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TERMS & CONDITIONS
XIVA™ SOFTWARE CUSTOMER SERVICE
AGREEMENT
Your next-generation Music Server media appliance 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 CB3 8SL England, United Kingdom;
“Software” means the XiVA™ Software on your Music Server 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 Music Server), your TV set and the
public telephone service and all related charges.
Registration via the XiVA™ Software Service
In order to transmit your registration data, you must (a) obtain access to the
Internet directly from your XiVA™ home media appliance (your Music
Server is supplied XiVA™ enabled) via an Internet Service Provider (ISP),
and pay any service and/or telephony fees associated with such access.
XiVA Software Privacy Policy
Imerge respects the privacy of your information and will handle any
personal information you might supply to us when you register your
Music Server 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 unauthorised 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 that is provided by Marantz 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, Imerge 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 Imerge’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 Music Server is
connected, business interruption, 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
Marantz 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 from Marantz.
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 e-mail or facsimile transmission in each case
addressed to you at the e-mail address or facsimile number you
have given us or to Imerge at the e-mail 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.