This Master Service Agreement (the “Agreement”) is between Telxi LTD located at Office 206, Savvas Plaza, 3 Nikolaou Nikolaidi, 8010, Paphos, Cyprus (“Telxi”, “we”, “our”, and “us”) and the customer identified on the signature page hereto (“Customer”, “you”, and “your”). Telxi and you may be referred to herein individually as a “Party” and collectively as the “Parties”. The Parties hereby agree as follows:
Telxi will provide you with Services (as defined below) pursuant to the terms of this Agreement. The Parties hereby agree that this Agreement shall consist of the following: (a) the Agreement; (b) any exhibit, schedule, or attachment hereto (each, an “Attachment”); (c) each applicable service order (“Service Order”) which details the specific service(s) to be offered (each Service Order constitutes a separate agreement for the purchase and sale of Service to be provided to you by Telxi, the provision and use of which will be subject to this Agreement); and (d) the Terms and Conditions of Service (the “T&C”) which may be found at Telxi.com. The T&Cs are specifically incorporated into this Agreement by reference as if copied verbatim herein. The T&Cs may be modified periodically at Telxi’s sole discretion; no such modification shall nullify the effectiveness of this Agreement. In the event of any conflict, the following order of precedence shall apply: (1) the Service Order(s); (2) the Attachment(s); (3) the Agreement; and (4) the T&Cs.
This Master Services Agreement (“Agreement”) shall have an initial term of one (1) month (“Initial Term”) starting from the Effective Date. Upon expiration of the Initial Term, this Agreement shall automatically renew for consecutive additional periods of one (1) month each (“Renewal Term”) unless terminated by either Party. The termination notice shall be provided in writing and shall be given at least thirty (30) days prior to the expiration of the current term in effect. The Initial Term and any Renewal Terms shall be collectively referred to as the “Term”.
Notwithstanding the above, Telxi, at its sole discretion, may terminate this Agreement by giving Customer a written notice of such election. In such event, the Effective Date of termination shall be thirty (30) days from the date of such notice. It is expressly understood that Telxi’s right to terminate this Agreement shall be in addition to any other remedies available to Telxi, whether at law or in equity and shall not prejudice or limit Telxi’s right to take any other action available to it.
DESCRIPTION OF SERVICES
1.1 General Description. Telxi provides Voice over Internet Protocol (“VoIP”) services, which include local, nationwide, and international calling. Additionally, Telxi offers hosted billing services as a secondary service. The Services consist of a combination of software solutions, products, networks, services, and hosting facilities. Telxi may periodically add, modify, or delete features or advanced features to its Voice Services at its sole discretion.
1.2 VoIP Services. Telxi’s Voice Service is a premium voice communication service that uses Internet Protocol (“IP”) technology to carry voice communication over high-speed internet access, also known as broadband internet service. The Voice Service is distinct from standard Local, Local Toll, and Long-Distance services. Telxi’s Voice Service does not support 0+ calling, collect, third-party billing, or calling card calling. Furthermore, Telxi’s Voice Service may not support 900, e911, 911, 411, 311, 511, and/or other x11 services in one or more (or all) service areas. Telxi’s Voice Service does not connect calls to phone numbers in Area Code/Prefix combinations used by third-party Reverse Billing Services. Telxi may remotely access the Customer’s VoIP devices and network to enable compatibility with the Voice Services provided herein.
1.3 Regulatory Treatment. Telxi’s Voice Service is subject to different regulatory treatment than telephone service, and this treatment may limit or otherwise affect the Customer’s rights of redress before Federal, State, or Provincial telecommunications regulatory agencies. The Customer acknowledges and agrees that Telxi is not a telephone service provider.
1.4: SERVICE CONSTRAINTS.
The Client acknowledges and agrees that the Services are contingent on ongoing availability. The Client further acknowledges and agrees that the Company reserves the right, at its sole reasonable discretion, to not offer a Service in or to any specific jurisdiction, location, or country, or to restrict Services to or from any particular jurisdiction, location, or country.
The Client acknowledges and agrees that the Service: (i) is not designed to serve as an End User’s primary phone service, such as conventional landline or mobile phone service; (ii) may not be compatible with all types of communication devices; (iii) may be subject to distinct regulatory approaches compared to other similar services, which could impact End Users’ rights and responsibilities when dealing with regulatory agencies and other government entities.
2. Billing and Fees
2.1 Payment Authorization: By subscribing to Telxi services, you authorize us to collect payment, including Early Termination Fees, late fees, check return fees, recovery fees, and other outstanding charges, from your payment method. This authorization will remain valid for 30 calendar days after you terminate our authority to charge your payment method.
2.2 Fees: The fees for our services are detailed in our Rate Decks, which are incorporated herein by reference. You are responsible for selecting a Rate Deck that meets your needs from the available options. Certain fees and charges associated with our services will be outlined in each service’s respective Order Form or other policies or rate decks we furnish from time to time, all of which may be amended by Telxi at its sole discretion. We reserve the right to modify any fees and/or rates with seven (7) days notice.
2.3 Payment Disputes: If you dispute an invoice, you must pay the undisputed amounts and provide written notice of the disputed amounts. Failure to dispute a charge within a 30-day period constitutes an irrevocable waiver of your right to dispute the charge unless otherwise provided by law. We will attempt to resolve the dispute in good faith for 30 days from the notice. If any charges remain in dispute at the end of the 30-day period, you must pay the full amount due within 10 days, or we may exercise any available remedies for breach (without regard to any further notice requirement or opportunity for cure under this Agreement, which shall be deemed waived).
2.4 Non-Payment: If you fail to deliver full payment for all billed charges by the due date, we may restrict, suspend, or terminate your use of the services. We may also apply any deposits or other payments made by you. If we restrict, suspend, or terminate your services, we may, at our sole discretion, choose to restore your services prior to the payment of all charges due. Such restoration shall not be construed as a waiver of our right to receive full payment for all charges due or again restrict, suspend or terminate the Services at any time for non-payment of unpaid charges.
2.5 Credit Card & ACH Payment Terms: If you are paying by credit card, you authorize Telxi to charge the credit card indicated in the authorization form according to the terms outlined in this agreement. The authorization will remain in effect until you cancel it in writing. You agree to notify us in writing of any changes in the account information or termination of this authorization at least 15 days prior to the next billing date. Credit cards by default will be charged on the 1st business day of each month or other mutually agreed-to billing cycle. Charges will be for the full amount due for services provided by Telxi. No prior-notification will be required.
2.6 Penalties and Fines: Telxi may enforce fines and penalties and terminate the customer’s account if found to be phishing, spoofing CLID, or providing unacceptable responses to Tracebacks or complaints. There are also penalties or additional fees for chargebacks, The following fees apply:
$150 per ITG Traceback
$500 for any instance of CLID spoofing using mobile numbers, DIDs that belong to another party, unassigned DIDs, and aggressively using rural numbers
5% of the outstanding balance, compounded monthly
$25 for each reactivation of suspended account due to non payment
$100 if a payment was chargebacked with your method of payment including all amounts due due to usage.
$10 per number you port out of Telxi’s network
2.7 Monthly Service Fees: Telxi will issue a monthly invoice for the services provided to the Customer on the 1st day of each calendar month. The monthly bill will include various charges, which may include activation fees, monthly service fees, local and international voice call charges, advanced feature charges, addon products, taxes. The monthly service fee will be charged in advance according to the applicable Service Order, along with applicable taxes and surcharges. Usage-based charges will be billed monthly in arrears, and any other charges that Telxi decides to bill in arrears will also be included in the monthly bill. Telxi reserves the right to bill at more frequent intervals if necessary. Usage charges will be billed in increments that may be rounded up to the nearest minute, except as otherwise specified in the rate schedules.
2.8: RESELLING SERVICES.
The Client has the option to resell or rebrand the Services to End Users (each action defined as a “Resale”). However, any Resale by an End User is strictly forbidden.
In association with any Resale, the Client shall: (i) serve as the primary contact for its End Users; (ii) assume full responsibility for the Services’ usage by any End User; (iii) refrain from making any representations, warranties, or commitments to the End User on behalf of the Company; (iv) be solely accountable for ensuring that its End Users comply with all applicable laws and the Agreement’s terms; (v) be solely responsible for billing, collecting (including handling bad debts), and reporting and remitting all relevant taxes and surcharges.
The Company shall not be liable to the Client’s End Users for its performance under the Agreement.
The Client acknowledges that, upon an End User’s request, the Company may directly provide services to such End User, similar to those offered to the Client under the Agreement.
If the Company ceases to provide a Service to the Client for any reason, the Client will be solely responsible for delivering the necessary notifications to its affected End Users.
The Client is solely responsible for obtaining and maintaining, at its own expense, all required licenses, approvals, and regulatory authority for the use and operation of the Services. The Client agrees to provide any such documentation to the Company upon reasonable request.
Telxi customers are responsible for paying all applicable federal, state, local, or other governmental sales, use, excise, public utility, or other taxes, regulatory fees, and charges. Telxi may pass through to customers taxes and fees owed by Telxi to the extent permissible by law. Any tax exemptions must be verified and approved by Telxi’s third-party tax consultant. During the validation process, the customer will be responsible for all taxes and fees incurred. The following table provides an overview of taxes, fees, and surcharges that may be applied to Telxi services:
|Tax, Fee, or Surcharge||Description|
|Federal Universal Service Fund (FUSF)||A monthly, percentage-based surcharge established by the Federal Communications Commission (FCC) to support telecommunications and information services in schools, public libraries, and rural healthcare facilities; subsidizes local service for consumers with low incomes; and aids customers who live in areas where the costs of providing telephone service are high.|
|State Universal Service Fund||Similar to the FUSF, a number of states have enacted their own universal service fund on a state level. Funding helps pay for services to low-income customers, customers with communication disabilities, and customers who reside in rural areas served by small or rural telecom providers where the costs of providing telephone service are high.|
|Long Distance Access Charge||A monthly charge assessed to recover costs imposed by the Local Exchange Carriers furnishing access services for use with Telxi’s interexchange service.|
|Franchise Fee||A monthly charge imposed by local jurisdictions and paid by the customer to help recover the costs associated with providing telephone service, including installation of underground conduit, outside telephone wires, and telephone poles.|
|Federal Excise Tax||A percentage-based tax imposed by the IRS on standalone local telephone service and related features.|
|E911 Emergency System||A surcharge imposed by local jurisdictions to fund the 911 Emergency Systems.|
|P.U.C. Tax||A charge imposed by state telecommunications regulatory agencies on users of regulated services, which is used to finance the operational costs of the state regulatory agency.|
|Sales Tax||A tax imposed by nearly all states, counties, and districts, on the sale of various goods and services for use or consumption.|
|Access Recovery Charge (ARC)||A percentage-based charge implemented to recover a portion of the access charges imposed by local exchange carriers (LECs).|
|Federal Regulatory Fee||A monthly charge assessed on interstate and international charges that allows Telxi to recover costs imposed by the Federal Government for Telecommunications Relay Services for the hearing-impaired and national number administration.|
|Gross Receipts Tax||A tax on the privilege of doing business in the state measured by gross receipts received from business done in the state.|
|Administrative and Carrier Cost Recovery Fee||A fee that allows Telxi to recover administrative and carrier costs.|
|VAT||Value Added Tax which applies to EEA based customers that don’t have are not exempt based on EU Reverse charge rules.|
4. Fraud & Prohibited Conduct
Telxi provides SIP trunking, DID, and international voice services to customers. The services are accessible via the Internet using Telxi-provided credentials, and customers are responsible for securing their credentials. Telxi is not responsible for fraudulent or unauthorized use of the services. Customers are responsible for all charges and costs associated with their accounts, and Telxi may take necessary actions to prevent fraudulent usage. The services cannot be used for any abusive, threatening, fraudulent, or illegal purposes, including but not limited to robocalling, auto-dialing, transmitting pornographic or obscene material, and violating FTC’s Telemarketing Sales Rule. Customers must provide necessary security equipment and apparatuses to prevent fraudulent or unauthorized use of the services.
4.1 Prohibited Conduct
Customers and their subscribers are strictly prohibited from using Telxi services for any improper, criminal, or abusive purposes, including but not limited to attempts at phishing, gaining access to financial information improperly, and making calls to numbers on a government Do Not Call List. Customers and their subscribers are also prohibited from using the services for fraudulent purposes or to avoid paying for the services. The services cannot be used in a manner that interferes with, disrupts, or presents a risk to the services, network, software, property, or security of Telxi, its customers, its third-party vendors, or other third parties. The services also cannot be used in a manner that results in usage inconsistent with Telxi’s expectations or the purpose for which Telxi is providing the services. Furthermore, the services cannot be used for illegal robocalling or autodialing, transmitting pornographic or obscene material, or violating this agreement or Telxi’s policies.
Customers are solely responsible for all charges incurred in connection with their accounts, whether authorized, unauthorized, fraudulent, or otherwise. Telxi has no duty to investigate the authenticity of usage charged to Customer’s account, take action to prevent fraudulent usage, or be liable for any fraudulent usage billed to Customer’s account. If Customers become aware of stolen or fraudulently used services, they must immediately notify Telxi in writing or by calling Telxi customer care. Until stolen or fraudulent use of services is reported, customers are responsible for all usage charges attributable to their accounts, even if incurred as the result of fraudulent or unauthorized use by third parties. Customers are solely responsible for securing all passwords and access numbers to prevent unauthorized access to the services by third parties. Telxi may take necessary actions, including blocking access to particular calling numbers or geographic areas, without notice to the customer, to prevent fraudulent usage. Customers acknowledge and agree to save, defend, indemnify, and hold Telxi harmless from all claims, costs, liabilities, and damages arising out of such fraudulent or unauthorized use.
5: Cancellation of Services:
Either Telxi or the Subscriber can cancel the Voice Service. Telxi may discontinue the service, block access to the Telxi network, and cancel the account without any responsibility and notice to prevent or protect against fraud or to protect Telxi’s personnel, agents, facilities, or services. Telxi can take such action if:
(a) the Subscriber breaches any terms of this agreement, including the Acceptable Use Policy; (b) the Subscriber’s usage of the service is against the law or disruptive, adversely impacting or causing a malfunction to the Service, Telxi’s servers or other equipment, or the use and enjoyment of other users; (c) the Subscriber acts in an abusive or menacing manner when dealing with Telxi’s technical support staff, Subscriber service staff, or any other Telxi employees or representatives; (d) Telxi receives an order from a court of competent jurisdiction to terminate a Subscriber’s Service; or (e) Telxi for any reason ceases to offer the Service, then Telxi may terminate or suspend such Subscriber’s Service immediately without notice. For a termination in accordance with this paragraph, Subscriber remains liable for all unpaid fees and other charges accrued or otherwise payable under the terms of this Agreement, including without limitation the equipment charges set forth herein, if applicable.
Subscriber may terminate this agreement at any time by providing Telxi with a written termination request that includes the account number, main username, date of cancellation, and is submitted using one of the following approved methods:
VIA EMAIL: firstname.lastname@example.org.
The thirty-day written notice period begins on the date Telxi receives Subscriber’s valid written termination request. Even after termination, Services will remain in effect until the effective date of termination, and the terms of this agreement and applicable Service Orders will continue to apply to such services. Please refer to corresponding service exhibits for information regarding cancellation and termination fees. Subscriber must discontinue using all Telxi services, including telephone numbers, log-ins, voicemail access numbers, or any web portal sites provided for Telxi subscribers, upon termination or cancellation of Services. Cancelling the service will also result in the cancellation of any ancillary services provided by Telxi.
Telxi may refuse to accept a Subscriber’s application for renewal or re-subscription following the termination or suspension of such Subscriber’s use of the Service at Telxi’s sole discretion. Upon termination of a Subscriber’s use of the Service, Telxi has the right to immediately delete all data, files and other information stored in or for the Subscriber’s account without further notice to the Subscriber.
6. Emergency Services and Accessibility
6.1 Voice over Internet Protocol (VoIP) and 911 Services. VoIP services allow you to make or receive telephone calls over the Internet to or from the public switched telephone network similar to traditional telephone service, yet there are important distinctions that the user needs to be aware of. This notification should be deemed actual notice of these critical distinctions. The customer acknowledges and agrees that differences exist between traditional telephone service and IP-based voice services and that the emergency calls may be handled differently than emergency calls placed with traditional telephone service. Customer expressly consents to the limitations of the E911/911 services, including without limitation, those described herein, and may consider alternate means for accessing traditional emergency services.
6.2 Customer Responsibilities. Customer acknowledges that the E911/911 services may not be available in the event of a power failure, fraudulent use, failure of Customer’s equipment, service outage, or network or Internet congestion or outage, and Customer accepts the responsibility of confirming that its users have the means to make emergency calls in such circumstances. Customer further acknowledges and agrees that the E911/911 services rely on the networks, products, services and operations of third parties, including telecommunications carriers and Public Safety Answering Points (“PSAP”), and the Company is not responsible for the acts or omissions of any such third parties. Customer also agrees to notify its users of the nature and limitations of the E911/911 services as described in this Notification. The Company will not be liable for any loss or damage (financial or otherwise) where Customer fails to do so.
6.3 Provision of E911/911 Services. The provision of E911/911 shall be conditioned on Customer providing the Company with accurate location data, call back number, valid address or any other information required and requested by the Company in order to provide the E911/911 services. Customer shall provide this information in a timely manner and in a format required or requested by the Company. Customer shall update this information whenever necessary to reflect changes. The Parties understand and acknowledge that should Customer fail to provide any such information, the Company may not be able to provide the E911/911 services, in whole or in part. Customer agrees to release indemnify and defend the Company and all of its affiliates, subsidiaries, employees, shareholders, agents, vendors, and representatives from any and all claims that may arise from Customer’s failure to satisfy this section including resulting from the failure of Customer to provide a correct or updated address to the Company.
6.4 Limitation of Liability. Customer acknowledges and agrees that the Company, its affiliates, directors, officers, employees, agents, underlying local provider(s) or other public or private agencies and any third party providers will not be liable for any injury, death or damage to persons or property, or any other claim arising directly or indirectly out of, or relating in any way to the E911/911, including without limitation any inability on the part of the Customer or a user to access the E911/911 service, except to the extent such claims or causes of action arose from the Company’s gross negligence, recklessness or willful misconduct.
6.5 IP Desk Phones and Soft Phones. With traditional PSTN services, your 911 call is routed to the appropriate local PSAP based on your automatically generated location information. For E911/911 services provided in the United States of America, the Customer affirmatively acknowledges (and agrees to maintain similar affirmative acknowledgements from its End Users) that the Company does not provide traditional E911/911 services and that the services are subject to the following limitations:
a) Emergency Service Personnel May Lack Automatic Access to Caller’s Number or Location. Unlike conventional 911 services, when a Customer’s End User contacts 911 using IP Desk Phones or Soft Phones, the emergency responders may not have immediate access to the caller’s phone number or physical address. End Users may need to inform the emergency responders about the nature of the emergency, provide their phone number, and describe their location. If the call gets disconnected for any reason, emergency responders may be unable to return the call or identify the location.
b) Incorrect Service Address Registration May Lead to Misdirected Emergency Calls. If a Customer or End User provides a wrong physical address, emergency calls may be directed to an inappropriate emergency service provider. This situation may prevent emergency responders from addressing the emergency, transferring the call to the correct emergency center, or providing any assistance.
c) Mismatched Telephone Numbers and Geographic Locations Can Result in Emergency Call Issues. Emergency service personnel cannot accurately determine a location through the Company’s system, so it is crucial to keep the location registration up-to-date. For instance, if an End User uses their telephone equipment in Virginia with a 703 area code but has an assigned number with a 212 area code (associated with New York City), dialing 911 may not connect them with any emergency personnel. Even if they manage to reach emergency personnel, it may not be the appropriate emergency service for their actual location, and the responders may be unable to transfer the call, address the emergency, or offer any help.
d) Moving Equipment Without Updating the Registered Location May Lead to Emergency Call Issues. It is essential to accurately register the location of IP Desk Phones or Soft Phones every time they are relocated. If the equipment is moved without updating the registered location, a 911 call may fail to connect to any emergency personnel. Even if the call reaches emergency responders, they may not be the ones closest to the caller’s actual location if the location has not been updated, and the responders may be unable to transfer the call, address the emergency, or provide assistance.
e) Failure to Re-register New Location or Calling 911 Within 48 Hours of Updating the Location May Cause Problems. It is crucial to accurately register the location of IP Desk Phones or Soft Phones whenever they are moved. Location updates may take up to 48 hours to be reflected in the Company’s records. During this time, calls may not connect with any emergency service provider or may reach the wrong emergency services provider.
6.6 High-Speed Internet Connection Required
Subscriber understands, acknowledges, and agrees that:
- Subscribers must have a high-quality, high-speed internet connection to use the services.
- Telxi is not providing an internet connection for the subscribers.
Telxi does not control and is not responsible for:
- Subscriber’s internet connection.
- The quality of the Subscriber’s internet connection.
- Any third-party products and/or services related to Subscriber’s internet connection.
- Problems with the services that are caused by or related to Subscriber’s internet connection.
CRITICAL E911 NOTIFICATION
Voice over Internet Protocol (VoIP) in relation to 911 services is subject to certain limitations and differences when compared to traditional telephone services. By using VoIP services, the Subscriber expressly consents to these limitations and acknowledges the responsibility to confirm that they have the means to make emergency calls under various circumstances. The provision of E911/911 services depends on the Subscriber providing accurate location data, call back number, valid address, or any other information required and requested by the Company.
IP Desk Phones and Soft Phones have specific limitations when it comes to emergency calls. It is crucial for the Subscriber to provide accurate and up-to-date location information and be aware of potential issues with emergency calls, such as calls not reaching the correct emergency services or emergency personnel not being able to call back.
Emergency Services provided in the United States and Canada are subject to additional provisions and limitations. The Subscriber agrees to provide their End Users with appropriate notice or stickers that explain the limitations of E911/911 services. The Subscriber acknowledges that only certain dial digit plans are acceptable for the completion of emergency calls and that non-provisioned or improperly provisioned telephone numbers may result in additional fees.
In case of emergency calls from a mobile phone using the Telxi Service, the call will be routed to the mobile carrier, which will handle the provision of the 911 Services. It is essential to be aware of potential technical failures that may prevent successful 911 calls.
911 Connection Issues. There may be instances where 911 calls fail to connect due to specific technical issues, such as:
a) Malfunction of system access equipment. b) Incorrect configuration settings. c) Power outages or disruptions. d) Telecommunication carrier disruptions. e) Termination or suspension of services as outlined in the agreement. f) Internet-related issues (including network congestion, loss, or deterioration of Internet services).
Due to the limitations of contacting 911 via VoIP, it is best practice to use a traditional phone service to call 911, where possible.
7: FAIR USE POLICY
The Fair Use Policy (FUP) applies to Metered Services and Unlimited Services offered by Telxi, including, but not limited to, unlimited calls or unlimited minutes or Metered Services with specific channel allowance. Telxi may enforce the FUP when, in its reasonable opinion, the Customer’s usage of Telxi’s Unlimited Services is excessive or unreasonable, as outlined below.
7.1 Fair Use excludes activities such as auto-dialing, constant call forwarding, telemarketing, and call centers as they create port-congestion and might impact every other customer of Telxi and thus they are forbidden
7.2 Limitation of Liability: Telxi shall not be liable for any indirect, incidental, special, or consequential damages, or any loss of revenue, profits, or data, arising in connection with the enforcement of the Fair Use Policy, whether in an action in contract or tort, even if Telxi has been advised of the possibility of such damages.
7.3 If the Customer’s usage of Unlimited Services significantly exceeds estimated usage patterns over any month or is inconsistent with typical usage patterns, the Customer’s usage will be deemed excessive or unreasonable.
7.4 If the Customer’s usage is excessive or unreasonable, Telxi will notify the Customer of a breach of the FUP. The Customer will be asked to cease or modify their usage to comply with Telxi’s Fair Use Policy or be offered an alternative per-minute plan, where the FUP does not apply.
7.5 If the Customer’s excessive or unreasonable usage persists after receiving a request to cease or modify such usage, Telxi may, without further notice, apply per-minute charges to the Customer’s account for the excessive and/or unreasonable portion of usage; suspend, modify, or restrict the Customer’s use of the Services; or revoke the Customer’s access to the Services.
8. Limitation of Liability
8.1 Telxi Services. This Agreement governs the provision of Telxi’s SIP trunking, DID, and international voice services (“Services”) to the subscriber (“Subscriber”). Telxi provides the Services on an “as is” and “as available” basis, subject to the terms and conditions set forth in this Agreement.
8.2 No Guarantee of Uninterrupted Service. Telxi does not guarantee uninterrupted or error-free Services or the successful delivery of all attempted communications. Telxi does not warrant or represent that the Services will meet Subscriber’s requirements, specifications, expectations, or be timely, secure, or error-free. Subscribers acknowledge that the Services may be subject to limitations, delays, and other problems inherent in the use of communication facilities.
8.3 Subscriber’s Use of Services. Subscribers agree to use the Services lawfully and in compliance with all applicable laws, regulations, and Telxi policies. Subscribers are responsible for ensuring that their use of the Services does not interfere with Telxi’s ability to provide Services to other subscribers or any other person, or cause damage to Telxi’s network or systems.
8.4 Changes to Services. Telxi reserves the right to modify, update, or discontinue any aspect of the Services, in whole or in part, at any time and without notice to subscribers. Telxi will not be liable to subscribers or any third party for any modification, suspension, or discontinuance of the Services.
8.5 Equipment and Software. Equipment and software provided by Telxi to facilitate the use of the Services are offered on an “as is” and “as available” basis, without any warranty or representation. Telxi makes no warranty that the equipment and software will be free from defects, errors, or interruptions in service.
8.6 Limitation of Liability. To the maximum extent permitted under applicable law, neither Telxi, its affiliates, partners, nor any of their representatives shall be liable for any incidental, consequential, special, punitive, exemplary, or cover damages, loss of profits, revenues or goodwill, loss or corruption of data, business interruption, or delay in performance arising from or in connection with the Agreement or the Services provided thereunder. This limitation applies regardless of the cause of action, including but not limited to breach or repudiation of the contract, breach of warranty, negligence, tort, strict liability, or any other legal theory, and whether or not Telxi has been advised of the possibility of such damages. Telxi shall not be liable for loss of Subscriber’s data or if changes in operation, procedures, or Services require modification or alteration of Subscriber’s equipment or render it obsolete or affect its performance.
8.7 No Warranties. Except as expressly provided in this Agreement, Telxi disclaims all warranties related to the Services and equipment, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Telxi provides the Services, equipment, and software on an “as is” and “as available” basis without any warranty or representation.
8.8 Force Majeure. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are caused by events beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. In the event of such delay, the date of delivery or time for completion of performance will be extended for a period equal to the time lost by reason of the delay.
8.9 Indemnification. The Subscriber agrees to indemnify, defend, and hold harmless Telxi, its affiliates, and their respective officers, directors, employees, and agents from and against any and all claims, demands, liabilities, losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with the Subscriber’s use of the Services, any breach or alleged breach of this Agreement by the Subscriber, or any violation or alleged violation of any applicable law, rule, or regulation by the Subscriber.
8.10 Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction in which Telxi is located, without regard to its conflict of laws principles. Any disputes arising out of or in connection with this Agreement shall be resolved through good faith negotiations between the parties. If the parties are unable to resolve any dispute within thirty (30) days of the commencement of negotiations, either party may submit the dispute to binding arbitration or litigation, as agreed upon by the parties.
8.11 Entire Agreement. This Agreement, together with any Order Forms, schedules, or exhibits referenced herein or attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and representations, whether written or oral, with respect to such subject matter.
8.12 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect, and the invalid or unenforceable provision shall be deemed modified so as to have the most similar result that is valid and enforceable under applicable law.
8.13 No Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the waiver is to be asserted. The failure of either party to enforce any provision of this Agreement at any time shall not be construed as a waiver of such provision and shall not affect the right of such party thereafter to enforce such provision.
8.14 Assignment. The Subscriber may not assign or transfer its rights or obligations under this Agreement without the prior written consent of Telxi, which consent may be granted or withheld at Telxi’s sole discretion. Telxi may assign or transfer its rights or obligations under this Agreement without the Subscriber’s consent.
8.15 Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed given when personally delivered, sent by email, or three (3) business days after being sent by registered or certified mail, postage prepaid, return receipt requested, to the addresses specified in this Agreement or to such other address as either party may designate by notice to the other party.
8.16 Amendments. This Agreement may be amended or modified only by a written instrument signed by both parties. No amendment or modification of this Agreement shall be binding unless it is in writing and signed by both parties.
8.17 Independent Contractors. The relationship between Telxi and the Subscriber is that of independent contractors. Nothing contained in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties. Neither party shall have any authority to bind the other party in any respect, and neither party shall represent or imply that it has such authority.
8.18 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the applicable laws in the jurisdiction where the Agreement is being executed) or another transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
8.19 Headings. The headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
8.20 Interpretation. In this Agreement, unless the context otherwise requires: (i) any reference to a statute, statutory provision or subordinate legislation shall be construed as including a reference to that statute, provision or subordinate legislation as from time to time amended, extended, replaced, consolidated or re-enacted; (ii) words importing the singular include the plural and vice versa, and words importing a gender include all genders; and (iii) the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation.”
8.21 Force and Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The provisions of this Agreement are severable, and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially unenforceable provisions
8.22 Force and Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The provisions of this Agreement are severable, and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially unenforceable provisions to the extent enforceable in any jurisdiction, shall nevertheless be binding and enforceable.
8.23 Survival. Any provision of this Agreement that, by its nature or terms, is intended to survive the termination or expiration of this Agreement, shall so survive, including, without limitation, Sections 4 (Payment Terms), 6 (Confidentiality), 7 (Intellectual Property Rights), 8.4 (Disclaimer of Warranties), 8.5 (Limitation of Liability), 8.8 (Indemnification), 8.9 (Governing Law and Dispute Resolution), and any other provision that, by its nature, should survive termination or expiration of this Agreement.
8.24 Entire Agreement. This Agreement, together with any schedules, exhibits, or other attachments hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, negotiations, representations, or communications, whether oral or written, relating to the subject matter. Each party acknowledges that it has not been induced to enter into this Agreement by any representations or promises not specifically stated herein.