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This Service Agreement governs customer's
purchase and use, in any manner, of Hosting,
as described in the Order Form, ordered by
customer and accepted by XWebHosting and
describes the terms and conditions that
apply to such purchase and use of the
Services. XWebHosting reserves the right to
change or modify any of the terms and
conditions contained in this Agreement, the
Addendum and any policy or guideline
incorporated by reference at any time and
from time to time in its sole discretion,
and to determine whether and when any such
changes apply to both existing or future
customers. Any modification will be
effective upon posting of the revisions on
our site. XWebHosting may post changes or
modifications to referenced policies and
guidelines without notice to you. Your
continued use of the Services following
XWebHosting posting of any changes or
modifications will constitute your
acceptance of such changes or modifications.
IF CUSTOMER DOES NOT AGREE TO THE TERMS OF
ANY MODIFICATION, DO NOT CONTINUE TO USE THE
SERVICES AND IMMEDIATELY NOTIFY XWebHosting,
OF YOUR TERMINATION OF THIS AGREEMENT IN THE
MANNER DESCRIBED BELOW.
I. Overview
1. This Agreement shall be for an "Initial
Term" of thirty (30) days for Hosting.
Customer agrees to all terms and conditions
of services provided by XWebHosting,
beginning upon receipt by fax, e-mail, or
express mail.
2. All charges for Services, excluding Dedicated Servers, are
covered by a 7-day money back guarantee and must be paid in advance
according to the then current price
applicable to the Services. Upon
registration for Hosting Services, customer
must choose to pay for the Services either
by credit/debit card or paypal upon your
receipt of an invoice. If customer chooses
to pay by credit card upon registering for
Hosting Services, customer thereby
authorizes XWebHosting to charge you to pay
for any charges that may apply to your
account. If client pays via paypal, the
subscription MUST remain active for their
hosting account to remain active. When
customer cancels subscription with paypal,
they also cancel hosting service. If client
cancels early, no refunds will be given for
any unused portion of service unless it is within the 7-day grace period. Customer
agrees that XWebHosting may accumulate any
supplemental charges, as described in the
Order Form, incurred by you in your use of
the Services ("Supplemental Charges") until
such charges exceed $20 and then invoice the
charges to customer. Customer must notify
XWebHosting of any changes to your billing
information, your billing address, credit
card on file, or any information that may
prohibit XWebHosting from charging you. If
customer chooses to be invoiced upon
registration for Hosting Services,
XWebHosting will send an invoice to you for
the Services applicable to the period for
which you have registered for the Services.
XWebHosting may also send periodic invoices
to customer for any applicable Supplemental
Charges associated with your use of the
Services.
Customer agrees to pay to XWebHosting the
amount indicated in each invoice by the due
date reflected on the invoice. If customer
fails to pay any fees and taxes within three
(3) days from applicable due date for credit
card or invoice payments, late charges of
the lesser of one and one-half per cent
(1.5%) per month or the maximum allowable
under applicable law shall also become
payable by you to XWebHosting. In addition,
customer's failure to fully pay any fees and
taxes within five (5) days after the
applicable due date will be deemed a
material breach of this Agreement,
justifying XWebHosting suspension of its
performance of the Services and/or
termination of this Agreement. Customer is
responsible for any fees associated with
reinstated of Services. Any such termination
would not relieve customer from paying past
due fees plus interest. In the event of
collection enforcement, customer will be
liable for any costs associated with such
collection, including, without limitation,
reasonable attorneys' fees, court costs and
collection agency fees.
3. This Agreement will be automatically
renewed (the "Renewal Term") at the end of
the Initial Term for the same period as the
Initial Term unless you provide XWebHosting
with notice of termination either (a) at
least thirty (30) days prior to the end of
the Initial Term or the Renewal Term,
whichever is then applicable.
4. Initial payment is due upon activation of
account. Activation takes effect on the date
of receipt of payment, and will be renewed
automatically for identical successive
periods. Any changes made to the customer's
package shall be billed accordingly.
5. All orders are subject to acceptance by
XWebHosting. An order will be deemed
accepted by our company when confirmation of
the order is sent to the customer. We may
refuse to accept any order, or delay
acceptance awaiting completion of conditions
the company may choose to exercise. Such
refusal of such conditions may not be
unreasonable, however, and XWebHosting
agrees to provide the customer with
reasonable notice by E-mail or fax of any
intent to delay or decline the acceptance of
any order.
6. XWebHosting reserves the right to suspend
the customer's account and services without
notice should there be any problems with the
customers method of payment. This includes
expired credit cards, declined credit cards,
inactive credit cards, failed subscription
payments, and invalid checks or echecks.
XWebHosting Also reserve's the rights to
refuse service to customers and/or prospects
who are abusive toward XWebHosting employees
and consultants.
7. Bandwidth utilization will be monitored
via MRTG and calculated by the following
method: Monthly Avg. In + Monthly Avg. Out /
8 Bits x 60 seconds x 60 minutes x 24 hours
x 30.5 days = Total Data Transfer (GB).
Furthermore, the max burst rate for each
port / server is 100Mbps X 4 (BG4 Routing)
8. Servers provided XWebHosting are managed.
Customer will be responsible for all server
administration related issues. XWebHosting
will monitor your server for uptime and
provide free reboot upon a request.
Additional professional administration is
also available at $45.00 per hour with a one
(1) hour minimum requirement.
9. XWebHosting may filter and block certain
ports without notice at any time to protect
the network from Denial of Service (DDoS),
SYNC, and Ping flood attacks. Customer will
need to consult with the engineering
department as to which ports are available.
II. Taxes
XWebHosting shall not be liable for any
taxes or other fees to be paid in accordance
with or related to purchases made from the
customer or XWebHosting servers. Customer
also agrees to take full responsibility for
all taxes and fees of any nature associated
with any such products sold.
III. Material and Products
1. XWebHosting will exercise no control
whatsoever over the content of the
information passing through the network or
on the customer's web sites. XWebHosting
makes no warranties or guarantees of any
kind, whether expressed or implied for the
service it is providing. XWebHosting also
disclaims any warranty of merchantability or
fitness for particular purpose and will not
be responsible for any damages that may be
suffered by the customer, including loss of
data resulting from delays, non-deliveries
or service interruptions or gaps by any
cause or errors or omissions of the
customer. XWebHosting is not responsible for
any loss, erasure, or corruption of
customer's data or files whatsoever. Use of
any information obtained by way of
XWebHostingis at the customer's own risk,
and the company specifically denies any
responsibility for the accuracy or quality
of information obtained through its
services. Network connectivity represents
the speed of connection to our network and
does not represent guarantees of available
end to end bandwidth. XWebHosting expressly
limits its damages to the customer for any
non-accessibility time or other down time to
the pro-rate monthly charge during the
system unavailability. XWebHosting
specifically denies any responsibilities for
any damages arising from a consequence of
such unavailability. In the event that this
material is not "server-ready", XWebHosting
may, at its option and at any time, reject
this material, including but not limited to
after it has been put on our servers.
XWebHosting agrees to notify customer
immediately of our refusal of the material
and afford customer the opportunity to amend
or modify the material to satisfy the needs
and/or requirements of the company. If the
customer fails to modify the material, as
directed by XWebHosting within a reasonable
period of time, which shall be determined
between the parties themselves, the
Agreement shall be terminated.
IV. Warranties & Representations
Customer warrants, represents, and covenants
to XWebHosting that (a) you are at least
nineteen (19) years of age; (b) you possess
the legal right and ability to enter into
this Agreement; (c) you will use the
Services only for lawful purposes and in
accordance with this Agreement and all
applicable policies and guidelines; (d) you
will be financially responsible for the use
of your account; (e) you have acquired or
will acquire all authorizations necessary
for hypertext links to third-party Web sites
or other content; (f) you have verified or
will verify the accuracy of materials
distributed or made available for
distribution via the Services, including,
without limitation, your content,
descriptive claims, warranties, guarantees,
nature of business, and address where
business is conducted, and (g) your content
does not and will not infringe or violate
any right of any third party (including any
intellectual property rights) or violate any
applicable law, regulation or ordinance.
V. Trademarks & Copyrights
Customer warrants that it has the right to
use the applicable trademarks, if any.
XWebHosting may request the right to use
such trademarks in connection with our
service.
Customer will review such a request
promptly, and not unreasonably withhold such
permission.
VI. Termination
This Agreement may be terminated by
XWebHosting, without cause and/or notice. In
such event, the company will not be required
to pay to the other party an amount equal to
the unused and prorated portion of service
excluding any setup charges. Not
withstanding the above, XWebHosting may
terminate the service under this Agreement
at any time, without penalty, if the
customer fails to comply with the terms of
this Agreement. It is the customer's
responsibility to point your domain to
another service provider upon termination,
cancellation or discontinuation of service.
VII. Cancellations
You agree that until and unless you notify
XWebHosting of your desire to cancel any or
all services received, those services will
be billed on a recurring basis. Cancellation
Requests must be submitted (7) days prior to
your next billing due date or you will still
be responsible for payment. Cancellations
must be done in writing via the support
ticketing system in the billing area.
VIII. Limited Liability
1. Customer expressly agrees that use of
XWebHosting Servers is at customer's sole
risk. Neither the company, its employees,
agents, resellers, third party information
providers, merchants licensers or the like,
warrant that XWebHosting service will not be
interrupted or be error free; nor do they
make any warranty as to the results that
might be obtained from the use of the Server
service or as to the accuracy, or
reliability of any information service or
merchandise contained in or provided through
our network, unless otherwise expressly
stated in this Agreement. Customer also
acknowledge and accept that any damages will
be limited to no more than 100% of the
previous month's invoice.
2. Under no circumstances, including
negligence, shall XWebHosting, its officers,
agents or any one else be liable for any
direct, indirect, incidental, special or
consequential damages that result from the
use of or inability to use our service; or
that results from mistakes, omissions,
interruptions, deletion of files, errors,
defects, delays in operation, or
transmission or any failure of performance,
whether or not limited to acts of God,
communication failure, theft, destruction or
unauthorized access to XWebHosting records,
programs or services. Customer hereby
acknowledges that this paragraph shall apply
to all contents on all servers.
IX. Indemnification
Customer agrees that it shall defend,
indemnify, save and hold XWebHosting
harmless from any demands, liabilities,
losses, costs and claims, including
reasonable attorneys fees, ("Liabilities")
asserted against the company, its agents,
its customers, servants officers and
employees, that may arise or result from any
service provided or performed or agreed to
be performed or any product sold by the
customer, its agents, employees or assigns.
Customer agrees to defend, indemnify and
hold harmless XWebHosting against
Liabilities arising out of (i) any injury to
person or property caused by any products
sold or otherwise distributed in connection
with our servers; (ii) any material supplied
by the customer infringing or allegedly
infringing on the proprietary rights of a
third party; (iii) copyright infringement
and (iv) any defective product which
customer sold on XWebHosting Servers.
X. Partial Invalidity
If any provision of this agreement is held
to be invalid by a court of competent
jurisdiction, then the remaining provisions
shall nevertheless remain in full force and
effect. XWebHosting and Customer agree to
renegotiate in good faith any term held
invalid and to be bound by mutually agreed
substitute provision.
XI. Disputes
The parties shall try to resolve all
disputes that might arise out of this
agreement in a spirit of cooperation without
formal procedures. Any dispute which cannot
be so resolved (other than the collection of
money due on unpaid invoices) and other than
the injunctive relief referred to in
paragraph 10 shall be subject to arbitration
upon written demand of either party.
Arbitration shall take place in Erie County,
New York. The arbitration will take place
before an arbitration panel chosen as
follows: The parties shall each choose an
arbitrator, and the two arbitrators shall
choose a third arbitrator and determine the
third arbitrator's pay. Each party shall
have one veto over the choice of the third
arbitrator. The three arbitrators shall
schedule an informal proceeding, hear the
arguments, and decide the matter by secret
majority vote. Unless the arbitrators decide
otherwise, each party shall pay the costs of
its own arbitrator, and shall pay half of
the other costs of the arbitration
proceeding. Each party shall have the right
to have the proceedings transcribed. The
arbitrators will not have the authority to
award punitive damages or any other form of
relief not contemplated in the contract. The
majority of arbitrators shall render a
written opinion setting forth the basis on
which they arrived at the decision regarding
each issue submitted to arbitration; the
dissenting arbitrator, if any, shall not
issue a dissenting opinion. Regarding each
issue submitted to arbitration, the decision
will be final and binding only to the extent
it is accompanied by a written explanation
of the basis upon which it was arrived at.
Judgment upon the award, if any, rendered by
the arbitrators may be entered in any court
having jurisdiction.
Should any legal action permissible under
this agreement be taken to enforce the
conditions and terms of this agreement, in
particular the right to collect money due on
unpaid invoices, the prevailing party shall
be entitled to recover reasonable legal fees
and expenses incurred at the trial and
appellate levels.
XII. Confidentiality
Customer acknowledges that by reason of
their relationship, both customer and
XWebHosting may have access to certain
products, information and materials relating
to the other party's business, which may
include business plans, customers, software
technology, and marketing plans that are
confidential and of substantial value to
either party, respectively, and which value
would be impaired if such information were
disclosed to third parties. Consequently,
both XWebHosting and customer agree that it
will not use in any way for its own account
or for the account of any third party, nor
disclose to any third party, any such
information revealed to it by either party,
as the case may be.
Customer and XWebHosting further agree that
it will take every appropriate precaution to
protect the confidentiality of such
information. In the event of termination of
this agreement, there shall be no use or
disclosure by either party of any such
confidential information in its possession,
and all confidential documents shall be
returned to the rightful owner, or
destroyed. The provisions of this section
shall survive the termination of the
agreement for any reason. Upon any breach or
threatened breach of this section, either
party shall be entitled to injunctive
relief, which relief will not be contested
by the customer or XWebHosting.
XIII. Notices
Except with respect to service of process as
set forth in paragraph, all notices may be
sent by e-mail, fax, or express mail to the
e-mail address, fax number, or address most
recently provided and will be effective upon
transmission. Evidence of successful
transmission shall be retained.
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