These General Terms and Conditions govern Your use of XMission’s website and the XMission network. By accessing or using XMission’s website or network in any way, You expressly acknowledge and agree to be bound by these Terms and Conditions. It is Your exclusive obligation to review these Terms and Conditions carefully. Please do so. If You do not agree to be bound by all provisions, please exit the website promptly.
These Terms and Conditions are also part of XMission Master Services Agreement (“MSA”) and are incorporated therein by reference. Capitalized terms have the same meaning given to them in the MSA. A copy of XMission’s MSA can be viewed here https://xmission.com/legal/terms/msa/.
XMission’s primary objection is the protection of its network, customers, and employees. Accordingly, XMission reserves the right to take whatever measures it deems necessary to secure its network, customer, and employees against abuse. This includes, but is not limited to: scanning for open mail relays, virus filtering, and spam mitigation, as examples. XMission further reserves the right to take whatever actions it deems appropriate to enforce its terms and conditions including, but not limited to, account suspension or termination.
XMission reserves the right to change its terms and conditions at any time without prior notice to you. Your continued use of XMission’s Services constitutes Your consent to be bound by the latest terms and conditions. The latest terms and conditions will always be posted online at https://xmission.com/legal/terms.
XMission reserves the right to refuse service to anyone at any time for any reason.
2.1UNLESS OTHERWISE STATED IN THE SERVICE ADDENDA: (A) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS ONLY, AND XMISSION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO SERVICES PROVIDED, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) WITHOUT LIMITING THE FOREGOING, XMISSION MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS OR MALWARE FREE; (C) STATED BANDWIDTH(S) APPLY ONLY TO THE CUSTOMER-TO-XMISSION ROUTER PORT ATTACHMENT, NO GUARANTEE OF END-TO-END BANDWIDTH ON THE INTERNET IS MADE; AND (D) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED FROM THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEMS AND/OR MOBILE DEVICE THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL.
YOUR EXCLUSIVE REMEDY AND XMISSION’S ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THE AGREEMENT AND/OR YOUR USE OF THE SERVICES, SHALL BE LIMITED TO THE AMOUNT YOU PAID XMISSION FOR THE SERVICES FOR THE PRECEDING SIX-MONTH PERIOD.
IN NO EVENT SHALL XMISSION, OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SUPPLIERS, OR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM BODILY HARM, PERSONAL INJURY, LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT XMISSION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES, OR INABILITY TO USE THE SERVICES.
ANY LEGAL ACTION ARISING OUT OF ANY ALLEGED FAILURE, MALFUNCTION OR DEFECTS IN XMISSION’S SERVICES OR HARDWARE SHALL BE BROUGHT WITHIN A PERIOD OF ONE (1) YEAR OF THE OCCURRENCE OR IS DEEMED WAIVED.
IF YOU ARE DISSATISFIED WITH THE TERMS OF THE AGREEMENT OR THE SERVICES, YOUR SOLE REMEDY AND EXPRESS OBLIGATION IS TO STOP USING THE SERVICES. IN THE EVENT YOU FAIL TO STOP USING THE SERVICES AND CLAIMS SOME INJURY AS THE RESULT, YOU AGREE TO INDEMNIFY AND HOLD XMISSION HARMLESS FROM ANY AND ALL LOSSES OR DAMAGE, INCLUDING ATTORNEYS’ FEES INCURRED BY XMISSION IN DEFENSE OF ANY ACTION INITIATED BY YOU OR A THIRD PARTY.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
3.1For purposes of these Agreement, “Content and Material” is defined as any information, communications, software, published works, photos, video, graphics, music, sounds, code, or other material that can be viewed or heard by users while using XMission’s website, network or services, and which was created by XMission. All of the Content and Material is subject to United States and international copyright, trade dress, trademark and/or other intellectual property laws with all rights thereto held by XMission. Use of any Content and Material without prior written authorization by XMission is strictly prohibited and may subject You to liability.
3.2If You know of, or suspect, copyright or trademark infringement or other unauthorized or improper use of XMission’s property by others, including but not limited to uses for commercial purposes, please notify XMission
3.3Digital Millennium Copyright Act. XMission has not taken and will not take content or material from You or any third party unless it has been assigned to XMission pursuant to law. However, if You are a copyright holder and have a good faith belief that any content or materials posted on this Website infringes Your copyright, please send to XMission Your notification of claimed infringement requesting the material to be removed or blocked to the following:
51 East 400 South, Suite 000
Salt Lake City, UT 84111-3038
Legal Response Email: email@example.com
Your notice must contain the following: (a) Reasonably sufficient details about the nature of the copyrighted work in question, or, in the case of multiple alleged infringements, a representative list of such works, including title(s), author(s), any U.S. Copyright Registration number(s), URL(s) etc.; (b) Reasonably sufficient details to enable us to identify and locate the material that is allegedly infringing the copyright holder’s work(s) (for example, file name or URL of the page(s) that contain(s) the material); (c) Your contact information so that we can make contact with You (including for example, your address, telephone number, and email address); (d) A statement that You have a good faith belief that the use of the material identified above in “b” is not authorized by the copyright owner, its agent, or the law; (e) A statement, under penalty of perjury, that the information in the notification is accurate and that You are authorized to act on behalf of the copyright owner; and (f) Your signature. Prior to sending us notice, You may wish to consult a lawyer to determine Your rights and legal obligations under applicable laws. Nothing here or anywhere on this Website is intended as a substitute for qualified legal advice. You also acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may temporarily or permanently remove the identified materials from the Website without liability to you or any other party.
XMission does not control or monitor the content users of the Service. XMission invokes Section 230 of the Communications Decency Act (47 U.S.C. § 230) (hereinafter “CDA”) and Utah Code 76-9-203. XMission advises You that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist You in limiting access to material that is harmful to minors. Pursuant to the CDA, XMission takes no responsibility and assumes no liability for any content You may view while utilizing XMission’s website, the Services, or the XMission network. XMission has no obligation to, monitor, edit, or remove content that may be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or in violation of any third-party’s intellectual property rights. XMission also maintains a separate policy under Utah Code 76-10-1231 which can be found here, https://wiki.xmission.com/Content_Filtering, which is incorporated by reference herein.
All scheduled systems maintenance will be performed during approved maintenance window times. Scheduled maintenance does not qualify as outages, and does not qualify for credit. Maintenance will be listed here: https://status.xmission.com/. Critical systems refers to: electrical infrastructure, core routers/switches, and core servers (e.g., mail, web hosting, etc.)
Approved maintenance window times:
For critical systems: between midnight-6am on Sat/Sun/Mon mornings;
For non-critical systems: outside of business hours, preferably between 10pm-7am.
You agree to defend, indemnify, and hold XMission (and its directors, officers, employees, affiliates, agents, contractors, suppliers, service providers or licensors) harmless to the fullest extent permitted in law or equity from all liabilities, demands, claims, and expenses, including attorneys’ fees that may arise from Your use or misuse of XMission’s website, the Services, Your breach of the Agreement, and/or Your violation of any law or the rights of a third party. XMission will provide notice to You of any such demand, claim, suit, or proceeding. XMission reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will cooperate with XMission in asserting any available defenses.
For purposes of the Dispute Resolution Policy, a “Dispute” is defined as any controversy, claim, dispute, or difference arising between You and XMission out of or relating to the Agreement, the Services, and Your transacting business with XMission in any way.
Any Dispute shall be resolved solely and exclusively by arbitration to be held in Salt Lake County, Utah with a single disinterested arbitrator and pursuant to Utah law. This means that neither You nor XMission can sue in court before a judge or jury, individually or as a class member. Instead, an independent arbitrator will decide the dispute with limited discovery rights, and limited rights to appeal. Except as may be required to enforce an arbitration decision, You and XMission expressly waive any right to file any legal action in any other state or federal court or before any other tribunal, and any right to a trial by jury. Each party to such arbitration shall be responsible for its own attorneys’ fees and costs regardless of the outcome of the arbitration.
You may opt-out of this Arbitration Clause and Class Action Waiver by sending written notice within 30 days of your first transaction with XMission. All notices must be sent pursuant to the Contact Us section below.
8.1 Spam Mitigation.
The receipt of unsolicited or unlawful commercial electronic mail messages, otherwise known as spam (“Spam”), adversely affects the use and enjoyment of email services, as well as XMission’s business and its ability to provide email services to customers. Accordingly, You agree that XMission may take action on Your behalf to mitigate Spam and You grant to XMission the authority and right to opt-out and/or unsubscribe from receiving any and all Spam emails, sent by any party to Your email address(es), as determined by XMission. You also grant and hereby assign to XMission the authority and right to take any other action, including legal action, to stop the mailing and/or receipt of Spam emails to Your email address(es), and seek all available legal remedies against responsible parties, including monetary damages. You understand that through this assignment of claims, You forgo Your personal right and interest to assert legal claims arising under state or federal law, including potential claims for monetary relief, resulting from Your receipt of Spam emails. State law claims may arise under State consumer law. As examples, the Utah Consumer Sales Practices Act, which allows for the recovery of monetary damages for certain consumer transactions and may apply to certain Spam practices. XMission’s Spam mitigation effort may require the preservation and disclosure of Your emails, as well as information contained in the emails, such as, Your name and email address. In most cases, the parties to whom the disclosure is made are already in possession of this information which they used to send You the Spam (i.e., Spam emailers, their attorneys, etc.), but disclosure may also be made to attorneys, law enforcement, the court and court personnel. XMission will make every effort to obfuscate any personally identifying information included in the Spam emails or ensure that any information is protected by a protective order. If You do not wish to have Your email address(es) included in the Spam mitigation effort, or do not desire to assign Your right to claims to XMission, it is Your responsibility to contact XMission at firstname.lastname@example.org and opt-out. You may request information from XMission regarding any action taken by XMission described above, which information will not be unreasonably withheld.
8.2 Zero Tolerance.
To both aid in the fight against Spam, and to keep XMission’s mailservers off Internet blacklists, XMission has zero tolerance in regards to Your sending unsolicited (email/fax/pages/news) messages, or bulk messages (i.e., more than ten (10) messages containing substantially similar content in less than one minute). If XMission receives complaints about Your spamming, Your account will be canceled unless You can prove the recipient requested bulk email from You. You may also face legal action and confess to liquidated damages in the amount of $50 per incident (i.e., one email message constituting one incident) and $100 per hour per employee whose time was used to address the issue. While bulk email is the primary concern, XMission’s Spam policy applies to all other forms of bulk communications.
XMission’s email service is not HIPAA compliant. HIPAA compliance will require additional add-on features.
The terms and conditions outlined in the XMission Voice Service Addendum accessible at https://xmission.com/legal/terms/voice/, are hereby incorporated by reference and constitute a part of these General Terms and Conditions. The parties agree to be bound thereby.
11.1 Physical Equipment and/or Software products that are not provided by XMission are Your responsibility. XMission will not be responsible for the installation of and/or service on equipment and/or software not provided by XMission. You are responsible for the use and compatibility of hardware and software not provided by XMission. In the event You use hardware and/or software that does impair your use of the Services, You shall nonetheless be liable for regular payment to XMission. Upon notice from XMission that the hardware and/or software not provided by XMission is causing, or in the sole opinion of XMission, is likely to cause hazard, interference or service obstruction, You shall eliminate the hazard, interference or service obstruction immediately. You will, if necessary, pay XMission to troubleshoot problems caused by such equipment and/or software not provided by XMission. XMission will not be responsible if any changes in hardware, software or services cause equipment not provided by XMission to become obsolete, require modification or alteration, or in any other way affect the total performance of Services. In the case of user-owned hardware and/or software connected to the XMission network, the user is solely responsible for any and all service to that equipment. XMission, at its option, may supply technical services in the form of consulting and/or service to XMission for a fee. XMission has the right to refuse any such technical services at its sole option. On leased telephone lines, no matter who the leasing party is, XMission must have free and open access to such lines.
11.2 Physical Equipment and/or Software products provided by XMission are Your responsibility while in Your possession. You agree to maintain such Equipment and/or Software products in working condition, free from damage outside of normal wear and tear. You agree to grant access to XMission to service, update, or replace any such hardware in XMission’s discretion. Further, You agree that any failure to timely pay for the hardware/software or otherwise breach Your responsibilities pertaining thereto, may result in XMission’s repossession of the hardware and/or software. Some services involve leased equipment paid during the terms of service. Other equipment is provided as part of the services. Regardless of lease status at the time of termination of services, if XMission provided it equipment is not returned within one week of termination, XMission reserves the right to charge a monthly lease fee based on the fair market value of the equipment amortized over a twelve (12) month period with 10% interest (“Lease Fee”). The Lease Fee will vary from product to product, and will be identified on monthly invoices. The Lease Fee will continue until the first of the following to occur: (a) You return the equipment in clean, working condition, with no more than ordinary wear and tear. However, XMission reserves the right to reject the return of any damaged equipment after inspection; (b) twelve (12) months, after which you are free to keep the equipment.
12.1 XMission will exercise no control whatsoever over the content of any information passing through it.
12.2 You are responsible for maintaining secure, unique account passwords and to update them regularly.
12.3 You will not use the Services: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code; (h) to collect or track the personal identification information of others; (i) to Spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of this XMission’s network, or any related network, website, or other websites, or the Internet.
12.4 You may not: (a) resell or make commercial use of the Services or XMission network, or any of its content. You may not modify, adapt, translate or convert into another form any portion of the Services, XMission’s website, or the XMission network; (b) copy, reproduce, download, display, perform, transfer, transmit or publish any portion of the Services, XMission’s website, or the XMission network by any means or in any form; (c) access the Services, XMission’s website, or XMission network from any jurisdiction where doing so would be illegal.
12.5 You will comply with all laws pertaining to privacy, data collection and protection, intellectual property, contract, and other applicable laws, including but not limited to those laws in the jurisdiction in which you reside or from which you use the Services.
12.6 Any and all information You obtain through XMission’s data network services (public and or private) is at Your own risk.
12.7 Any and all access to other networks via XMission must be in compliance with all policies and rules of those networks. This applies to any other network that XMission attaches to.
12.8 You shall provide all necessary preparations required to comply with XMission’s installation, maintenance and operational specifications. You will be responsible for all costs of relocation of service once installed by XMission and/or its vendors, and will provide XMission and its suppliers of communication service and equipment, reasonable access to your premises to perform any acts required by the Agreement.
12.9 XMission bills for all services in advance. Non-contracted accounts are suspended 14 days after their due date if payment is not made. Invoices are sent by email unless the customer requests postal billing, which is billed at $1.50 per invoice. XMission notifies clients an account is due on three separate occasions: with the original invoice (typically 14 days before the account comes due), the day the account is due, and the day before the account will be suspended. XMission accepts all forms of payment including cash, checks, ACH transfers, and most credit cards (e.g., Mastercard, Visa, American Express, Discover). XMission will assess a $20 fee on all returned checks and credit card invoices.
12.10 Non-contracted accounts are terminated when a customer notifies us they wish to cancel their service. If a customer doesn’t pay for service the account will be suspended 14 days after the due date and then terminated 7 days later. The customer is responsible for the period of time billed while the account remains active so we suggest you cancel your service to avoid such charges. Any customer terminated account is subject to a refund for the balance due minus a $10 processing fee. This fee will be credited one time to clients who later return to XMission. Accounts canceled by XMission for policy violations are NOT subject to refund and penalty fees may apply.
13.1 Transferability. You may not sell, assign or transfer Services without the prior written consent of XMission. XMission may, at any time, sell, assign or transfer any customer Agreements and any customer accounts to a third party provider with no notice.
13.2 Waiver. Any failure by XMission to enforce or exercise any provision of the Agreement or related rights shall not constitute a waiver of that right or provision. XMission’s rights and remedies under the Agreement are cumulative, and the exercise of a right or recovery of a remedy shall not limit or prevent XMission’s exercise of another right or recover another remedy allowed under the Agreement, at law or in equity.
13.3 Modification. THESE TERMS AND CONDITIONS CANNOT BE MODIFIED EXCEPT BY WRITTEN AMENDMENT BY THE PARTIES. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF XMISSION HAS THE AUTHORITY TO BIND THE PARTIES TO ANY REPRESENTATION OR WARRANTY UNLESS SUCH IS SPECIFICALLY INCLUDED IN THESE TERMS AND CONDITIONS, THE MSA, OR THE SERVICE ADDENDA.
13.4 Force Majeure. In addition to any excuse provided by applicable law, XMission shall be excused from liability for its failure to honor any obligations arising from any event beyond XMission’s reasonable control, whether or not foreseeable by either party, including but not limited to: labor disturbance, war, fire, accident, adverse weather, governmental act or regulation, epidemic, pandemic, and any other causes or events beyond XMission’s reasonable control, whether or not similar to those which are enumerated above.
51 East 400 South, Suite 000
Salt Lake City, UT 84111-3038