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TERMS &
CONDITIONS
XIVA™ SOFTWARE CUSTOMER SERVICE AGREEMENT
Your DMS4 Digital Music Server is powered by XiVA™ Software by
Imerge Limited (“Imerge”) licensed to Niles for use in the DMS4. This
agreement explains the terms and conditions that will apply to your use of
the Imerge 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 DMS4 Digital 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 DMS4 Digital Music Server), your TV set and the
public telephone service and all related charges.
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 DMS4
Digital 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 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, 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 DMS4
Digital 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 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.