End User License Agreement ("Agreement")
Notice to User ("you")
This is a legally binding contract between you (either an individual or a single entity) and Xchange Telecom LLC ("Xchange"). By installing, copying, or otherwise using Telerific ("Product") you agree to be bound by all of the terms and conditions of this Agreement.
The Product is not intended for use by persons under the age of thirteen (13). If you are under 13 years old, you may not use this application or provide Xchange with any personal information. If you are 13 or older but not of legal age to enter into a contract, you should review these terms and conditions with your parent or guardian to make sure that you and your parent or guardian understand these terms and conditions.
By installing, copying, or otherwise using the Product, you affirm that (a) you are either over the age of majority in your jurisdiction of residence or are an emancipated minor or possess legal parental or guardian consent to enter into this Agreement; (b) you are fully able and competent to enter into the terms and conditions of this Agreement, and (c) you agree to be bound by all of the terms and conditions of this Agreement.
1. License. Xchange grants you a non-exclusive, non-transferable, limited, revocable license to use the executable code version of the Product for personal or internal business purposes, provided that you use the Product in accordance with the terms set out herein (including any additional terms set out in Part B (if applicable) which are incorporated into and form part of this Agreement ("Additional Terms")). This license does not entitle you to receive any hard-copy documentation, technical support, telephone assistance, enhancements or updates to the Product. Copies of the Product received pursuant to this Agreement are licensed, not sold, and you do not acquire under this Agreement title to or ownership of any copy of the Product. Xchange may terminate this Agreement at any time, for any reason or no reason. Xchange may also terminate this Agreement if you breach any of its terms and conditions. Upon termination, you may no longer use the Product and you must destroy all your copies of the Product.
2. Telerific Terms of Service. By using this software, or by placing a call using this software, you are agreeing to the Telerific Telecom Terms of Service located at https://www.telerific.com/mobile/EULA
3. Restrictions. Without Xchange’s prior written consent, you may not:
• modify or create any derivative works of the Product or documentation, including customization, translation or localization;
• decompile, disassemble, reverse engineer, "unlock", attempt to access or otherwise attempt to discover the source code for the Product (unless and to the extent only expressly permitted or required under applicable law);
• redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Product;
• remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or
• publish any results of benchmark tests run on the Product to a third party.
4. Proprietary Rights. Title, ownership rights, and intellectual property rights in the Product shall remain with Xchange and its suppliers and licensors. The Product is protected by copyright and other intellectual property laws and by international treaties.
6. Disclaimer of Warranty. YOU USE THIS PRODUCT AT YOUR SOLE RISK. THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES THAT IT IS FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER XCHANGE NOR ITS SUPPLIERS OR LICENSORS HAS ANY OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THIS DISCLAIMER OF WARRANTY AND THE OTHER PROVISIONS OF THIS SECTION 5 CONSTITUTES AN ESSENTIAL PART OF THE BASIS FOR THE BARGAIN PURSUANT TO THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THE DISCLAIMERS AND OTHER PROVISIONS OF THIS SECTION 5.
7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL XCHANGE AND ITS PARENT, AFFILIATE AND SUBSIDIARY COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUPPLIERS AND LICENSORS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. XCHANGE 'S AND ITS SUPPLIERS' AND LICENSORS' TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE SUM OF THE FEES YOU PAID FOR THIS LICENSE (IF ANY). THE LIABILITIES LIMITED BY THIS SECTION 6 INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE EXCEPT THAT NOTHING IN THIS SECTION 6 SHALL LIMIT FROM XCHANGE 'S OR ITS SUPPLIERS’ AND LICENSORS’ LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
8. Indemnity. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS XCHANGE AND ITS PARENT, AFFILIATE AND SUBSIDIARY COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUPPLIERS AND LICENSORS, FROM ANY AND ALL THIRD PARTY CLAIMS, LIABILITY, DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO ATTORNEYS' FEES) ARISING FROM YOUR USE OF OUR PRODUCT, YOUR NEGLIGENCE OR WILFUL MISCONDUCT, YOUR VIOLATION OF THIS AGREEMENT OR YOUR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. YOU AGREE TO NOTIFY XCHANGE IMMEDIATELY OF ANY SUCH BREACH, VIOLATION OR INFRINGEMENT KNOWN TO YOU.
9. Export restrictions. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge that the Product may be subject to U.S. and other countries' export and import laws. You agree to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. You also agree that you will not use the Product for any purposes prohibited by U.S. or other applicable countries' laws.
10. Miscellaneous. Xchange may amend this Agreement from time to time, and such amendment will become effective thirty (30) days after you receive notice thereof, download a new version of the Product, or otherwise make or accept any modification to the Product. You understand and agree that your use of the Product after such amendment effective date constitutes your acceptance of the Agreement as amended. This Agreement shall be governed by the laws of the State of New York applicable to contracts made and to be performed entirely in New York provided however that no application of conflicts of laws principles shall be effective to modify the application of New York law to this Agreement. You and Xchange both agree to submit to jurisdiction and venue in the federal and state courts located within Brooklyn, NY. In the event that there is no other effective manner of service you hereby appoint the Secretary of State of the State of New York as your agent for purposes of service of process. If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. If you have any questions concerning this Agreement, or if you wish to contact Xchange for any reason, please use the contact information located at http://www.telerific.com/Contact.
11. Emergency Calls. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PRODUCT IS NOT INTENDED, DESIGNED OR FIT FOR PLACING, CARRYING OR SUPPORTING EMERGENCY CALLS TO ANY TYPE OF HOSPITALS, LAW ENFORCEMENT AGENCIES, MEDICAL CARE UNIT OR ANY OTHER KIND OF EMERGENCY SERVICE NOR ANY CALL FOR THE PURPOSE OF OBTAINING ASSISTANCE, HELP OR AID IN THE EVENT OF AN EMERGENCY. THERE ARE IMPORTANT DIFFERENCES BETWEEN TRADITIONAL TELEPHONE SERVICES AND THE PRODUCT. YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR RESPONSIBILITY TO OBTAIN, SEPARATELY FROM THE PRODUCT, TRADITIONAL WIRELESS (MOBILE) OR FIXED LINE TELEPHONE SERVICES THAT OFFER ACCESS TO EMERGENCY SERVICES, AND THAT THE PRODUCT IS NOT A REPLACEMENT FOR YOUR PRIMARY TELEPHONE SERVICE. NEITHER XCHANGE NOR ANY OF ITS PARENT, AFFILIATE AND SUBSIDIARY COMPANIES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, LICENSORS AND SUPPLIERS, ARE OR WILL BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (REGARDLESS OF THE DEGREE OF FAULT), INFRINGEMENT, STRICT LIABILITY OR OTHERWISE, IN ANY RESPECT FOR ANY CLAIMS, LOSSES OR DAMAGES (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION) ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE USE OF, OR THE INABILITY TO USE, THE PRODUCT FOR EMERGENCY CALLS TO EMERGENCY SERVICES AND FOR CALLS FOR THE PURPOSE OF OBTAINING ASSISTANCE, HELP OR AID IN THE EVENT OF ANY EMERGENCY, EVEN IF XCHANGE OR ITS SUPPLIERS OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS, LOSSES OR DAMAGES.
12. Prohibited Uses. You may not use, encourage, promote, facilitate or instruct others to use the Product for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive. You agree that your use of the Product shall in no way and to no extent, whether directly or indirectly, adversely affect, impede or otherwise hinder or disrupt the functionality or performance of the platform on which the Product runs. Prohibited activities or content include:
• Illegal Activities. Any activities that violate any applicable laws, rules or regulations.
• Harmful or Fraudulent Activities. Activities that may be harmful to other users of the Product, operations, or reputation, including without limitation offering or disseminating fraudulent goods, services, schemes or promotions (e.g., make-money-fast schemes, Ponzi and pyramid schemes, phishing or pharming), or engaging in other deceptive practices.
• Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
• Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, offensive, indecent or otherwise objectionable.
• Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program or data, including viruses, Trojan horses, worms, time bombs or cancelbots.
• Spam. Spam-related activities, including the distribution, publication, sending, or facilitating of unsolicited mass e-mailings, promotions, advertising or solicitations (like "spam"), including commercial advertising and informational announcements.
• Security Violations. Use of the Product to violate the security or integrity of any network, computer or communications system, software application or network or computing device.
• Commercial or Unauthorized Use. Use of the Product for any revenue generating endeavor, commercial enterprise or other purpose which is not authorized under this Agreement or for which it was not designed.
• Network Abuse. Use of the Product to carry out network abuse, including denial of service attacks or intentional interference with the proper functioning of any network, computer or communications system, software application or network or computing device.
13. Additional Terms:
1. Promotions, discounts, and contest winnings available on the site may not be used in conjunction with any other form of discount or promotion already applied for a given Telerific phone service purchase. No discount or promotion may be applied to a Telerific phone service after it has been purchased. Effective per-minute rate realized depends on efficient use of included minutes.
2. Telerific Rates may vary. Rates are the rate set forth for each specific service plan plus any added fee(s), and/or charge(s) set forth herein or in information for a calling plan. A connection/disconnection fee may apply to each domestic and international call and varies by country unless otherwise stated and such fee shall be charged to your calling plan. All calls are billed in 1-minute increments and rounded up unless otherwise stated. For each answered call, billing begins no earlier than the point at which the PIN is entered.
3. Certain premium-rate telephone numbers and certain special phone numbers may not be connected. For calls to premium-rate telephone numbers and calls to special phone numbers we reserve the right to charge your calling card at a higher rate than the rate advertised on the site under a calling destination. The Telerific service will only connect international destined calls.
4. Local, Regional and Mobile Phone Company charges may apply and such fee shall be charged to your calling card plan. Public payphones may incur an additional charge of up to $0.99 per phone call depending on the payphone carrier's policy. Federal, State, and local taxes for Lifeline Assistance and Universal Service Fund will be deducted from your calling plan as a flat rate of 18%, which will include all taxes and fees. Please see the rate sheet for a specific breakdown of fees. Calls to Directory Assistance will be charged at a higher rate and such fee shall be charged to your calling card.
5. Calls originating from Alaska, Hawaii, Puerto Rico, the US Virgin Islands and Guam will be charged at a higher rate unless the rate is specifically stated for those origination points. Call terminations at an international cellular phone number will be charged at a higher rate unless the rate is specifically stated for cellular phones. Application of surcharges and fees has the effect of reducing total minutes on the calling plan.
6. Automatic Refilling occurs if chosen by the customer when your account balance drops below the chosen refill limit. Future refills can be prevented at any time online or by calling customer support or via the IVR system. Refills that have been authorized and therefore processed are non-refundable.
7. For fraud protection purposes, first-time customers may be subject to telephone verification before activation. If the Telerific system flags your order for verification, one of our customer service representatives will call you within the next 24 business hours or ASAP to confirm your order over the phone, depending on the option chosen in the sign-up process.
8. For certain high-risk customers, including those abroad and overseas, Telerific.com customer service representatives may ask for copies of documentation for verification purposes. This may include, but is not limited to, a passport, driver's license, or a copy of the front and back of the credit card used. In requesting and accepting such documentation, Telerific.com will always adhere to the requirements of applicable privacy laws and its credit card merchant agreements.
9. Please call us at 1.877.853.3443 if you have any questions about our instant delivery or fraud protection policies. Customer service representatives are available Monday through Friday, from 9am to 5pm EST, toll-free, in the United States and Canada.
10. Billing errors may occur. If you have been undercharged, we, in our sole discretion, may charge your provided credit card and/or your PIN or calling product the amount for which you were incorrectly not charged.
11. Prices are subject to change without notice. Refunds will be offered in the form of exchanges or store-credit on all plans having a full balance, excluding discontinued products. Any promotion or discount applied to an order for which a refund is provided will be deducted from the amount of the refund.
12. Telerific.com phone service is not compatible with automatic dialing devices. Using such devices in conjunction with Telerific.com services is prohibited. Use of an automatic dialing device in conjunction with Telerific.com service entitles Telerific.com to suspend the Telerfic.com account with which the device is being used and to charge a $50 disconnection fee to that account.
13. Network services are provided by Xchange Telecom Corp. a Delaware Corporation, and its affiliate carriers.
14. BILLING Call times for each call are rounded up to the next whole minute and billed in full minute increments. Per call charges are rounded up to the next whole penny. All calls for which we receive answer supervision shall incur a minimum one-minute charge. Xchange relies on answer supervision to determine whether and when a call has been answered. Answer supervision is a signal sent by the carrier connecting the call to indicate the start of call. Answer supervision is generally received when a call is answered; however, answer supervision may also be generated by voicemail systems, private branch exchanges, and interexchange switching equipment. Where no answer supervision is received, we will commence billing forty (40) seconds following dial time unless the caller has terminated the call. You must notify us in writing of any disputed charges within sixty (60) days of the charges or you will have waived your right to dispute the charges.
15. To prevent fraud, Xchange will not terminate calls to these countries:
• 216 Tunisia
• 231 Liberia
• 238 Cape Verde
• 251 Ethiopia
• 252 Somalia
• 263 Zimbabwe
• 53 Cuba
• 676 Tonga
• 850 North Korea
• 974 Qatar
16. SEVERABILITY If any provision of this User Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the User Agreement, which shall remain in full force and effect.
17. FORCE MAJEURE. Xchange is not liable for failure or delay in performing an obligation under this Agreement that is due to causes beyond its control, such as natural catastrophes, governmental acts or omission, laws or regulations, labor strikes or difficulties, computer viruses, war, transportation stoppages or slowdowns or the inability to procure Content, information, service, carriers, Product, Software, or Demonstrations. If any of these causes continue to prevent or delay performance for more than 180 days, you may terminate this Agreement, effective immediately upon notice to Xchange.
18. COMPLETE AGREEMENT These provisions constitute the entire Agreement between you and Xchange with respect to the use of this Site and any Software, Content, or Product contained therein, unless specified and marked "ADDENDUM" on the site.
19. ARBITRATION & CHOICE OF FORUM. By accepting these Terms and Conditions through use of the Telerfic Services, you agree that, in the event a dispute arises between you and Xchange, the exclusive remedy for the dispute shall be resolution by assignment to the American Arbitration Association ("AAA") in the State of New York for a final and binding decision by a panel of three retired judges in accordance with AAA Commercial Arbitration Rules. You and Xchange, in consideration of the fact that there will be binding arbitration, agree to waive any claim for punitive or exemplary damages, and agree to seek only compensatory damages in the arbitration proceeding. You and Xchange further agree that each of you may only participate in such proceedings or bring any claim arising out or your transactions with Xchange in an individual capacity, and not as a plaintiff or class member in any purported class or as part of a representative proceeding. You and Xchange understand that, by agreeing to arbitration, each is waiving its right to jury trial and appeal. You and Xchange further agree that the terms and provisions of this Agreement will be governed by and construed in accordance with the laws of the State of New York as set forth below. If either your or Xchange attempts to institute a legal proceeding in court to enforce or interpret any arbitration decision, such proceeding must be instituted and maintained in the federal court for the Southern District of the State of New York. You consent to appearing at an arbitration conducted in the State of New York, and if it becomes necessary, to the jurisdiction of courts in the State of New York. You hereby waive any objections to such jurisdiction in any action arising out of your transactions with Xchange, including any claim involving Xchange's employees, officers, or directors.
1. You can terminate your account at any time. To terminate your account, send an e-mail to: firstname.lastname@example.org. You will not receive any refunds of any balances remaining in your account, however, if you reactivate your account, the balances will become available for your use.
2. Xchange may, in its sole discretion, suspend or terminate your access to all or part of the site for any reason. Such reasons for termination include, without limitation, breach of this Agreement or if your conduct is unlawful or is harmful to the interest of Xchange and/or its Customers, Partners, Suppliers, or Affiliates.
15. PROTECTION OF ID AND PASSWORD
1. You are required to have a password and user ID to use the Telerific Service.
2. You are given a password and a user ID during registration, or when you sign up on your phone. The password you are given is the pin number of your first order. You can change your password through account management in the "My Account" section of the Site. Information given during registration must be accurate and updated accordingly. You must be 18 years or older to use this site. In order to protect the accounts of all users, you may not select or use a user ID of another person or use a user ID in which another person has already claimed. Noncompliance with the foregoing shall constitute a breach of this Agreement. Such noncompliance may result in termination of your account. You are solely responsible for maintaining the confidentiality of your user ID and password.
16. EMERGENCY/911 CALLS: YOU EXPRESSLY ACKNOWLEDGE THAT EMERGENCY 9-1-1 CALLS ARE NOT INTENDED TO BE CARRIED/SUPPORTED BY THE SOFTWARE OR SERVICES AND THAT NEITHER XCHANGE NOR ANY OF ITS AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, AGENTS, NETWORK SERVICE PROVIDERS, PARTNERS, OR EMPLOYEES ARE OR WILL BE LIABLE FOR SUCH CALLS OR YOUR FAILURE TO MAKE SUCH EMERGENCY CALLS USING THE MATERIALS OR SERVICES. If you register for one of our pay services, you agree to be responsible for payment of all applicable charges incurred as a result of your use of the Telerific pay services, including but not limited to the use or misuse by an unauthorized third party, or any error, accidental use or loss. Due to our verification process, all funds may not be available for immediate use. Telerific will not offer any refunds or reimbursements for the purchase price of a calling card debit account. Calls made from a payphone may incur a surcharge. Telerific reserves the right to terminate any dormant account (dormant meaning that the account has not been used even for one outbound call for a period of ninety (90) days or longer). Information on this Site may contain technical inaccuracies or typographical errors. Information may be changed or updated without notice. Telerific may also make improvements and/or changes to the Site, Materials or Services at any time without notice.
17. TRANSMISSION. XCHANGE IS IN NO WAY LIABLE FOR TRANSMISSION FAILURE, INCLUDING BUT NOT LIMITED TO, THE FAILURE, DELAY, INTERRUPTION OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF THE SITE. INFORMATION IS TRANSMITTED OVER MANY DIFFERENT EXCHANGES, THE INTERNET, ROUTERS, CARRIER LINES, AND LOCAL AND LONG DISTANCE PHONE COMPANIES AND INTERNET SERVICE PROVIDERS. THESE DEVICES ARE MAINTAINED, SERVICED, AND OWNED BY THIRD PARTIES. THEIR MAINTENANCE AND SERVICE IS OUT OF THE CONTROL OF XCHANGE.
Part B: Additional Terms for IOS Mobile Devices
The License granted in Part A of this Agreement as set out above is solely for use on an Authorized Device (as defined below) in accordance with this Agreement and the Store Usage Rules (also as defined below).
1. Apple Store Terms. References in this Part B to Xchange may include Xchange's suppliers and licensors but in any case do not include Apple, Inc. ("Apple"). In the event of any conflict between Section 5 (Part A) of this Agreement and the provisions of this Part B, Section 5 (Part A) will govern, except with respect to Apple's rights and responsibilities. This Part B does not expand Xchange's liability or obligations to you beyond that required elsewhere in this Agreement or by applicable law.
2. Acknowledgement. This Agreement is concluded between Xchange and you only, and not with Apple. Xchange, and not Apple, is solely responsible for the Product and the content thereof.
3. Scope of License, Definition of Terms Used in Part B. "Authorized Device" refers to any Apple iPhone, iPad or iPod Touch that you own or control. "Store Usage Rules" refers to the "Usage Rules" set forth in Apple's App Store Terms of Service, currently posted at http://www.apple.com/legal/itunes/us/terms.html, including any successor version thereof promulgated by Apple.
4. Maintenance & Support. This Agreement does not call for maintenance or support services, but in the event that applicable law requires such services related to the Product, Xchange is solely responsible for providing them. You and Xchange acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Product.
5. Warranty. Section 5 (Part A) of this Agreement disclaims all warranties to the maximum extent permitted under applicable law, but to the extent not effectively disclaimed, if any, Xchange is solely responsible for any product warranties. In the event of any failure of the Product to conform to any such applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Product (if any) to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Product, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Xchange's sole responsibility.
6. Product Claims. You and Xchange acknowledge that Xchange and its suppliers and licensors, not Apple, are responsible for addressing any claims of yours or of any third party relating to the Product or your possession and/or use of the Product, including, but not limited to: (a) product liability claims; (b) any claim that the Product fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
7. Intellectual Property Rights. Xchange and you acknowledge that, in the event of any third party claim that the Product or your possession and use of the Product infringes that third party's intellectual property rights, Xchange and not Apple will be the sole bearer of any responsibility for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
8. Third Party Beneficiary. Xchange and you acknowledge and agree that Apple and Apple's subsidiaries are third party beneficiaries of this Agreement and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary.