Terms of Service

Note: If you have already activated XMission service but choose to not agree to all or any of the following terms and conditions after reading this agreement in full, please call XMission billing to cancel your service.
Service Agreement
You (the XMission customer and/or user, hereafter collectively referred to as “you”) agree to purchase and/or use XMission services in accordance with the terms and conditions of this Service Agreement (“Agreement”). Certain XMission account types have their own contract, or Master Service Agreement, which specifies particulars beyond or outside of these general terms of service and policies. In all such cases those contracts supercede anything stated or not stated in this document.
  1. XMission LLC will exercise no control whatsoever over the content of any information passing through it.
  2. You will use XMission LLC services only for lawful purposes. Any transmission or re-transmission of material in violation of any Federal or State laws and/or regulations is expressly prohibited. This extends to include, but is not limited to: any copyrighted materials, materials or communications prohibited by trade secret.
  3. As a customer of XMission LLC and a user of our services, you (as an individual, and/or officer or agent of a company, and/or company) agree to indemnify and to hold harmless XMission LLC from ANY and ALL claims resulting from the use of the service which causes damage to you or any other party. XMission LLC shall not be liable, either in contract or in tort, or for protection from unauthorized access of its customer’s transmission facilities or customer-owned equipment on premises, or for unauthorized access to, alteration, theft or destruction of a customer’s data files, programs, or information through accident, fraudulent means or devices, or any other method, even should such access occur as a result of XMission LLC’s negligence. XMission LLC shall not be in any way responsible for claims or damages caused by a customer, through fault, negligence or failure to perform customer’s responsibilities, claims against a customer by any other party; any act or omission of any party furnishing services and/or products; or for the installation and/or removal of any and all equipment supplied by any service provider or XMission LLC.
  4. XMission LLC will not be responsible for any damages you or your business suffers. XMission LLC makes NO WARRANTEES OF ANY KIND, EXPRESSED OR IMPLIED, for services we provide. XMission LLC also DISCLAIMS ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. This includes loss of data resulting from delays, non deliveries, wrong deliveries, and any and all service interruptions caused by XMission LLC and its employees by its own negligence or your errors or omissions.
  5. Any and all information you obtain through XMission LLC data network services (public and or private) is at your own risk.
  6. Any and all access to other networks via XMission LLC must be in compliance with all policies and rules of those networks. This applies to any other network that XMission LLC attaches to.
  7. Stated bandwidth(s) apply only to the customer-to-XMission LLC router port attachment. No guarantee of end-to-end bandwidth on the Internet is made.
  8. Rates: Rates are set at the time you establish service. In the case of rate adjustments, XMission will provide 30 days written notice. Should you not wish to continue your account at the changed price, you have 10 days from the date of notification to provide XMission with a written request to terminate services and incur no termination liability. Otherwise, the existing service will be billed at the new base prices. You will be responsible to pay all sales and use taxes, as well as duties or levies on products and services.
  9. Payment: Installation fees and first month’s charges are required to be paid at the time your services are activated. These fees and charges are non-refundable. Invoices for subsequent months are billed 14 days in advance. Invoices are due in full on their due date and may be suspended if payment, or arrangements, have not been made within 7 days of due date. After that your service is subject to interruption. If your service is interrupted for non-payment there may be a restoration fee.
  10. In the event of default, XMission LLC may retake possession of any and all hardware and/or software it has supplied you, employees and/or agents (before, during and after any sanctions to recover sums of money). In such a case, you will provide XMission LLC full and free access to the hardware and/or software for this purpose. XMission LLC will retain all payments made hereunder, and recover charges you owe as well as any damages XMission LLC may have sustained due to your default. Title and property rights, including all intellectual property rights to services, are and shall remain with XMission LLC whether or not they are embedded in any programming, software and/or hardware.
  11. You recognize and acknowledge that any and all XMission LLC services and/or products, programming and software used hereunder constitute valuable trade secrets of XMission LLC. You will use your best efforts to protect and keep confidential any and all programming and software used by you, your employees, and/or agents and shall never make any attempt to copy, examine in any way, alter or re-engineer, tamper with, or otherwise misuse such services, programs, hardware, etc.
  12. Cancellation / Termination: XMission may cancel and/or terminate service with 30 day written notice to you, the customer, for any reason. Accounts that spam or abuse systems will be terminated immediately per XMission LLC policy.
  13. Long-term service orders are considered to be anything extending over 3 months in length and that commonly have a service rate discount applied. In the case of underlying agreements, such as dedicated telecom contracts, colocation agreements, hardware leases, or similar, those termination charges will be outlined in their respective agreements. There is never a termination charge when a customer upgrades to a higher level of service.
  14. You shall provide all necessary preparations required to comply with XMission LLC’s installation, maintenance and operational specifications. Customers will be responsible for all costs of relocation of service once installed by XMission LLC and/or its vendors, and will provide XMission LLC, and its suppliers of communication service and equipment, reasonable access to your premises to perform any acts required by this agreement.
  15. Physical Equipment and/or Software products that are NOT provided by XMission LLC are the responsibility of the customer, company or individual or both as the limits of the law allows for. XMission LLC will not be responsible for the installation of and/or service on equipment and/or software not provided by XMission LLC. All customers are responsible for the use and compatibility of hardware and software not provided by XMission LLC. In the event that the customer uses hardware and/or software that does impair the customer’s use of XMission LLC services, the customer shall nonetheless be liable for regular payment to XMission LLC. Upon notice from XMission LLC that the hardware and/or software not provided by XMission LLC is causing, or in the sole opinion of XMission LLC, is likely to cause hazard, interferences or service obstruction, the customer shall eliminate the hazard, interference or service obstruction at once. Customers will, if necessary, pay XMission LLC to troubleshoot problems caused by such equipment and/or software not provided by XMission LLC. XMission LLC will not be responsible if any changes in hardware, software or services cause equipment not provided by XMission LLC to become obsolete, require modification or alteration, or in any other way affect the total performance of XMission LLC on an end-to-end basis and protect the XMission LLC backbone network and those networks attached to the XMission LLC network. In the case of customer-owned hardware and/or software connected to the XMission LLC network, the customer is totally responsible for any and all service to that equipment. XMission LLC, at its option, may supply technical services in the form of consulting and/or service to XMission LLC customers at their request. Such services will be billed out at rates set on the XMission LLC pricing sheet and/or at rates in effect at the time such services are requested. XMission LLC 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 LLC must have free and open access to such lines.
  16. XMission LLC always reserves the right to change its rates and otherwise modify these Terms and Conditions by notifying you 30 days in advance of the effective date of such changes. These Terms and Conditions hereby supersede all previous representations, understanding, or agreements and shall prevail notwithstanding any variance with terms and conditions of ANY and ALL orders submitted.
  17. As a XMission LLC customer you may not sell, assign or transfer your service order without the prior written consent of XMission LLC. XMission LLC may at any time sell, assign or transfer this agreement with no notice.
  18. Force Majeure: XMission LLC will not be responsible for performance of its obligations thereunder where delayed or hindered by war, riots, embargoes, strikes or acts of its vendors and will attempt to notify customers in the event of any of the foregoing occurrences. Should such occurrences continue for more than 90 days, XMission LLC or its customers may cancel service for the affected services and/or products with no further liability.
  19. The provision of XMission LLC services and/or products are subject to XMission LLC’s continuing approval of customer credit-worthiness. All XMission LLC customers shall furnish financial information upon request as XMission LLC may from time to time choose to re-determine a customer’s credit-worthiness.
  20. Any legal action arising out of failure, malfunction or defects in XMission LLC’s services or goods shall be brought within a period of one year of the occurrence or is deemed waived.
  21. If you are declared in default, XMission LLC will have all rights and remedies provided by law. XMission LLC may terminate your account and take any physical equipment and/or software products provided by XMission LLC subject to applicable state law, including the right to enter the premises where the physical equipment and/or software is kept in order to repossess it. You agree to pay XMission LLC’s costs on demand as well as any reasonable attorney’s fees and legal expenses incurred as a result of XMission LLC’s exercise of any default remedies under this agreement.
  22. SPAM Mitigation. The receipt of unsolicited or unlawful commercial electronic mail messages, otherwise known as spam (“Spam”), adversely affects your use and enjoyment of email services, as well as XMission’s business and its ability to provide email services to you. 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). 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 fightspam@xmission.com and opt-out. You may request information from XMission regarding any action taken by XMission described above, which information will not be unreasonably withheld. XMission asks that any email customers located in California notify us via email as we have additional grounds for legal action in that state.
  23. Severability. If any provision of this Agreement is not valid according to the law, all other provisions will remain in force. If any provision is stricken, both parties agree to negotiate a mutually acceptable substitute provision.
  24. Waiver. XMission LLC’s failure to insist upon your complying with any term or provision of this lease or it’s waiver of any default shall not be construed as waiving any such term or provision and shall not preclude XMission LLC from taking action regarding any subsequent default.
  25. Governing laws. This agreement shall be governed by the internal laws of the State of Utah.
  28. XMission is a member of the Utah division of the Better Business Bureau and is committed to arbitration and mediation.
  29. Use of XMission LLC services by you as a company and/or an individual constitutes acceptance of these Terms and Conditions in full.

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