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Terms and Conditions
The following terms of use apply only to the use of and purchases from the Xonicwave ("Xonicwave") website at www.xonicpc.com (the "Xonicwave Website") or through our Support Center at: 888-XonicPC. The terms "you", "your" and "yours" refer to the user/customer utilizing our website to purchase services ("Services") or to browse our website. The terms "we," "us" and "our" refer to Xonicwave.

1. GENERAL TERMS.

  • 1.1 Disclaimer of warranty for Xonicwave Website.

    We provide our website and its contents on an "AS IS" basis and make no warranty or representation regarding any product or Service, either express or implied, including the warranties of merchantability, fitness for a particular purpose, and non-infringement, which are hereby expressly disclaimed, unless otherwise stated herein.

  • 1.2 Errors on and Changes to our website.

    Despite our efforts to ensure that the information on our website is accurate, complete and current, there may be instances when information about a Service contains inaccurate or incomplete data, including data about the Service's price or availability. We make no warranty or guarantee that the information on our website is error-free, complete, or current. We reserve the right to make changes, including pricing, and to correct errors and/or update the content on our website at any time without notice. We also reserve the right to refuse or cancel any order containing any error or inaccuracy, including after the order has been submitted, whether or not the order has been confirmed and your credit card charged. If your order is canceled after your payment has been processed, we will issue a full refund to the original pay type.

  • 1.3 Damages.

    In no event shall Xonicwave, its parent or affiliates, or their respective officers, directors, employees, representatives or agents be liable for special, incidental, consequential, punitive, indirect, or other special damages, including but not limited to, loss of data, use, or profits, however caused, whether for breach of contract, negligence, or otherwise, and whether or not we have been advised of the possibility of any such damages.

  • 1.4 Governing law.

    These terms are governed and construed by the laws of the state of California without regard to its conflict of law rules. You agree that if any part of these terms is found to be unenforceable, the remainder of these terms will remain in full force and effect.

  • 1.5 Privacy policy.

    We realize that customers are concerned about how the information they provide online will be used. We are committed to protecting your privacy and will use the information we collect about you to process your order and provide a more personalized shopping experience. Please read our Privacy Policy for more details.

  • 1.6 Xonicwave and the XonicPC Website.

    "Xonicwave" and the XonicPC Website are owned and operated by Xonicwave, LLC. All references to "Xonicwave" are inclusive of:

2. CONDITIONS FOR ONLINE SERVICE.

  • 2.1 Acceptance of the Services.

    You are deemed to have accepted this Agreement upon the earlier of: (a) your submission of an online or telephone request for service; (b) your accepting the Terms of Service electronically during registration or in the course of initiating a support session whether online or by telephone; or (c) your use of the Service. This Agreement is made up of the terms below, plus the Privacy Policy, and the other policies and materials specifically referred to in these Terms of Service, all of which are incorporated herein by reference. The Agreement sets forth the terms and conditions under which you agree to use the Service, and under which Xonicwave, and/or its authorized service provider(s), agrees to provide the Service to you.

  • 2.2 Definition of Service.

    For purposes of this Agreement, the term "Service" shall mean the Xonicwave Computer Help service, including all technical support, email and other features, products and services provided by Xonicwave, and/or its authorized service provider(s) under the service option that you have selected. The Service may be referred to as, "Remote Computer Support", "On-Site Computer Support Service", "Online Computer Support", or "Xonicwave Computer Help". As part of the Service, Xonicwave and/or its authorized service provider(s) may license to you, or assist you in licensing from third parties, software (see Section 2.5 below).

  • 2.3 Authorized User, Use and Responsibilities.

    You represent that: (i) you are 18 years of age or older and you have the legal capacity and authority to bind yourself and your employer, as applicable, to this Agreement; (ii) you consent on behalf of yourself and/or as an authorized representative of your employer, as applicable, to be bound by this Agreement; and (iii) the information you supply to us is correct and complete. You understand that Xonicwave relies on the information you supply and that providing false or incorrect information may result in Service withholding or delays or the suspension or termination of your customer account. You agree to promptly notify Xonicwave whenever your personal or billing information changes (including for example, your name, address, telephone number, and credit card number and expiration date).

    • 2.3.1 You agree that you are responsible for all use on your account, including any secondary accounts or sub-accounts registered to your primary account. You understand this means that you accept full liability and responsibility for the actions of anyone who uses the Service via your account, or any secondary accounts, with or without your permission.

    • 2.3.2 If you select a service plan, not including subscription plans, that includes a pre-determined allocation of Services (for example, pre-purchasing 5 hours of Remote Computer Support Service), unused allotment of Services will remain in your customer account until used. If you select a subscription service plan that includes a pre-determined allocation of Services, minutes will accumulate on a monthly basis and NOT roll-over from month to month if unused and will expire at the end of the month. You may use your account for up to four log-on sessions per appointment at any time. You may use more than one IP address for each log-on session.

    • 2.3.3 If you pre-purchase or subscribe to any Xonicwave Services: You may not resell the Service, use it for high volume purposes, or engage in other similar activities, or use it as a virtual support center, as determined solely by Xonicwave.

    • 2.3.4 If you purchase a SOHO subscription service plan ("SOHO Basic or SOHO Premium") for one computer, you may only use the Service in connection with the computer listed in your service plan, unless you upgrade your service plan contract to include an additional computer or device. You hereby acknowledge and agree that a SOHO service contract covers only the software, hardware and peripherals specifically listed in the Product Description. The Product Description is not an exhaustive list, and Xonicwave may modify it any time. Xonicwave reserves the right to charge an additional fee to perform Services that you request that are not covered by the SOHO plan, or to refuse to perform such service. As part of the SOHO plan, Xonicwave may require you to install certain software to assist Xonicwave in the provision of the Services. Xonicwave reserves the right to terminate this Agreement if you (i) do not agree to install the software on your PC; or (ii) alter, modify or disable the software, or its settings or configurations.

  • 2.4 Availability of Service.

    • 2.4.1 The Service you select may not be available at all times, and may not be available in the format generally marketed, and some personal computers may not be able to receive the Service even if initial testing showed that your connection was qualified or your computer environment was suitable. For Remote Computer Support, we will qualify your Internet connection for the minimum line rate (speed) available for support based on our standard line qualification procedures. All plans requires Internet access; it is your responsibility to ensure that you have adequate connectivity to the Internet. All Services are provided on an AS IS basis. Line rate, access and availability of Service are not guaranteed.

    • 2.4.2 Xonicwave or its suppliers may, at any time, without notice or liability, restrict the use of the Service or limit its time of availability in order to perform maintenance activities and to maintain session control.

    • 2.4.3 If you subscribe to a plan, Xonicwave will use commercially reasonable efforts to schedule a mutually convenient service session within a reasonable period of time. However, you hereby acknowledge that circumstances outside of Xonicwave's control (e.g., a large scale outbreak of a new computer virus) may cause significant delays in Xonicwave's ability to schedule a service session. You hereby release Xonicwave and/or its authorized service providers from any and all liability, and agree that Xonicwave and its authorized service providers shall not be liable to you or any third party for any direct or indirect damages, resulting from such delays.

  • 2.5 Software Licenses and Third Party Services.

    • 2.5.1 In connection with our Service, we may provide to you, via download, CD, other media, or other delivery method the use of certain software which is owned by Xonicwave or its third party licensors, providers and suppliers, and which may be provided free or for a fee, including client and/or network security software ("Software"). We reserve the right to update or change the Software from time to time and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. You may use the Software only as part of or for use with the Service and for no other purpose.

    • 2.5.2 The Software may be accompanied by an end user license agreement from Xonicwave or a third party. Your use of the Software is governed by the terms of that license agreement and by this Agreement, where applicable. You may not install or use any Software that is accompanied by or includes an end user license agreement unless you first agree to the terms and conditions of the end user license agreement.

    • 2.5.3 With regard to any Software for which your acceptance of a separate license agreement is not required ("Xonicwave Software"), you are hereby granted a revocable, non-exclusive, non-transferable license by Xonicwave to use the Xonicwave Software (and any corrections, updates and upgrades). You may not make any copies of the Xonicwave Software. You agree that the Xonicwave Software is the confidential information of Xonicwave or its third party licensors, providers or suppliers, which you shall not disclose to others or use except as expressly permitted herein. The Xonicwave Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Xonicwave or its third party licensors, providers, or suppliers. You may not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Xonicwave Software, or otherwise reduce the Xonicwave Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Xonicwave Software to any third party. You may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. You are not granted any title or rights of ownership in the Xonicwave Software. You acknowledge that this license is not a sale of intellectual property and that Xonicwave or its third party licensors, providers or suppliers continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Xonicwave Software and related documentation, as well as any corrections, updates and upgrades. The Software may be used in the United States only, and any export of the Xonicwave Software is strictly prohibited.

    • 2.5.4 Third Party Software: As part of the Services, Xonicwave may suggest that you acquire, install and use certain third party software ("Third Party Software"). Third Party Software is licensed to you by the respective owners or licensees of the Third Party Software. You must agree to the terms and conditions set forth by such owners or licensees before installing Third Party Software, whether Xonicwave assists you in the acquisition, installation, and/or use of Third Party Software. Xonicwave has no rights to the Third Party Software and does not license Third Party Software to you or make any representation or warranty regarding the Third Party Software.

    • 2.5.5 We provide technical assistance and support for the Software and the Xonicwave Software in accordance with our policies. To the extent that we provide technical assistance and support for Third Party Software or equipment, you must ensure that you comply with the terms and conditions under which you licensed such Third Party Software or purchased such equipment. We make no warranty that we are an authorized service provider for Third Party Software or for any equipment; it is your sole responsibility to determine if you require additional rights for us to provide such support, and if so, to acquire such rights. You acknowledge that support of Third Party Software or equipment by an unauthorized service provider may void any warranty made by the supplier of such Third Party Software or equipment.

    • 2.5.6 Your license to use the Software and the Xonicwave Software shall remain in full force and effect unless and until terminated by Xonicwave, its third party licensors, providers or suppliers, or until your customer account is terminated. Upon termination of your customer account for any reason, you must cease all use of the Software and the Xonicwave Software and immediately delete the Software and the Xonicwave Software from your computer.

    • 2.5.7 Other Third Party Agreements: As part of the Services, Xonicwave may suggest certain third party services to you. If you choose to subscribe to or otherwise use any third party services, your use of any such services is subject to the terms of service of such third party service provider. You agree to comply with such provider's terms of service and that the third party provider is solely responsible for delivery of its service(s) to you and your use of them. Third party services include, but are not limited to technical support, portal, training, music, gaming and storage services that Xonicwave may elect to make available from time to time. Violation of such third party provider's terms of service may, in Xonicwave's sole discretion, result in the termination of your customer account and use of service.

  • 2.6 Term and Termination.

    • 2.6.1 This Agreement goes into effect upon your acceptance of this Agreement as set forth in Paragraph 1 and shall continue, subject to the terms of this Paragraph, until terminated by either party as permitted by this Agreement. Billing for your remote, on-site, drop-off or telephone computer support service will apply on an 'as used' basis.

    • 2.6.2 Termination of Service.

    • 2.6.2.1 Pay-as-you-go or Subscription Service.

      If you are a pay-as-you-go or subscription service customer, either you or Xonicwave may terminate this Agreement without cause by giving thirty (30) days written notice to the other party. Activation or set-up fees paid at the initiation of your service, if any, are not refundable. Termination by Xonicwave shall be effective thirty (30) days after the date of notice to you, except as otherwise provided in this Agreement. In the event of termination by Xonicwave, for any reason, you will be required to pay the remaining balance of the charges applicable to your Service through the effective date of termination. You understand and agree that any software that you acquire and install as part of the Xonicwave may cease to operate, update or function properly after termination of the Xonicwave.

    • 2.6.2.2 Termination and/or Suspension by Xonicwave.

      If, in the sole discretion of Xonicwave: (a) you are in breach of any of the terms of this Agreement (including but not limited to all policies regarding abuse and acceptable use of the Service) or any license for Third Party Software; (b) your use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, Xonicwave 's network, or the use and enjoyment of other users; (c) Xonicwave receives an order from a court to terminate your Service; (d) if Xonicwave for any reason ceases to offer the Service; (e) if you are no longer a Xonicwave customer, or (f) Xonicwave determines that you are abusing the Service or using the Service excessively then, Xonicwave at its sole election may terminate or suspend your Service immediately without notice.

    • 2.6.2.3 Terminated Account.

      Xonicwave, in its sole discretion, may refuse to accept your request for service, renewal or re-subscription following a termination or suspension of your use of the Service.

  • 2.7 Pricing and Payment.

    • 2.7.1 Pricing and Fees. Xonicwave fees and charges for the Service(s) you select are supplied to you during the ordering process and are available on the Xonicwave web site unless otherwise provided for in this Agreement. You agree to pay the charges applicable to your selected Service plan, as well as any, applicable taxes and other charges including but not limited to activation fees, minimum service fees, no-show fees, fail to cancel fees, termination fees, other nonrecurring charges and set-up fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest, and charges due to insufficient credit or insufficient funds. Set up fees, activation fees, installation fees and other non-recurring fees, if applicable, will be included in your first bill. Monthly recurring charges (subscription plans) will be billed one month in advance; usage charges will be billed in arrears, and pre-purchase plans will be billed in advance, if applicable. Xonicwave or its agent will bill you directly, or charge your credit card, as you request and as approved by Xonicwave. Xonicwave does not accept debit cards for payment of any charges or fees. Xonicwave reserves the right to charge service fees to a customer's credit card up to eight (8) weeks after the conclusion of service.

    • 2.7.2 Discontinuation of Service for Nonpayment Service to you may be denied or discontinued without notice at any time in the placement of Service charges on your credit card, or your credit card provider denies or discontinues providing credit to you for any reason, or you fail to make payment when due or provide us with a new credit card expiration date before the existing one expires.

    • 2.7.3 Late Fees.If any portion of your bill is not paid by the due date, Xonicwave may charge you a late fee on unpaid balances and may also terminate or suspend your Service without notice. The late fee will be the lesser of five percent (5%) per month, or the highest rate permitted by law. In the event Xonicwave utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys' fees.

    • 2.7.4 Local telephone, Toll and Long Distance Charges. Whether you are accessing the Service from your home or away from your home, you are responsible for all telephone charges.

    • 2.7.5 Change in Service. You have the option to change your Service(s) at any time by notifying us, provided that you qualify for and comply with any requirements of the changed Service.

    • 2.7.6 Missed Appointments. If you do not contact Xonicwave a minimum of two (2) hours prior to your appointment to cancel or otherwise reschedule your appointment, you will be charged, at Xonicwave's option, a missed appointment fee according to the following schedule:
      Physical On-Site Computer Support: Equal to one hour of support at the cost of the plan you purchased missed appointment fee and deducted from your account balance.
      Remote Computer Support: $25 service fee that is converted into 15 minutes of remote support and deducted from your account balance.

    • 2.7.7 Service Without Resolution Xonicwave will make every reasonable attempt to troubleshoot, analyze, assess, correct or otherwise fix your computer or network problem. If Xonicwave is unable to resolve your computer problem, you will still be liable for charges for time spent by Xonicwave in an attempt to correct a problem.

    • 2.7.8 Unable to Create Online Connection. Xonicwave will not charge you if Xonicwave cannot connect with your computer in attempt to provide remote computer support service.

    • 2.7.9 Waiver. The waiver of any fees or charges lies solely at the discretion of Xonicwave.

  • 2.8 Limitations on Use of the Service.

    • 2.8.1 You agree that your use of the Service and the Internet, without limitation, is your sole responsibility, is solely at your own risk, and you will comply with all applicable local, state, national and international laws and regulations.

    • 2.8.2 You agree that the Internet is not owned, operated or managed by, or in any way affiliated with Xonicwave and Xonicwave is not responsible and has no control over the information, content or other materials, some of which may be offensive, malicious or destructive in nature, which may be accessed through use of the Service. You further agree that Xonicwave does not own or control all of the various facilities and communications lines through which service may be provided, nor does Xonicwave guarantee access to or through websites, servers or other facilities on the Internet, whether or not such facilities are owned or controlled by Xonicwave.

    • 2.8.3 You agree that Xonicwave cannot and does not guarantee or warrant that data available for downloading through the Service will be free of defects, infection or viruses, worms, Trojan horses or other code that manifest contaminating, malicious or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Service for the reconstruction of any lost data.

    • 2.8.4 You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the Internet. Xonicwave is not responsible for invalid destinations, transmission errors, or corruption or security of your data.

    • 2.8.5 You are not authorized to use any Xonicwave name or mark (including 'Xonicwave') as a hypertext link to any Xonicwave Web site or in any advertising, publicity or in any other commercial manner without the prior written consent of Xonicwave. You understand that your ability to link to a Web site through the Service does not, in any way, represent or imply Xonicwave 's approval of, or its determination of the quality of that product or service, and that links are provided for your convenience only. The links provided through the Service are maintained by their respective organizations, which are solely responsible for their content. Xonicwave Affiliates may use the Xonicwave name and link to the Xonicwave web site solely in accordance with the terms and conditions of the Xonicwave Affiliate Program.

  • 2.9 Warranties and Limitation of Liability.

    • 2.9.1 YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY Xonicwave AND/OR ITS AUTHORIZED SERVICE PROVIDERS (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT OR SOFTWARE), Xonicwave (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AFFILIATES AND AGENTS), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, INCLUDING GLOBAL SERVICE PROVIDERS (GSPS), DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY PLUMCHOICE OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF Xonicwave COMPUTER SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED.

    • 2.9.2 Xonicwave DOES NOT WARRANT THAT THE SERVICE PROVIDED BY Xonicwave OR ITS AUTHORIZED SERVICE PROVIDERS WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. Xonicwave SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. Xonicwave MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE OR THE INTERNET. Xonicwave MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICE OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE AND THE INTERNET GENERALLY. DO NOT USE THE SERVICE IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.

    • 2.9.3 IN NO EVENT SHALL Xonicwave (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AFFILIATES OR AGENTS), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS, INCLUDING GSPS, BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF Xonicwave HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.

    • 2.9.4 ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS PARAGRAPH ALSO APPLY TO Xonicwave'S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, INCLUDING GSPS, AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.

    • 2.9.5 ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH Xonicwave (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), Xonicwave'S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, INCLUDING GSPS, ARE COLLECTIVELY RESPONSIBLE.

    • 2.9.6 THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW OR LIMIT THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, OUR EXCLUSIONS OR LIMITATIONS APPLY TO YOU TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.

    • 2.9.7 Xonicwave RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE OR FOR YOUR BREACH OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE.)

  • 2.10 Indemnification.

    • You agree to defend, indemnify and hold harmless Xonicwave from and against all liabilities, costs and expenses, including reasonable attorney's fees, related to or arising from: (a) any violation of applicable laws, regulations or this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Service, Software, or the Internet.

  • 2.11 Notices.

    • 2.11.1 Notices required under this Agreement by you shall be provided to the Xonicwave Customer Service Department. Notices by Xonicwave to you shall be deemed given: (a) when sent to your registered email address, or (b) when deposited in the United States mail addressed to you at last-known address or (c) when hand delivered to your home, as applicable. Notice of changes to this Agreement and these Terms of Service will be deemed given upon posting to the pages on the Website.

    • 2.11.2 With regard to electronic communications, you and Xonicwave further agree that: (a) the User ID and/or alias of a sender, contained in an electronic communication ("email"), is legally sufficient to verify the sender's identity and the authenticity of the communication; (b) an email sent containing your User ID and/or alias establishes you as its originator and has the same effect as a document with your written signature on it; and (c) an email or any computer printout of it, is a valid proof of the validity of the original content of the electronic communication.

  • 2.12 General Provisions.

    • 2.12.1 All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, including by way of illustration and not limitation, those clauses relating to Software Licenses, Warranties and Limitation of Liability, and Indemnification, shall survive such termination, cancellation or expiration.

    • 2.12.2 Xonicwave will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.

    • 2.12.3 You agree not to assign or otherwise transfer, this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void. We may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.

    • 2.12.4 You and Xonicwave agree that the substantive laws of the state of California, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AND Xonicwave CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN SAN DIEGO, CALIFORNIA FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE SERVICE. Except as otherwise required by law, including California laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.

    • 2.12.4 Use, duplication or disclosure by any Government entity is subject to restrictions set forth, as applicable, in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19, FAR 12.212, DFARS 227.7202, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Xonicwave or its licensors and suppliers. The use of Software and documentation is further restricted in accordance with the terms of this Agreement.

    • 2.12.5 In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. We reserve the right to modify the Service to reflect any change in any applicable tariff or underlying network service or component affecting the Service.

    • 2.12.6 Xonicwave's failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.

    • 2.12.7 This Agreement, including all Attachments and all other policies posted on the Website, which are fully incorporated into this Agreement either by attachment or by reference, constitutes the entire agreement between you and Xonicwave with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
3. OWNER OF THE Xonicwave WEBSITE AND THE Xonicwave BRAND.

The Xonicwave brand and the XonicPC Website are owned and operated by Xonicwave, LLC. All references to "Xonicwave," the "XonicPC Website," "us," "we," and "our" are references to Xonicwave. In some instances, Xonicwave may use an authorized third party to perform the Services under the Xonicwave brand.
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