1. Acceptance. These terms of use are entered into by and between Company and XConnect Services Limited (“XConnect”). The following interim terms and conditions, together with any documents expressly incorporated herein by reference, (collectively, "Terms of Use") govern your access to and use of those certain XConnect services as agreed upon by the parties, including any content, functionality, and services offered on or through same (collectively, “XConnect Services”). Please read these Terms of Use carefully before you start to use the XConnect Services. By using the XConnect Services, you accept and agree to be bound and abide by these Terms of Use. If you do not want to agree to these Terms of Use, you must not access or use the XConnect Services.
2. Purpose. Company can use the XConnect Services for the following purposes: to support communications services, data quality management, routing, routing administration and routing diagnosis of voice and messaging communications where the communications service has a legitimate legal basis and the communications services does not breach any applicable laws in the country within which the XConnect Services is provided. Company will have the right to resell the XConnect Services provided under this Terms of Use solely to their authorized end user customers (“End User”) and only as part of a bundle with other Company products and pursuant to the terms and conditions of this Terms of Use.
3. DPA. This Terms of Use shall incorporate the XConnect Company Data Processing Agreement available at https://www.xconnect.net/privacy/xconnect-Company-data-processing-agreement/ (“DPA”) (as amended from time). In the event of a conflict between the terms of the DPA and any other terms of this Terms of Use, the terms of the DPA shall govern. Each of the parties agrees to comply at all times with all applicable laws and regulations relevant to the provision and use of the XConnect Services
4. Company Obligations. (i) Company will only access the XConnect Services in a manner approved or directed by XConnect and in accordance with this Terms of Use; (ii) Company will pay for the XConnect Services received pursuant to the applicable invoice; (iii) Company shall act in accordance with all reasonable instructions given to it by XConnect in relation to XConnect’s provision of the XConnect Services; (iv) in the event that XConnect requires the decision, approval, consent or any other communication from Company in order to continue with the provision of the XConnect Services or any part thereof at any time, Company shall provide the same in a reasonable and timely manner; (v) if any consents, licences or other permissions are needed from any third parties, other than XConnect’s licensors, it shall be Company’s responsibility to obtain the same in advance of the provision of the XConnect Services (or the relevant part thereof) and will hold same at all relevant times for the duration of this Terms of Use; (vi) any delay in the provision of the XConnect Services resulting from Company’s failure or delay in complying with any of the provisions of this Terms of Use shall not be the responsibility or fault of XConnect; (vii) Company accepts that if XConnect identifies non-standard traffic patterns (e.g., potential fraud, spam etc.) or invalid signalling messages, XConnect reserves the right to suspend the XConnect Services or block such traffic or End Users in order to maintain XConnect’s network and system integrity; and (viii) Company shall ensure that the content, communications and information it (or its End Users) transmit through the XConnect Services do not infringe the rights of any third party.
5. Term. The term of this Terms of Use is three (3) months from the date that XConnect makes the XConnect Services available for access and use by Company (“Term”). Unless Company has entered into the XConnect NIS Service Agreement prior to the end of the Term, which document would then supersede this Terms of Use, upon expiration of the Term the Company shall immediately cease all access and use of the XConnect Services and immediately return to XConnect any downloaded files or certify destruction of all or any copies of any downloaded files.
6. Termination. If Company cancels the XConnect Services at any stage of the Term, Company shall pay any outstanding invoices, charges and/or monthly fees (“Fees”) for the remainder of the Term. Notwithstanding the foregoing, Company shall not be liable for the Fees for the remainder of the Term if termination at any stage of the Term is based upon (a) breach committed by XConnect; (b) continuing non-performance or delay due to force majeure event; (c) fraud, wilful misconduct and gross negligence committed by XConnect; (d) XConnect entering into liquidation, makes a general assignment for the benefit of creditor, receivership or administration or similar insolvency event; or (e) XConnect’s notice for increase of Fee if not accepted by Company.
a. In any case of suspension of the XConnect Services by XConnect where Company is not in breach of this Terms of Use, the Fee shall be due just for the days the XConnect Services were provided and the remaining amounts (if any paid in advance) shall be refunded to Company.
7. General Fees.
a. XConnect may, at any time, change its Fees by the provision of at least seven (7) days prior written notice (being the “Price Change Notification Date”). Company may terminate the XConnect Services at any time prior to the effective date of the new Fees upon written notice to XConnect if Company does not accept such increase of Fees. When such notice of Fee changes occur, new Fees will be applied from the 1st day of the next calendar month of the Price Change Notification Date.
b. Written notice of price changes will be made by XConnect issuing the duly authorised representative of Company with a revision of the XConnect Services, or the revised companion .xls document.
8. XConnect (i) makes no warranties, representations, express or implied, with respect to the XConnect Services, including, but not limited to, the implied warranties of merchantability or fitness for a particular purpose, (ii) shall have no liability or responsibility for the contents of any communications transmitted via the Services or for any information or content on the Internet, and (iii) provides no warranty and accepts no liability regarding the availability of the XConnect Services beyond XConnect’s control and accepts no liability in the event of outages.
9. The maximum aggregate liability of XConnect under this Terms of Use shall be limited to the equivalent of the total aggregate amount of the Fees paid or payable in the twelve (12) month period immediately before the claim arose. In no event shall XConnect be liable for special, incidental, consequential, indirect or punitive damages, or loss of revenue or profit, loss of income, loss of data, loss of use of any property, cost of substitute performance, equipment or service and downtime costs.
10. Neither party may assign this Agreement whether in whole or in part to any third party without the other party’s written consent, and such consent shall not to be unreasonably withheld, conditioned or delayed. Any intellectual property rights shall remain the property of the relevant party and nothing in this Terms of Use shall be deemed to confer any assignment or licence of any intellectual property rights whatsoever of one party to the other party
11. This Terms of Use, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation (including any non-contractual disputes or claims), shall be construed in accordance with and shall be governed by the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
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