Terms of Service


INTRODUCTION


Thank you for using Xencall. These Terms of Service (the "Terms") and the associated order for Services (the “Order”, and together with these Terms, the “Agreement”) govern your access to and use of Xencall (which include the Xencall website, the Xencall hosted services, and the Software (as defined below), all together, the "Services"). Please read them carefully before using the Services.


By using the Services you are agreeing to the terms and conditions of the Agreement. If you are using the Services on behalf of an organization, you are agreeing to the Agreement on behalf of that organization and representing that you have the authority to bind that organization to the Agreement. In that case, "you" and "your" will refer to that organization. Xencall and you are each a “Party” to the Agreement.


You may use the Services only in accordance with the Agreement. You may use the Services only if you have the legal power and capacity to form a contract with Xencall. The Services will continue to evolve as we refine features and functionality, and we may modify the Services, in general or with respect to you, from time to time without prior notice. We may delete any content or data from the Services to meet our regulatory obligations or protect you, other Xencall Customers, and/or the Services.


AGREEMENT

1. DEFINITIONS


a. “Required Equipment” means any equipment that Subscriber is responsible for obtaining in order to use the XENCALL CALL CENTER SUITE Services.


b. “Subscriber Information” means Subscriber’s contact and other business information.


c. “Subscriber Renewal Date” shall mean the date each month or year that the Subscriber is billed for the XENCALL CALL CENTER SUITE Services. The Bill Date is determined by the Service Activation Date as described in Section 3(c).


d. “Seats” or “Seat Subscriptions” means the maximum number of concurrent Subscriber Users that may simultaneously access the XENCALL CALL CENTER SUITE. The number of Seat Subscriptions is as set forth on the Service Order Form(s) and invoice(s).


e. “Service Activation” has the meaning set forth in Section 3(a).


f. “Service Activation Date” is the date on which the Subscriber account is activated and provisioned and has the meaning set forth in Section 3(a).


g. “Service Order” means any written service order, including the initial service order, signed by each party specifying the particular XENCALL CALL CENTER SUITE Services being ordered by Subscriber.


h. “Term” has the meaning set forth in Section 4(a).


i. “User” means an end user who is authorized to use the XENCALL CENTRE SUITE on behalf of Subscriber.


j. “XENCALL CALL CENTER SUITE” means XenCALL’s proprietary hosted Call Center Suite software and system, hosted on servers owned and operated by XenCALL that enables the user to process data and to deliver text, recorded messages and/or voice conversations by telephone to a list of recipients that have been created and input by the user.


k. “XENCALL CALL CENTER SUITE Services” means all services or products provided through the XENCALL CALL CENTER SUITE including a fixed number of seat subscriptions, any specially ordered premium services, and implementation services.



2. USE OF XENCALL CALL CENTER SUITE


a. Service Orders. The form of Service Order invoice provides a description of the XENCALL CALL CENTER SUITE Service products ordered from XenCALL. Subscriber shall complete an initial Service Order prior to being provided access to any XENCALL CALL CENTER SUITE Services. Thereafter, Subscriber shall complete a Service Order each time Subscriber wishes to order additional XENCALL CALL CENTER SUITE Services. Each Service Order shall indicate: (i) the XENCALL CALL CENTER SUITE Services selected by Subscriber, including any premium services; (ii) the implementation services to be provided by XenCALL for such XENCALL CALL CENTER SUITE Services; (iii) the term of such XENCALL CALL CENTER SUITE Services, if applicable; (iv) the applicable XENCALL CALL CENTER SUITE Service seat subscription fee, implementation and activation fees; and (v) any other special terms or fees that may apply to the selected XENCALL CALL CENTER SUITE Services. Service Orders are only valid once signed by Subscriber and

XenCALL.


b. Subscriber Information. Subscriber shall provide accurate, current and complete registration Subscriber Information, including, without limitation, Subscriber’s legal name, address, email address, telephone number and, where applicable, payment information. Subscriber agrees to promptly notify XenCALL of any changes in Subscriber Information and to verify such information as XenCALL may reasonably request. Subscriber acknowledges and agrees that Subscriber’s failure to provide XenCALL with accurate Subscriber Information may lead to XenCALL’s suspension or termination of Subscriber’s account and/or access to the XENCALL CALL CENTER SUITE Service, which suspension or termination shall be at the sole discretion of XenCALL.


c. Subscription. Subject to the terms and limitations of this Agreement, XenCALL agrees to provide Subscriber access to the XENCALL CALL CENTER SUITE and the XENCALL CALL CENTER SUITE Services set forth on a Service Order and or invoice, up to the number of Seats specified on such Service Order and or invoice, during the Term on a non-exclusive, non-transferable, revocable basis, solely for Subscriber’s internal business purposes. . Additionally, each User may only log into the Site from one location at a time. Simultaneous usage of an Account where the usage is perceived to be from multiple individuals may be billed at the per-account rate on a per-individual basis.  Each Account may only have one individual utilizing the account simultaneously.  XenCALL may monitor the network for simultaneous user access and at its discretion bill for misuse including at its discretion, administrative fees of $200.00 per simultaneous usage. Should the Subscriber wish to add additional licences to their account, XenCALL must be notified in writing of this. Once the new Users have been provisioned and added to the Subscribers account, the fee for the amount of subscriptions to add will be billed in advance on a pre-paid pro rated basis dependant on the specific Subscribers billing cycle. In the event a Subscriber wishes to reduce their Seat Subscription count; XenCALL must be notified a minimum of 30 days in advance for this, Subscriber will be responsible for the billing of said subscriptions during the 30-day period.



d. Use Restrictions. Subscriber agrees not to (i) sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the XENCALL CALL CENTER SUITE Service available to any third party in any way; (ii) modify or make derivative works based upon the XENCALL CALL CENTER SUITE Service; (iii) create unauthorized Internet "links" to the XENCALL CALL CENTER SUITE Service or "frame" or "mirror" any content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the XENCALL CALL CENTER SUITE Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the XENCALL CALL CENTER SUITE Service, (c) copy any ideas, features, functions or graphics of the XENCALL CALL CENTER SUITE Service, (d) Upload and call lead files (phone numbers) that exceed 5% NIS- Not In Service, files of this nature may be deemed a burden to the XenCALL network and XenCALL reserves the right omit these specific lead files from being dialed by our platform, or (e) used the XENCALL CALL CENTER SUITE to violate any applicable law or regulation.



e. Technical Requirements for Use of the XENCALL CALL CENTER SUITE. In order to utilize the XENCALL CALL CENTER SUITE Service, Subscriber must adhere to certain technical specifications and acquire and maintain certain minimum hardware, software and Internet connectivity, which is posted on the XenCALL website, and is subject to change with no notice. During the sales process and prior to XENCALL CALL CENTER SUITE Service activation, XenCALL, with Subscriber’s cooperation, will conduct an assessment of Subscriber’s current Required Equipment. Based on this assessment, XenCALL may recommend adjustments to the Required Equipment in order to meet the minimum technical requirements to utilize the XENCALL CALL CENTER SUITE Service. Subscriber is ultimately responsible for implementing any recommendations made by XenCALL with respect to Required Equipment and also for the ownership and ongoing maintenance of Required Equipment. XenCALL’s recommendations with respect to Required Equipment do not constitute a guarantee or warranty as to the future suitability of the Required Equipment for operating the XENCALL CALL CENTER SUITE Service. A USB headset is required to utilize the XENCALL CALL CENTER SUITE. XenCALL agrees to provide 90 days written notice in the event that there is a change to the minimum system requirements to utilize the XENCALL CALL CENTER SUITE permitting the change is not to a dependant software of XenCALL. In the event of an imminent system upgrade of minimum technical requirements to XENCALL CALL CENTER SUITE dependant software, XenCALL may contact its clients with little or no notice of this change. (1) SUBSCRIBER ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR OBTAINING AND SUPPORTING REQUIRED EQUIPMENT AS NECESSARY TO UTILLIZE THE XENCALL CALL CENTER SUITE SERVICE, AND SUBSCRIBER MAY NOT TERMINATE THIS AGREEMENT OR REQUEST A REFUND BASED ON A FAILURE OF ITS HARDWARE, SOFTWARE OR INTERNET CONNECTIVITY TO PROPERLY FUNCTION WITH THE XENCALL CALL CENTER SUITE SERVICE.


f. User Name and Passwords. Subscriber are responsible for maintaining the security of Subscriber’s account, passwords, and files. XenCALL will accept the instructions of any individual who claims to be authorized to direct changes to Subscriber’s account so long as such person presents a valid username and password or provides other appropriate account identifying information as determined by XenCALL in its sole discretion, by email or by phone, or third party. XenCALL will not be responsible for the actions of any individuals who misuse or misappropriate any of Subscriber’s content or assets using any User’s username and password or other appropriate account identifying information. XenCALL may suspend or cancel a User account if it believes that the account has been victim of unauthorized access, and will do its best to inform Subscriber first but is under no obligation to do so.



3. ACTIVATION, FEES AND BILLING


a. Initial Service Activation and Provisioning. Prior to the activation of the XENCALL CALL CENTER SUITE Services set forth in Subscriber’s initial Service Order, Subscriber shall pay XenCALL the fees specified in the Service Order, including implementation and activation fees, as well as the Seat Subscription fees (collectively, the “Activation Fee”). Upon receipt of the Activation Fee, XenCALL will activate Subscriber’s account and commence the provisioning process for the XENCALL CALL CENTER SUITE Service (the date of the initial Service Activation represents the “Service Activation or Provisioning Date”). The initial provisioning process creates the Subscriber’s unique domain within the XENCALL CALL CENTER SUITE, and enables the Subscriber to login and access the XENCALL CALL CENTER SUITE, to upload and access data, and make and receive calls. b. Subsequent Service Orders. For subsequent Service Orders, XenCALL shall commence the provisioning process for the additional XENCALL CALL CENTER SUITE Service as required by such Service Orders upon receipt of the applicable Activation Fee.


b. Fees, Subscriber Bill Date and Billing Cycle. Subscriber shall pay XenCALL the annual fees for the XENCALL CALL CENTER SUITE Services as set forth on an applicable Service Order (“Service Fee”). Unless otherwise indicated in a Service Order or in this Agreement, Subscriber shall pay all annual Seat Subscription Fees in advance. The Subscriber’s billing cycle begins on the Service Activation Date and Subscriber shall be invoiced each year on the same date as the Service Activation Date(the “Subscriber Renewal Date”). The Subscriber Renewal Date will be the bill date for all XENCALL CALL CENTER SUITE Services ordered by Subscriber pursuant to this Agreement, and partial overages (added subscription fees) shall be pro-rated from the time of order to the Subscribers next annual Bill Date. Each invoice will include all annual or monthly Service Fees for the applicable XENCALL CALL CENTER SUITE Services in use by Subscriber and any additional recurring premium services for the, next billing period applicable, any professional services or other one-time charges for services delivered during the billing period will be billed on a monthly recurring basis.


c. Payment Terms. Payment terms for Service Fees and other fees due on a given invoice are “Due upon Receipt”, unless otherwise stated on the invoice. Payment of all fees (including any Service Fees and Activation Fees), whether in advance of service or for services incurred, can be made by credit card to XenCALL. Subscribers paying for XenCALL services shall upload their credit card to Xencalls payment partner Stripe, which expressly authorizes XenCALL to charge directly the credit card account number provided by Subscriber to pay for any and all charges incurred and invoiced under this Agreement. Subscriber shall be responsible for all sales, value-added or similar taxes due under this Agreement. Past due balances, including past due balances resulting from returned checks or charge-backs, are subject to an interest charge of 1.5% per month or the maximum amount permitted by applicable law, whichever is less.


d. Refund Policy. All prepaid fees under this Agreement are non-refundable, except as may be required by law.


e. Disputed Charges and Resolution of Disputes. Subscriber agrees to pay all undisputed charges under this Agreement without counter-claim, set-off or deduction. In the event, Subscriber legitimately and reasonably disputes an invoiced amount, Subscriber will provide XenCALL with written notice (via e-mail at billing@XenCALL.com) of the amount in dispute and the basis for the dispute within seven (5) business days of receipt of the invoice. XenCALL agrees that it will work with Subscriber to reasonably and expeditiously resolve the dispute. Subscriber agrees that any undisputed amounts shall remain due and payable in accordance with the normal seven (7) day payment terms. After (5) business days if an invoice is not disputed it is deemed correct and payable to XenCALL.


f. No Waiver. Failure of XenCALL to charge Subscriber’s credit card or to invoice Subscriber in a timely manner for any amounts due under this Agreement shall not be deemed a waiver by XenCALL of its rights to payment for such amounts, and all outstanding amounts shall remain due and payable by Subscriber.


4. TERM AND TERMINATION


a. Initial Term and Automatic Renewals. Unless earlier terminated as provided in this Agreement, this Agreement commences on the Service Activation Date and shall continue for either one (1) month or one (1) year ("Initial Term"), subject to your order and shall automatically renew for consecutive monthly (1) or yearly (1) periods (each a "Renewal Period" and all Renewal Periods together with the Initial Term, the “Term”) thereafter, unless either party has provided notice of its intent not to renew this Agreement in accordance with Section 4(c).


b. Changes to Service Fees During Renewal Terms. XenCALL reserves the right to modify its Service Fees and charges for premium services for future Renewal Periods but must provide Subscriber with at least sixty (60) days notice in the case of annual contracts to allow Subscriber sufficient time to exercise its right to cancel service at the expiration of the then current term.


c. Cancellation Notice Requirement. Subscriber may completely cancel this Agreement or partially reduce its XENCALL CALL CENTER SUITE Services under this Agreement by providing XenCALL with written notice (via e-mail at billing@XenCALL.com) as follows:

    1. Notice of cancellation of the Agreement or of reduction of certain XENCALL CALL CENTER SUITE Services must be provided at least thirty (30) days prior to the expiration of the annual contract Term of such XENCALL CALL CENTER SUITE Services, as applicable.


d. Suspension or Termination by XenCALL. XenCALL may suspend or cancel Subscriber’s access to a XENCALL CALL CENTER SUITE Service or terminate this Agreement as follows:


    1. For Delinquent Accounts. XenCALL may suspend or disable Subscriber's access to the XENCALL CALL CENTER SUITE Service for any accounts for which payment is delinquent, provided however that XenCALL shall have provided Subscriber with adequate notice and sufficient time to cure the delinquency.


    1. For Cessation of XENCALL CALL CENTER SUITE Service. XenCALL may suspend access to any portion or feature of the XENCALL CALL CENTER SUITE Service by providing Subscriber with written notice with the date it intends to cease providing such XENCALL CALL CENTER SUITE Service; except, however, in the case of Renewal Periods, cancellation without cause may not occur prior to the start of the next Renewal Period.

    2. For Actual or Potential Harm to XenCALL or a Third Party. XenCALL may suspend or terminate Subscriber’s account if XenCALL has reason to believe that Subscriber (x) is using the XENCALL CALL CENTER SUITE Service in a manner that may cause immediate and ongoing harm to XenCALL or to a third party, including but not limited to, actions that violate federal, state or local laws, rules or regulations, such as compliance with "Do Not Call Lists"; (y) is compromising the security of the XENCALL CALL CENTER SUITE Service and the privacy of XenCALL's other Subscribers; or (z) is engaging in other activity not specifically identified herein that could reasonably be construed as causing or potentially causing harm to XenCALL or a third party. XenCALL agrees that in the event it becomes aware of such actions by the Subscriber it will immediately notify the Subscriber of the unauthorized activity and either allow the Subscriber reasonable time to cease the activity or, if warranted by the circumstances, immediately suspend Subscriber's access to the XENCALL CALL CENTER SUITE Service.

    3. For any actual or alleged violation by Subscriber of any law or regulation, including without limitation, state/provincial consumer protection law, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the FTC Act, the CAN-SPAM Act, the Truth in Caller ID Act, any rule promulgated or enforced by the Canadian Radio-Television and Telecommunications Commission, or the Canada Anti-Spam Law.


e. Resumption of Service. Subscriber's resumption of access to the XENCALL CALL CENTER SUITE Service following a suspension by XenCALL for the reasons cited above will not extend the Term, nor result in an extension of the period covered by the prepaid Service Fees. Resumption of Subscriber’s account following suspension or termination by XenCALL is subject to the sole discretion of XenCALL. If XenCALL allows Subscriber to resume using the XENCALL CALL CENTER SUITE Services, Subscriber may be subject to a reconnection fee and applicable retraining fees, and must pay in full all outstanding account balances.


f. No Subscriber Initiated Suspensions of Service. Subscriber understands that it has entered into an Agreement with a specific term and that nothing contained in the Agreement conveys the right to the Subscriber to suspend service in whole or in part during the Initial Term or during subsequent Renewal Periods, nor is the Subscriber entitled to a refund of any prepaid XENCALL CALL CENTER SUITE Service Fees on the basis of requesting a suspension of service.



g. Effect of Termination. Upon termination of this Agreement, (i) all subscriptions and rights granted hereunder shall immediately terminate and Subscriber shall have no right to continue to access or use the XENCALL CALL CENTER SUITE Service, (ii) each party shall return or, at the option of the other party, destroy all Confidential Information of the other party in its possession or control and (iii) Subscriber shall promptly pay all outstanding fees and charges associated with Subscriber’s account up through the date of termination, (including charges for services delivered by XenCALL that have not yet been invoiced), provided that XenCALL reserves the right to apply any security deposit or pre-paid charges or other amounts delivered by Subscriber to XenCALL to satisfy any amounts owed to XenCALL under the terms of this Agreement. All outstanding payment obligations whether invoiced or not shall survive any termination or expiration of this Agreement.



5. SUBSCRIBER ACCOUNTS AND SECURITY


Subscriber is responsible for all authorized and unauthorized access, activities and charges associated with the Subscriber's account and/or password(s) with XenCALL, except for unauthorized charges that can reasonably be determined to be the result of XenCALL's negligence in providing sufficient safeguards against unauthorized third-party access to Subscriber's account. Subscriber is responsible for the confidentiality of its password(s), for all charges incurred from the use of the XENCALL CALL CENTER SUITE Service with its password(s) and for any and all charges made through the Subscriber's account by Subscriber's employees, agents, principals, consultants, or other entities or individuals in the employ of or engaged by Subscriber regardless of the reason for such charges. If Subscriber, or someone to whom Subscriber has given access to the XENCALL CALL CENTER SUITE Service, violates this Agreement, Subscriber's account may be terminated pursuant to Section 4, and Subscriber will be liable for all fees, charges, and damages of any kind related thereto.



6. DATA USE


a. Data Use. During the normal operation of the XENCALL CALL CENTER SUITE Service, XenCALL will collect and store on its systems certain information and data provided or collected by the Subscriber (“Subscriber Data”). During the Term, Subscriber authorizes XenCALL to store Subscriber Data on its internal systems and to use and copy Subscriber Data for the purpose of providing the XENCALL CALL CENTER SUITE Service to Subscriber in accordance with this Agreement. Additionally, Subscriber agrees that XenCALL may use Subscriber Data during the Term to create aggregated, anonymized services data (“Services Data”) for which XenCALL shall exclusively own. XenCALL acknowledges that the Subscriber maintains ownership of all Subscriber Data uploaded, stored and provided into the XENCALL CALL CENTER SUITE. XenCALL provides no warranty to the accessibility of your data. You agree to absolve XenCALL from all liability related to misuse, use, unauthorized access.


b. Data Ownership. Any and all service and data products and information available from the XENCALL CALL CENTER SUITE (including any related websites) (collectively, the “Data”) shall at all times remain the sole property of XenCALL or the third-party data owners (“Data Owners”) who provided the Data to XenCALL. Neither Subscriber nor any User of the XENCALL CALL CENTER SUITE has any proprietary rights whatsoever in the website or Data. Subscriber will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the website. Data that is owned by third party Data Owners includes Data.


c. Data Storage. During normal operation of the XENCALL CALL CENTER SUITE Service, XenCALL will store and collect Subscriber Data, leads, CDRs and CRM records on the Subscriber’s behalf. XenCALL reserves the right to delete this Subscriber Data without notice from our servers after 24 hours of a Subscriber’s account being deemed terminated to ensure sufficient space is available for active clients. During the Term, XenCALL shall store recordings for a minimum of 30 days for client’s retrieval, after 30 days any calls that are 15 seconds or shorter will be deleted from the XenCALL network and become inaccessible.



7. EMERGENCY SERVICE (911 CALLING) NOT PROVIDED


a. No Requirement to Offer Emergency Services. Subscriber understands and acknowledges that XenCALL does not and is not required to provide Emergency Service, where “Emergency Service” is defined as services that connect a user to emergency services personnel or a public safety answering point ("PSAP"), pursuant to applicable regulatory requirements. In the United States and Canada, Emergency Service is provided by dialing the digits "911" on a wired or a wireless telephone. Services provided by XenCALL do not permit the dialing of "911" or any other emergency telephone numbers.


b. No PSAP. XenCALL Services are not telephone or telecommunications services that can provide a connection to emergency services personnel or a PSAP under any circumstances. Subscriber further recognizes and agrees that XenCALL is not a replacement for Subscriber's primary telephone service. SUBSCRIBER ACKNOWLEDGES AND ACCEPTS THAT XENCALL'S SERVICES DO NOT INCLUDE EMERGENCY SERVICE. SUBSCRIBER UNDERSTANDS AND AGREES THAT ADDITIONAL ARRANGEMENTS WITH A THIRD PARTY MUST BE MADE BY SUBSCRIBER

TO ACCESS EMERGENCY SERVICE.


c. Specific Disclaimer of Liability for Emergency Service. XenCALL does not provide Emergency Service in conjunction with the XENCALL CALL CENTER SUITE Service or any other services that may be used by Subscriber in connection with XenCALL's services. XenCALL, its officers, directors, employees, shareholders, affiliates nor agents will be liable for any claim, damage, or loss arising from, or relating to, Subscriber’s use of XenCALL’s services or any other service provided hereunder to contact a PSAP or Emergency Services personnel. Subscriber specifically waives, to the maximum extent permitted by applicable law, any and all such claims or causes of action, arising from or relating to XenCALL's services or any other service provided hereunder to contact a PSAP or other Emergency Services personnel. Subscriber agrees to defend, indemnify, and hold

harmless XenCALL, its officers, directors, employees, shareholders, affiliates and agents from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, court costs and attorneys fees) arising out of the fact that XenCALL does not offer Emergency Service.



8. COMPLIANCE WITH LAWS; “DO NOT CALL” REGULATIONS


a. Compliance with Law.:  Subscriber is required to use the XENCALL CALL CENTER SUITE in full compliance with all applicable laws and regulations, including without limitation, all state, federal and international: (i) professional licensing rules of conduct; (ii) Do-Not-Call (“DNC”) list prohibitions; (iii) registration and bonding requirements; (iv) consumer cancellation rights; (v) wireless calling restrictions; (vi) restrictions on the use of automatic telephone dialing systems and pre-recorded messages; (vii) opt-out rules; (iix) mandatory disclosures (ix) intellectual property rights and restrictions; and (x) other product or industry regulations.  By making any use of the XENCALL CALL CENTER SUITE, Subscriber expressly warrants to XenCALL that Subscriber is and shall continue to act in full compliance with the law. All XenCALL offers are void where prohibited by law. Subscriber agrees that Subscriber has read and understands the FTC’s Telemarketing Sales Rule (“TSR”) and the FCC’s Telephone Consumer Protection Act (“TCPA”), the FTC Act, the CAN-SPAM Act, the Truth in Caller ID Act, all rules promulgated or enforced by the Canadian Radio-Television and Telecommunications Commission, the Canada Anti-Spam Law, and all other applicable laws and regulations. Subscriber should review these rules with Subscriber’s own legal counsel to ensure that Subscriber understands and is fully compliant.  XenCALL does not assume responsibility for ensuring that Subscriber’s marketing campaigns meet applicable legal requirements. XenCALL will not assume any liability if Subscriber is ever held guilty or liable for any law violation. Notwithstanding the foregoing, Subscriber acknowledges that XenCALL has and is taking active steps to ensure the compliance of its Subscribers, including by having Subscriber agree to these terms and otherwise. If XenCALL discovers evidence demonstrating that Subscriber has violated the law, XenCALL may suspend or terminate the Subscriber’s use of the XENCALL CALL CENTER SUITE immediately.


b. Cell Phones. Subscriber understands that the TCPA prohibits certain types of telemarketing calls to cell phone and agrees not to use the XENCALL CALL CENTER SUITE to market to cell phones except as allowed by law.  Subscriber assumes all risks if Subscriber elects to call cell phones.  Subscriber will not engage in any SMS/text marketing, except as allowed by law.


c. SAN Numbers & DNC.  Subscriber acknowledges that certain sellers and telemarketers may be required to purchase their own Subscription Account Number (“SAN”) to the National DNC registry, including all area codes into which they call or transmit messages.  Subscriber agrees to obtain a SAN number and all applicable area codes, unless exempt.  Subscriber agrees to purchase and scrub against any applicable state or federal DNC list, unless exempt. Subscriber shall refrain from marketing to any consumer who has opted-out by asking not to receive future marketing from Subscriber. Unless SCHEDULE A specifies otherwise, Subscriber (not XenCALL) shall be responsible for maintaining and enforcing an internal DNC list of consumers who have opted out of Subscriber’s marketing.


d. Call Abandonment Rate/Drop Rate. Regarding any abandoned (dropped) calls, Subscriber understands and agrees to ensure that it does not drop more calls than allowed by law.


e. No Legal, Financial or Tax Advice Provided.  No financial, legal, or tax advice or counsel is given, or shall be deemed to have been given by XenCALL or its affiliates and contractors, or by the XENCALL CALL CENTER SUITE.



9. WARRANTY; DISCLAIMER OF WARRANTY


a. Representations and Warranties. Each party represents and warrants to the other party that (i) it has the power and authority to enter into and perform all obligations under this Agreement and (ii) it will comply with all applicable laws in its performance under this Agreement.


b. Warranty Disclaimer. XENCALL IS PROVIDING THE XENCALL CALL CENTER SUITE SERVICE AS A HOSTED SERVICE AND THE XENCALL CALL CENTER SUITE SERVICE IS DELIVERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. XENCALL DOES NOT WARRANT THAT THE XENCALL CALL CENTER SUITE SERVICE WILL BE UNINTERRUPTED OR THAT ALL COMMUNICATIONS WILL BE DELIVERED, NOR DOES XENCALL MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE XENCALL CALL CENTER SUITE SERVICE. XENCALL MAKES NO WARRANTIES OR CONDITIONS, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS, OF MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE XENCALL CALL CENTER SUITE SERVICE. Subscriber understands that the XENCALL CALL CENTER SUITE Service may be inaccessible or inoperable due to scheduled periodic maintenance and upgrades or for reasons beyond XenCALL's reasonable control including but not limited to (i) Subscriber or XenCALL equipment malfunctions; or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to XenCALL’s or the Subscriber’s data centers.


10. LIMITATION OF LIABILITY


UNDER NO CIRCUMSTANCES SHALL XENCALL BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY LOSS, DAMAGE OR LIABILITY RELATING TO: (I) LOSS OR CORRUPTION OF DATA; (II) INABILITY TO ACCESS THE XENCALL CALL CENTER SUITE SERVICE; (III) PERFORMANCE RELATED DELAYS; (IV) COMPUTER VIRUSES; (V) LOSS OF BUSINESS DUE TO INOPERABILITY OR PERFORMANCE OF XENCALL CALL CENTER SUITE SERVICE; (F) NON-DELIVERY OR MIS-DELIVERY OF COMMUNICATIONS; (VI) THE NEGLIGENT ACTS OF OTHER XENCALL SUBSCRIBERS; (VII) ANY DEFECTS, FAILURES, ERRORS, OMISSIONS OR MISSTATEMENTS IN ANY AND ALL INFORMATION DELIVERED BY OR PROVIDED FOR DELIVERY BY THE XENCALL CALL CENTER SUITE SERVICE; AND (VIII) LOSS OR LIABILITY RESULTING FROM ACTS BEYOND XENCALL'S CONTROL. IN NO EVENT SHALL XENCALL’S LIABILITY UNDER THIS AGREEMENT EXCEED ALL SUBSCRIPTION FEES PAID BY SUBSCRIBER TO XENCALL IN THE ONE (1) YEAR PERIOD PRIOR TO THE DATE OF THE EVENT THAT GAVE RISE TO THE LIABILITY OR ANY LIABILITY RELATING TO ANY USE OF THE XENCALL CENTER SUITE SERVICE TO MAKE AN ACTUAL OR ALLEGED LAW VIOLATION.


11. INDEMNIFICATION


a. By Subscriber. Subscriber agrees to indemnify, hold harmless and defend XenCALL, its shareholders, directors, officers, employees and agents from and against any action, claim, or damage, including reasonable costs and attorney's fees, asserted by any person, arising out of or relating to: (i) personal injury or property damage to the extent such claims or liabilities arise out of negligent or wilful acts or omissions of Subscriber and/or its employees or agents in connection with their duties and responsibilities under this Agreement; (ii) Subscriber’s breach of this Agreement; (iii) Subscriber's unauthorized use of the XENCALL CALL CENTER SUITE Service, including any information, communication, data or work that Subscriber provides in connection with Subscriber’s use of the XENCALL CALL CENTER SUITE Service; (iv) libelous, slanderous, indecent or other statement concerning any person made or republished by Subscriber; or (v) and actual or alleged violation of federal, state and/or local law.



b. IP Indemnity. XenCALL agrees to indemnify, hold harmless and defend Subscribers from and against any action, claim, or damage, including reasonable costs and attorney's fees, asserted by any person, arising out of or relating to any alleged or actual infringement by the XENCALL CALL CENTER SUITE Service of any patent, trademark, or copyright, or alleged or actual misappropriation of any trade secret, provided Subscriber is using the XENCALL CALL CENTER SUITE Service as authorized under this Agreement. The Site and the information on it are the property of XenCALL, and their affiliates. The unauthorized copying or dissemination of any copyright, trademark, or service mark is prohibited by United States and Canadian copyright law, trademark law and other intellectual property laws and conventions.


c. Procedure. An indemnified party shall (i) permit the indemnifying party to defend or settle any such claim, provided, however that (x) the indemnifying party shall not enter into any settlement agreement that would result in any admission by the indemnified party or payment by the indemnified party without the indemnified party’s prior written consent, and (y) the indemnified party may at its election participate in the defense of such claim, suit or the like through separate counsel at its own expense, and (ii) provide the indemnifying party all reasonable assistance (at the expense of the indemnifying party ) in connection with the defense or settlement of any such claim, suit or the like. Notwithstanding the foregoing, XenCALL has the right, but not the obligation, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to Subscriber’s indemnification pursuant to Section 12(a).


d. Content. Neither XenCALL nor any of its service providers operate or control the content transported by the XENCALL CALL CENTER SUITE Service .  As such, neither XenCALL nor any of its service providers shall have any liability or responsibility for the content of any communication or information transmitted via the XENCALL CALL CENTER SUITE Service .  Subscriber agrees to indemnify and hold Provider, the service providers, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of the content of any communication or information transmitted via the XENCALL CALL CENTER SUITE Service .   


12. OWNERSHIP OF MATERIALS AND RIGHTS


The XENCALL CALL CENTER SUITE Service is proprietary to XenCALL and is protected by intellectual property laws and international intellectual property treaties. Except for the express licenses in this Agreement, nothing in this Agreement shall convey, transfer or assign any right, title or interest in any party's Proprietary Materials to the other party. As such, each party retains exclusive ownership of its Proprietary Materials (as defined below) in existence as of the Effective Date or developed by it during the Term. For purposes of this Agreement, "Proprietary Materials" means all patents, copyrights, design rights, trademarks, service marks, trade secrets and other worldwide intellectual property or proprietary rights owned by a party during the Term, and the software, schematics, diagrams, information, and other tangible embodiments, if any, relating thereto. All rights not granted by XenCALL herein are expressly reserved.


13. MISCELLANEOUS

a. Applicable Law. This Agreement shall be governed by the laws of the Province of British Columbia and Canada without reference to conflicts of laws. Venue for any and all actions arising out of this Agreement shall be the Provincial Court of British Columbia.


b. Amendments. Other than pursuant to Sections 4(b) and 4(d)(i), no amendment of this Agreement will be binding unless it has been agreed to in writing by both parties.


c. Emails. XenCALL reserves the right to distribute informative emails regarding the XENCALL CALL CENTER SUITE Service to Subscriber on an ad hoc basis.


d. Force Majeure. Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement (other than payment of fees) when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party, including but not limited to fire, floods, embargoes, war, acts of war, insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority; provided, however, that the party so affected shall promptly notify the other party of the force majeure event and use reasonable commercial efforts to avoid or remove such causes of non-performance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.


e. Waiver and Severability. No failure, delay in exercising or enforcing any right or remedy hereunder by XenCALL shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is only to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.


f. Assignment. Subscriber may not assign this Agreement or any of its rights and obligations hereunder without the prior written consent of XenCALL. Any attempted assignment without such prior written consent shall be void.


g. Attorneys' Fees. In the event of a dispute arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees.


h. Notices. All notices, authorizations, and requests in connection with this Agreement shall be deemed given (i) five (5) days after they are deposited with the Canada Post Postal Service, first-class postage prepaid; or (ii) one (1) business day after they are sent by air express courier, or (iii) upon receipt if sent by facsimile or electronic mail (with receipt-confirmation of successful delivery). All notices shall be delivered to XenCALL via mail, facsimile, or email (currently billing@XenCALL.com) at its then current corporate headquarters as listed on the XenCALL website, and to Subscriber at its most current street, facsimile and email address(es) as provided by Subscriber to XenCALL in connection with Subscriber’s registration process (or as thereafter updated or revised in a writing delivered by Subscriber to XenCALL).


i. Entire Agreement. Subscriber agrees that this Agreement comprises the entire understanding between XenCALL and Subscriber, and supersede any prior agreements or correspondence between Subscriber and XenCALL and/or any postings or other notices from XenCALL with respect to the subject matter of this Agreement.


j. Telecommunications Taxes (US). Telecommunication taxes in the United States are sourced based on the users’ primary place of use (ie business address) based on the Mobile Telecommunications Sourcing Act (MTSA) effective August 2, 2002.  XenCALL does not charge Subscribers in the United States for any telecommunications taxes, however Subscriber is responsible for determining whether it is required to remit these telecommunication taxes elsewhere based on Subscriber’s regional taxation policies. Subscribers in Canada are required to pay HST, GST and/or PST where applicable.