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Terms & Conditions
GENERAL TERMS AND CONDITIONS
These General Terms of Service constitute the agreement ("Agreement") between NEXGEN, NEXGEN service, (Service) and the user ("you," "user" or "Customer"). This Agreement governs both the Service and any devices (customer premises equipment), such as an IP phone, Telephone Terminal Adapter, or any other IP connection device, ("Device" or "Equipment") used in conjunction with the Service. By activating the Service, you acknowledge that you have read and understood, and you agree, to the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms. If you have purchased Equipment from any NEXGEN retail dealer, you will be deemed a "Retail Customer" and will be governed by certain Retail Customer terms and conditions as set forth herein. There are specific terms and conditions for Business Services, which are in NEXGEN's Enhanced Service Agreement.
Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by NEXGEN
You acknowledge and understand that the Service does not function in the event of power failure. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which may not be provided by NEXGEN) and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider ("ISP") and/or broadband provider, the Service will not function, but that you will continue to be billed for the Service unless and until you or NEXGEN terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP broadband outage, the Service will not function until power is restored or the ISP outage is cured. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or ISP outages will also prevent dialling. Should NEXGEN suspend or terminate your Service, the Service will not function until such time as NEXGEN restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement).
Broadband Service / ISP Outage or Termination / Suspension by NEXGEN
You acknowledge and understand that service outages or suspension or termination of service by your broadband provider and/or ISP or by NEXGEN will prevent ALL Service and dialling.
Service Outage Due to Suspension of Your Account
You acknowledge and understand that service outages due to suspension of your account will prevent ALL Service and dialling.
Other Service Outages
You acknowledge and understand that if there is a service outage for ANY reason, such outage will prevent ALL Service and dialling. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
Limitation of Liability and Indemnification
You acknowledge and understand that NEXGEN's liability is limited for any Service outage as set forth in this document. You agree to defend, indemnify, and hold harmless NEXGEN, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service relating to the absence, failure or outage of the Service, and/or inability of Customer or any third person or party or user of Customer's Service to be able to dial.
FAIR USE POLICY
It is important to NEXGEN that all eligible NEXGEN customers are able to access our services. For this reason, and to ensure the provision of quality and reliability of our services, a Fair Use Policy applies to all our services and plans. We reserve the right to vary the terms of this Fair Use Policy from time to time.
OUTGOING TELEPHONE NUMBERS You acknowledge and understand that NEXGEN customers can make outgoing calls to most Public Switched Telephone numbers with the exception of some special service numbers. NEXGEN is not liable for any claims, losses, damages, costs and expenses as a result of you not being able to call these special service numbers.
SERVICE NUMBERS
NEXGEN numbers are used for identification purposes. A user does NOT own the NEXGEN number he or she has been assigned. The user pays NEXGEN for the process of connecting a NEXGEN number with relevant online services. The user does NOT pay for the number itself in anyway. NEXGEN has the sole right in the use of the number and can assign the number to anyone or anything it chooses. NEXGEN numbers are normally assigned on a first come first serve basis, however, preference is given to some parties at NEXGEN's discretion.
Local Phone Numbers used by you are not portable. That is you cannot "take them with you" when your Service is terminated. This is because the user does NOT own the Local Phone Number he or she has been allocated, NEXGEN does . The Local Phone Numbers that customers use are actually what the telecom industry call Direct In Dial (DID) numbers belonging to NEXGEN. DID's are not portable between carriers in the same way a "normal" phone number would be. Upon termination of the service, Local Phone Numbers remain the property of NEXGEN. Furthermore, the Local Phone Numbers belong to NEXGEN at all times. When you give out Local Phone Numbers, you are giving out NEXGEN Local Phone Numbers for people to call NEXGEN and NOT to call you. At their discretion, NEXGEN may choose to link a Local Phone Number to a NEXGEN number. This link is internal to the NEXGEN network.
NEXGEN SERVICE
Lawful Use of Service and Device
You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when the receipt or possession of such communication or material i. Would constitute a criminal offence, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or ii. Encourages conduct that would constitute a criminal offence, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. NEXGEN reserves the right to terminate your service immediately and without advance notice if NEXGEN, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, all of which immediately become due and payable and may at NEXGEN's discretion be immediately charged to your credit card.
Tampering with the Device or Service
You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from NEXGEN in each instance, which NEXGEN may deny in its sole discretion. NEXGEN reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. You agree not to hack or disrupt the service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so.
Termination/Discontinuation of Service
NEXGEN reserves the right to discontinue providing the Service generally, or to terminate your Service, at any time at its sole discretion. You will be responsible for the full month's charges to the end of the current term including and without limitation unbilled charges, all of which immediately become due and payable.
Call charge for a successful call
A call is charged when it is answered by the called party or by an answering machine, or by other means which provides announcements for wrong number, service switch off or disconnect service. The call charge of the call is the duration between when the call is answered and when the call is terminated by the calling or called Party.
WARRANTY and LIABILITY LIMITATIONS
Liability
You will indemnify us against all costs, losses, damages, actions, proceedings, claims, liabilities and expenses (including all reasonable legal costs, fees and expenses) incurred or suffered by us as as a result of: a) Any personal injury to, or death of, any person or any loss of, or damage to, any personal property caused by or arising from your breach of this Standard Agreement or your acts or omissions or those of any person for whom you are responsible; or b) Your acts or omissions (or those of any person for whom you are responsible) relating to the use, or attempted use, of the service or otherwise arising in connection with our supply of (or delay in supply) or failure to supply) the service; and c) A claim by an end user arising out of or in connection with the supply or cession of supply of the service NEXGEN shall not be liable for any delay or failure to provide the Service, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following: a) Act or omission of an underlying carrier, service provider, vendor or other third party; b) Equipment, network or facility failure; c) Equipment, network or facility upgrade or modification; d) Force majeure events such as (but not limited to) strikes; fire; war; riot; government actions; e) Equipment, network or facility shortage; f) Equipment or facility relocation; g) Service, equipment, network or facility failure caused by the loss of power to Customer; h) Outage of Customer's ISP or broadband service provider; and i) Act or omission of Customer or any person using the Service or Device provided to Customer; or j) Any other cause that is beyond NEXGEN's control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications to be connected or completed or degradation of voice quality. Except expressly provided by this Standard Agreement: You will bear the risk of loss or damage to any NEXGEN equipment used or located on you're your premises or whilst in your possession or control; a) The NEXGEN equipment always remains our property unless it has been sold to you; b) You will ensure that, you have all necessary consents and approvals, including landlord approval where applicable, necessary or desirable for us to deliver, install and maintain the NEXGEN equipment at the access site; c) You will provide a suitable physical environment at your premises for the storage and operation of the equipment including supplying an adequate power supply for the d) Operation of the equipment; e) You must ensure the NEXGEN equipment will not be altered, repaired, serviced, moved or disconnected except by service personnel approved by us; you must take good care of the NEXGEN equipment while it is in your possession or control and must notify us immediately if you become aware of any damage to or malfunction of the equipment; f) You will be liable to us for all loss of, or damage to, to the NEXGEN equipment while at your premises or whilst in your possession or control, apart from fair wear and tear; and g) You will only use the NEXGEN equipment in accordance with the manufacturer's specifications or our written directions. We may charge you for any repair, maintenance or replacement of the NEXGEN equipment due to events other than normal wear and tear, including but not limiting to: a) Force Majeure events b) failure to use the NEXGEN equipment in accordance with this Standard Agreement c) any act of wilful damage or interference by a party other than us, our employees or agents; d) negligent use or misuse of the NEXGEN equipment by a party other than us, our employees or agents; e) any failure or fluctuation of the electrical power supply to that NEXGEN equipment, or any external electromagnetic interference or any failure of air-conditioning and humidity control for that equipment; or f) the performance of maintenance services by a party other than us or service personnel approved by us. If we use the services of our other supplier in providing the service, you agree to comply with any reasonable direction given by us necessary to avoid causing any breach by us of the relevant other suppliers' terms and conditions of supply applicable to that service. Except as expressly provided to the contrary in this Standard Agreement and to the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the service supplied under this Standard Agreement or our obligations under this Standard Agreement are excluded. Where any Act of Parliament implies in this Standard Agreement any terms, and that Act of Parliament voids or prohibits provisions under a contract which exclude or modify the operation of such term, the term is deemed to be included in this Standard Agreement. To the extent permitted by law, our liability for breach of an express term or implied term of this Standard Agreement in contract, negligence or any other tort under any statue or otherwise, is limited to one of the following remedies at our discretion: if the breach relates to services, the re-supply of the service or the payment of the cost of resupplying the service or if the breach relates to goods, the replacement of the goods or the supply of equivalent goods, the payment of the cost of such replacement, the repair of such goods or the cost of such repair. To the extent permitted by law, we exclude all liability to you in connection with this Standard Agreement for consequential loss, indirect loss, loss of profits of any kind, loss or corruption of data, interruption to business, loss of revenue and economic loss of any kind, whether in contract, negligence or any tort under any statue or otherwise. To the extent permitted by law, our aggregate liability to you in connection with this Standard Agreement in respect of all claims, whether in contract, negligence or any other tort, under any statute or otherwise, will not exceed the amount paid to us by your during the minimum term. We retain all rights in the confidential information. You will: a) Keep all confidential information confidential; b) Not disclose or allow any confidential information or the terms of this Standard Agreement or application of service including pricing to be disclosed to any third part without our prior written consent; and c) Return all confidential information including all copies to us within 7 days of request by us. You will not use confidential information or the terms of this Standard Agreement, which you acquire from us for any purpose other than use of the service or as otherwise expressly permitted by us and, in particular, will not use confidential information in any way which may cause us loss, whether by way of damage to our reputation, financial loss or otherwise.
Disclaimer of Damages
IN NO EVENT SHALL NEXGEN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT NEXGEN WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
No Warranties on Service
NEXGEN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, NEXGEN DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER NEXGEN NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO NEXGEN's OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF NEXGEN's OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY NEXGEN OR NEXGEN's AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
Content
You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. NEXGEN reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if NEXGEN determines that such use or content does not conform with the requirements set forth in this Agreement or interferes with NEXGEN's ability to provide Services to you or others or receives notice from anyone that your or Users' use or Content may violate any laws or regulations.
NEXGEN's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold NEXGEN against any and all liability arising from the content transmitted by or to you or to Users using the Services. A "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
Force Majeure
We are not liable for any failure to perform, or for any delay in performing any of our obligations under this Standard Agreement where the failure or delay is occasioned by: a) Strike or other industrial action; b) Any act or omission by you or any third party, including failures or delays by other suppliers; c) Legislative or governmental prohibitions, restrictions or delays in the granting of approvals, consents, permits, licences or authorities; d) Fire, flood, war or cable cut; or e) Any other event beyond our reasonable control.
SERVERABILITY
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
PRIVACY
NEXGEN Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. NEXGEN is not liable for any lack of privacy which may be experienced with regard to the Service.
ENTIRE AGREEMENT
This Agreement and the rates for Services found on the NEXGEN website constitute the entire agreement between you and NEXGEN and govern your use of the Service, superseding any prior agreements between you and NEXGEN and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
CHANGES TO THIS AGREEMENT
NEXGEN may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on to the NEXGEN web site. Such changes will become binding on Customer, on the date posted to the NEXGEN website and no further notice by NEXGEN is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service, including without limitation any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including without limitation any written terms enclosed within the packaging of the Device.
These General Terms of Service constitute the agreement ("Agreement") between NEXGEN, NEXGEN service, (Service) and the user ("you," "user" or "Customer"). This Agreement governs both the Service and any devices (customer premises equipment), such as an IP phone, Telephone Terminal Adapter, or any other IP connection device, ("Device" or "Equipment") used in conjunction with the Service. By activating the Service, you acknowledge that you have read and understood, and you agree, to the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms. If you have purchased Equipment from any NEXGEN retail dealer, you will be deemed a "Retail Customer" and will be governed by certain Retail Customer terms and conditions as set forth herein. There are specific terms and conditions for Business Services, which are in NEXGEN's Enhanced Service Agreement.
Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by NEXGEN
You acknowledge and understand that the Service does not function in the event of power failure. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which may not be provided by NEXGEN) and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider ("ISP") and/or broadband provider, the Service will not function, but that you will continue to be billed for the Service unless and until you or NEXGEN terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP broadband outage, the Service will not function until power is restored or the ISP outage is cured. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or ISP outages will also prevent dialling. Should NEXGEN suspend or terminate your Service, the Service will not function until such time as NEXGEN restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement).
Broadband Service / ISP Outage or Termination / Suspension by NEXGEN
You acknowledge and understand that service outages or suspension or termination of service by your broadband provider and/or ISP or by NEXGEN will prevent ALL Service and dialling.
Service Outage Due to Suspension of Your Account
You acknowledge and understand that service outages due to suspension of your account will prevent ALL Service and dialling.
Other Service Outages
You acknowledge and understand that if there is a service outage for ANY reason, such outage will prevent ALL Service and dialling. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
Limitation of Liability and Indemnification
You acknowledge and understand that NEXGEN's liability is limited for any Service outage as set forth in this document. You agree to defend, indemnify, and hold harmless NEXGEN, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service relating to the absence, failure or outage of the Service, and/or inability of Customer or any third person or party or user of Customer's Service to be able to dial.
FAIR USE POLICY
It is important to NEXGEN that all eligible NEXGEN customers are able to access our services. For this reason, and to ensure the provision of quality and reliability of our services, a Fair Use Policy applies to all our services and plans. We reserve the right to vary the terms of this Fair Use Policy from time to time.
OUTGOING TELEPHONE NUMBERS You acknowledge and understand that NEXGEN customers can make outgoing calls to most Public Switched Telephone numbers with the exception of some special service numbers. NEXGEN is not liable for any claims, losses, damages, costs and expenses as a result of you not being able to call these special service numbers.
SERVICE NUMBERS
NEXGEN numbers are used for identification purposes. A user does NOT own the NEXGEN number he or she has been assigned. The user pays NEXGEN for the process of connecting a NEXGEN number with relevant online services. The user does NOT pay for the number itself in anyway. NEXGEN has the sole right in the use of the number and can assign the number to anyone or anything it chooses. NEXGEN numbers are normally assigned on a first come first serve basis, however, preference is given to some parties at NEXGEN's discretion.
Local Phone Numbers used by you are not portable. That is you cannot "take them with you" when your Service is terminated. This is because the user does NOT own the Local Phone Number he or she has been allocated, NEXGEN does . The Local Phone Numbers that customers use are actually what the telecom industry call Direct In Dial (DID) numbers belonging to NEXGEN. DID's are not portable between carriers in the same way a "normal" phone number would be. Upon termination of the service, Local Phone Numbers remain the property of NEXGEN. Furthermore, the Local Phone Numbers belong to NEXGEN at all times. When you give out Local Phone Numbers, you are giving out NEXGEN Local Phone Numbers for people to call NEXGEN and NOT to call you. At their discretion, NEXGEN may choose to link a Local Phone Number to a NEXGEN number. This link is internal to the NEXGEN network.
NEXGEN SERVICE
Lawful Use of Service and Device
You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when the receipt or possession of such communication or material i. Would constitute a criminal offence, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or ii. Encourages conduct that would constitute a criminal offence, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. NEXGEN reserves the right to terminate your service immediately and without advance notice if NEXGEN, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, all of which immediately become due and payable and may at NEXGEN's discretion be immediately charged to your credit card.
Tampering with the Device or Service
You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from NEXGEN in each instance, which NEXGEN may deny in its sole discretion. NEXGEN reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. You agree not to hack or disrupt the service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so.
Termination/Discontinuation of Service
NEXGEN reserves the right to discontinue providing the Service generally, or to terminate your Service, at any time at its sole discretion. You will be responsible for the full month's charges to the end of the current term including and without limitation unbilled charges, all of which immediately become due and payable.
Call charge for a successful call
A call is charged when it is answered by the called party or by an answering machine, or by other means which provides announcements for wrong number, service switch off or disconnect service. The call charge of the call is the duration between when the call is answered and when the call is terminated by the calling or called Party.
WARRANTY and LIABILITY LIMITATIONS
Liability
You will indemnify us against all costs, losses, damages, actions, proceedings, claims, liabilities and expenses (including all reasonable legal costs, fees and expenses) incurred or suffered by us as as a result of: a) Any personal injury to, or death of, any person or any loss of, or damage to, any personal property caused by or arising from your breach of this Standard Agreement or your acts or omissions or those of any person for whom you are responsible; or b) Your acts or omissions (or those of any person for whom you are responsible) relating to the use, or attempted use, of the service or otherwise arising in connection with our supply of (or delay in supply) or failure to supply) the service; and c) A claim by an end user arising out of or in connection with the supply or cession of supply of the service NEXGEN shall not be liable for any delay or failure to provide the Service, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following: a) Act or omission of an underlying carrier, service provider, vendor or other third party; b) Equipment, network or facility failure; c) Equipment, network or facility upgrade or modification; d) Force majeure events such as (but not limited to) strikes; fire; war; riot; government actions; e) Equipment, network or facility shortage; f) Equipment or facility relocation; g) Service, equipment, network or facility failure caused by the loss of power to Customer; h) Outage of Customer's ISP or broadband service provider; and i) Act or omission of Customer or any person using the Service or Device provided to Customer; or j) Any other cause that is beyond NEXGEN's control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications to be connected or completed or degradation of voice quality. Except expressly provided by this Standard Agreement: You will bear the risk of loss or damage to any NEXGEN equipment used or located on you're your premises or whilst in your possession or control; a) The NEXGEN equipment always remains our property unless it has been sold to you; b) You will ensure that, you have all necessary consents and approvals, including landlord approval where applicable, necessary or desirable for us to deliver, install and maintain the NEXGEN equipment at the access site; c) You will provide a suitable physical environment at your premises for the storage and operation of the equipment including supplying an adequate power supply for the d) Operation of the equipment; e) You must ensure the NEXGEN equipment will not be altered, repaired, serviced, moved or disconnected except by service personnel approved by us; you must take good care of the NEXGEN equipment while it is in your possession or control and must notify us immediately if you become aware of any damage to or malfunction of the equipment; f) You will be liable to us for all loss of, or damage to, to the NEXGEN equipment while at your premises or whilst in your possession or control, apart from fair wear and tear; and g) You will only use the NEXGEN equipment in accordance with the manufacturer's specifications or our written directions. We may charge you for any repair, maintenance or replacement of the NEXGEN equipment due to events other than normal wear and tear, including but not limiting to: a) Force Majeure events b) failure to use the NEXGEN equipment in accordance with this Standard Agreement c) any act of wilful damage or interference by a party other than us, our employees or agents; d) negligent use or misuse of the NEXGEN equipment by a party other than us, our employees or agents; e) any failure or fluctuation of the electrical power supply to that NEXGEN equipment, or any external electromagnetic interference or any failure of air-conditioning and humidity control for that equipment; or f) the performance of maintenance services by a party other than us or service personnel approved by us. If we use the services of our other supplier in providing the service, you agree to comply with any reasonable direction given by us necessary to avoid causing any breach by us of the relevant other suppliers' terms and conditions of supply applicable to that service. Except as expressly provided to the contrary in this Standard Agreement and to the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the service supplied under this Standard Agreement or our obligations under this Standard Agreement are excluded. Where any Act of Parliament implies in this Standard Agreement any terms, and that Act of Parliament voids or prohibits provisions under a contract which exclude or modify the operation of such term, the term is deemed to be included in this Standard Agreement. To the extent permitted by law, our liability for breach of an express term or implied term of this Standard Agreement in contract, negligence or any other tort under any statue or otherwise, is limited to one of the following remedies at our discretion: if the breach relates to services, the re-supply of the service or the payment of the cost of resupplying the service or if the breach relates to goods, the replacement of the goods or the supply of equivalent goods, the payment of the cost of such replacement, the repair of such goods or the cost of such repair. To the extent permitted by law, we exclude all liability to you in connection with this Standard Agreement for consequential loss, indirect loss, loss of profits of any kind, loss or corruption of data, interruption to business, loss of revenue and economic loss of any kind, whether in contract, negligence or any tort under any statue or otherwise. To the extent permitted by law, our aggregate liability to you in connection with this Standard Agreement in respect of all claims, whether in contract, negligence or any other tort, under any statute or otherwise, will not exceed the amount paid to us by your during the minimum term. We retain all rights in the confidential information. You will: a) Keep all confidential information confidential; b) Not disclose or allow any confidential information or the terms of this Standard Agreement or application of service including pricing to be disclosed to any third part without our prior written consent; and c) Return all confidential information including all copies to us within 7 days of request by us. You will not use confidential information or the terms of this Standard Agreement, which you acquire from us for any purpose other than use of the service or as otherwise expressly permitted by us and, in particular, will not use confidential information in any way which may cause us loss, whether by way of damage to our reputation, financial loss or otherwise.
Disclaimer of Damages
IN NO EVENT SHALL NEXGEN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT NEXGEN WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
No Warranties on Service
NEXGEN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, NEXGEN DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER NEXGEN NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO NEXGEN's OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF NEXGEN's OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY NEXGEN OR NEXGEN's AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
Content
You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. NEXGEN reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if NEXGEN determines that such use or content does not conform with the requirements set forth in this Agreement or interferes with NEXGEN's ability to provide Services to you or others or receives notice from anyone that your or Users' use or Content may violate any laws or regulations.
NEXGEN's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold NEXGEN against any and all liability arising from the content transmitted by or to you or to Users using the Services. A "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
Force Majeure
We are not liable for any failure to perform, or for any delay in performing any of our obligations under this Standard Agreement where the failure or delay is occasioned by: a) Strike or other industrial action; b) Any act or omission by you or any third party, including failures or delays by other suppliers; c) Legislative or governmental prohibitions, restrictions or delays in the granting of approvals, consents, permits, licences or authorities; d) Fire, flood, war or cable cut; or e) Any other event beyond our reasonable control.
SERVERABILITY
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
PRIVACY
NEXGEN Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. NEXGEN is not liable for any lack of privacy which may be experienced with regard to the Service.
ENTIRE AGREEMENT
This Agreement and the rates for Services found on the NEXGEN website constitute the entire agreement between you and NEXGEN and govern your use of the Service, superseding any prior agreements between you and NEXGEN and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
CHANGES TO THIS AGREEMENT
NEXGEN may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on to the NEXGEN web site. Such changes will become binding on Customer, on the date posted to the NEXGEN website and no further notice by NEXGEN is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service, including without limitation any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including without limitation any written terms enclosed within the packaging of the Device.