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APPENdIx
xiVA™ SOFTWARE CUSTOmER SERVICE AGREEmENT
Your next-generation XiVA™ home media appliance (your TGM-100) is powered
by XiVA™ Software brought to you by Imerge Limited ("Imerge"). This agreement
explains the terms and conditions that will apply to your use of XiVA™ Software.
Definitions in this Agreement
"Imerge" or "we" means Imerge Limited (company registration number 03360764)
whose registered office is at Bar Hill Business Park, Saxon Way, Bar Hill, Cambridge
CB23 8SL England, United Kingdom;
"Software" means the XiVA™ Software on your TGM-100 and related XiVA™
accessory software.
"Service" means the use of XiVA™ Software related services provided to you by
Imerge, for example the registration service via the Internet.
"You", "your" and "yourself" means you, the person entering into this agreement with
Imerge;
"Registration Data" means your name, address, postcode and telephone number
(optional) or email address (optional).
Service Charges
You will be responsible for the interoperability between your XiVA™ home media
appliance (your TGM-100), your TV set and the public telephone service and all
related charges.
xiVA Software Privacy Policy
We respect the privacy of your information and will handle any personal information
you might supply to us when you register your equipment in accordance with the
XiVA™ Software Privacy Policy. A copy of this Privacy Policy is included as a part of
this document and forms part of these terms and conditions. Please read it carefully.
Conditions of Use
You agree not to use the Software and/or Service in a way that may reasonably be
expected to interrupt, disturb or impair the working of the XiVA™ Software Service.
You will not insert or knowingly or recklessly transmit, distribute, upload or otherwise
make available emails, software, data or files that contain a virus or corrupt data;
seek unauthorized entry into back office; hack into any aspect of the Software or
Service; knowingly corrupt data; circumvent, or attempt to seek to circumvent, any
of the security safeguards of Imerge or any of its suppliers; make any business use
of the Service; or assist any third party to do any of these things. By registering, you
agree to these terms and conditions.
Title to Software and Intellectual Property
Imerge retains title to and ownership of all the XiVA™ Software and intellectual
property rights in Imerge authorised products and XiVA™ home media appliances
and the Service. Imerge also retains ownership of all Imerge copyrights and
trademarks. Except as expressly authorised by Imerge, you agree not to copy,
modify, reverse engineer, rent, lease, loan, sell, distribute, sublicense, or create
derivative works based on the XiVA™ Software, in whole or in part.
You agree not to access the XiVA™ Software Service by any means other than
through the interface provided by Imerge or an Imerge Business Partner for use in
accessing the Service.
Indemnity
Neither Imerge nor any of its directors, employees or other representatives will be
liable for damages arising out of or in connection with the use of the Software. Save
in respect of liability for death or personal injury arising out of negligence, Sunfire
hereby disclaim and exclude to the fullest extent permitted by law all liability for any
loss or damage whatsoever and howsoever incurred including any consequential,
special, secondary or indirect loss or damage or any damage to goodwill or profits
or any loss of anticipated savings incurred by you, whether arising in tort, contract
or otherwise, and arising out of or in relation to or in connection with your access to
or use of or inability to use the Service or any software or content supplied to you in
connection with the Service, or in connection with any failure of performance, error,
omission, interruption, defect, delay in operation or transmission, computer virus or
line or system failure even if Imerge or its employees or agents are advised of the
possibility of such damages, losses or expenses.
Limitations of Sunfire's Liability
In no event will Imerge or its suppliers be liable to you or any third party for any loss
of profits, loss of data, loss of revenue, loss of or loss of use of software, loss of or
loss of use of equipment, to which the TGM-100 is connected, business interruption,
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or other indirect, consequential, special, or incidental damages of any nature arising
from or relating to your use of the Software, even if Imerge has been advised of the
possibility of such damages. You understand that these limitations of Imerge's and
Imerge's suppliers' liability are a fundamental term of this agreement.
Changes to the xiVA™ Software Service
Imerge reserves the right in its absolute discretion at any time and without notice
to users of the Software to add, remove, amend or vary features of the Software
or Service, temporarily or permanently, or on notice to all users to discontinue the
Service altogether at any time in its discretion. You agree that Imerge shall not be
liable to you or to any third party for any modification, suspension or discontinuance
of the Service.
Imerge also reserves the right to change the terms and conditions of this agreement.
Such changes shall be effective upon notification by Imerge. You are responsible for
viewing any new terms and continued use after notification will confirm acceptance
of such changes.
Invalidity
If any part of these terms and conditions are unenforceable (including any provision
in which we exclude our liability to you) the enforceability of any other part of these
terms and conditions will not be affected.
Governing Law
These terms and conditions shall be governed by and interpreted in accordance
with the laws of England and Wales whose courts shall have jurisdiction to resolve
any disputes between us. The official text of this agreement shall be in English. In
the event any dispute concerning the construction or meaning of this agreement,
reference shall be made only to this agreement as written in English and not to any
translation into another language. If any provision of these terms and conditions
is held by a court of competent jurisdiction to be contrary to the law then such
provisions shall be construed as far as possible to reflect the intention of the parties
and the other provisions shall remain in full force and effect.
Entire Agreement
These terms and conditions set out the whole of the agreement relating to our
supply of the Software and Service and shall supersede any prior agreements or
representations in respect thereof. These terms and conditions cannot be varied
except in writing, which can be delivered by electronic mail by Imerge. In particular
nothing said by any sales person on behalf of Imerge or an Imerge Business Partner
should be understood as a variation of these terms and conditions or an authorised
representation about the Service or the nature and quality of items displayed
thereon. Imerge shall have no liability for any such representation being untrue or
misleading.
No person other than the parties to this agreement shall have the right to enforce
any of its terms under the Contracts (Rights of Third Parties) Act, 1999.
These terms do not relate to your purchase of the XiVA™ home media appliance
itself, which is governed by a separate warranty agreement provided by Imerge's
Business Partner or their agent.
Assignment
You shall not assign any of your rights or obligations under these terms and
conditions without Imerge's prior written consent. Imerge shall have the right to
assign or otherwise delegate all or any of its rights or obligations under these terms
and conditions on notification to you.
Waiver
Imerge's failure to exercise or enforce any of its rights under these terms and
conditions shall not constitute a waiver of any such right.
Notices
Any and all notices to be given by either Imerge or you to the other under these
terms and conditions shall be deemed sufficiently given when sent by email or
facsimile transmission in each case addressed to you at the email address or
facsimile number you have given us or to Imerge at the email address or facsimile
number displayed at www.xiva.com
BY USING THE SERVICE, I CONFIRM THAT I HAVE READ AND UNDERSTOOD
THIS ENTIRE AGREEMENT AND I AGREE TO ALL THE TERMS OF THIS
AGREEMENT AS STATED ABOVE.
User's Manual
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