissible usage is occurring, and may take appropriate steps described below even if the number of minutes used is not excessive, when a customer's calling patterns during more than one month reflect excessive:

      1. unique numbers called;
      2. call lengths;
      3. frequency of call forwarding/transferring;
      4. conference calling;
      5. short duration calls;
      6. number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame; or
      7. other abnormal calling patterns indicative of an attempt to evade enforcement of these Terms of Service and our Reasonable Use Policy.

      Xchange may take appropriate steps to enforce these Terms of Service and our Reasonable Use Policy. We reserve the right to review your account and take further action, including, but not limited to, immediate suspension of your Xchange service if account usage is beyond normal standards, impermissible or detrimental to other customers' ability to use the service or adversely affects our operations. We may assess abnormal usage based on comparisons to the usage patterns and levels of our other customers. If we determine that you are engaging in abnormal or impermissible usage, we will use commercially reasonable efforts to inform you and provide you with the opportunity to correct the improper usage. If we give you the opportunity to correct your abnormal usage patterns and you fail to immediately conform to normal use, we may exercise our right to transfer your service to a more appropriate plan, charge applicable rates or suspend or terminate your service. You acknowledge that if your service is terminated under this provision, you are subject to all applicable fees and taxes at the time your service is terminated. Xchange's right to terminate your account under these terms of service (with or for no reason) is not limited by this provision.

    7. No 0+ or Operator Assisted Calling; May Not Support x11 Calling. Our service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, or calling card calls. Our service may not support 311, 511, and other x11 services in one or more service areas. Our service may support specified dialing such as 911 and 411, although certain mobile applications may not provide such dialing services. 411 charges may vary by plan.
    8. No Directory Listing. The phone numbers you get from us will not be listed by us in any telephone directories. However, any phone numbers you transfer from your local phone company may be or remain listed. We have no control over directory listings.
    9. Incompatibility With Other Services.
      1. Non-Voice Equipment Limitations.You acknowledge that our service may not be compatible with all non-voice communications equipment, including but not limited to home security systems, TTY, medical monitoring equipment, certain versions of TiVo, AOL, Netflix and other streaming services, cable television services, FiOS, satellite television systems, PBX, Centrex, other private telephone networks, or computer modems. You waive any claim against Xchange for interference with or disruption of these services and equipment, as well as any claim that Xchange is responsible for any disruption to your business, if applicable.
      2. Certain Broadband, Cable Modem, and Other Services. You acknowledge that our service may not be compatible with certain cable broadband service (such as AOL) and certain versions of TiVo. There may also be other services with which our service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using our service. We do not warrant that our services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of our service with any particular broadband service
    10. Our right to disconnect service; upgrade software. We reserve the right to suspend or discontinue service generally, or to disconnect your service, at any time. In addition, we reserve the right to immediately disconnect your service at any time without notice. A non-exhaustive list of instances where we may disconnect your service without notices is:
      1. Unlawful or inappropriate use: If we determine in our discretion that you have used our service or the device for an unlawful or inappropriate purpose. If we determine that the use or content does not conform to the requirements in this agreement or that it interferes with our ability to provide service to you or others. In addition, you shall not use the Service or the Box to impersonate another person; send bulk unsolicited messages; use robots, data mining techniques or other automated devices or programs to catalogue, download, store or otherwise reproduce or distribute information from the Service or use any such automated means to manipulate the Service; use the Service to violate any law, rule or regulation; violate any third party's intellectual property or personal rights; or exceed your permitted access to the Service. Subject to applicable law, we may, but are under no obligation to, monitor usage of the Service for violations of this Agreement. We may remove or block any or all communications if we suspect a violation of this Agreement or if we deem it necessary in order to protect the Service, or Xchange, its parent, affiliates, directors, officers, agents and employees from harm.
      2. Non-payment: If any charge to your payment method is declined or reversed, your payment method expires and you have not provided us with a valid replacement payment method, or in case of any other non-payment of account charges.
      3. Violation of laws of jurisdictions: If we determine that you have used our service or your device in violation of laws of jurisdictions outside of Xchange service areas.
      4. Inconsistent use: If we determine that your use of the service, features, or the device is, or at any time was inconsistent with normal inbound or outbound usage patterns for the type of service or plan that you have purchased, or that you have at any time used the service, feature or the device for any of these or similar activities.
      5. Tampering: If we determine that you have tampered with your device.
    11. Disclaimer of Warranties: OTHER THAN EXPRESS WARRANTIES FOR THE DEVICE IN THE DOCUMENTATION THAT COMES WITH YOUR DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY IN THIS AGREEMENT, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM, ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, AVAILABILITY, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR ANY WARRANTY THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE", AVAILABLE FOR THE SENDING OR RECEIPT OF CALLS OR WILL MEET YOUR REQUIREMENTS. THIS SECTION DOES NOT LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY IN THE DOCUMENTATION PROVIDED WITH YOUR DEVICE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
    12. PROHIBITED USES; UNLAWFUL USES AND INAPPROPRIATE CONDUCT.
      1. Lawful purposes only. You may use our service and your device only for lawful, proper and appropriate purposes. You may not use our service or your device in any way that is illegal, fraudulent, improper or inappropriate
      2. Monitoring. We may monitor the use of our service for violations of these Terms of Service. We may remove or block all communications if we suspect a violation of this agreement, or if we think it necessary in order to protect our service, or Xchange, its parent, affiliates, directors, officers, agents, and employees from harm.
      3. Providing information to authorities and third parties. If we believe that you have used our service or your device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You consent to our forwarding of any such communications and information to these authorities. In addition, you hereby agree that we may disclose your name, telephone number, credit card information, and other personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows:
        1. in response to law enforcement or other governmental agency requests;
        2. as required by law, regulation, rule, subpoena, search warrant, or court order;
        3. as necessary to identify, contact, or bring legal action against someone who may be misusing the service, the device, or both;
        4. to protect Xchange's rights and property; or
        5. in emergency situations where disclosure of such information is necessary to protect Xchange customers or third parties from imminent harm.
      4. Use of Service and Device by Customers Outside the United States. We encourage you to use our service to call foreign countries from the United States and to use our service as you travel. Technical and customer care support is offered only in the United States. Our service is designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is not within a Xchange service area, or your ISP or broadband provider places restrictions on using VoIP services, we do not claim that they will allow you to use our service. You will be solely responsible for any violations of local laws and regulations or violations of ISP and broadband provider terms of service because of your use of our service. If you ship a device outside the United States for use in another country, you are solely responsible for determining and adhering to compliance with all applicable customs, import/export, regulatory, tax (including VAT) and other laws and costs\expenses and penalties regarding the transport, distribution and use of such device and the service.
      5. No Transfer of Service. You are the sole account holder for the service for all purposes and are solely responsible for all charges incurred on the account, regardless of changes to the account, including billing information. You are also responsible for all usage and charges on all devices and features including Extensions® phone(s) registered with Xchange, as well as charges for aggregated domestic and international usage made by you and others you have authorized to use your service. You may not resell or transfer your service or account or provide a telephone service to anyone else by using your Xchange service or features of your Xchange service without first getting our written consent. In no event may your account be assigned to a non-U.S. resident. IF YOU ACQUIRE A DEVICE FROM SOMEONE OTHER THAN XCHANGE OR A XCHANGE AUTHORIZED RESELLER, OR THAT PREVIOUSLY WAS ASSIGNED TO ANOTHER'S ACCOUNT, XCHANGE DISCLAIMS ALL WARRANTIES, DAMAGES AND LIABILITIES YOU MAY INCUR BY VIRTUE OF YOUR USE OF SUCH DEVICE, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Attempted assignments of service and accounts through changes in account and billing information does not relieve you of liability and responsibility for use of the service and features, or for charges on the account unless we have not consented to the assignment in writing or unless we actively facilitate the assignment as evidenced in our Customer Care records. You may elect to authorize others to access your account by calling us at 1-646 722 7200.
      6. No Alterations or Tampering. If you copy or alter or have someone else copy or alter the firmware or software of the device or any mobile application in any way that facilitates a compromise of our service, you are responsible for any charges that result and damages incurred by Xchange as a result. You may not attempt to hack or otherwise alter or disrupt our service or make any use of our service that is inconsistent with its intended purpose.
      7. Theft of Service. You may not use, obtain or facilitate use of our service, directly or indirectly through others, in any manner that avoids Xchange policies and procedures, including an illegal or improper manner You will notify us immediately at 1-646-722-7200 if your device is stolen or if you believe that your service is being stolen, fraudulently used, or otherwise being used in an unauthorized manner. When you notify us of one of these events, you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use, or unauthorized use of service. If you fail to notify us in a timely manner, we may disconnect your service and levy additional charges on you as permitted under these Terms of Service. Until you notify us, you will be liable for all use of our service using a device stolen from you and any stolen, fraudulent, or unauthorized use of our service whether or not it involves a stolen device.
      8. Unauthorized Usage of Device; Firmware or Software. Unless your plan specifically provides you with a license to use our firmware or software, you have not been granted any license to use the firmware or software we use to provide our service or that we provide to you in providing our service, or that is embedded in your device, or accessible via mobile application other than a nontransferable, revocable license to use the firmware or software in object code form (without making any modification to it) strictly according the terms and conditions of these Terms of Service. You also agree that you will use your device exclusively for our service. We will not provide any passwords, codes, or other information or assistance that would enable you to use your device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You warrant that you possess all required rights, including software or firmware licenses, or both, to use any interface device that we have not provided to you. You may not undertake, cause, permit or authorize the modification, creation of derivative works, or translate, reverse compile, disassemble, hack or reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software. You shall not use the mobile application software to develop any software or other technology having the same primary function, including but not limited to using the software in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the software
      9. Vanity Number PortingYou may not obtain vanity numbers from Xchange and then attempt to sell, resell, or actually sell or resell such vanity numbers
    13. Limitation of Liability. We will not be liable for any delay or failure to provide service, including 911 Dialing, or your blocking of an emergency number (e.g., Police, Fire Department, Hospital) at any time or any interruption or degradation of voice quality that is caused by any of the following:
      1. Third party omission an act or omission of an underlying carrier, service provider, vendor, or other third party;
      2. Equipment failure equipment, network, or facility failure;
      3. Equipment modification equipment, network, or facility upgrade or modification;
      4. Force majeure force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism, and government actions;
      5. Equipment shortage equipment, network, or facility shortage;
      6. Equipment relocation equipment or facility relocation;
      7. Loss of power service, equipment, network, or facility failure caused by the loss of power to you; or to us
      8. Outages outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of service caused by any third party;
      9. Acts or omissions any act or omission by you or any person using our service or the device provided to you; or
      10. Other causes any other cause that is beyond our control, including, without limitation, a failure of or defect in any device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded.
    14. Disclaimer of Liability for Damages. Our aggregate liability under this agreement will in no event exceed the service charges with respect to the affected time period. IN NO EVENT will Xchange, its officers, directors, employees, affiliates or agents or any other service provider who furnishes services or devices to you in connection with our service be liable for any damages, including but not limited to personal injury, wrongful death, property damage, loss of data, loss of revenue or profits, or damages arising out of or in connection with the use or inability to use a device or the service, including inability to get or receive dial tone, access emergency service personnel through the 911 dialing service, or delays in the delivery of emergency services accessed through the 911 dialing service, or to obtain emergency help. Xchange further disclaims any and all liability arising out of any resale, reuse, or refurbishment of the device without Xchange's prior authorization. These limitations apply to claims founded in breach of agreement, breach of warranty, product liability, tort, and any and all other theories of liability. These limitations apply whether or not we were informed of the likelihood of any particular type of damages.
    15. Disclaimer of 911 Liability. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We do not have any control over any local emergency response center. Therefore, we are not responsible for whether they answer calls using our 911 dialing service, how they answer these calls, or how they handle them. We rely on third parties to assist us in routing 911 dialing calls to local emergency response centers and to a national emergency calling center. We are neither liable nor responsible if the data used by a third party to route calls is incorrect or produces an erroneous result or results in the delay of the delivery of emergency services. Neither Xchange nor its officers or employees may be held liable for any claim, damage, or loss, fine, penalty, cost, and expense (including, without limitation, attorneys fees) by, or on behalf of, you or any third party or user of our service, relating to our service, including, without limitation, 911 Dialing, or your device.
    16. EXPORT CONTROLS You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of our service or any direct product to any destination, company, or person restricted or prohibited by U.S. export controls.
  6. Inside Wire Maintenance
    1. Xchange offers Inside Wire Maintenance (“IWM”) for residential and business customers. Having the plan is not a prerequisite for obtaining service from Xchange. As an Xchange customer you are responsible for maintaining all premise Telecommunications Wire and Telecommunications Equipment (e.g. phones, faxes, computer modems, alarms, etc.). Premise Telecommunications Wire (“Telecommunications Wire”) is the wire extending from the network interface (the point where Xchange Telecom’s network facilities connect to your premise, and is generally mounted on the exterior wall) up to and including your jacks. The following terms and conditions will govern the provision of the IWM service:
    2. Description of the Plan: In accordance with Xchange’s standard procedures, Xchange will perform such diagnostics and repairs to the Customer's standard inside telephone wire and jack(s) associated with each Xchange dial tone line covered under the Plan (subject to the Plan Exclusions listed below) that become necessary and are reported to Xchange while you are enrolled under the Plan. Trouble isolation can often be accomplished through office testing facilities. We reserve the right to dispatch at our discretion to isolate service problems. If the problem is found to be in your telephone equipment, inside wire, or jack(s), you will not be billed a service charge. To request maintenance service, the Customer should contact Xchange repair at 646 722 7200 and follow the voice prompts.
    3. Charges. The charges for the Plan are subject to change by Xchange from time to time, as more fully described in the next paragraph. All charges, plus all applicable taxes, shall be due and payable by the due date stated on Xchange's bill. Payments received after that date may be subject to a late payment charge.
    4. CHANGES IN MONTHLY CHARGES, TERMS AND CONDITIONS: THE CHARGES FOR THE PLAN, AND ANY OTHER TERMS AND CONDITIONS APPLICABLE TO THE PLAN, MAY BE CHANGED BY XCHANGE AT ANY TIME UPON AT LEAST THIRTY (30) DAYS PRIOR WRITTEN NOTICE (WHICH MAY BE IN THE FORM OF A BILL INSERT OR OTHER WRITTEN NOTIFICATION). THE PAYMENT OF APPLICABLE CHARGES BY THE CUSTOMER, OR A REQUEST FOR SERVICE UNDER THE PLAN, AFTER RECEIVING SUCH NOTICE OF A CHANGE IN THE CHARGES OR OTHER TERMS AND CONDITIONS WILL BE DEEMED TO BE ASSENT BY THE CUSTOMER TO THE CHANGE(S) IN THE CHARGES, TERMS OR CONDITIONS. IF THE CUSTOMER DOES NOT WISH TO CONTINUE RECEIVING THIS PLAN UNDER SUCH REVISED CHARGES, TERMS OR CONDITIONS, CUSTOMER MAY SIMPLY TERMINATE PARTICIPATION UNDER THE PLAN AT ANY TIME UPON NOTICE TO XCHANGE.
    5. Limited 30-Day Warranty Xchange warrants for a period of 30 days that work performed and products delivered under the Plan will meet accepted industry practices and be free from defects in materials or workmanship. Should any work performed hereunder fail to meet these standards and be reported to Xchange within said 30-day period, Xchange shall re-perform the nonconforming services, and/or repair or replace the nonconforming product(s). Such re-performance of work and/or repair or replacement billed a service charge.
    6. Limitation of Liability. THE LIABILITY, IF ANY, OF XCHANGE, ITS AFFILIATED COMPANIES, THEIR EMPLOYEES, AGENTS AND CONTRACTORS TO THE CUSTOMER OR TO ANY OTHER PERSON FOR DAMAGES RESULTING FROM THE PROVISION OF OR FAILURE TO PROVIDE SERVICE UNDER THE PLAN, OR FROM ANY FAULT, FAILURE, DEFECT OR DEFICIENCY IN ANY SERVICE, LABOR, MATERIAL, WORK OR PRODUCT FURNISHED IN CONNECTION WITH THE PLAN, SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED $500.00. IN NO EVENT, HOWEVER, SHALL XCHANGE, ITS AFFILIATED COMPANIES, THEIR EMPLOYEES, AGENTS AND CONTRACTORS HAVE ANY LIABILITY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE PROVISION OF OR FAILURE TO PROVIDE SERVICE UNDER THE PLAN, OR FROM ANY FAULT, FAILURE, DEFECT OR DEFICIENCY IN ANY SERVICE, LABOR, MATERIAL, WORK OR PRODUCT FURNISHED IN CONNECTION WITH THE PLAN (SUCH AS, BUT NOT LIMITED TO, TELEPHONE SERVICE OUTAGES AND ANY LOSS OF USE OF WIRING, JACKS OR TELEPHONE EQUIPMENT, AND ANY DAMAGES RESULTING THEREFROM). THESE LIMITATIONS OF AND EXCLUSIONS FROM LIABILITY SHALL APPLY REGARDLESS OF WHETHER A CLAIM OR REMEDY IS SOUGHT IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE.
    7. Exclusions. The Plan does not apply to repair of/or:
      1. Wire/cable larger than 8-pair, unless otherwise expressly agreed by Xchange. Provided, however, if problems are determined to be caused by defective conductors in wire/cable larger then 8-pair, Xchange will re-terminate service to useable conductors to restore service; to the extent that spare useable conductors are available and to the extent that access to the point of termination is not denied by the Customer, the building owner or the building manager.
      2. Wire or jack malfunctions or problems which arise prior to the commencement of the Customer's coverage under the Plan, or which are caused by misuse, abuse, riot, acts of war, terrorism, malicious activity, vandalism, riot., fire and acts of nature other than lightning, such as floods, windstorms and earthquakes.
      3. Inside telephone wiring and jack(s) which are non-standard or do not comply with Part 68 of the Federal Communications Commission, NEC, ANSI/ICEA Rulesand Guidelines, or fail to meet Xchange's technical standards. NOTE: If it is possible to fix the trouble by making temporary repairs to non or sub-standard wiring, IWMP will cover the temporary repairs;
      4. Malfunctions resulting from the use of telephone lines intended for voice grade transmission to transmit or receive data or signals beyond the operating capabilities of the line;
      5. Restoration of your premises if you ask Xchange to repair concealed wire
      6. The Customer's telephones or other premises equipment
      7. Inside telephone wiring, jacks or other items used in connection with your telephone line if the line is provided by a Company other than Xchange
      8. Repair or replacement caused by fire and/or burst pipes. (This is normally covered under the customer's homeowner insurance.)
      9. Repair of damage caused by a second party. For example, carpet layer/contractor cutting IW or damaging IW or jacks
      10. Repair of marine, recreational vehicle (RV), and construction trailer jacks and wiring
      11. Repair of IW or jacks associated with complex IW, WATS or data services
      12. Repair of customer provided equipment (instruments, modems, security systems, satellite TV dishes, etc.). Repair of jacks not previously connected to the line reported
      13. Extensions located at a different address. (IWMP covers IW that is within the same property lines as the main line)
    8. If a Xchange Technician comes to your home to perform repairs to your inside wire or jack(s), and the problem is in your telephone or associated equipment (e.g., modem or fax machine), you will be required to pay a Maintenance Premises Visit Charge for the visit plus a minimum 30 minute labor charge at Xchange’s then-applicable rates.
    9. On all repairs Xchange does not “fish” walls. If wall-run wire cannot be used to run replacement wire the Xchange Technician will run replacement cable via baseboard only.
    10. TERMINATION The Customer may terminate participation in the Plan at any time simply by notifying Xchange's local business office (or such other number that Xchange may designate for such purpose). Xchange may terminate the Customer's participation in the Plan without cause only upon thirty (30) days prior notice to Customer, but at any time in the event Customer fails to pay all applicable charges when due.
    11. EFFECTIVE DATE Commencement and termination of coverage under the Plan shall be effective on a date to be determined by Xchange, which shall not be more than 30 days after Xchange receives the Customer's request(s) to commence or terminate the Plan.
    12. CHOICE OF LAW Except as otherwise required by law, the Customer and Xchange agree that the Federal Arbitration Act and the substantive laws of the state of the Customer’s billing address, 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. UNLESS THE CUSTOMER AND XCHANGE AGREE OTHERWISE, THE CUSTOMER AND XCHANGE CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN AN ARBITRATION OR SMALL CLAIMS COURT LOCATED IN THE COUNTY OF THE CUSTOMER’S BILLING ADDRESS 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 state laws relating to consumer transactions, any cause of action or claim the Customer 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.

Terms of Service - Business

THESE TERMS AND CONDITIONS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AND OURS, IN CONNECTION WITH YOUR USE OF XCHANGE’S SERVICES. PLEASE READ THEM CAREFULLY.

This Master Agreement is entered into between the Customer ("you", "your", "Company") and Xchange or its' affiliates ("we", "our", "us", "Xchange") and includes the Service Quotations ("Quotation") provided to you, our Acceptable Use Policy ("AUP"), located at http://www.xchangetele.com/terms.html, as well as our Privacy Policies located at http://www.xchangetele.com/terms.html (collectively, "Agreement"). Your acceptance of the Terms of Service indicates your agreement to comply with our Terms of Service, the specific terms of your Service plan (including the plan's duration and applicable early termination fee) and related policies regarding your use of the Services. You agree with and are deemed to have accepted this Agreement upon the earlier of: (a) submission of your order; (b) your accepting the Terms of Service electronically or in the course of installing the Software; (c) your use of the Service; or (d) retention of the Software we provide beyond thirty (30) days following delivery. 

The following terms apply to all Services (as defined below):



  1. Services.
    The term "Service" shall mean any Xchange Telecom LLC provided service, including, but not limited to, internet service by DSL, T1, DS3, fiber optic and wireless; telephony service provided via POTS, T1, DS3, or VOIP, any service provided under the "CentralOffice" or "Skywire" name, and any other service (collectively, the "Service(s)"). The Service shall also include any software or hardware that we provide you in connection with the Service to which you have subscribed, and includes any sub- or secondary accounts associated with a primary account. "Content" shall mean content provided by Xchange or its third party licensors, providers or suppliers and accessible on the Service, including without limitation images, photographs, animations, video, audio, music, and text, with the exception of content uploaded by and stored on behalf of users. Xchange Web Site(s) mean the sites located at http://www.xchangetele.com; http://www.centraloffice.com; http://www.centraloffice.net/, http://www.skywirenetworks.com/ and any other Xchange affiliated websites, which are comprised of various web pages, tools, information, software, Content, and features operated by Xchange. The Service may utilize transport service provided by your local telephone company. If you change your local telephone company, or move your local telephone service to a wireless or Internet telephone service provider we may in our discretion either immediately terminate your Service or continue to provide Service without local service at existing terms and conditions under the then-current pricing plan applicable to your Service. If your local telephone company provisions transport service to your location utilizing fiber optic technologies, we may in our discretion terminate your Service and no longer make the Service available to your location.
  2. Contact.
    Xchange may contact you from time to time regarding your services or other potential services that may be relevant to you. If you begin but fail to complete the sign up process for the Services, Xchange may contact you in an effort to help you sign up for the Services or another service of Xchange or its affiliates. You hereby authorize Xchange and its affiliates to make such contact, even if you ultimately determine not to sign up for any Xchange or affiliate service.
  3. Term.
    This Agreement shall be effective upon your acceptance of this Agreement, as provided above, and shall continue for twelve (12) months thereafter, based on the term period and the Service plan selected (the "Initial Term"), unless otherwise modified by Xchange. In the event you change Service plans, your monthly rate and term commitment may change (depending on the plan you select); otherwise, the terms of this Agreement will remain in effect unless otherwise provided. After the Initial Term, your Service will continue on a month-to-month basis until terminated by either party as permitted by this Agreement. We reserve the right to terminate the Service (or any part thereof) in the event we cease to offer the Service generally or to your location. If we cease offering the Service or any part thereof (other than as described in Section 1, above), we will give you at least thirty (30) days advance notice. Billings for Service will automatically begin on the date provisioning of your Service is complete ("Service Ready Date") unless you are notified otherwise by Xchange, or your equipment lease provides otherwise. We may, at our election, waive any fees or charges.
  4. Prices.
    Prices are guaranteed for the Initial Term of Service, subject to the provisions of this Section. For any Service offered on a month-to-month basis, we will give you at least thirty (30) calendar days prior notice of a price change in the manner set forth in Section ‎7.e below. Thereafter, your continued use of the Service constitutes your acceptance of the price change. If you change your Service or your Initial Term, you agree to pay the applicable monthly fee that may apply to your new Service or Initial Term arrangement. You agree to pay all charges associated with the Service and rate plan selected, including but not limited to a) applicable taxes, b) surcharges, c) Federal Universal Service Fund, tax and other recovery fees, d) telephone charges, e) activation fees, f) installation fees, g) setup fees, h) equipment charges, i) termination fees, and j) other nonrecurring charges. Notwithstanding the pricing guarantee set forth above, the taxes, fees and other charges detailed in this section a) - d) may vary on a monthly basis; any variation will be reflected in your overall monthly charge. The amounts and what is included in such charges are subject to change. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to interest and charges due to insufficient credit or insufficient funds. Activation fees, installation fees, setup fees, equipment charges, and other non-recurring charges, if applicable, will be included in your first month’s bill. Monthly recurring charges will be billed one month in advance. Prepaid pricing plans will be billed in advance. Xchange or its agent will bill you directly, or bill your credit card or your local telephone bill (telephone billing available in selected areas only), as you request and as approved by Xchange. PLEASE NOTE: IF YOU ELECT TO BE BILLED FOR YOUR SERVICE ON YOUR XCHANGE PHONE BILL, BY USING THE SERVICES YOU AGREE TO HAVE XCHANGE CHARGES INCLUDED ON YOUR PHONE BILL.
  5. Payment.
    Late Fee and Credit Related Matters. We will invoice you monthly or on a prepaid basis, as applicable. Payment to Xchange is due upon receipt of invoice and shall be made in U.S. currency. A payment received thirty (30) calendar days or more after the invoice date is considered past due. If your charges are billed by your local carrier, the Late Fee will be equal to the late payment charge that the local exchange carrier applies. If your charges are not billed by your local carrier, you agree to pay interest of 1.5% for each month or part of a month (or the maximum interest allowed by law, whichever is less), pursuant to the Heter Iska Kellali on file at Xchange. Xchange may assign unpaid delinquent charges to a collection agency for action. In the event Xchange utilizes a collection agency or takes legal action to recover monies due, you agree to reimburse Xchange for all expenses incurred to recover such monies (including attorney’s fees). 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 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. You may be given the option to select a prepaid service plan ("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. Xchange’s imposition of a late fee does not impact its ability to choose other remedies under this Agreement, including, but not limited to, termination of services.
  6. 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.
  7. No Warranties.
    ADVICE OR INFORMATION GIVEN BY XCHANGE OR ITS REPRESENTATIVES SHALL NOT CREATE A WARRANTY. USE OF XCHANGE TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTIED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, XCHANGE AND ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS DISCLAIM, WITH RESPECT TO ALL SERVICES, ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR ARISING BY COURSE OF PERFORMANCE, DEALING, CUSTOM OR TRADE USAGE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF WE KNEW OR SHOULD HAVE KNOWN SUCH PURPOSE) AND NONINFRINGEMENT. WE WILL PROVISION YOUR QUALIFIED LINE FOR BROADBAND 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. YOU AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. IN ADDITION, XCHANGE DOES NOT GUARANTEE THAT BROADBAND SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE. THE PROVISIONING AND PERFORMANCE (SPEED) OF THE SERVICE IS SUBJECT TO CIRCUIT AVAILABILITY, QUALITY AND OTHER FACTORS, INCLUDING WITHOUT LIMITATION, LOOP LENGTH, THE CONDITION OF YOUR TELEPHONE LINE AND WIRING INSIDE YOUR LOCATION, AND COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES AND NETWORK/INTERNET CONGESTION, AMONG OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR XCHANGE SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY XCHANGE-PROVIDED EQUIPMENT). XCHANGE DOES NOT WARRANT THAT THE SERVICE OR EQUIPMENT PROVIDED BY XCHANGE WILL MEET YOUR NEEDS, PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE.
  8. Your Responsibilities; Notices; Revisions to Terms of Service.
    1. Your Responsibilities. You represent that you are eighteen (18) years of age or older, that you have the power and the legal authority to enter into this Agreement, and that the information you supply to us is correct and complete. You acknowledge and agree that you are solely responsible for all use of the Service (including the use of any secondary or sub- accounts associated with a primary account) and the manner in which the Service is used by you or anyone who uses the Service, with or without your permission. If you use a wireless router or similar device, you are responsible for securing your wireless network and for any use of the Service via your wireless network. You may not resell the Service to a third party. You also agree to use the Service only within the United States.
    2. Use of the Service. You understand and agree that you are responsible for the protection, storage, back-up and security of your data, software, computer network and other facilities, as well as your choice of equipment, software and online content; and all other matters related to how you access and use the Service. You acknowledge and agree that the reliability, availability and performance of data or services accessed through the Internet or other services connected or linked to the Service are beyond our control and are not in any way warranted or supported by Xchange. You also agree to provide us with the access and support required to allow us to implement, maintain and provide the Services. In addition, you agree that your use of the Service and the Internet is solely at your own risk and is subject to all applicable local, state, national and international laws and regulations.
    3. Limitations on Use of the Service. You agree that Xchange assumes no responsibility for the accuracy, integrity, quality completeness, usefulness or value of any Content, data, documents, graphics, images, information, advice, or opinion contained in any emails, message boards, chat rooms or community services, or in any other public services, and does not endorse any advice or opinion contained therein. Xchange does not monitor or control such services, although we reserve the right to do so. Xchange may take any action we deem appropriate, in our sole discretion, to maintain the high quality of our Service and to protect others and ourselves.

      By transmitting, uploading, posting or submitting any information or material using the web site tools, you (i) represent that such information is not confidential, secret or proprietary information belonging to someone else; and (ii) warrant that no other party has rights to the information and that your transmission, posting, uploading or submission of the information does not violate any copyright or other laws.

      Any web sites linked to or from the Service are not reviewed, controlled, or examined by Xchange and Xchange is not responsible for the contents of any linked site or any link contained in a linked site. The inclusion of any linked sites or content from the Service, including sites or content advertised on the Service, does not imply endorsement of the linked site or content by Xchange. Any dealings that you have with third parties, merchants or advertisers found on the Service are between you and the third party, merchant or advertiser and you acknowledge and agree that we are not liable for any loss or claim you may have against a third party, merchant or advertiser. In no event shall Xchange be liable to anyone for any damage arising from or caused, directly or indirectly, by the creation or use of a third party's web site, or the information or material accessed through such web sites.

      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 county 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.

      You further agree that in the event 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 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 Advanced Web Search page may impact applications that rely on an NXDOMAIN or similar error message and may override similar browser-based search results pages. If you would prefer not to receive Advanced Web Search pages from Xchange, you should follow the opt-out instructions that are available by clicking on the "About the Search Results Page" link on any Advanced Web Search page.
    4. Notices Regarding the Service. You understand and agree that from time to time we may send you information relating to the Service (including but not limited to password information), via electronic mail over the Internet to your primary Xchange email address. You consent to our distribution of such information to you electronically and you agree to check your email box periodically for account related information that we provide.
    5. Revisions to Terms of Service. You understand and agree that we may revise the terms and conditions of this Agreement (including any of the policies which may be apply to use of the Service) from time to time by i) posting such revisions to the Xchange business website at http://www.xchangetele.com/terms-of-service.html (the "Website") and by posting to the Announcements page located at http://www.xchangetele.com/, or ii) by sending an email to your primary email address, or both. You agree to visit these web pages periodically to be aware of and review any such revisions. Revisions to the Agreement are effective upon posting to the Website. Increases to the monthly price of your Services shall be effective thirty (30) days after the date we provide notice of the change in the manner set forth above..By continuing to use the Service after the date the revision(s) are posted to the Website, you accept and agree to the revisions and to abide by them. If you do not agree to the revision(s), you must terminate your Service immediately and such termination may be subject to any applicable early termination fees.
  9. Indemnification.
    You agree to indemnify us and hold us harmless for any damages, costs, liabilities and attorney's fees we incur from any claim arising from your use of the Services, or the use of your Broadband Service by others, including without limitation, violation of the copyrights, trademarks or other intellectual property rights of others, your combination of the Services with other products or services not provided by us, laws regarding privacy and wiretapping, any modification of the Services, or any breach of this Agreement by you. In such event, you agree to conduct the defense and have control of the litigation and settlement, if any. However, you agree not to acquiesce to any judgment or enter into any settlement that adversely affects our rights or interests without Xchange's prior written consent. We agree to give you prompt notice of all claims and to cooperate in defending against the claim. The indemnifying party may not settle any claim under this section which includes an admission of criminal liability or the payment of a settlement amount without the prior written permission of the indemnified party. THE PARTIES DISCLAIM ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, RELYING INSTEAD ON THE TERMS OF THIS SECTION.
  10. Compliance with Laws.
    You agree not to use, or permit others to use, the Service in ways that (i) violate any law or applicable regulation or our AUP or other policies, (ii) infringe the rights of others, or (iii) interfere with the users, services, or equipment and software of our network or other networks. By way of example and not limitation, you agree not to distribute unsolicited advertising, chain letters or other unsolicited bulk electronic mail (i.e., spam); propagate computer worms, destructive programs or denial of service attacks or viruses; use a false identity; attempt to gain unauthorized entry to other computers, data or any site or network; distribute or store child pornography; distribute obscene or defamatory material over the Internet; or infringe copyrights, trademarks or other intellectual property rights. You further agree to comply with U.S. export laws concerning the transmission of technical data and other regulated materials via the Service. We reserve the right to suspend or terminate the Service (or any portion thereof) without notice in the event that your use of the Service, in our sole judgment, violates any applicable law, regulation or ordinance, or the terms of this Agreement or our AUP, or otherwise adversely affects or threatens any Xchange network or service, customer or employee, or, if you are determined to be a repeat infringer under our repeat infringement policy set forth in our AUP. We also reserve the right to provide information about your account and your use thereof 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.
  11. Software Provided.
    1. Xchange may provide to you, at no cost or for a fee, software owned by Xchange or its third party licensors, providers or suppliers in connection with the Services ("Software"). You may use the Software in object code form only, on the hardware on which it is installed, only as part of or for use with the Service and for no other purpose. The Software may be accompanied by an end user license agreement from Xchange or a third party. Your use of the Software is governed by the terms of that license agreement and by this Agreement, where applicable. You may not install or use any Software that is accompanied by or includes an end user license agreement unless you first agree to the terms and conditions of the end user license agreement.
    2. If the Software is not accompanied by an end user license agreement from Xchange or a third party, you are hereby granted a personal, revocable, non-exclusive, non-transferable license by Xchange or its third party licensors, providers or suppliers, to use the Software (and any corrections, updates and upgrades thereto), for the sole purpose of enabling you to use the Service.
    3. You agree that the Software is the confidential information of Xchange or its third party licensors, providers or suppliers, which you shall not disclose to others or use except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Xchange or its third party licensors, providers, or suppliers. 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, providers or suppliers 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. The Software may be used in the United States only, and any export of the Software is strictly prohibited. We reserve the right to update or change the Software from time to time and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. .
    4. IF AT ANY TIME DURING THE TERM OF THIS AGREEMENT XCHANGE PROVIDES YOU WITH FREE OR FOR-FEE SOFTWARE OR EQUIPMENT, INCLUDING WITHOUT LIMITATION, CLIENT AND/OR NETWORK SECURITY SOFTWARE, YOU AGREE THAT YOUR SOLE RIGHT TO RECOURSE, IF ANY, INCLUDING BUT NOT LIMITED TO DAMAGES FOR FAILURE OF SUCH SOFTWARE TO PERFORM OR FOR PERSONAL INJURY OR DATA LOSS, IS AGAINST THE MANUFACTURER OF SUCH SOFTWARE OR PERIPHERAL EQUIPMENT.
    5. Xchange provides technical assistance and support for the Software in accordance with its policies. Unless otherwise provided, Xchange does not provide technical assistance or support for third party Software. Technical assistance or support with regard to third party software provided by the Software supplier is provided in accordance with such third party's policies or other terms.
    6. Your license to use the Software shall remain in full force and effect during the Initial Term and any renewal terms, unless and until it is terminated by Xchange, its third party licensors, providers or suppliers, or until this Agreement expires or is terminated.
    7. Other Third Party Agreements. You agree to comply with the terms of service that apply to any websites or other services you access on the Internet and agree that the third party provider of such services (and not Xchange) is solely responsible for the delivery of its service(s) to you and your use of them. Third party services include, but are not limited to, portal, music, video, auction, security, financial, gaming, storage and photography services, whether or not Xchange has made such services available to you. Violation of such third party provider's terms of service may, in Xchange's sole discretion, result in the termination of your Service. You further agree to indemnify, defend and hold Xchange harmless from and against any claims or liabilities that may result from your use of such third party services.
    8. 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 the Xchange Web Sites according to the terms of the Agreement.

  12. Return of Equipment and Software.
    Upon termination or expiration of this Agreement, you agree to return to us all hardware (other than hardware you have purchased from us) which we have provided to you in connection with the Service, and to cease use of all the provided Software and immediately delete such Software from your computer. In the event such hardware and software is not returned to us within thirty (30) calendar days following such termination or expiration, we reserve the right to charge you, and you agree to pay, the undepreciated list price of the unreturned hardware and software.  The terms of this clause are in addition to and do not modify any other lease agreements that you may have with Xchange.
  13. Customer Equipment; Broadband Performance; Email Security; and Backup and Maintenance.
    1. Customer Equipment. You are solely responsible for obtaining, installing, configuring, and maintaining suitable equipment and software, including any necessary system or software updates, patches or other fixes, which are or may become necessary to access the Broadband Service, and to operate your computer. The preceding obligations apply regardless of whether Xchange or a third party provided the software or hardware to you. Only the manufacturer's warranties are included with any hardware or software provided by us shall apply. Hardware (modems, routers or other equipment) provided is new or fully inspected and tested return unit under full warranty.
    2. Broadband Performance. You understand that Broadband bandwidth is provided on a per line basis, and that the speed and bandwidth available to each computer or device connected to the network will vary depending upon the number and types of computers or devices using the Service and the type of use (e.g. streaming media or downloading larger files) as well as based on network congestion and the speed of servers you access on the Internet, among other factors.
    3. 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 without limitation, viruses, spam, phishing, identity theft and any other potentially disabling or harmful threat or abuse. 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 or anti-spyware software, or 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.
    4. Xchange Backup and Maintenance. Xchange may use, copy, display, store, transmit, translate, rearrange, reformat, view and distribute your information to multiple Xchange servers. Xchange may access, copy, block or remove any Content stored on your Service, whether pursuant to a subpoena or otherwise. We do not guarantee that these procedures will prevent the loss of, alternation of, or the improper access to, your information.
  14. Termination for Default.
    Either party may terminate or cancel this Agreement if the other fails to cure a material breach of the Agreement within thirty (30) calendar days after receiving written notice of the breach. We reserve the right, but assume no obligation, to suspend performance immediately if you are more than thirty (30) calendar days overdue in payments or if, in our reasonable judgment, you have violated any provision of this Agreement, including our AUP.
  15. Monitoring of System Performance.
    Xchange automatically measures and monitors network performance and the performance of your Internet connection in order to improve the level of Service. Xchange also will access and record information about your computer's settings in order to provide customized technical support and you agree to permit us to access and record such data for the purposes described in this Agreement. No adjustments to your computer settings will be made without your permission. Xchange does 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. By using the Service you consent to Xchange's monitoring of your Internet connection and network performance, and the access to and adjustment of your computer settings, as set forth above, as they relate to the Service or other services which Xchange may offer from time to time.
  16. Government Entities.
    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 third party licensors, providers and suppliers. The use of Software and documentation is further restricted in accordance with the terms of this Agreement, or any modification.
  17. Resolution of Disputes.
    1. The parties desire to resolve disputes arising out of this Agreement without litigation. Accordingly, except for action seeking a temporary restraining order or injunction related to the purposes of this Agreement, or suit to compel compliance with this dispute resolution process, which the parties agree may be filed only in a court located in Brooklyn, New York, the parties agree to use the following alternative dispute resolution procedure as their sole remedy with respect to any controversy or claim arising out of or relating to this Agreement or its breach. The parties further agree that this Agreement does not permit a class arbitration, even if the procedures or rules of the American Arbitration Association (or other dispute resolution organization or body) would otherwise permit it.
    2. At the written request of a party, each party will appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve any dispute arising under this Agreement. The parties intend that these negotiations be conducted by non-lawyer, business representatives. The location, format, frequency, duration, and conclusion of these discussions shall be left to the discretion of the representatives. Upon agreement, the representatives may mutually agree to utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. Discussions and correspondence among the representatives for purposes of these negotiations shall be treated as confidential information developed for purposes of settlement, exempt from discovery and production, which shall not be admissible in the arbitration described below or in any lawsuit without the concurrence of all parties. Documents identified in or provided with such communications that are not prepared for purposes of the negotiations are not so exempted and may, if otherwise admissible, be admitted in evidence in the arbitration or lawsuit.
    3. If the negotiations do not resolve the dispute within sixty (60) calendar days of the initial written request, and the amount in controversy exceeds five thousand ($5,000.00) dollars or the jurisdictional limit for small claims court in the jurisdiction in which service is provided (whichever is less), the dispute shall be submitted to binding arbitration by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association, unless it is mutually agreed by the parties to seek a different arbitrator and set of rules. A party may demand such arbitration in accordance with the procedures set out in those rules. Discovery shall be controlled by the arbitrator and shall be permitted to the extent set out in this section. Each party may submit in writing to a party, and that party shall so respond, to a maximum of any combination of twenty-five (25) (none of which may have subparts) of the following: interrogatories, demands to produce documents and requests for admission. Each party is also entitled to take the oral deposition of one (1) individual representing another party. Additional discovery may be permitted upon mutual agreement of the parties. The arbitration hearing shall be commenced within sixty (60) calendar days of the demand for arbitration. The arbitration shall be held in Kings County of the State of New York. The arbitrator shall control the scheduling so as to process the matter expeditiously. The parties may submit written briefs. The arbitrator shall rule on the dispute by issuing a written opinion within thirty (30) calendar days after the close of hearings. The times specified in this section may be changed upon mutual agreement of the parties or by the arbitrator upon a showing of good cause. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
    4. If the negotiations do not resolve the dispute within sixty (60) calendar days of the initial written request, and the amount in controversy does not exceed five thousand ($5,000.00) dollars or the jurisdictional limit for small claims court in the jurisdiction in which service is provided (whichever is less), the dispute may be submitted to small claims court in the jurisdiction in which service is provided for resolution in accordance with its rules and procedures.
    5. Each party shall bear its own costs of these procedures. A party seeking discovery shall reimburse the responding party the costs of production of documents (to include reasonable search time and reproduction costs). The parties shall equally split the fees of the arbitration and the arbitrator.
  18. Limitation of Liability.
    IN NO EVENT SHALL XCHANGE OR ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS BE LIABLE TO YOU FOR (A) ANY PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY THIRD PARTY.
  19. Limitation of Damages.
    XCHANGE'S AGGREGATE LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY NON-INSTALLATION, SECURITY BREACH, FAILURE OR DISRUPTION OF SERVICES PROVIDED UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL NOT EXCEED A PRO RATA CREDIT FOR THE MONTHLY FEES (EXCLUDING ALL TAXES) YOU HAVE PAID TO XCHANGE FOR THE SERVICES DURING THE SIX (6) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM AROSE. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN THESE JURISDICTIONS OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
  20. Third Party Beneficiaries.
    ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS AGREEMENT ALSO APPLY TO XCHANGE'S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT
  21. Changes or Updates to the Services.
    Xchange reserves the right to make changes to the Service or any portion thereof at any time and without advance notice. If such a change materially and adversely affects your use of the Service, and we cannot reasonably mitigate the impact, then, as your sole and exclusive remedy, you may terminate the Service without further obligation.
  22. IP Addresses and Domain Name Registration.
    Upon expiration, cancellation or termination of the Agreement or an applicable Quotation, you agree to return to us any IP addresses or address blocks assigned to you by us. If we deem it necessary, you may be required to renumber the IP addresses assigned to you by us. Where applicable, all fees associated with domain name registration and periodic maintenance of domain names are your responsibility. The registrar or we, on registrar's behalf, will bill such fees directly to you. Such fees are not included in the price of the Service. You agree to abide by the domain name registrar's terms and conditions provided to you prior to obtaining domain name service from us. Xchange does not guarantee that your choice of names is or will continue to be available for use as a domain name.
  23. Force Majeure.
    If the performance of any obligation hereunder is interfered with by reason of any circumstance beyond our reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, power surges or failures, or the act or omission of any third party, we shall be excused from such performance to the extent necessary, provided that we shall use reasonable efforts to remove such causes of nonperformance.
  24. Publicity.
    You shall not use any trademark, trade name, trade dress or any name, picture or logo which is commonly identified with Xchange or its affiliates, or from which any association with Xchange, or its affiliates may be inferred or implied, in any manner without the prior written permission of Xchange.
  25. Choice of 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. EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPH 16 OF THIS AGREEMENT, YOU AND XCHANGE CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN THE SUPREME COURT, 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.
  26. Resale of Services.
    The Services are provided for your own use, and are not provided for resale unless specifically authorized in writing. Any resale of the Services will be cause for breach of this agreement and Xchange may, at its sole discretion and without prior notice, discontinue providing the Services. If Xchange chooses, it may terminate your agreement and charge any applicable early termination fees.
  27. Miscellaneous.
    The terms and conditions of this Agreement supersede all previous agreements, proposals or representations related to the Service. You may not assign this Agreement without our prior written consent. We may freely assign this Agreement. Any changes to this Agreement, or any additional or different terms in your purchase orders, acknowledgments or other documents, will not be effective unless expressly agreed to in writing by us. Any notices or demands or other communications which under the terms of this Agreement or under any statute must or may be given or made by either party shall be in writing to the respective parties as set forth herein. Notices to us shall be to the attention of the Legal Department. Either party may change the notice address or addressee by giving notice thereof to the other party. Notices may be given to the address listed below by first class U.S. mail, or nationally recognized overnight express courier. Notices shall be deemed to have been given on receipt if delivered by overnight express courier or three (3) days after delivery to the United States Postal Service if mailed. If any of the terms or conditions in this agreement are properly found to be invalid or unenforceable by a government body, the remaining terms or conditions of this agreement shall not be affected by the finding and shall continue to apply as necessary to reflect the original intention of the parties. Xchange's failure at any time to enforce any provision of this Agreement or any right or remedy available hereunder or at law or equity, or to exercise any option herein provided shall in no way be construed to be a waiver of such provision, right, remedy or option or in any other way affect the validity of this Agreement. The exercise by Xchange of any rights, remedies or options provided hereunder or at law or equity shall not preclude or prejudice Xchange from exercising thereafter the same or any other rights or remedies or options.

    *Xchange Online LLC
    PO Box 189112
    Brooklyn, NY 11218

  28. The following additional terms apply to BROADBAND Service with static IP, dynamic IP Services ("BROADBAND Service") (and bundles containing this BROADBAND Service)

  29. Service Description.
    Broadband Service provides you access to the Internet. You may connect multiple computers/devices within a single office location to your Service router to access the Broadband Service, but only through a single account and a single IP address obtained from Xchange. Broadband Service customers may use their account to connect through an analog connection, but these connections will be subject to monthly charges, depending on the Service to which you subscribe. Additional User IDs provided for customer’s email boxes are not intended for use as a dial-up connection. The number of mailboxes available to you depends upon the Service to which you have subscribed. Further details of the Broadband Service are set forth in the Service Description for the applicable version of the Broadband Service you have selected or as indicated on the Quotation. Service Descriptions are available from your sales representative; the Service Description is incorporated herein by reference.
  30. You may not resell, re-provision or rent the Service to third parties (either for a fee or without charge) or allow third parties to use the Service via wired, wireless or other means. For example, you may not provide Internet access to third parties through a wired or wireless connection or use the Service to facilitate public Internet access (such as through a Wi-Fi hotspot). You may connect multiple computers/devices within a single office location to your Service router to access the Service, but only through a single account and an IP address(es) obtained from Xchange, and only for use by you and your Company. You may use your Service to connect through an analog connection, but these connections will be subject to monthly charges, depending on the Service to which you subscribed. Additional User IDs provided for email boxes are not intended for use as dial-up connections. You agree to use the Service only within the United States.
  31. Renewal.
    You may renew any Broadband Service subject to a one-year commitment under this Agreement by calling 1-347-772-1000 before the expiration of the Initial Term. If the Initial Term expires before it has been renewed in writing, then we may continue to provide you with such Broadband Service on a month-to-month basis, at our then-current undiscounted list prices, until the Initial Term has been renewed in writing or terminated as set forth below.
  32. Service Cancellation; Money Back Guarantee; Early Termination Fees for Broadband Service.
    If you wish to cancel your Broadband Service, you may do so by calling 1-347-772-1000. Broadband Service is subject to a thirty-(30) calendar day money-back guarantee, which begins upon billing. During this thirty (30) day period you may cancel the Broadband Service and receive a full refund of all monthly charges paid as well as any one-time charges and equipment charges, if any, paid to us. If you cancel your Broadband Service within 30 calendar days, you agree to return to us all hardware which we have provided to you in connection with the Broadband Service prior to receiving a refund on said equipment charges or additional equipment charges will apply. If you cancel after the first thirty-(30) calendar days of Broadband Service but before completing the Initial Term, you agree to pay us (a) all Service fees accrued as of the cancellation date and (b) you agree to pay a termination fee in the amount as set forth in the Service plan you have chosen ("Early Termination Fee"). Activation or set-up fees paid at the initiation of Broadband Service are not refundable. The money-back guarantee is limited to one per Customer per Service type per Service address. It is agreed that if you cancel Broadband Service damages are difficult or impossible to ascertain; thus, the provisions of this Section are intended to establish liquidated damages in the event of cancellation and are not intended as a penalty. All cancelations of Broadband Service after the Initial Term (and within 30 days of the end of the Initial Term) will be considered effective 30 days after receipt of notice from you requesting cancelation. You will be responsible for all fees up 30 days from when you provide us with notice that you wish to cancel your Broadband Service.
  33. Move/Down-grade change order activities and associated fees.
    You may down-grade speed and/or move your existing Broadband Service or phone line to another qualified Broadband Service or phone line for an additional one-time fee. There is no additional charge for up-grading the speed of your Broadband Service. Your Initial Term maybe altered as a result of such change order activity.
  34. The following additional terms apply to the CentralOffice Service:

  35. Definitions.

    The following definitions apply to the CentralOffice service:
    1. "Free installation". Free installation offers are only valid where the customer premises has the proper wiring and patch panels previously installed. Free installation includes the following services:
      1. Bridging modem/router
      2. Set up of router
      3. Set up of switches
      4. Plugging in and testing of telephones. Any telephones ordered at the inception of service will be installed and tested.  Installation of any telephones subsequently ordered may be subject to an additional install fee.
      5. If the customer paid for wall brackets, mounting of telephones.
      Free installation is only offered where the equipment to be installed was purchased from Xchange Telecom.  Free installation does not include door intercoms and paging equipment.  Free installation is limited to the five boroughs of New York City, Monsey, NY, Spring Valley, NY, and Lakewood, NJ.
    2. "Customer" shall mean an Xchange customer who has executed a binding agreement for CentralOffice, excluding any Customer whose account is, or during the period in question, was not in good financial standing with Xchange, or is in violation of these terms and conditions.
    3. "Service Fee" for a Customer is the base monthly recurring fee paid by the Customer for CentralOffice phone extensions, additional features, and call paths that are part of the CentralOffice service. Excluded fees consist of usage-based charges.
    4. "Scheduled Network Maintenance" refers to normal maintenance scheduled for the upgrade of Xchange's data network, voice network, switches, and servers used to deliver CentralOffice the Customer. Scheduled Maintenance may occur at any time during our maintenance window of 12:00AM - 6:00AM EST. Such effects related to Scheduled Network Maintenance shall not give rise to service credits outlined in this SLA.
    5. "Urgent Network Maintenance" refers to Xchange's efforts to correct network conditions that are likely to cause service outages or severe network performance degradation impacting multiple customers and requires immediate action. Urgent Maintenance may degrade the quality of service including possible outages. Xchange's policy is to notify the Customer with as much advance notice as possible under the circumstance prior to performing the maintenance. Such effects related to Urgent Network Maintenance shall not give rise to service credits outlined in this SLA.
    6. "Support Hours" are Business Days; Monday through Thursday from 9 AM to 6 PM and Fridays from 9 AM to 2 PM.
    7. "On Call Hours" are Business Days; Monday through Thursday from 8 AM to 9 AM and 6 PM to 10 PM. Fridays from 8 AM to 9 AM and 2 PM to 4 PM and Legal Holidays that fall on a Monday through Thursday from 9 AM to 6 PM and Fridays from 9 AM to 2 PM.
    8. "Non Support Hours" are all hours not defined above.
    9. "Business Day" shall mean any weekday other than a Federal holiday or day on which banks in the State of New York or the State where service is to be delivered are authorized to close.
    10. "Force Majeure" shall mean any natural disaster, act of God, power surge or failure, strike or labor dispute, war, civil disturbance, act of governmental authorities or the public enemy, act of terrorism, unavailability or failure of, or interruption or delay in, telecommunications or third party service, fuel or energy shortage, or any other cause beyond Xchange’s control, whether or not similar to the foregoing.
    11. "Interruption" shall mean an interruption in the CentralOffice service resulting in the inability to make or receive telephone calls, where both parties can hear each other clearly.
  36. Phone Rebate Offer:
    The telephone rebate offer for CentralOffice customers is provided and administered by Polycom, Inc., and is subject to the terms of that offer, located at http://centraloffice.com/polycomtradein.pdf.  No rebate offer is provided by Xchange Telecom.
  37. Thirty Day Money Back Satisfaction Guarantee:
    If Customer is for any reason dissatisfied with CentralOffice during the first 30 days of Service, Customer may, during the guarantee period, terminate CentralOffice and return the equipment purchased or leased from Xchange without penalty. For this Satisfaction Guarantee to be in effect, Customer must return the equipment to Xchange in the original condition and packaging (including all documents) that it came in. The Thirty Day Service Guarantee period shall start upon activation of CentralOffice and billing has commenced and end thirty (30) days thereafter. Xchange must receive written notice of Customer's intent to terminate CentralOffice as permitted herein within twenty four (24) hours of the completion of the Thirty Day Service Guarantee period. This money back guarantee does not include any charges for wiring.
  38. Service Level Agreement ("SLA")
    1. Time to Repair Reported Trouble: The Time to Repair (TTR) on a reported trouble for CentralOffice service starts one (1) hour after a trouble is reported during Support Hours and two (2) hours after a trouble is reported during On Call Hours. The TTR begins on the date and time when Customer reported the service impairment to Xchange Telecom via email to voipservices@xchangetele.com or Voicemail at Xchange’s Support Desk at 347-215-9300 together with all information necessary for Xchange Telecom to respond to the trouble ticket, and ends upon confirmation by Xchange Telecom to Customer that service has been restored (in each case, based upon Xchange Telecom’s records).  This period shall be extended to account for any period of time spent by Xchange Telecom waiting for a response, availability, action, or access to the premises from Customer in furtherance of the repair effort, and any period of time during which a "force majeure" event (see below) affecting service has occurred and is continuing. The TTR for any troubles reported during Non Support Hours will start from the subsequent start of the next On Call Hours support period.
    2. Availability Guarantee:
      1. As outlined below, a Credit Allowance will be given for Interruptions in CentralOffice preventing external inbound or outbound calling on any or all phone extensions in excess of the TTR for each seat affected.
      2. Credit Allowance
        Length of Interruption In Excess of TTR Credit
        30 minutes to 1 hour 25% of a Day
        1 hour 1 minute to 2 hours 50 % of a Day
        2 hours 1 minute to 4 hours 1 Day
        4 hours to 24 hours 2 Days
        24 hours or more 3 Days
      3. The Credit Allowance is subject to the following limitations. No Credit Allowance will be made for any interruption in service:
        1. Due to noncompliance with the provisions of Xchange’s Terms of Service (including its payment terms)
        2. Due to the failure of power at the customer premise
        3. Due to the failure of Customer Premise Equipment (CPE)
        4. Due to the failure of equipment, systems, connections or services not provided by Xchange
        5. Due to the use of any equipment connected to the Local Area Network (LAN) that is not supported for CentralOffice.
        6. Due to a service interruption by Customer’s Internet Service Provider (ISP) even if the ISP is Xchange. Customers are advised to maintain at all times two Internet connections from two different ISPs, using redundant paths into the building (i.e. Cable and DSL) with no single point of failure between the two and a router that does automatic failover.
        7. Due to circumstances or causes beyond the reasonable control of Xchange including Force Majeure
        8. During any period in which Xchange is not given full and free access to its facilities and equipment for the purposes of investigating and correcting interruptions
        9. To the Web-based CommPortal or CommPortal Assistant
        10. Due to any Customer act or omission, including without limitation any negligence, willful misconduct or misuse of any service or equipment, which impairs Xchange’s ability to provide service.
        11. Due to Scheduled Network Maintenance or Urgent Network Maintenance on the Xchange network.
        12. Due to failure on the part of Customer to timely report the incident and open a trouble ticket in accordance with this SLA.
    3. Terms:
      1. The terms of this SLA take effect immediately upon the completion of the Customer's service activation and billing has commenced. In the month when a Customer's CentralOffice services are terminated, the Customer is not eligible to receive credits for Xchange not meeting its service commitments for that month.
      2. Credit Allowances delivered as remedies in conjunction with this SLA represent Xchange's sole responsibility and the Customer's sole remedy related to CentralOffice. This SLA does not represent a warranty or guarantee by Xchange that services will be uninterrupted or fit for any particular purpose or intended use of any kind, and Xchange shall not be liable for any damages of any nature or amount as a result of any failure to achieve any commitment, other than the permitted Credit Allowances authorized and described hereunder.
      3. The amount of credit available per month is subject to a cap as described in this Agreement.
    4. CREDIT AND PAYMENT PROCEDURE
      1. To receive credit for the Availability Guarantee, Customer must have contacted Xchange and opened a trouble ticket at the time of trouble following the procedures outlined in this agreement.
      2. All requests for Credit Allowances for validly reported commitment failures must be delivered in writing to Xchange Telecom, CentralOffice Customer Service/Service Credits at 3611 14th Ave, Suite 215, Brooklyn, NY 11218:  Requests must identify the Availability Guarantee at issue, and include such other information as Xchange may have reasonably requested to assist it in verifying the request. Xchange may reject any Credit Allowance request which does not provide sufficient supporting information to allow Xchange verify the claim. All requests for Credit Allowances will be subject to confirmation by Xchange.
      3. Customer must claim any applicable Credit Allowance by the 15th day of the month following the month in which the reported incident was resolved. Xchange will inform Customer of credit requests rejected for insufficient information, and Customer will be allowed to resubmit such requests with additional supporting information within fifteen (15) days of Xchange notification of its rejection of the credit request.  After Customer resubmits the credit request with the additional supporting information, the standard verification and crediting timelines outlined herein shall apply.
      4. Xchange will apply the Credit Allowance to the Customer's invoice within two (2) billing cycles. Credits are based on the Customer's Service Fee and may arise from multiple service guarantees outlined in this SLA. The total combined credits applied to the Customer's CentralOffice invoice will not exceed the Serviced Fee in any calendar month.
      5. For purposes of calculating Service Credit, one (1) Day credit of the Service Fee is equal to 1/30.33 of the monthly recurring CentralOffice charge at the time of the outage for the CentralOffice seats adversely affected.
      6. Customer must pay its entire invoice, and shall not setoff any Credit Allowance it would anticipate receiving from Xchange. Customer shall cooperate with Xchange in any service claim investigations.
      7. To receive a Credit Allowance, Customer must be in good financial standing with Xchange and must be compliant with the terms and conditions of Xchange’s Terms of Service. A Customer's failure to comply, including without limitation a failure to pay charges on a timely basis, will invalidate the Availability Guarantee.
    5. POLICY CHANGES: Xchange reserves the right to change, amend, or revise this SLA policy at any time. Changes or revisions to the SLA will be deemed effective upon posting the applicable revision at this website.
  39. EARLY TERMINATION FEES:
    If you wish to cancel your Broadband Service, you may do so by calling 1-347-772-1000.  For the CentralOffice Product only, the following fees are added to any other termination fees, including, without limitation, the fees outlined in Section ‎28 above:
    1. If Customer cancels within the first calendar year of service, calculated from the date the services are activated, then the fee to be added to Customer’s final bill is the total of remaining monthly charges for the year, plus the number of extensions multiplied by $180.
    2. If Customer cancels within the second calendar year of service, calculated from the date the services are activated, then the fee to be added to Customer’s final bill is the total of remaining months in the calendar year multiplied by $10 multiplied by the number of extensions, plus the number of extensions multiplied by $60.
    3. If Customer cancels within the third calendar year of service, calculated from the date the services are activated, then the fee to be added to Customer’s final bill is the total of remaining months in the calendar year multiplied by $5 multiplied by the number of extensions.
  40. 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 the Xchange tariff's rate schedule.
  41. Unlimited Voice Service does not include calls to hotlines, chatlines, conference calls and other premium services.
  42. To prevent fraud, Xchange will not terminate calls to these countries:
    1. 216 Tunisia
    2. 231 Liberia
    3. 238 Cape Verde
    4. 251 Ethiopia
    5. 252 Somalia
    6. 263 Zimbabwe
    7. 53 Cuba
    8. 676 Tonga
    9. 850 North Korea
    10. 974 Qatar
  43. Services.
    The Services supplied pursuant to this section consist of the receipt and sending of facsimile communications ("faxes"), the storage of such faxes on an Xchange server, the provision of software to the Customer for access to the faxes, the communication via email or telephone regarding the receipt of the faxes, and any ancillary or subsidiary services provided in connection to these services. Collectively, these services will be referred to as "Fax Services."
    Xchange offers the following classes of Fax Services:
    1. MyFaxMail
    2. FaxMail Pro
  44. Page Limits.
    Your plan will provide you with page limits. This is the amount of incoming and outgoing pages of faxes per month that are included in your plan. A page consists of any one completely transmitted page of any size; provided, however, that if you fail to inform us regarding a mistransmission of a page within 3 days of attempting to send or receive such page, you will be charged for that page as if it was a complete transmission. After using your monthly page limits, you will be charged a per-page overage fee. Most fax pages take less than sixty (60) seconds to transmit. However, for each outbound transmission, the number of pages sent is calculated based on the greater of the actual number of pages or the number of full and partial 60-second increments of transmission or connection time, whether or not the transmission occurs or is completed (such as instances when someone answers the call or transmission is interrupted before completion). For example, a one page fax with a transmission duration of 30 seconds is recognized as one page and a one page fax with a transmission duration of one minute and six seconds is recognized as two pages. Unused inbound or outbound pages are valid in the month issued and expire at the conclusion of each billing cycle. Inbound or outbound unused pages have no cash value. Such pages do not roll over into the next billing cycle , and you will receive no cash refund in the event any unused inbound or outbound pages that remain in your account upon termination or closure of your account.
  45. Storage.
    While your account is active, your plan includes a set amount of storage on the Xchange servers, measured in time. Once a fax is stored for a longer period than the time set by your fax plan, you will be charged a storage fee will shall be assessed per page. To avoid the storage fee, you must delete the copy that is stored on the server. In any case, faxes will be purged from the system as set forth in your plan. To avoid deletion of your faxes, you must save a copy on your own computer before the maximum time for storage has been exceeded. Regardless of your level of service, you acknowledge that Xchange may cease offering this feature or change its practices and/or limitations concerning this feature at any time, including, without limitation, changing the maximum number of days that fax messages will be retained, the maximum number of messages stored at any one time and the maximum storage space allotted on Xchange's servers on your behalf. You further agree that Xchange has no responsibility or liability whatsoever for any failure or malfunction of this feature, whether or not such failure prevents you from utilizing the feature, including but not limited to the storage or deletion of any faxes.
  46. Usage.
    You are given a set amount of monthly usage by your plan. This usage will allow you to fax within the Domestic US (48 states). Any fax sent outside the Domestic US will be charged our international rates per minute, in addition to any set per page usage charge (or deduction from per page limit, as appropriate.)
  47. Security.
    You are responsible for the security of your username and password to login. If you elect email delivery of your faxes, you understand and acknowledge that email is unsecure, and that Xchange bears no responsibility to ensure the security of your faxes. You acknowledge and agree that Xchange has no responsibility or liability whatsoever for your use of this email feature and that Xchange may discontinue or change the terms under which this email feature is provided to you at any time, including, without limitation, changes in the maximum size of emails that may be received, changes in the maximum storage space available for email storage and changes to or elimination of spam filtering or virus scanning. By using this feature, you acknowledge and agree: (i) to assume sole responsibility for the content of any emails transmitted; and (ii) to assume any liability arising from your transmission of, and/or any third party’s receipt of, your emails. Xchange disclaims any liability or responsibility for any failure or malfunction of this feature, whether or not such failure prevents you from utilizing the feature, including but not limited to: an error in the email transmission or receipt process; deletion of or failure to store any emails; non-receipt of emails; broken or non-functional links to emails; any viruses received through this feature. In the event that Xchange, in its sole discretion, determines or suspects that any emails sent or received through this feature constitute, or may give rise to, a violation of any law or regulation or this Agreement, or you are otherwise in breach of any provision of this Agreement, Xchange reserves the right to remove your emails and/or to deactivate links to emails without further notice to you.
  48. Customer Responsibilities.
    You are fully responsible for the contents of your transmissions through the Fax Services. Xchange simply acts as a passive conduit for you to send and receive information of your own choosing. However, Xchange reserves the right to take any action with respect to the Services that Xchange deems necessary or appropriate in its sole discretion, if Xchange believes you or your information may create liability for Xchange, compromise or disrupt the Services for you or other customers, or cause Xchange to lose (in whole or in part) the services of Xchange's ISPs or other suppliers. Your use of the Services is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities or false advertising). You agree: (1) to comply with all laws regarding the transmission of technical data exported from any country through the Services; (2) not to use the Services for any illegal purpose; (3) not to interfere with or disrupt networks connected to the Services; (4) to comply with all regulations, policies and procedures of networks connected to the Services; (5) not to use the Services to infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (6) not to use the Services or related software to knowingly transmit misleading or inaccurate caller identification information for any reason, including doing so with the intent to defraud, cause harm, or wrongfully obtain anything of value; and (7) not to transmit or upload through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. You further agree not to transmit or upload any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. The Services make use of the Internet for you to send and receive information of your own choosing. As a result, your conduct is subject to Internet regulations, policies and procedures. You agree not to use or reference the Services for chain letters, junk fax or junk mail, spamming or any activity making use of distribution lists to any person who has not given specific permission to be included in such a process or on such list. You further agree not to attempt to gain unauthorized access to other computer systems. You shall not interfere with another customer's use and enjoyment of the Services. You must (a) obtain and pay for all equipment and third-party services (e.g., Internet access and email service) required for you to access and use the Services; (b) maintain the security of your PIN/password and other confidential information relating to your Services account; (c) immediately notify Xchange of any unauthorized use of your account or any other breach of security known to you; and (d) be responsible for all charges resulting from use of the Services, including unauthorized use prior to your notifying Xchange of such use and taking steps to prevent its further occurrence.
  49. Unsolicited Fax Advertisement Policy.
    The transmission of unsolicited fax advertisements is illegal in the United States under the Federal Telephone Consumer Protection Act of 1991 (TCPA) (http://www.fcc.gov/cgb/consumerfacts/unwantedfaxes.pdf) and in the European Union under the Privacy and Electronic Communications Regulations 2003, and is also illegal under the laws of a number of other countries, states and provinces. Distribution of unsolicited fax advertisements through the Fax Services is prohibited. Notwithstanding the above, Xchange's distribution of advertising to its customers is not considered unsolicited fax advertising based upon your acceptance of this Agreement. At Xchange's option and without further notice, Xchange may use technologies and procedures, such as filters, that may terminate the transmission of such unsolicited fax advertisements without delivering them.
  50. ALL XCHANGE SOFTWARE AND THE SERVICES ARE PROVIDED "AS IS,"
    AND NEITHER XCHANGE NOR ANY OF ITS AFFILIATES, LICENSORS OR SERVICE PROVIDERS MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. XCHANGE DOES NOT WARRANT THAT ACCESS TO OR USE OF XCHANGE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT XCHANGE SOFTWARE OR THE SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. XCHANGE AND EACH OF ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. YOUR USE OF ALL XCHANGE SOFTWARE AND THE SERVICES IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING, UPLOADING, AND/OR USE OF FILES OR OTHER MATERIAL (INCLUDING XCHANGE SOFTWARE) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM XCHANGE OR ITS AFFILIATES, OR LOSS RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA OR FILES UPLOADED, HOSTED OR TRANSMITTED VIA THE LARGE FILE SEND FEATURE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN ADDITION, YOU AGREE THAT NEITHER XCHANGE NOR ANY OF ITS AFFILIATES, LICENSORS OR SERVICE PROVIDERS WILL BE LIABLE FOR DAMAGES, WHETHER DIRECT OR INDIRECT (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES), ARISING OUT OF YOUR USE OF OR INABILITY TO USE XCHANGE SOFTWARE OR THE SERVICES, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF XCHANGE OR ANY SUCH AFFILIATE, LICENSOR OR SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE ENTIRE LIABILITY OF XCHANGE AND ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF XCHANGE SOFTWARE AND THE SERVICES OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE SOFTWARE OR THE SERVICES IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S.$500.00. YOU HEREBY RELEASE XCHANGE AND EACH OF ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. NEITHER XCHANGE NOR ANY OF ITS AFFILIATES, LICENSORS OR SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES OUTSIDE OF XCHANGE'S OR ANY SUCH AFFILIATE’S, LICENSOR'S OR SERVICE PROVIDER'S CONTROL WHICH COULD LEAD TO THE INTERRUPTION OF DATA DELIVERY SERVICE TO YOUR EMAIL ADDRESS, PAGER, TELEPHONE OR ANY OTHER RECEIVING DEVICES OR THIRD-PARTY DATA STORAGE AND/OR DELIVERY SERVICES. YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF XCHANGE, IN EVALUATING THE SERVICES OR ANY OTHER SERVICES OF XCHANGE OR ITS AFFILIATES.
  51. Service Level Agreement.
    Xchange strives to ensure that its services perform above industry standards. However, there are inherent risks in sending faxes over VOIP, risks that may not be present where a fax is sent via traditional POTS technologies. Therefore, Xchange makes the following commitment in terms of service quality:
    1. We will deliver 80% of faxes error-free. What this means is that out of 100 pages, at least 80 of them will be transmitted without significant degradation such as streaking, mistransmission or incomplete pages.
    2. Our service will be available 99% of the time
    3. If you experience a failure in service such that the above commitments are not met, we will troubleshoot and attempt to fix the problem.
    4. You will receive credit for mistransmissions as long as they are reported within 3 days of the transmission.
    5. You will receive credit only if you assist us in troubleshooting the problems.
    6. If, after 30 days after acknowledging that we confirm a transmission issue, we cannot resolve your mistransmission issues, you may terminate your contract without penalty.
    7. The above is your sole remedy for any failure of the Fax Services.
  52. The Following terms apply to any service using Voice over IP

  53. E911 Notification
    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.
  54. Security and Medical Alert System Limitations:
    You acknowledge that Xchange does not support the use of any Voice over IP product or 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.
  55. The following terms apply to any service using Verizon FIOS resold by Xchange

  56. Services
    The term “FIOS Service” shall mean Verizon Fiossm Internet Service for Business ("Verizon Fios IS"), Verizon Business E-Mail Service ("EM Service"), including all Software (as defined in Paragraph below), and such other products or services as you may subscribe to with Verizon as resold by Xchange. The Service shall also include any software or hardware that Xchange or Verizon provides you in connection with the Service to which you have subscribed.
  57. Service Description.
    Fios Service provides you dedicated access to the Internet over a fiber optic transmission facility. You may connect multiple computers/devices with in a single office location to your Service router to access the Service, but only through a single Fios Service account and a single IP address obtained from Verizon. Where available, Fios Service customers may use their Fios Service account to connect through an analog connection, but these connections will be subject to usage thresholds and additional per hour and monthly charges, depending on the Service to which you subscribed. Additional User IDs provided for Fios Service customers' email boxes are not intended for use as dial-up connections. Any usage associated with additional email box User IDs will be charged the per hour rate associated with usage above the monthly allotment for analog Dial-up Service (where available). The number of mailboxes available to you depends upon the Fios Service to which you have subscribed. Further details of the Fios Service are set forth in the Service Description for the applicable version of Service you have selected or as indicated on the Quotation. Service Descriptions are available from your sales representative; the Service Description is incorporated herein by reference.
  58. Service Availability:
    FIOS Service may not be available in all areas or at the speeds or bandwidths set forth herein, and is offered only in such areas or at the speeds or bandwidths as Verizon in its sole discretion may determine from time to time, and (ii) Verizon, in its sole discretion, may decline to provide FIOS Service (and/or terminate FIOS Service where already installed) to such locations and/or geographic areas as Verizon in its sole discretion may determine from time to time. Some locations will not qualify for the FIOS Service even if initial testing by Verizon indicates that the location is qualified to receive the FIOS Service. Customer understands and agrees that the FIOS Service may not meet its needs, and that performance of the FIOS Service may vary based on various factors. Customer hereby waives any and all claims against Verizon and Xchange pertaining to or arising from an End User’s use (or inability to use) the FIOS Service.
  59. No Warranties.
    ADVICE OR INFORMATION GIVEN BY XCHANGE OR VERIZON OR ITS REPRESENTATIVES SHALL NOT CREATE A WARRANTY. USE OF VERIZON TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WE DISCLAIM, WITH RESPECT TO ALL SERVICES, ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR ARISING BY COURSE OF PERFORMANCE, DEALING, CUSTOM OR TRADE USAGE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF WE KNEW OR SHOULD HAVE KNOWN SUCH PURPOSE) AND NONINFRINGEMENT. YOU AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. IN ADDITION, NEITHER XCHANGE NOR VERIZON GUARENTEES THAT FIOS SERVICESERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE. THE PROVISIONING AND PERFORMANCE (SPEED) OF FIOS SERVICESERVICE IS SUBJECT TO CIRCUIT OR OTHER NETWORK FACILITY AVAILABILITY AND OTHER FACTORS, INCLUDING WITHOUT LIMITATION, LOOP LENGTH, THE CONDITION OF YOUR TELEPHONE LINE AND WIRING INSIDE YOUR LOCATION, AND COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES AND NETWORK/INTERNET CONGESTION, AMONG OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR VERIZON SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY VERIZON-PROVIDED EQUIPMENT). VERIZON DOES NOT WARRANT THAT THE SERVICE OR EQUIPMENT PROVIDED BY VERIZON WILL MEET YOUR NEEDS, PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE.
  60. Indemnification.
    You agree to indemnify Xchange and Verizon (“us” or “we”) and hold us harmless for any damages, costs, liabilities and attorney's fees we incur from any claim arising from your use of the Services, or the use of your FIOS ServiceFIOS Service by others, including without limitation, violation of the copyrights, trademarks or other intellectual property rights of others, your combination of the FIOS Services with other products or services not provided by us, or your modification of the Services. In such event, you agree to conduct the defense and have control of the litigation and settlement, if any. However, you agree not to acquiesce to any judgment or enter into any settlement that adversely affects our rights or interests without Verizon's prior written consent. We agree to give you prompt notice of all claims and to cooperate in defending against the claim.
  61. Your Responsibilities.
    You represent that you are over the age of eighteen. You further acknowledge and agree that you are solely responsible for all use of the Service and the manner in which the Service is used, including without limitation the protection, storage, backup and security of your data, software, computer network and other facilities; your choice of equipment, software (including all upgrades thereto) and online content; and all other matters related to how you access and use the Service. You agree that your use of the Service and the Internet is your sole responsibility and that your use of the Service, and the Internet is solely at your own risk and is subject to all applicable local, state, national and international laws and regulations. You further agree that the reliability, availability and performance of data or services accessed through the Internet or other services connected or linked to the Service are beyond our control and are not in any way warranted or supported by Verizon. You agree to provide us with the access and support required to allow us to implement, maintain and provide the Services. In addition, you agree that we may from time to time send you information relating to the Service (including but not limited to password information), via electronic mail over the Internet to your primary email address. You consent to our distribution of such information to you electronically. You may not resell the Service or access to Service, directly or indirectly, to third parties without our written agreement. If you do resell or permit others to use the Service, you are responsible for all use of your Service by others (with or without our permission).
  62. Software Provided.
    Xchange or Verizon may provide to you, at no cost or for a fee, software owned by Verizon or its third party licensors, providers or suppliers in connection with the Services ("Software"). You may use the Software in object code form only, on the hardware on which it is installed, only as part of or for use with the Service and for no other purpose. The Software may be accompanied by an end user license agreement from Xchange, Verizon or a third party. Your use of the Software is governed by the terms of that license agreement and by this Agreement, where applicable. You may not install or use any Software that is accompanied by or includes an end user license agreement unless you first agree to the terms and conditions of the end user license agreement.
    1. If the Software is not accompanied by an end user license agreement from Xchange, Verizon or a third party, you are hereby granted a personal, revocable, non-exclusive, non-transferable license by Xchange, Verizon or its third party licensors, providers or suppliers, to use the Software (and any corrections, updates and upgrades thereto), for the sole purpose of enabling you to use the Service.
    2. You agree that the Software is the confidential information of Xchange, Verizon or its third party licensors, providers or suppliers, which you shall not disclose to others or use except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Verizon or its third party licensors, providers, or suppliers. 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 Verizon or its third party licensors, providers or suppliers 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. The Software may be used in the United States only, and any export of the Software is strictly prohibited. We reserve the right to update or change the Software from time to time and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. The Software may be used in the United States only, and any export of the Software is strictly prohibited.
    3. IF AT ANY TIME DURING THE TERM OF THIS AGREEMENT XCHANGE OR VERIZON PROVIDES YOU WITH FREE OR FOR-FEE SOFTWARE OR EQUIPMENT, INCLUDING WITHOUT LIMITATION, CLIENT AND/OR NETWORK SECURITY SOFTWARE, YOU AGREE THAT YOUR SOLE RIGHT TO RECOURSE, IF ANY, INCLUDING BUT NOT LIMITED TO DAMAGES FOR FAILURE OF SUCH SOFTWARE TO PERFORM, IS AGAINST THE MANUFACTURER OF SUCH SOFTWARE OR PERIPHERAL EQUIPMENT.
    4. Xchange, through Verizon, provides technical assistance and support for the Software in accordance with its policies. Unless otherwise provided, Verizon does not provide technical assistance or support for third party Software. Technical assistance or support with regard to third party software provided by the Software supplier is provided in accordance with such third party's policies or other terms.
    5. Your license to use the Software shall remain in full force and effect during the Initial Term and any renewal terms, unless and until it is terminated by Verizon, its third party licensors, providers or suppliers, or until this Agreement expires or is terminated.
  63. Return of Equipment and Software.
    Upon termination or expiration of this Agreement, you agree to return to us all hardware (other than hardware you have purchased from us) which we have provided to you in connection with the Service, and to cease use of all the Software provided and immediately delete such Software from your computer. In the event such hardware and Software is not returned to us within thirty (30) calendar days following such termination or expiration, we reserve the right to charge you, and you agree to pay, the undepreciated list price of the unreturned hardware and Software.
  64. Customer Equipment and Verizon Fios Service Performance.
    You are solely responsible for obtaining, installing, configuring, and maintaining suitable equipment and software, including any necessary system or software updates, patches or other fixes, which are or may become necessary to access the Verizon Fios Service, and to operate your computer. The preceding obligations apply regardless of whether Verizon or a third party provided the software or hardware to you. You understand that fiber bandwidth is provided on a per line basis, and that the speed and bandwidth available to each computer or device connected to the network will vary depending upon the number and types of computers or devices using the Service and the type of use (e.g. streaming media or downloading larger files). Only the manufacturer's warranties included with any hardware or software provided by us shall apply. Hardware (routers or other equipment) provided is new or fully inspected and tested return unit under full warranty.
  65. Monitoring of System Performance.
    Xchange and Verizon automatically measure and monitor network performance and the performance of your Internet connection in order to improve the level of Service. Verizon also will access and record information about your computer's settings in order to provide customized technical support and you agree to permit us to access and record such data for the purposes described in this Agreement. No adjustments to your computer settings will be made without your permission. Verizon does not share information collected for the purpose of network or computer performance monitoring or for providing customized technical support outside of Verizon or its authorized vendors, contractors and agents. By using the Service you consent to Verizon's monitoring of your Internet connection and network performance, and the access to and adjustment of your computer settings, as set forth above, as they relate to the Service or other services which Verizon may offer from time to time.
  66. Changes or Updates to the Services.
    Xchange and Verizon reserve the right to make changes to the Service or any portion thereof. If such a change materially and adversely affects your use of the Service, and we cannot reasonably mitigate the impact, then you may terminate the Service without further obligation.
  67. IP Addresses and Domain Name Registration.
    Upon expiration, cancellation or termination of the Agreement or an applicable Quotation, you agree to return to us any IP addresses or address blocks assigned to you by us. If we deem it necessary, you may be required to renumber the IP addresses assigned to you by us. Where applicable, all fees associated with domain name registration and periodic maintenance of domain names are your responsibility. The registrar or we, on registrar's behalf, will bill such fees directly to you. Such fees are not included in the price of the Service. You agree to abide by the domain name registrar's terms and conditions provided to you prior to obtaining domain name service from us. Domain name registration is limited to the following extensions: .net, .com, and .org. Verizon does not guarantee that your choice of names is or will continue to be available for use as a domain name.
  68. Entry to Customer's Business.
    You agree to allow us to enter your business during normal business hours by appointment to perform necessary activities related to the installation, inspection, repair, replacement or disconnection of our Equipment and Verizon Fios IS. You will allow us to make attachment and connections that are necessary to provide Fios Service to you. If you are not the owner of the premises to be entered, you must supply proof that you are authorized to allow work to be done on such premises