Agreement to Rules: By submitting Client information via the Plan Activation form for XirSys services with XirSys, Client agrees to all rules, regulations, and statements made in this Service Agreement along with their consequences.
Purpose: All services provided by XirSys may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any United States law, or the law of any other jurisdiction, is prohibited. This includes, but is not limited to: copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret or other common laws or statutes. Client warrants and represents that all material it provides to XirSys will accord with such rules, and agrees to indemnify, defend and hold harmless XirSys from any action or claim(s) resulting from or associated with the use of the service, which damages XirSys, Client or any other party(ies) in any way. XirSys services may not be used to distribute, store or transmit any virus, Trojan horse, worm or any other content that may be harmful to the XirSys network, equipment or other users.
Description of Services: XirSys services (“Services”) include providing a platform for Client’s WebRTC application development and all related technical and customer support.
Payment Policy & Termination: XirSys’ current fees for the services are set forth on the website. Client shall pay XirSys for Services at the time of account activation. Client shall pay the applicable recurring monthly fees associated with the selected XirSys Service(s). Recurring XirSys Service charges will be charged to Client’s on-file credit card each pay period on the start-date of the XirSys Service account. These charges shall not change from period to period unless Client should expressly request an upgrade, downgrade, or other alteration to the XirSys service plan. XirSys retains the right to adjust prices on any and all services. Price changes will take effect 30 days after being posted on the website. Acceptable methods of payment include MasterCard , Visa, and American Express. Any non-recurring charges incurred by Client will also be charged to Client’s on-file credit card, unless otherwise requested by Client; Client will be notified of such charges in advance via email. If valid payment for any recurring and/or non-recurring payments has not been received from Client within 15 days of the initial bill date, XirSys reserves the right to cancel Client’s account. If Client’s account has been terminated due to non-payment, and Client would like to reactivate the account, all monies that were due upon cancellation will then be due upon reactivation. Client can cancel account at any time. However, Client must cancel its accounts prior at least 24 hours before the end of the current billing cycle to avoid billing in the next billing period. Cancellations can be initiated and processed through the XirSys account management interface. XirSys reserves the right to terminate any Service if the customer breaches any term of this Agreement. XirSys reserves the right to terminate any Service at any time in its sole discretion.
Regulation of Certain Content: Client accepts that it is the Client’s responsibility to prescreen and editorially control the content of Client’s website, if any, including live and recorded audio and/or video content. XirSys reserves the right to request the removal of information in the live or recorded audio and/or video content brought to its attention which it deems detrimental to XirSys or any person. Client agrees not to include in its website(s), application(s), and in the live or recorded audio and/or video content any technology, information or material which violates or infringes any patent, trademark, copyright, trade secret or any other legal rights of any person, firm or corporation, or which a reasonable person would consider abusive, profane or offensive, which is defamatory or harassing, or which violates or encourages others to violate any applicable law. Client accepts that it is the Client’s responsibility to maintain a copy of their content, even if the Client’s content is stored on XirSys’ servers. XirSys is not responsible for maintaining copies of Client’s content. XirSys reserves the right to refuse Service to anyone, in its sole discretion. To protect itself, XirSys may without liability, actively cooperate with and furnish identifying and supporting information to any person likely to be harmed by Client’s violation of these provisions and to any law enforcement agency serving a warrant or subpoena on XirSys. XirSys will be the sole arbiter as to what constitutes a violation of this provision. Client agrees to indemnify, defend and hold harmless XirSys from any claim(s) arising out of Client’s violation of these provisions.
Excessive Traffic: XirSys does not permit usage of more than 10% of system resources for accounts on shared servers, or applications which in XirSys’ view are detrimental to the usage of XirSys Services by XirSys’ other clients, or are in the sole and final judgment of XirSys, detrimental to network or business operations. File download and system resource restrictions do not apply to enterprise accounts; however, accounts that exceed their specified bandwidth limits are subject to an extra monthly fee per each gigabyte of bandwidth transfer exceeding their monthly limits and/or restrictions placed on their account by XirSys, at the sole discretion of XirSys. Rates for excessive bandwidth are posted on XirSys’ website and correspond to the plan Client is subscribed to. XirSys may change these rates at any time in their sole discretion by posting the new rates on the XirSys website. Client will be notified via email of any excessive bandwidth usage and the related fees incurred during the current calendar month. XirSys will charge these fees to Client’s on-file credit card, unless otherwise requested by Client. Upon receiving notification of excessive usage, Client may upgrade the account to cover the additional usage and XirSys will reevaluate the excess fees, based on Client’s new account settings.
Service Level Guarantee and Credits: XirSys Services will be available at least 99.9% of the time as measured on a monthly basis for all paid accounts. Unavailability is defined as the period of time when Client’s XirSys-powered application is unable to successfully connect to the XirSys infrastructure over multiple sequential attempts. This does not include Force majeure, interruptions due to planned XirSys maintenance, improperly developed applications, claims without valid reproduction cases or with incomplete descriptions. Unavailable time starts when Client informs XirSys of the service interruption via email to firstname.lastname@example.org. Unavailable time ends when service is restored to Client’s application. Service credits are calculated as a percentage of the total charges paid by Client each month. To receive a credit, Client must contact XirSys within two (2) business days following the end of the unavailability via email at email@example.com and include the dates and times of unavailability. If the percentage of uptime applicable to the month of such a request is confirmed to be below 99.9%, XirSys will issue Client a service credit of 3% of Client’s monthly plan amount for every additional 30 minutes of unavailability below the 99.9% guarantee (up to 100% of customer’s monthly fee). This Service Level Guarantee is the sole and exclusive remedy for XirSys unavailability. Client is not entitled to a credit if Client is in breach of any term of this Agreement (including payment obligations to XirSys) or any other agreement Client has made with XirSys. XirSys Service Level Guarantee does not apply to free accounts.
Warranties: XirSys makes no warranties of any kind, whether expressed or implied, for the service it is providing. XirSys also disclaims any warranty, express or implied, of merchantability or fitness for a particular purpose. XirSys will not be responsible for any damage suffered. This includes loss of data resulting from delays, non deliveries, mis-deliveries, or service interruptions caused by XirSys’ negligence or the subscriber’s errors or omissions. Use of any information obtained via XirSys is at Client’s own risk. XirSys specifically denies any responsibility for the accuracy or quality of information obtained through its services.
Interruption of Service: Client hereby acknowledges and agrees that XirSys will not be liable for any temporary delay, outages or interruptions of the Services. Further, XirSys shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God, act of terrorism, or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
Maintenance: Client hereby acknowledges and agrees that XirSys reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. XirSys will use best efforts to notify Client of pending maintenance however, XirSys is at no time under any obligation to inform Client of such maintenance.
Termination of Service: Services will be suspended or terminated 15 days after the payment due date if Client fails to pay any amount when due. The contents may be deleted and will require then-current upload charges to reinstate the material. XirSys reserves the right to terminate any customer and any and all Services for any reason. A waiver of or failure to enforce this or any other provision by XirSys does not constitute a continuing waiver or a waiver of any other of XirSys’ rights at law or in equity.
Upgrading or Downgrading Services: XirSys services may be upgraded or downgraded at anytime via e-mail or via the XirSys account management interface; a pro-rate will be charged for any upgrade made before the end of Client’s current billing cycle, and the new plan price will take effect beginning on the next billing date. All charges incurred prior to the next billing date will be billed at the current service plan rates. If a downgrade of Services takes place before the end of Client’s current billing cycle, any remaining credit will be applied to Client’s account. The new rates will take effect on the first day of Client’s next billing cycle.
Cancellation of Service by Client: Client shall have the right to terminate service unless a XirSys Written Agreement specifies otherwise. Prior to cancellation of service, Client is responsible for removing their materials from their allotted space on XirSys’ servers. XirSys will not be responsible for storage and preservation of Client’s materials at any time. XirSys reserves the right to immediately collect up to the total of any charges associated with the account that have not been satisfactorily paid by charging the client’s Credit Card on file.
Effective Date of Cancellation: Upon receipt of written notice from Client, followed by written acknowledgement from XirSys to cancel the service, the Effective Date of Cancellation shall be the end of the current billing cycle for all XirSys accounts. No refunds will be made for the current month of the billing cycle. All monies due, but not limited to, for bandwidth, application service, development, consulting and all other services offered by XirSys are due upon cancellation of service.
Network and System Security Violations: Network and system security violations are prohibited by XirSys and XirSys reserves the right to pursue criminal and/or civil charges and/or work in conjunction with legal authorities in relation to any such violation. Examples of such violations are, but not limited to, the following: Unauthorized access of network, data, servers, files, etc that Client does not have permission to access. Any attempt to test, probe or scan the XirSys system or network, or use the XirSys network or system for the purposes of such tests, in order to ascertain vulnerability, or any attempt to breach security or authentication measures without authorization. Any attempt to interfere or disrupt the XirSys service or network by using the following, but not limited to, methods: flooding, mail-bombing, denial of service attacks, or any other deliberate attempts to overload the system. Any usage or attempted usage of services for which Client is not authorized to use.
Force Majeure: XirSys is excused from, and will not be liable for, any failure or delay in performance of responsibilities otherwise imposed by this Agreement including, but not limited to, any delay, outages or interruptions of the Services, for any cause beyond its reasonable control. Such causes shall include without limitation fires, floods, storms, earthquakes, civil disturbances, acts of God, acts of terrorism, disruption of telecommunications, transportation, utilities or necessary supplies, governmental action, computer viruses and incompatible or defective equipment, software or services not supplied by XirSys, or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
Confidentiality and Trade Secrets: (a) Confidentiality: Each party hereby acknowledges that it may be exposed to confidential and proprietary information belonging to the other party or relating to its affairs, including without limitation technical information and development techniques, business and financial information, visitor and/or customer lists and other information designated by a party as confidential or proprietary. Confidential Information does not include (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the party, or (iii) information received by a party from a third party who was free to disclose it. Each party agrees that during the term of this Agreement and at all times thereafter it shall not use, commercialize or disclose the other party’s Confidential Information except in performing its obligations under this Agreement. Each party shall use the same degree of care in safeguarding the other party’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event shall it use less than due diligence and care. Neither party shall alter or remove from any Confidential Information of the other party any proprietary, copyright, trademark or trade secret legend. (b) Trade Secrets: XirSys represents that its hardware and software configurations are trade secrets. Client shall not access internal components of hardware; source codes or object codes of software or any other internal hardware or software configurations by either direct means or by means of any process of reverse engineering. Client agrees that by failing to comply with this provision, XirSys will be irreparably damaged, and therefore Client shall be assessed liquidated damages of not less than $10,000.00, in addition to any other damages incurred. By assessing liquidated damages XirSys does not waive its right to use any other legal remedy available to it.
Injunctive Relief: The parties acknowledge that violation by one party of any or all of the provisions of Confidentiality and Trade Secrets, above, would cause irreparable harm to the other party not adequately compensable by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
Limitation of Liabilities: The following provisions are material conditions of this Agreement and reflect a fair allocation of risk: (a) Remedies. Client agrees that if XirSys violates any warranty or other provision of this Agreement and XirSys in its sole discretion determines that repair or other corrective action is not economically or technically feasible, Client’s sole and exclusive remedy will be to seek a refund of up to the amount paid by Client to XirSys for services rendered hereunder during the previous one (1) month. (b) Liabilities. XIRSYS IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID BY CLIENT FOR SERVICES HEREUNDER DURING THE ONE (1) MONTH PRECEDING THE EVENT GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL XIRSYS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES) EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
Jurisdiction and Venue Clause: The parties to this Agreement agree that any dispute which may arise with respect to this Agreement, without the limitation, will be resolved pursuant to the law of the State of California. The forum for venue for the judicial or alternate dispute resolution of such dispute shall be proper only within the County of Los Angeles, California. The parties hereto consent to the jurisdiction of the courts of the State of California for purposes of enforcing the arbitration provision and proceedings and further consent that any process of notice of motion or other application to the Court or the judge thereof may be served upon the parties by certified or registered mail, return receipt requested.
Disputes: Except actions for certain injunctive relief authorized which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes shall be submitted to a single arbitrator for binding arbitration under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall be limited to remedies otherwise available in court and shall include a written explanation of the decision.
Arbitration Clause: The parties to this Agreement agree that any and all disputes, claims and controversies between them arising out of, under, or relating to, this Agreement, or any resulting transaction will be resolved by neutral binding arbitration with the American Arbitration Association with each side initially paying the cost of such proceeding equally. If the parties cannot agree on an arbitrator, each shall select one from the American Arbitration Association’s list of active arbitrators in Los Angeles, and the two selected arbitrators shall choose a third arbitrator from the American Arbitration Association’s list of active arbitrators in Los Angeles, which chosen arbitrator will be the arbitrator of the dispute. The parties will have the right to discovery in accordance with California Code of Civil Procedure section 1283.05. In all other respects, the arbitration will be conducted in accordance with Title 9 of Part III of the California Code of Civil Procedure. The arbitrator may award any form of remedy or relief (including specific performance or other injunctive relief) that would otherwise be available in court. The prevailing party shall be entitled to recover the costs of the arbitration and attorney’s fees. This agreement to arbitrate includes all claims, including, but not limited to, any claims for breach of contract, breach of fiduciary duty, and fraud. The parties to this Agreement expressly waive their right to have their matter resolved by a jury and/or sitting judge, except as otherwise set forth herein. The award rendered by the arbitrator shall be conclusive and binding on the parties hereto, and judgment on the award of the arbitrator may be entered in any court having competent jurisdiction. The arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error. Interpretation of this agreement to arbitrate shall be governed by the rules of the American Arbitration Association. YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION” PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL, EXCEPT AS OTHERWISE SET FORTH HEREIN.
Export Regulations: The transfer of technology across national boundaries is regulated by the US Government. Client agrees not to export or re-export (including by way of electronic transmission) any data or technology derived from its audio and/or video stream without first obtaining any required export license or governmental approval. Client shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by US regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the US Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.
Intellectual Property: XirSys prohibits the use of its network or services to store, distribute, reference domain names or make any other use of any material protected by trademark, copyright, patent or other intellectual property right without proper authorization.
Notices: All notices given hereunder must be in writing and transmitted by E-mail, Fax, U.S. Mail, return receipt requested, or special courier service (Fed Ex, UPS, etc.). Notice information shall be sent to XirSys, 28110 Avenue Stanford, Unit D, Valencia, CA 91355.
Miscellaneous: This is the entire Agreement between the parties. This Service Agreement supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any order submitted. This Agreement may be modified or amended only by a writing signed by the party against whom enforcement is sought. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Headings are for reference purposes only and have no substantive effect. Each party is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Use of XirSys’ services constitutes acceptance of this Agreement. All other terms shall be negotiated in good faith.