COMMERCIAL TERMS OF USE FOR iXLink® MEMBERS

The following Commercial Terms of Use (the “Commercial Terms”) apply to providers of telecommunications services (each, a “Provider”) that use any one or more of the iXLink Services offered by Telarix, Inc. (“Telarix”), currently Price List Distribution, Price List Receipt, Price List Receipt (DCM), Bill Distribution, Bill Receipt, and CLI or other iXLink Services (each, an “iXLink Service” and, collectively with the iXLink Portal and network, the “iXLink System“).  iXLink is Telarix’s patented suite of services (U.S. Patent No. 8,359,400) and proprietary online venue that enables Providers to exchange data, information, and/or communications regarding their interconnection services via an internet portal and database created and maintained by Telarix.  iXLink® is a registered trademark of Telarix. 

ANY PROVIDER THAT DOES NOT WISH TO ACCEPT THE COMMERCIAL TERMS SET FORTH BELOW WITHOUT MODIFICATION, AS THEY MAY BE AMENDED FROM TIME TO TIME BY TELARIX, SHOULD NOT CLICK “ACCEPTED” BELOW AND SHOULD NOT ACCESS THE iXLink PORTAL OR USE ANY iXLink SERVICES.

EACH INDIVIDUAL WHO ACCEPTS THE COMMERCIAL TERMS DOES SO ON BEHALF OF HIM/HERSELF AND ON BEHALF OF THE PROVIDER THAT THE INDIVIDUAL REPRESENTS, AND WARRANTS TO TELARIX THAT SHE/HE IS AUTHORIZED TO DO SO.

Premium Members and Standard Members

If a Provider has entered into an iXLink® Services Agreement (an “ISA”) with Telarix and paid the recurring usage fee(s) for iXLink Service(s) established by Telarix, the Provider is a “Premium Member” of the iXLink Community and the terms of the ISA will take precedence in the event of a conflict with these Commercial Terms.

Providers that are not iXLink Premium Members may only use the iXLink System by invitation.  Such invitations may only be extended by Telarix or jointly by a Premium Member and Telarix. Before using the iXLink System, an invited Provider must first register with Telarix by furnishing certain identifying information, and notify Telarix (by clicking “Accepted” where indicated below) that the Provider accepts these Commercial Terms without modification, as they may be amended by Telarix from time to time, on behalf of itself and the employees or representatives of its organization authorized to access the iXLink System.  Each invited Provider that completes the foregoing actions is referred to in these Commercial Terms as an “iXLink Standard Member” and will receive limited access to the iXLink System to submit rates and invoices to Premium Members and to receive status reports on their submissions. iXLink Standard Members may pay a non-refundable iXLink Platform Fee as described on the iXLink System Knowledge base and receive enhanced support services and access to the iXLink System.

In these Commercial Terms, Premium Members and iXLink Standard Members are both referred to as “iXLink Member(s).”  To avoid conflicts with the provisions of Premium Members’ ISAs, certain of the Commercial Terms are designated as applicable only to iXLink Standard Members.

GDPR Compliance

Effective May 25, 2018, the European Union has directed that all persons within its regulatory jurisdiction must comply the EU General Data Protection Regulation (“GDPR).”  While many iXLink Members do not fall under the regulatory coverage of the GDPR, to assure operational consistency and compliance with global privacy and security best practices, Telarix has elected to include GDPR compliance provisions in these Commercial Terms.

Each iXLink Member acknowledges that use of iXLink Services requires the Member to provide Telarix with email addresses, some of which may incorporate Personally Identifiable Information (PII) of the iXLink Member’s employees who use the iXLink portal, and that Telarix’s collection and use of such email addresses are necessary, within the meaning of Section 6 of the GDPR, for the performance of a contract to which a Premium Member is a party (an ISA) and, with respect to both Premium Members and iXLink Standard Members, is necessary for the following legitimate interests:  (a) to assure secure access to the iXLink System, (b) for Members to submit and receive data to/from the iXLink System, and (c) for distribution by Telarix of information (e.g., Member Advisories, webinars, etc.) to Members regarding iXLink. 

Under the GDPR, iXLink Members are “data controllers” and Telarix is a “data processor.”  To assure that Telarix is in compliance with the GDPR, each iXLink Member as the data controller will ask any of its employees or any third party individual whose emails containing PII are used to access the iXLink portal to consent below to Telarix’s collection and use of such PII (as a data processor).   

Special Consent from Individuals with Email Addresses Containing Their PII:

▫                 I consent to Telarix, Inc. retaining, processing, and transmitting my email address specified below to a server hosted outside of the European Union for the purpose of allowing me to utilize the address to access the iXLink portal, to transmit and receive data from the iXLink portal, and to receive Member Advisories and other updates regarding iXLink Services.  I understand that Telarix will retain and store this consent and the email address until Telarix is advised either by my employer that I will no longer be utilizing iXLink Services on behalf of my employer, or by me that I am revoking this consent.  This consent is freely and voluntarily given, and is informed and intended to be unambiguous.  I understand that it may be revoked by me at any time by advising Telarix via email to GDPRFeedback@telarix.com

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General Terms Applicable to iXLink Standard Members

1.  Description of iXLink Services and Policies. The purpose and features of each iXLink Service are described in the accompanying Service Descriptions and are incorporated by reference into these Commercial Terms.  By registering as an iXLink Standard Member, a Provider acknowledges and agrees to perform the responsibilities assigned to iXLink Standard Members in the applicable Service Description(s) and further acknowledges and agrees to, and to comply with all iXLink Standard Member obligations set forth in the iXLink Performance Standards which, as amended from time to time by Telarix, also are incorporated by reference into these Commercial Terms. 

                  2. iXLink Platform Fee.  Each iXLink Standard Member unconditionally acknowledges and agrees that Telarix has full authority and discretion to establish the iXLink Platform Fee and that Telarix may increase the iXLink Platform Fee from time to time in its sole discretion.  The iXLink Platform Fee applicable to the Member’s utilization level is payable annually in advance by each iXLink Standard Member via the CyberSource credit card platform.  The iXLink Platform Fee is non-refundable regardless of whether a Member terminates use of the Services or has its use privileges suspended.

3.  License to Use iXLink Services.

(a) Subject to an iXLink Standard Member’s compliance with these Commercial Terms, Telarix grants each iXLink Standard Member a personal, non-exclusive, non-transferable, non-sublicensable, and terminable right and license to: (a) access the iXLink System via the internet and use the iXLink Services and related documentation solely for the Member’s internal business operations (and not in any resale or outsourcing capacity),  (b) access and use the Third Party Data available through iXLink; (c) input, upload, download, and otherwise use any data provided, input, or uploaded to the iXLink System by the Member and/or any other data provided, input, or uploaded to the iXLink System by any other Member of the iXLink Community; provided, however, that such license is only for the purposes of performing the Member’s internal business operations and only as set forth in these Commercial Terms, and provided further, that iXLink may not be used for any unlawful purpose or in any unlawful manner, and that any information obtained via iXLink System or by any email or other communication by or between Members of the iXLink Community and/or Telarix may not be reproduced, republished, distributed, resold, or otherwise disclosed to persons not authorized to access and use the iXLink System. 

                  (b) Each registered iXLink Standard Member acknowledges and agrees that Telarix and/or its licensors, as applicable, shall exclusively retain all right, title, and interest in and to the “Telarix IP” defined as follows: (a) iXLink and all iXLink Services including, without limitation, all iXLink-related documentation, (b) the iXLink System and all configurations, displays, screens, software, codes, processes, algorithms, scripts, user interfaces, images, graphics, text, formulas, methods, know-how, and other trade secrets, techniques, designs, inventions, new products, developmental work, and other tangible or intangible technical materials or information related to iXLink, (c) all Telarix domain names (including, without limitation, www.telarix.com and www.iXLink.com), the iXLink®, and Telarix® logos, and the marks and trade names “iXLink” and “Telarix”.

                  (c) The foregoing license granted to each iXLink Standard Member is subject to the condition that the Member does not (and does not allow any affiliate or third party to) (a) copy, modify, adapt, tamper with, or otherwise make any changes to the iXLink Services or related documentation or any part thereof; (b) write or develop any derivative works based upon the iXLink Services or Telarix IP; (c) create internet “links” to/from the iXLink System (other than on Member’s intranets or otherwise for the Member’s internal business purposes); (d) reverse engineer, disassemble, decompile, translate, or otherwise attempt to discover any source code, algorithms, tags, specifications, architecture, structure, or other elements of the iXLink Services, in whole or in part, for competitive purposes or otherwise; (e) use unauthorized versions of any iXLink Service including, without limitation, for the purpose of building a similar or competitive product or service or for obtaining unauthorized access to the iXLink System; (f) sell, resell, distribute, host, lease, rent, license, or sublicense, in whole or in part, the iXLink Services to third parties; (g) allow access to, provide, divulge, or make available the Telarix IP to any person other than Members of the iXLink Community, (h) obliterate, alter, or remove any proprietary or intellectual property notices from the iXLink Services or related documentation; (i) disclose or publish, without Telarix’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the iXLink Services; or (j) otherwise use or copy the same except as expressly permitted in writing by Telarix.

4. Conditions Pertaining to the Provision of iXLink Services by Telarix.

                  (a) Telarix will provide iXLink Services to iXLink Members materially in accordance with the iXLink Performance Standards set forth in their ISAs or that are incorporated by reference into these Commercial Terms.  Telarix will use commercially reasonable efforts to make the iXLink System generally available for on-line access on a 24 hours per day, 7 days per week (24/7) basis.

                  (b) Telarix may make any changes in the operation of the iXLink System and related facilities used in providing the iXLink Services that Telarix determines in its sole discretion to be necessary and/or desirable including, without limitation, changes in computer hardware, systems, and/or applications software, programming languages, data communications, location of systems and service equipment, Member identification procedures, and type of terminal equipment.  Telarix may, in its sole discretion add, delete, or change some or all the features included within any iXLink Service at any time.

                  (c)  Each iXLink Member unconditionally agrees that Telarix and its affiliates will have the right to use and disclose data related to the raffic, routing arrangements, and rates in aggregated or de-identified form.

(d)  Each iXLink Member appoints Telarix as a “data processor” under the GDPR and authorizes Telarix to collect, store, process, and utilize the email addresses identified and used by the Member’s users:  to assure secure access to the iXLink System, (b) for Members to submit and receive data to/from the iXLink System, and (c) for distribution by Telarix of information (e.g., Member Advisories, webinars, etc.) to Members regarding iXLink.

5.  iXLink Members’ Obligations and Responsibilities:

                  (a)  Each iXLink Standard Member agrees to perform the Member responsibilities outlined in the applicable Service Description and to follow the Security Practices posted at iXLink.com including, without limitation, being responsible for the confidentiality and use of its access number(s), password(s) and account number(s).  In addition, each iXLink Standard Member unconditionally agrees:

(i) to provide assistance, as reasonably requested by Telarix in connection with the installation/implementation and configuration of the iXLink Services including, if requested, timely providing Telarix with access to the Membr’s facilities.

(ii) to: (A) provide Telarix with all data required for the initial iXLink set up and configuration of the purchased services to Telarix in a timely manner and, if requested by Telarix, provide Telarix with the format for each type of data (and for each type of data of trading partners/vendors) that the Member intends to upload, or to have uploaded, to iXLink that complies with the requirements of iXLink and is reasonably acceptable to Telarix; (B) provide a business document format (in a format and media reasonably approved and acceptable to Telarix) that can be consistently uploaded by iXLink and/or delivered by iXLink; (C) use the agreed Document formats for all iXLink transmissions of that Document type to all of Member’s iXLink trading partners (if using Price List Distribution) or pay Telarix Development Fees for additional document templates, such Development Fees to be agreed in advance with the Customer; and (D) advise trading partners/vendors that they must submit a business Document template (on media and in a format reasonably acceptable to Telarix) that can be consistently uploaded by iXLink; provided, however, that if a trading partner/vendor changes its template more than 3 times per year, the iXLink Standard Member will pay Telarix’s development fees for such additional templates. 

(iii) to use its best efforts to ensure that no part of any iXLink Service (e.g., source code, object code) is displayed outside or copied outside of the iXLink System environment or distributed in any way to any third party.

(iv)  to comply with all technical specifications and with all security and operating guidelines, procedures, and protocols provided to the Member by Telarix including, without limitation, pertaining to use of passwords and as set forth in the Operating Instructions and Service Attachments for iXLink Services.

                  (b)  Each iXLink Standard Member unconditionally agrees to notify Telarix immediately if it becomes aware of: (i) any loss or theft of Member ID(s), password(s) and/or Link ID(s), (ii) any unauthorized use of any of Member ID(s), password(s) and/or Link ID(s), the iXLink System, or any Telarix IP, (iii) any failure to receive a message from iXLink in a timely manner in response to an offer submitted via iXLink (excluding, of course, notifications you have opted out of receiving), or (iv) any receipt of confirmation of an offer that you did not send, or any similarly inaccurate or conflicting report or Information.

                  (c) Each iXLink Standard Member unconditionally agrees: (i) not to attempt to gain or allow access to any data, files or programs to which the Member is not entitled, and that if such access is obtained, to immediately return such materials to Telarix and safeguard the same as Confidential Information (as defined below); (ii) to use the Services solely for the uses permitted in these Commercial Terms and in the Service Descriptions and only for proper business purposes in accordance with communications common carrier tariffs and all applicable laws, regulations, including without limitation, all laws and regulations respecting data privacy, international communications and the exporting and importing of Data (including any Member Data and/or Third Party Data) (“Laws”); and (iii) that Telarix shall have the right to use in its promotional and marketing materials and on the iXLink and Telarix websites, the name, logos and other marks of a Provider as a Member of the iXLink Community for so long as the Provider uses iXLink (and for a reasonable period thereafter to remove the Provider’s name and marks from marketing materials/website).

(d)  Special Provision Applicable to Members with Authorized Users.  If an iXLink Member desires to authorize Providers that are not iXLink Members to receive information from the iXLink System to distribute information to (each, an “Authorized User” of iXLink), the Member has an affirmative duty and obligation as a data controller (i) to ensure that each email address of each Authorized User is registered with Telarix and that appropriate processes for GDPR consent are followed where applicable, (ii) notifies iXLink if an email address registered by the Authorized User with iXLink will no longer be utilized to receive information from the iXLink System so that the address – but not the historical record of data entered using the address – can be deleted from the iXLink System (a “GDPR Purge”), and (iii) agrees that if Telarix determines that an email address registered by the Authorized User has been inactive for a period of six months, Telarix is authorized to remove the address from the iXLink System via a GDPR Purge. iXLink Members shall take the above steps to ensure their compliance with GDPR and shall be responsible for any non-compliance with respect to their duty as a controller under GDPR.

6.  Data Transmission.  Telarix uses a number of security measures to protect the information transmitted via iXLink.  However, documents are transmitted to and from iXLink using the internet and other networks beyond Telarix’s control, and as stated above, iXlink Standard Members are responsible for the security of their account information, computers and networks. Accordingly, Telarix cannot and does not guarantee the source and accuracy of data sent via iXLink. Therefore, Telarix encourages all iXlink Standard Members to be careful in dealing with others to avoid fraud, and to perform such verifications and checks as each Member deems necessary.  Each iXLink Standard Member unconditionally acknowledges that Telarix is not responsible for any compromise of data transmitted across the internet or other Third Party Networks, or any private email communication that may result between Members of the iXLink Community or Third Party Data or other third party content on the iXLink System.

7.  Suspension, and Termination. Telarix may, at its sole discretion, terminate the license granted to an iXLink Standard Member at any time with or without cause and may suspend an iXLink Standard Member’s right and ability to utilize any iXlink Service at any time.  Termination or suspension shall not limit any liability that an iXLink Standard Member may otherwise have to other Members of the iXLink Community or to Telarix.  Subject to any payment commitments to Telarix, an iXLink Standard Member may terminate its use of iXlink Services at any time upon written notice to Telarix.  In the case of any termination, such Member acknowledges and agrees that the provisions of these Commercial Terms shall remain in full force and effect after such termination, except that the license to use iXLink Services shall be terminated.

8.  Confidential Information. Each iXLink Standard Member unconditionally acknowledges and agrees that the Telarix IP constitutes valuable intellectual property and trade secrets of Telarix.  Accordingly, each registered iXLink Standard Member agrees that (i) any information whatsoever with respect to the Telarix IP, (ii) the terms and course of dealing between Telarix and the Member, and (iii) all other non-public information relating to the foregoing (collectively, the "Confidential Information") shall be treated by the Member on a confidential basis and shall not be reproduced, reduced to writing, or disclosed to any employees of the Member (except on a need to know basis and then only if the employee is subject to an obligation of confidentiality) or to any other person or entity without the prior written consent of Telarix.  Disclosure of information pursuant to applicable Laws shall be excepted from this provision; provided, however, that prior to any disclosure pursuant to any Laws, the iXLink Standard Member will assert the confidential nature of the Confidential Information and will cooperate fully with Telarix in protecting against any such disclosure including, without limitation, obtaining a protective order or similar order narrowing the scope of such disclosure of the Confidential Information.  In the event such protection is not obtained, the Member shall disclose the Confidential Information only to the extent necessary to comply with applicable Laws.

Each iXLink Standard Member acknowledges that violation of the provisions of this Section 8, could cause irreparable harm to Telarix not adequately compensable by monetary damages.  Accordingly, in addition to other relief, each iXLink Standard Member unconditionally agrees that injunctive relief shall be available to Telarix in the event of such violations without necessity of posting bond to prevent any actual or threatened violations of such sections.

9.  Use of Service; Indemnification. Each iXLink Standard Member unconditionally acknowledges and agrees that Telarix has no control over or liability for the following:

· Any products or services exchanged between Members of the iXLink System,

· The truth or accuracy of information transmitted between Members via iXLink,

· The ability of selling Members of the iXLink Community to sell and deliver products or services,

· The ability of buying Members of the iXLink Community to buy and pay for products or services,

· Whether the exchange of information and terms between Members of the iXLink Community will create any legally binding contracts;

· Any telecommunications services priced over iXLink; and/or 

· The performance by any Member of the iXLink Community of any obligation.

Each iXLink Standard Member unconditionally assumes responsibility for any Loss (defined below) in any way relating to any information supplied by or to such Member, any transactions to which such Member is or becomes a party, any misuse of information by such Member or by its trading partners, and/or the disclosure of any transaction terms between such Member and its trading partners.  Each iXLink Standard Member further agrees to indemnify, defend and hold harmless Telarix and its officers, directors, employees, successors, and assigns, from any and all losses, damages, liabilities, costs and expenses (including court costs and reasonable solicitor/attorney fees) (“Loss(es)”) arising from, in connection with, or based on allegations of: (a) any violation of any law, rule, or regulation arising by reason of the Member’s utilization of the iXLink System, (b) any claim or dispute which may arise from a breach of terms of a Carrier Agreement or from any dispute which may arise between Members of the iXLink Community with respect to the Price Lists exchanged (including without limitation any claim arising from or relating to transactions with respect to the purchase and sale of products as indicated in the Price lists), and/or (c) any information supplied by or through a Member of the iXLink Community or any transactions to which Member is a party and any misuse of any information by such Member.

10.  Waiver of Warranties; Limitation of Liability.  EACH iXLink STANDARD MEMBER UNCONDITIONALLY AGREES THAT USE OF iXLink SERVICES IS ENTIRELY AT THE MEMBER'S OWN RISK AND THAT EACH iXLink SERVICE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND OR RESPONSIBILITY EITHER EXPRESSED OR IMPLIED INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OR RESPONSIBILITY AS TO, OF, OR FOR TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR PARTICULAR PURPOSE; INFORMATION, CONTENT, OR COMPLETENESS OR INFORMATIONAL ACCURACY (INCLUDING BUSINESS DOCUMENTS TRANSMITTED BETWEEN MEMBERS); QUALITY, SUITABILITY, ACCURACY, FUNCTIONALITY, ACCESS OR OPERATION OF THE SERVICE; OR ANY ACTIONS BY THIRD PARTIES (e.g, A MEMBER’S ABILITY TO PROVIDE A PRODUCT OR SERVICE OR TO PAY ANOTHER MEMBER OF THE iXLink COMMUNITY FOR A PRODUCT OR SERVICE).

NEITHER TELARIX NOR ANY OF ITS AGENTS, AFFILIATES, OR CONTENT PROVIDERS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER (WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION) ARISING OUT OF ANY USE OF AN iXLink SERVICE OR  THE iXLink SYSTEM (INCLUDING, WITHOUT LIMITATION, ANY ACTUAL OR INTENDED TRANSACTIONS ARISING OUT OF THE USE OF THE SERVICE) THE PORTAL, OR ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICE, EVEN IF TELARIX OR SUCH OTHER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.  Notice and Amendments.  Telarix may give notice to iXLink Standard Members by means of a general notice on the Service, or by electronic mail to an iXLink Standard Member's email address on record at iXLink.com. iXLink Standard Members may give notice to Telarix in writing by first class mail, fax, or e-mail at the following address:

Telarix, Inc.
1950 Old Gallows Road,
8th Floor
Vienna, Virginia
22182-2789, USA

e-mail: info@ixlink.com

Fax: +1-703-448-5531

and such notice shall be deemed given when received by Telarix.  These Commercial Terms may be amended by Telarix from time to time by Telarix’s posting the amended Commercial Terms on the iXLink website.  Telarix may, in its sole discretion add, delete, or change some or all the features included within any iXLink Service at any time by posting an amended Service Description in the Knowledge Base.  Continued use of the iXLink Service after such posting will constitute acceptance by an iXLink Standard Member of the change.  If an iXLink Standard Member does not accept the changes, the Member may terminate its usage of the iXLink Service; provided, however, that the iXLink Platform Fee is non-refundable.

12.  Choice of Law and Jurisdiction.  ENFORCEMENT OF THESE COMMERCIAL TERMS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES.  EACH iXLink STANDARD MEMBER UNCONDITIONALLY AGREES TO SUBMIT ANY DISPUTES, DIFFERENCES, CONTROVERSIES, OR CLAIMS ARISING OUT OF OR RELATING TO THE COMMERCIAL TERMS TO BINDING ARBITRATION by a single ARBITRATOR IN WASHINGTON, D.C., IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION; provided, however, THAT SUCH MEMBERS agree that TELARIX MAY SEEK EQUITABLE RELIEF IN ANY COURT WITH PERSONAL JURISDICTION OVER A MEMBER FOR ANY ALLEGED VIOLATION OF TELARIX’s INTELLECTUAL PROPERTY RIGHTS. JUDGMENT UPON ANY ARBITRAL AWARD MAY BE ENTERED AND ENFORCED IN ANY COURT OF COMPETENT JURISDICTION.  

13.   Miscellaneous.  Telarix shall not be responsible for any delay in or failure of performance caused by any occurrence beyond its reasonable control including, without limitation, acts of God, earthquakes, labor disputes, war, riots, epidemics, failure of telecommunications services, or changes in laws, rules, regulations or policies of any jurisdiction including, without limitation, privacy laws and regulations.  Each iXLink Standard Member agrees that any cause of action arising out of or related to use of the iXLink System must commence within six (6) months after the cause of action arose; otherwise, the cause of action is permanently barred.  If a court of competent jurisdiction or other authority determines any provision of these Commercial Terms to be invalid, void, unenforceable, or against public policy, the remainder of Commercial Terms shall remain in full force and effect.  No waiver of any of the Commercial Terms shall be valid unless made in writing and signed by an authorized representative of Telarix.