Please read carefully. You agree to these Terms and Conditions by making payment to XSolutions for web hosting services.
- A) Host (“XSolutions Consulting Services LLC”, “XSolutions”, “We”, Us”, “Our”) is in the business of offering Internet services relating to, among other things, hosting of sites on the World Wide Web portion of the Internet, and Host is willing to provide services to Client (“You”, “Your”, “Customer”, “Client”) on the terms and subject to the conditions set forth below; and
- B) Client (“You”, “Your”, “Customer”, “Client”) desires to engage Host, and Host desires to be engaged by Client, to provide Internet services on the terms and subject to the conditions set forth below.
- C) Terms and Conditions means this agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Host and Client hereby agree as follows:
This Agreement shall be effective upon receipt of payment from client for the hosting fee (the “Effective Date” shall be as stated in the invoice from XSolutions to Client) and thereafter shall remain in effect for one (1) year, unless earlier terminated as otherwise provided in this Agreement (the “Initial Term”). This Agreement shall automatically be renewed beyond the Initial Term for additional one (1) year terms (each a “Renewal Term”) upon receipt from client of hosting fee as invoiced, unless earlier terminated as otherwise provided in this Agreement.
- This agreement may be canceled by either party upon 30 days written notice to the other. If this agreement is canceled by Client within 30 days from the start of the initial or subsequent renewal terms, XSolutions will refund the remaining full months within the current term to client AFTER XSolutions takes into consideration all time related to the cancellation of services including transfers to a different web host provider. No refunds for partial months will be given. If Client cancels agreement after 30 days from the start of any term, no refund for remaining months will be given.
- XSolutions may immediately cancel this agreement if client fails to pay Host by the first day of the start of any term (Initial Term and Renewal Terms). XSolutions will inform Client of cancellation by email. Client understands that once this agreement is canceled, Client’s website will not be available to the public on the internet and all attached email addresses will become inoperable.
- There will be a $250 reactivation fee for any account that was previously canceled. This fee must be paid prior to reactivating the account. This reactivation fee is in addition to other fees and charges that Client may owe Host.
- Client understands and agrees that XSolutions may purge its system of all Client files and data after 30 days from the date of cancellation (whether initiated by Client or by Host). Once data is purged, it cannot be recovered. Client agrees to hold Host harmless against all damages resulting from the purging of Client data from XSolutions’ systems.
AGREEMENT TO THESE TERMS: CLIENT AGREES TO THESE TERMS AND CONDITIONS BY MAKING PAYMENT TO XSOLUTIONS FOR INVOICES FOR WEB HOSTING SERVICES. CLIENT WILL BE PROVIDED THE MEANS TO DOWNLOAD TERMS AND CONDITIONS FOR REVIEW PRIOR TO PAYING WEB HOSTING SERVICE INVOICES. A COPY OF THESE TERMS AND CONDITIONS ARE ALSO AVAILABLE UPON REQUEST.
- Host agrees to provide Client with services for hosting of a website on the World Wide Web portion of the Internet (the “Website”) as set forth in this agreement. Host shall provide the Hosting Services so that the Website is accessible to third Parties via the World Wide Web portion of the Internet as specified in this Agreement.
- Except as expressly provided in this Agreement, Client agrees that Host is responsible only for providing the Hosting Services, and Host is not responsible for providing any other services or tasks not specifically set forth in this agreement.
- To the extent that Client wishes to receive from Host, and Host wishes to provide to Client, services other than the Hosting Services (collectively the “Additional Services”), such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the “Services Addendum”), and the Services Addendum shall be incorporated into, and become a part of this Agreement. (The Hosting Services and the Additional Services will hereinafter be referred to collectively as the “Services”).
Availability of Website
Unless otherwise expressly indicated hereto, the Website shall be accessible to third Parties via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Host or which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. Because of the many unforeseen issues that can cause interruption of services, XSolutions cannot guarantee uninterrupted availability of website and Client agrees that Host is not responsible for any outages that occur.
Additional Storage and Transfer
In the event that the Website requires storage and transfer on the Host Server which exceeds the amount of storage included in the Hosting Services, Client may request that Host:
- Upgrade the level of Hosting Services; or
- Acquire additional incremental storage to be included in the Hosting Services, on a time and materials basis and in accordance with the fee and payment schedule in SERVICES TO BE PROVIDED. Host shall review all such requests and determine, in consultation with Client, whether it can reasonably comply with such requests, and if so, and at its option, Host shall propose a procedure and budget for complying with such request.
FEES AND TAXES
Hosting Services Fees
Client shall pay Host all fees for the Hosting Services in accordance with the applicable fee and payment schedule as invoiced. Host expressly reserves the right to change its rates charged hereunder for the Services during any Renewal Term (as defined herein). Payment by Client to Host for the renewal of services indicates agreement to any Contract revisions and price changes.
The default payment method by Client to Host for Services is by credit card unless other payment arrangements are agreed to by Host. Failure to pay Host by the first day of the start of any term (Initial Term and Renewal Terms) may result in the immediate termination of Services.
Client agrees to pay applicable taxes such as sales tax as appropriate. If applicable, Host will include appropriate taxes in its invoices to Client.
Additional Services Fees
Unless otherwise agreed in writing, Client shall pay to Host all fees for Additional Services on a time and materials basis as invoiced by Host.
WARRANTIES AND RESTRICTIONS
Hosts represents and warrants that:
- Host has the power and authority to enter into and perform its obligations under this Agreement; and
- Host’s services under this Agreement shall be performed in a workmanlike manner.
Client represents and warrants that:
- Client has the power and authority to enter into and perform its obligations under this Agreement;
- Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third Party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third Party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Website;
- Client’s use of its Website will not violate any law or regulation of any governmental or regulatory/administrative entity; and,
- Client has obtained any authorization(s) necessary for hypertext links from the Website to other third Party Websites. Should Client receive notice of a claim regarding the Website, Client shall promptly provide Host with written notice of such claim.
Client represents and warrants that it shall not use the Website or the Services provided to Client to:
- Send unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material, who were not previous customers of CLIENT or with whom CLIENT does not have an existing business relationship (“E-mail spam”);
- Engage in harassing behavior, whether through language, frequency or size of email message;
- Use without authorization or forge e-mail header information;
- Solicit mail for any other e-mail address other than that of the Client’s account with the intent to harass or to collect replies;
- Create or forwarding “chain letters” or other “pyramid schemes” of any type; and/or,
- Use unsolicited e-mail originating from within Host’s network or the networks of other Internet Service Providers.
Client agrees to indemnify, defend, and hold harmless Host, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, at trial and on appeal, to the extent that such action is based upon a claim that:
- If true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder;
- Arises out of the negligence or willful misconduct of Client; or,
- Any of the Client Content to be provided by Client hereunder or other material on the Website infringes or violates any rights of third Parties; including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party’s written consent, which shall not be unreasonably withheld.
LIMITATION OF LIABILITY
HOST SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE WEBSITE OR CLIENT’S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT OR UNAUTHORIZED MEANS OR DEVICES. HOST SHALL HAVE NO LIABILITY WITH RESPECT TO HOST’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF HOST TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOST BY CLIENT UNDER THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
AMENDMENT AND CHANGES TO THIS AGREEMENT
XSolutions reserves the right to change these terms and conditions at any time. If terms change during the term of a contract, Client will be notified of such changes within 30 days via email or other electronic means such as, but not limited to posting updated terms and Conditions on XSolutions’ Website. Otherwise, it is Client’s responsibility to review the terms in effect prior to renewing this agreement. Payment of renewal invoice constitutes agreement by Client.
ASSIGNMENT OF AGREEMENT
This Agreement shall be binding upon and inure to the benefit of the parties hereto and each of their respective successors and permitted assigns. We may assign any or all of our rights and obligations hereunder to any party without your consent. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without our prior express written consent, except you may assign your rights without our consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of your assets not involving a direct competitor of ours. Any impermissible attempt by you to assign your rights shall be void and of no effect and shall entitle us to terminate this agreement for cause. This Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns. Any attempted assignment in violation of this Section shall be invalid and void ab initio.
If any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, administrative agency or as a result of future legislative action, such holding or action shall be strictly construed and the unenforceable provision shall be deemed severable from the remainder of the Agreement to the extent permitted by law, and the validity or effect of any other provision of this Agreement shall remain binding with the same effect as though the void parts were deleted.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Exclusive jurisdiction and venue shall be in Rockland County, New York Superior Court. A failure by any party to exercise or delay in exercising a right or power conferred upon it in this Agreement shall not operate as a waiver of any such right or power.