To be eligible to register for a Xirsys account and use Xirsys’ Services, you must review and accept the terms of this Agreement by checking the box that states you have read and agree to these terms, when creating an account. PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND XIRSYS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CHECK THE BOX AND YOU SHOULD NOT USE XIRSYS’ SERVICES.
This Terms of Service Agreement (“Agreement") describes the terms and conditions by which Xirsys provides and permits use of its Services, as described below. This Agreement is between Xirsys (“Xirsys”), a California company located at 25350 Magic Mountain Parkway, Suite 300, Santa Clarita, CA 91355, and the user and respective company, if applicable, (“Client”) entered in the signup form to activate any of the Xirsys plans found on the Xirsys website. Xirsys reserves the right to make changes or updates to this Agreement from time to time by posting such updates to the Agreement on the Xirsys website.
1. Agreement to Rules: By checking the box that Client has read and agrees to these terms and by submitting Client information via the signup form for Xirsys Services, Client agrees to all rules, regulations, and statements made in this Agreement along with their consequences.
2. Description of Services: Xirsys Services (“Services”) include providing a WebRTC infrastructure for Client’s WebRTC application via an API and platform and all related technical and customer support.
3. 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 and all use of Service 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 Client’s 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.
4. Payment Policy: Xirsys’ current fees for the Services are set forth on the website. All fees due under this Agreement are payable in United States dollars. Client shall pay Xirsys for Services at the time of the paid plan 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 paid plan. These charges shall not change from period to period unless Client should expressly request an upgrade, downgrade, or other alteration to the Xirsys Service paid 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 payment 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 their account at least 24 hours before the end of the current billing cycle to avoid being billed for the next billing period.
5. Upgrading or Downgrading Services: Xirsys Services may be upgraded or downgraded at any time 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.
6. Term and Termination of Service: This Agreement shall begin the date Client submits Client Information via the Xirsys sign up form and shall remain in full force and effect until Client’s account is canceled or terminated, with the exception of Sections 3, 4, 6, 8, 14,15, 16, 17, 18, 21, 22 and 24 which will survive upon termination of this Agreement. Services will be suspended or terminated if: (a) 15 days after the payment due date for paid accounts, Client fails to pay any amount within the 15 day payment period; (b) Client violates any term of this Agreement; (c) Client’s traffic created from use of Services or Client’s use of Services is fraudulent or negatively impacting the operating capability of Services. If Client’s Services are suspended, Xirsys will make a reasonable attempt to notify Client. Client’s account contents may be deleted upon termination of Service 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.
7. Cancellation of Service by Client: Client shall have the right to terminate Service at any time via the Xirsys account management interface, 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 amount of any charges associated with the account that have not been satisfactorily paid, by charging Client’s credit card on file. Client’s account shall be canceled immediately upon submitting the request to cancel through the Xirsys account management interface. No refunds will be made for the current month of the billing cycle. All monies due, including but not limited to, excess bandwidth fees, application service, development, consulting and all other services offered by Xirsys, are due upon cancellation of Service.
8. 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.
9. Excessive Traffic: Client 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.
10. Service Level Guarantee and Credits: Xirsys Services will be available at least 99.95% 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 via the Xirsys API over multiple sequential attempts and Client receives a 500 response from the Xirsys API. 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 email@example.com. 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 firstname.lastname@example.org 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 99.95%, Xirsys will issue Client a service credit of 3% of Client’s monthly plan amount for every additional 30 minutes of unavailability below the 99.95% guarantee (up to 100% of customer’s monthly fee). This Service Level Guarantee is the sole and exclusive remedy for Xirsys unavailability. Client hereby acknowledges and agrees that Xirsys will not be liable for any temporary delay, outages or interruptions of the Services. 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.
11. 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.
12. Third Party Add-ons: Xirsys may make available through the Xirsys Services additional features, functionality, and services offered by its third-party partners (“Add-ons"). Client’s use of Add-ons is subject to this Agreement and to the applicable fees. By purchasing an Add-on, Client grants Xirsys permission to share any account information or usage information with the third party partner of the Add-on, as necessary in order to provide Client the Add-on and support for the Add-on. The license granted to Client to use any Add-on is exclusive and private to Client, and is not sublicensable to Client’s end users, Client may not provide or resell Add-ons to others.
13. Ownership: (a) General: As between Client and Xirsys, Xirsys exclusively owns and reserves all right, title and interest in and to Xirsys’ Services. As between Client and Xirsys, Client exclusively owns and reserves all right, title and interest in Client’s applications. (b) Use of Marks: Subject to this Agreement, both parties grant the right to use and display the other party’s name and logo (the Licensor Marks) on their respective websites and in other promotional materials solely in connection with each of their respective activities under this Agreement. Use of the Licensor Marks will be in accordance with the other party’s applicable usage guidelines and will inure to the benefit of Licensor. Neither party will use, register or take other action with respect to any of the Licensor Marks, except to the extent allowed in advance in writing by the party whose Licensor Marks are being used. In using the Licensor Marks under this subsection, both parties will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. Neither party will, at any time, misrepresent the relationship between the parties, including, but not limited to presenting itself as an affiliate or other legal agent of the other party. The rights to use and display the other party’s Licensor Marks under this subjection will end automatically in the event this Agreement terminates.
14. 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 methods without limitation: flooding, mail-bombing, denial of service attacks, any other deliberate attempts to overload the system, or any usage or attempted usage of Services for which Client is not authorized to use.
15. 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”). 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.
16. Injunctive Relief: The parties acknowledge that violation by one party of any or all of the provisions of Section 15, above, would cause irreparable harm to the other party not adequately compensable by monetary damages. In the event of an actual or threatened violation of the Section 15, the non-violating party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing of it becomes aware of any violations of Section 15.
17. 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.
18. 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 ATTORNEY FEES) EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
19. 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).
20. Jurisdiction and Venue Clause: The parties to this Agreement agree that any dispute which may arise with respect to this Agreement, without 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.
21. Arbitration Clause: Client agrees to first attempt to resolve any dispute or claim arising against Xirsys by emailing email@example.com. If the parties cannot resolve any dispute that arises through means of customer support, both parties agree to resolve any dispute arising under this Agreement, or Privacy Notices, or in relation to Services by binding arbitration in Los Angeles, California, or in another location both parties have agreed to. This applies to all claims under any legal theory, and applies whether Client’s account is active or not. If the parties have a dispute about whether this agreement to arbitrate can be enforced or applies to any dispute, both parties agree the arbitrator will decide that as well. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. AAA’s rules and procedures are available on their website http://www.adr.org or by phone at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent any thing described in this Arbitration Section conflicts with the Rules, the language of this Arbitration Section applies. Each party will be entitled to a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Arbitration Section does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
22. 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.
23. 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, 25350 Magic Mountain Parkway, Suite 300, Santa Clarita, CA 91355.
24. 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. Xirsys failure to enforce at any time any provision of this Agreement does not waive Xirsys’ rights to do so later. Use of Xirsys’ Services constitutes acceptance of this Agreement. All other terms shall be negotiated in good faith.