Table Of Contents
Section 1 – Preamble
1.1 — Definitions:
1.1.1 The terms "(WE), "(US)", or "(OUR)" represents Xarcell Studios LLC, and it’s affiliated third party.
1.1.2 The terms "(YOU)" or "(YOUR)" represents “you” the individual, person, customer, client, company, or entity that is using the products & services provided by Xarcell Studios LLC or our affiliated third—party.
1.1.3 The terms "(CUSTOMER)" or "(CUSTOMERS)" represents “you” or “other” individual, person, customer, client, company, or entity that is using the products & services provided by Xarcell Studios LLC or our affiliated third—party.
1.1.4 The terms “(PARTY)” or “(PARTIES)” represent Xarcell Studios LLC, it’s affiliated third party, and the individual, person, customer, client, company, or entity using products & services provided by Xarcell Studios LLC.
1.1.5 The terms “(PACKAGE)” or “(PACKAGES)” represent the products & services provided by Xarcell Studios LLC, and it’s affiliated third parties.
1.1.6 The terms “(WEBSITE)” represents the website, domain, and subdomains of Xarcell Studios LLC.
1.1.7 The term “(AGREEMENT)”, represents this documents “Terms Of Service”.
1.2 — Legally Binding Contract
1.2.1 This “Terms of Service” is a legally binding contract between Xarcell Studios LLC ("Xarcell Studios") and you (the individual, person, customer, client, company, or entity) that shall govern the purchase, andor use of, in any manner, of the products & services provided by Xarcell Studios LLC to you (the individual, person, customer, client, company, or entity).
1.3 — Declination Of The Terms Of Service
1.3.1 If you do not agree to all the “Terms And Conditions” set forth in this “Terms Of Service”, then you may not use any of the products & services provided by Xarcell Studios LLC. If you (the individual, person, customer, client, company, or entity) are already a customer of Xarcell Studios LLC, and do not agree with the “Terms And Conditions” set forth in this “Terms Of Service”, then you should immediately login to your account at: (https://xarcell—studios.com/clientarea.php), and submit a support ticket in the Feedback Department: (https://xarcell—studios.com/submitticket.php?step=2&deptid=12).
Section 2 — Terms Of This Agreement
2.1 — Account(s)
2.1.1 This (AGREEMENT) becomes effective immediately when (YOU) clicks "I Agree" (“The Effective Date"), and remains effective and binding until terminated by either party as outlined below. This (AGREEMENT) may only be modified by a written amendment signed by an authorized executive of (US), or by the posting by (US) in a revised version.
2.1.2 What (YOU) have set in (OUR) records as the primary billing contact shall be the owner of the account, and shall be the one responsible for the account, it’s (PACKAGES) acquired, and obeying the (AGREEMENT), regardless, shall the account be compromised, at no fault by (US).
2.2 — Account Sales & Transfer
2.2.1 (YOU) have the right to sell or transfer (YOUR) account to another (PARTY), only if it does not violate any clauses within this (AGREEMENT), Sections 1 – 8, accepting it’s terms in writing, and pending an investigation and approval by (US).
2.3.1 — Collection And Use Of Personal Information
18.104.22.168 It is important and even necessary for (US) to collect personal information from (YOU) in order to provide (YOU) with (OUR) (PACKAGES).
22.214.171.124 This Is The Following Personal Information From (YOU):
Article Last Updated: 02.21.2017
2.3.2 — Collection And Use Of Technical Information
126.96.36.199 As is true of most Web sites, (WE) automatically gather information about (YOUR) computer such as (YOUR) IP address, browser type, referring/exit pages, and/or operating system.
188.8.131.52 (WE) Use This Information To:
- Contact Information such as name, email address, mailing address, phone number.
- Billing Information such as credit card number, and billing address.
- Unique Identifiers such as an account number, username, and password.
- Preferences Information (YOU) provide such as (PACKAGE) or content interests, or communication or marketing preferences.
- Usage activity about how (YOU) interact with (US) such as purchase history, what content (YOU) viewed, and which areas of (OUR) site that (YOU) visited.
2.3.3 — Choice/Opt—Out
184.108.40.206 (YOU) may choose to stop receiving (OUR) newsletter or marketing emails by following the unsubscribe instructions included in these emails, or (YOU) can login to your account at: (https://xarcell—studios.com/clientarea.php), and submit a support ticket in the Feedback Department: (https://xarcell—studios.com/submitticket.php?step=2&deptid=12).
2.3.4 — Disclosure To Third Parties
220.127.116.11 (WE) will share (YOUR) information with third parties only in the ways that are described in this privacy statement. (WE) may provide (YOUR) personal information to companies that provide (PACKAGES) to help (US) with (OUR) business activities such as shipping (YOUR) order or offering support to (YOU). These companies are authorized to use (YOUR) personal information only as necessary to provide these (PACKAGES) to (US).
18.104.22.168 (WE) May Disclose (YOUR) Personal Information:
- Fulfill (YOUR) order.
- Send (YOU) an order confirmation.
- Assess (YOUR) needs to determine suitable (PACKAGES).
- Send (YOU) requested (PACKAGE) information.
- Send (PACKAGE) updates or warranty information.
- Respond to (CUSTOMER) service requests.
- Administer (YOUR) account.
- Send (YOU) a newsletter.
- Send (YOU) marketing communications.
- Administer contests and sweepstakes (YOU) entered, and notify (YOU) if (YOU) won.
- Improve (OUR) Web site and marketing efforts.
- Conduct research and analysis.
- Respond to (YOUR) questions and concerns.
- Display content based upon (YOUR) interests.
22.214.171.124 (WE) ultilize FraudRecord to screen new orders for previous fraudulent activity and report existing clients who violate (OUR) (AGREEMENT). In case of a violation, (YOU) may be reported to FraudRecord for misbehaviour using one-way hashed information.
2.3.5 — Accepted Payment Types:
126.96.36.199 — PayPal
188.8.131.52.1 An account with (US) is required in order for (US) to accept this method of payment.
184.108.40.206.2 This method of payment is instant, but requires up to 5 business days to be processed.
220.127.116.11.3 Is an international e—commerce business allowing payments and money transfers to be made through the Internet.
18.104.22.168 — Stripe
22.214.171.124.1 An account with (US) is required in order for (US) to accept this method of payment.
126.96.36.199.2 This method of payment is instant, but requires up to 48 hours to be processed.
188.8.131.52.3 Is an online payment processing service that helps (US) accept credit cards, PayPal and debit cards.
184.108.40.206 — Check: (WE) NOT ACCEPT CHECKS AT THIS TIME, BUT IS PLANNED
220.127.116.11.1 An account with (US) is required in order for (US), and be a Unsited States resident in order for (US) to accept this method of payment.
18.104.22.168.2 This method of payment requires up to 3 days delievery, and an additional 5—7 business days to processed.
22.214.171.124.3 A check is an order for transfer of money from a bank account to cash or another back account. It reqires a routing number, account number, signature, personal information, and other security information.
126.96.36.199.4 (YOU) may send (US) a Check to “Add Funds” to (YOUR) account only. (YOU) may not use Checks to pay for orders directly, regardless of amount.
188.8.131.52.5 If (YOU) choose to use a Check to “Add Funds”, (YOU) will need to provide (YOUR) personal identification number or driver’s license number, mailing address, phone number, routing number, account number, and signature all on the Check as; required to make the Check valid. (YOU) will also need to add (YOUR) client ID & account email address, that (YOU) have on file with (US); so that (WE) know who to apply the credit to, once cashed. (WE) will not share this information with anyone, except the bank when it is cashed.
184.108.40.206.6 Mail To:
Xarcell Studios, LLC
- As required by law, such as to comply with a subpoena, or similar legal process.
- When (WE) believe in good faith that disclosure is necessary to protect (OUR) rights, protect (YOUR) safety, or the safety of others, investigate fraud, or respond to a government request.
- If (WE) are involved in a merger, acquisition, or sale of all or a portion of its assets, (YOU) will be notified via email and/or a prominent notice on (OUR) Web site of any change in ownership or uses of (YOUR) personal information, as well as any choices (YOU) may have regarding (YOUR) personal information.
- To any other third party with (YOUR) prior consent to do so.
P.O. Box 336
Kannapolis, NC, 28083
2.3.6 — Tracking Technologies
220.127.116.11 (WE) or a third party contracted by (US) may use technologies such as cookies, Web beacons, or scripts to gather information about how (YOU) and others interact with (OUR) Web site. For example, (WE) will know how many users access a specific areas or features within (OUR) site and which links or ads they clicked on. (WE) use this aggregated information to understand and optimize how (OUR) site is used, improve (OUR) marketing efforts, and provide content and features that are of interest to (YOU).
2.3.7 — Security
18.104.22.168 The security of (YOUR) personal information is important to (US). (WE) follow generally accepted industry standards to protect the personal information submitted to (US), both during transmission and once (WE) receive it. No method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, (WE) cannot guarantee its absolute security.
22.214.171.124 If (YOU) have any questions about security on (OUR) Web site, (YOU) can login to your account at: (https://xarcell—studios.com/clientarea.php), and submit a support ticket in the Feedback Department: (https://xarcell—studios.com/submitticket.php?step=2&deptid=12).
126.96.36.199 (WE) provide two means for (YOU) to make a purchase on (OUR) site. (YOU) can either use (OUR) order form or a third party checkout option. If (YOU) use (OUR) shopping cart, the transmission of sensitive information collected on (OUR) order form is encrypted using secure socket layer technology (SSL). If (YOU) choose to use a third party checkout option to pay for (YOUR) order, its privacy statement and security practices will apply to (YOUR) information. (WE) encourage (YOU) to read that privacy statement before providing (YOUR) information.
188.8.131.52 (WE) will retain (YOUR) information for as long as (YOUR) account is active or as needed to provide (YOU) with (PACKAGES). If (YOU) wish to cancel (YOUR) account/(PACKAGE) or request that (WE) can no longer use (YOUR) information to provide (YOU) (PACKAGES), please login to your account at: (https://xarcell—studios.com/clientarea.php), and submit a support ticket in the Feedback Department: (https://xarcell—studios.com/submitticket.php?step=2&deptid=12). However, (WE) will retain and use (YOUR) information as necessary to comply with (OUR) legal obligations, resolve disputes, and enforce (OUR) agreements.
2.3.8 — Other Information
184.108.40.206 (OUR) Web site offers publicly accessible blogs or community forums. (YOU) should be aware that any information (YOU) provide in these areas may be read, collected, and used by others who access them. At this time, any of said information cannot be removed without closing of your account with (US).
2.3.9 — Correcting And Updating (YOUR) Personal Information
220.127.116.11 To review and update (YOUR) personal information to ensure it is accurate, please login to your client area at: (https://xarcell—studios.com/clientarea.php).
2.4 — Billing Terms
2.4.1 The (AGREEMENT) is set to the (YOUR)'s billing term ("Term"). If no Term is set out, the Term shall be one (1) year. Upon expiration of the initial Term, this (AGREEMENT) shall renew for periods equal to the length of the initial Term, unless one party provides notice of its intent to terminate as set out in this (AGREEMENT).
2.4.2 The features and details of the (PACKAGES) governed by this (AGREEMENT) are described on the web pages setting out the particular (PACKAGES) (YOU) have purchased ("Products & Services Description Page") based on their description on the Products & Services Description Page as of the Effective Date, as defined below. (WE) may modify the (PACKAGES) it offers from time—to—time. Should the Products & Services Description Page change subsequent to the Effective Date, (WE) have no obligation to modify the Service to reflect such a change. The (PACKAGES) provided to (YOU) by (US) as set out on the Products & Service Description Page, are referred to as the (PACKAGES).
2.4.3 Certain aspects of the (PACKAGES) are provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the (PACKAGES) provided by them. (YOU) may terminate this (AGREEMENT) if such a change materially affects the (PACKAGES).
2.5 — Obeying The Law
2.5.1 (WE) are registered and located within the United States of America and as such, (WE) are required to comply with the laws and official policies of the United States of America, regardless of where the (PACKAGES) are provided. In addition, (WE) will comply with appropriate laws and official policies set forth by the State of North Carolina.
2.6 — Plans, Pricing, Promotions
2.6.1 Whatever is advertised on (OUR) website is (OUR) current (PACKAGES) offerings or promotions. (WE) may have old or outdated (PACKAGES) or promotions advertised elsewhere on the web where (WE) do not have access to alter or update these advertised (PACKAGES) or promotions and their information. (WE) will not support advertised outdated (PACKAGES) or promotions, or recreate (PACKAGES) that have been retired. It is (YOUR) responsibility to double check that the advertised (PACKAGE) or promotion, its features, pricing, and that is currently being offered at the current time. If you are unsure of the validity of a (PACKAGE) or promotion, then please login to your account at: (https://xarcell—studios.com/clientarea.php), and submit a support ticket in the Feedback Department: (https://xarcell—studios.com/submitticket.php?step=2&deptid=12).
2.7 — Payments & Billing
2.7.1 (WE) do not start on any projects until the deposit for the (PACKAGE) has been received; or for hosting (PACKAGE) payment has been received.
2.7.2 (WE) will automatically bill (YOUR) payment method on file up to fourteen (14) days prior to the due date on all terms of one (1) or more years; for terms less than one (1) year in length, (WE) will attempt to bill (YOUR) payment method on file up to five (5) days prior to due date. All fees are billed in United States Dollars (USD) and are subject to change with thirty (30) day prior notice to (YOU).
2.7.3 (YOUR) "Billing Term" is the period of time (YOU) have chosen to receive bills for the (PACKAGES). For example, (YOUR) Billing Term may be one—time, weekly, monthly, quarterly, annually, bi—annually, or tri—annually.
2.7.4 (WE) are only able to automatically collect payment from customers with credit cards stored on file (as opposed to credit cards used one for one time transactions) or active PayPal subscriptions. All other payment methods (one—time credit card payments, check, money order, PayPal one time payments, etc.) must be initiated manually by (YOU). It is (YOUR) obligation to ensure that reoccurring fees are paid on their due date.
2.7.5 As a (CUSTOMER) of (OURS), it is (YOUR) responsibility to ensure that all billing information on file with (US) is accurate, and that any credit card or other automated payment method on file has sufficient funds for processing. (YOU) are solely responsible for any and all fees charged to (YOUR) payment method by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds and over the credit limit fees. (WE) screen all orders for fraud and other unethical practices. (PACKAGES) will not be activated until this fraud screen is completed. In certain cases, if (YOUR) account is flagged for fraud, third party (PACKAGES), such as domain name registrations, will not be processed. (WE) have no liability for the failure to provide (PACKAGES), including third party (PACKAGES), if (YOUR) account fails its fraud screen.
2.8 — Late Payments
2.8.1 Any account not paid in full by the end of the first day of the Billing Term will be given a seven (7) day grace period. If payment is not made within the seven (7) day grace period, (WE) reserves the right to suspend (YOUR) (PACKAGES)(s) with (US) and to charge a four dollar ($4) "late penalty." Fourteen (14) days following suspension of (PACKAGES) for non—payment, (WE) reserve the right to terminate (PACKAGES) for non—payment.
2.8.2 (WE) are not responsible for any damages or losses as a result of suspension or termination for non—payment of (YOUR) account. In addition, (WE) reserve the right to refuse to re—activate (YOUR) (PACKAGES) until any and all outstanding invoices have been paid in full.
2.9 — Refund Policy & Disputes
2.9.1 Refunds will be issued only to the payment method that the original payment was sent from, and may take up to one (1) week to process. Eligible payments older than sixty (60) days may require a refund via PayPal due to (OUR) merchant account policies and procedures.
2.9.2 The following methods of payment are not refundable any circumstances (including during the money back guarantee period, if one applies), and refunds will be posted solely as credit to the account for current or future (PACKAGES): bank wire transfers, Western Union payments, checks, and money orders.
2.9.3 (WE) will not activate new orders or provide additional (PACKAGES) for (CUSTOMERS) who have an outstanding balance with (US). For a new order to be setup or a new package to be activated, (YOU) must have a balance of $0.00, unless otherwise stated by a representative of (US) in writing by email.
2.9.4 Exchange rate fluctuations for international payments are constant and unavoidable. Like all payments, all refunds are processed in dollars (USD), and will reflect the exchange rate in effect on the date of the refund. All refunds are subject to this fluctuation and (WE) are not responsible for any change in exchange rates between time of payment and time of refund. In addition, (WE) reserve the right to refuse a refund at any time for any or no reason.
2.9.5 If (YOU) believe there is an error in (OUR) billing, (YOU) must login to your account at: (https://xarcell—studios.com/clientarea.php), and submit a support ticket: (https://xarcell—studios.com/submitticket.php) for the effected Department and (PACKAGE). within thirty (30) days of the date (YOU) are billed or charged. (OUR) obligation to consider (YOUR) claim is contingent on (YOUR) providing it with sufficient facts for (US) to investigate (YOUR) claims. (YOU) waive (YOUR) right to dispute any charges or fees if (YOU) fail to notify (US) in writing or meet the deadline set out above. If (WE) find that (YOUR) claim is valid, then (WE) agree to credit (YOUR) account on (YOUR) next billing date. Third party fees are not subject to this dispute provision and are final.
2.10 — Charge—backs, Reversals, & Retrievals
2.10.1 If (WE) receive a charge—back or payment dispute from a credit card company, bank, or PayPal (YOUR) (PACKAGES) may be suspended without notice. A $50 charge—back fee (issued to recoup mandatory fees passed on to (US) by the credit card company), plus any outstanding balances accrued as a result of the charge—back(s), must be paid in full before (PACKAGE) is restored. Instead of issuing a charge—back, please login to your account at: (https://xarcell—studios.com/clientarea.php), and submit a support ticket: (https://xarcell—studios.com/submitticket.php) for the effected Department and (PACKAGE).
2.11 — Cancellation Of (PACKAGES)
2.11.1 Either party may terminate this (AGREEMENT) by providing notice to the other as provided herein.
2.11.2 (YOU) may cancel (PACKAGES)(s) with (US) by submitting a cancellation request in writing by logging to your account at: (https://xarcell—studios.com/clientarea.php), and submit a support ticket: (https://xarcell—studios.com/submitticket.php) in the effected Department for that (PACKAGE). In the event that (YOU) are unable to login to (YOUR) billing account with (US), please contact (OUR) billing department: (feedback@xarcell—studios.com), and (WE) will assist (YOU). However, (WE) prefer that cancellations are submitted through the account center to reduce the likelihood of error and ensure the security of (YOUR) account. Cancellations are not final until confirmed by a representative of (US) in writing by email.
2.12 — Refusal Of (PACKAGES)
2.12.1 (WE) reserve the right to refuse (PACKAGES) to anyone at any time. Any material that, that in (OUR) judgment, is obscene, threatening, illegal, or violates (OUR) (AGREEMENT) in any manner may be removed from (OUR) servers (or otherwise disabled), with or without notice.
2.12.2 Similarly, (WE) reserve the right to cancel, suspend, or otherwise restrict access to the (PACKAGES)(s) it provides at any time, for any or no reason, and with or without notice. (WE) are not responsible for any damages or loss of data resulting from such suspension or termination.
2.12.3 If any manner of communication with (OUR) staff could be construed as belligerent, vulgar (curse words), attacking, highly rude, threatening, or abusive, (YOU) will be issued one warning. If the communication continues, (YOUR) account may be suspended or terminated without refund. This includes, but is not limited to, threats to sue, slander, libel, publicly post, or initiate a charge—back.
2.12.4 (WE) happily accept orders from outside the United States, but may limit accounts from certain countries with a high fraud rate. To help protect (US) and its customers from fraud, (WE) may ask (YOU) to provide a copy of a government issued identification and/or a scan of the credit card used for the purchase. If (YOU) fail to meet these requirements, the order may be considered fraudulent in nature and denied.
2.12.5 Due to United States law, (WE) cannot accept any orders originating from countries that the United States has established an embargo on or otherwise prohibited trade with. By becoming a (CUSTOMER), (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.
2.13 — HIPAA Disclaimer
2.13.1 (WE) are not "HIPAA compliant." Users are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Users acknowledge that the (PACKAGES) may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. (WE) do not control or monitor the information or data (YOU) store on, or transmit through, (OUR) (PACKAGES). (WE) specifically disclaim any representation or warranty that the (PACKAGES), as offered, comply with the federal Health Insurance Portability and Accountability Act ("HIPAA"). Customers requiring secure storage of "protected health information" under HIPAA are expressly prohibited from using this (PACKAGE) for such purposes. Storing and permitting access to "protected health information," as defined under HIPAA is a material violation of this user (AGREEMENT), and grounds for immediate account termination. (WE) do not sign "Business Associate Agreements" and (YOU) agree that (WE) are not a Business Associate or subcontractor or agent of (YOUR) pursuant to HIPAA. If (YOU) have questions about the security of (YOUR) data, (YOU) should login to your account at: (https://xarcell—studios.com/clientarea.php), and submit a support ticket in the Feedback Department: (https://xarcell—studios.com/submitticket.php?step=2&deptid=12).
Section 3 — Business Packages & Service Level Agreement
3.1 Unless otherwise stated on the Business Solutions page for the (PACKAGE), all (PACKAGES) have a 100% satisfaction guarantee, or (YOUR) money back, or in some cases (YOU) will receive credit to (YOUR) account. If you are dissatisfied with your (PACKAGE), (YOUR) satisfaction guarantee must be claimed within 24 hours of receiving said (PACKAGE). (YOUR) satisfaction guarantee is subject to review and approval by (US).
Section 4 — Design Packages & Service Level Agreement
4.1 Unless otherwise stated on the Design Solutions page for the (PACKAGE), all (PACKAGES) have a 100% satisfaction guarantee, or (YOUR) money back, or in some cases (YOU) will receive credit to (YOUR) account. If you are dissatisfied with your (PACKAGE), (YOUR) satisfaction guarantee must be claimed within 24 hours of receiving said (PACKAGE). (YOUR) satisfaction guarantee is subject to review and approval by (US).
Section 5 — Hosting Packages & Service Level Agreement
5.1 — Acceptable Use Policy
5.1.1 (YOU) shall use (OUR) (PACKAGES) only for lawful purposes. Transmission, storage, or presentation of any information, data, or material in violation of the laws of the State of North Carolina or the United States is prohibited. This includes, but is not limited to: copyrighted material in which (YOU) are not the copyright holder, material that is threatening or obscene, or material protected by trade secrets or other statutes. (YOU) agree to indemnify and hold harmless (US) from any claims resulting from the use of the (PACKAGE) which damages (YOU) or any other party.
5.1.2 (WE) reserves the right to terminate (PACKAGES) for any (CUSTOMER) or End User activity that exposes it to legal liability or endangers its ability to provide (PACKAGES) to other customers. The contents, links, or actions on any (PACKAGES) listed below are a violation of this (AGREEMENT). This is not an exhaustive list, but is designed to assist (YOU) in evaluating whether (WE) are the appropriate (PACKAGE) provider for (YOU):
5.2 — 28—Day Money Back Guarantee
5.3 — Uptime Guarantee
5.3.1 (WE) guarantee that (YOUR) website and (PACKAGES) that directly affect its display to the Internet (such as HTTP or MySQL) will be accessible 99.9% of the time in any given calendar month. If (WE) fail to meet its uptime guarantee, (YOU) will be issued a credit equivalent to one (1) day of (PACKAGE) per forty five (45) minutes downtime. The first 45 minutes (or 0.1%) of downtime per month are not counted towards any credit and the maximum credit available is one (1) month of (PACKAGE). This clause does not apply to subscribers of Virtual Private Servers ("VPS"), Cloud Hosting, Semi—Dedicated, or Dedicated Server packages.
5.3.2 Credits are only available for future (PACKAGES) or invoices and cannot be issued as refunds. All credit requests must be sent via email to (OUR) billing department no later than the tenth (10th) day of the month following the SLA (as that term is defined below) violation. Credits are issued based on the uptime for the previous calendar month only and requests not submitted within the required time frame cannot be approved.
5.3.3 For example, if (YOU) experienced less than 99.9% uptime in the month of November, (YOU) would need to submit (YOUR) request for credit no later than December 10th.
5.3.4 The following circumstances are not eligible for credit and are specifically excluded from (OUR) Uptime Guarantee: scheduled maintenance, DDoS or similar attack, hardware failure, third—party software failure, a (CUSTOMER) maxing its resource container, issues resulting from errors or omissions by the (CUSTOMER), issues relating to the (CUSTOMERS) ISP, firewall blocks/bans, or any other circumstance beyond (OUR) reasonable control. All credits are at the discretion of (US), based on its investigation of any issue that is covered by this section.
5.3.5 If (WE) provide a credit, or Service Level Agreement, for a particular (PACKAGE), this shall be (YOUR) sole and exclusive remedy for defects in, or issues with, the (PACKAGE).
5.4 — Additional Refund Information On Hosting (PACKAGES)
5.4.1 (WE) offer a twenty—eight (28) day money back guarantee on the small business hosting (PACKAGE). (We) offer a twenty—eight (28) day money back guarantee the VPS business hosting (PACKAGE) that is prorated for account credit only. Such credits will have any previous extended term discounts withheld from the total credit amount and will be calculated based on the number of months remaining in (YOUR) billing cycle.
5.4.2 No refunds are offered on dedicated business hosting, custom hosting (PACKAGES), setup fees, domain registrations, domain transfers, domain renewals, SSL certificates, dedicated IP addresses, advanced support fees, processing fees, or software licenses. (WE) reserve the right to deduct fees for value added (PACKAGES) that may have been included in the (PACKAGES) at no additional fee, such as a SSL certificate or free domain name registration, from any refunds or account credits.
5.4.3 Only first—time accounts are eligible for a refund under the twenty (28) day money back guarantee. For example, if (YOU) had or still have an account with (US) before, canceled and signed up again, (YOU) will not be eligible for a refund or if (YOU) have opened a second account with (US). In addition, refunds are not offered for accounts that are suspended or terminated for violating this (AGREEMENT).
5.5 — Support Policy
5.5.1 (WE) will provide technical support to (YOU) twenty—four (24) hours a day, three—hundred—sixty—five (365) days a year. The only official method for technical support is via (OUR) Hosting Department (https://xarcell—studios.com/submitticket.php?step=2&deptid=5) for the effected (PACKAGE). Telephone and live chat support are not official methods of support and are governed by this (AGREEMENT) set forth in the following clause.
5.5.2 Limited support will be provided, at (OUR) discretion and subject to availability of staff, via telephone and/or live chat. (WE) will always do its best to provide fast, friendly, and helpful support over the telephone and live chat, but these options are not official methods of support and no guarantee is made as to the availability, accessibility, or technical expertise provided via these mediums.
5.5.3 Inquires via telephone or live chat support should be limited to general questions which do not require access to any account or server to investigate or resolve and should not be used to request the status of or provide updates to a support ticket. Any issue requiring investigation, research, or access to an account or server should be sent via support ticket. (WE) reserve the right to direct any issue as a support ticket at its discretion, and to refuse to provide support for such issues via telephone or live chat.
5.6 — Backup Services
5.6.1 (YOUR) use of (OUR) (PACKAGES) is at (YOUR) sole risk. This service is provided to (YOU) as a courtesy. (WE) are not responsible for files and/or data residing on (YOUR) account. (YOU) agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on (OUR) servers. Any and all backup (PACKAGES) provided by (US), whether paid or not, are offered with no warranty or guarantee of their date, accuracy, and integrity.
5.6.2 Backups are performed on servers that house shared and reseller packages only. No backups are performed for virtual private server (VPS/VDS), cloud hosting, semi—dedicated or dedicated server packages, unless (YOU) specifically purchase an additional (PACKAGE) for this purpose. If (YOUR) hosting account exceeds 100,000 inodes, the account will not be included in (OUR) automatic backup process.
5.6.3 If (YOU) ask (US) to restore a backup of (YOUR) data that is located on a backup server maintained by (US), (YOU) will receive one courtesy backup restore per calendar month. For any further restores within the same calendar month, (YOU) agree to pay a non—refundable "restoration fee" of $10.00 per backup restored to complete the request. By requesting that (WE) restore a backup for (YOU), whether paid or unpaid, (YOU) also confirm a backup restoration will overwrite any and all current data on (YOUR) account. (WE) cannot be held liable if a backup restoration does not complete successfully. (WE) will never charge a backup fee to restore a backup to address an error or omission caused by (US).
5.7 — Licenses
5.7.1 (WE) may grant to (YOU) a non—exclusive, non—transferable, worldwide, royalty free license to use technology provided by (US) solely to access and use the (PACKAGES). This license terminates on the expiration or termination of this (AGREEMENT). Except for the license rights set out above, this license does not grant any additional rights to (YOU). All right, title and interest in (OUR) technology shall remain with (US), or its licensors. (YOU) are not permitted to circumvent any devices designed to protect (US), or its licensor's ownership interests in the technology provided to (YOU). In addition, (YOU) may not reverse engineer this technology.
5.7.2 (YOU) grant (US), or to any third parties used by (US) to provide the (PACKAGES), a non—exclusive, non—transferable, worldwide, royalty free, license to use, disseminate, transmit and cache content, technology and information provided by (YOU) and, if applicable, (YOUR) End Users, in conjunction with the (PACKAGES). This license terminates on the expiration or termination of this (AGREEMENT). All right, title and interest in (YOUR) technology shall remain with (YOU), or (YOUR) licensors.
5.7.3 In addition, hosting accounts may not be resold unless the account is a Reseller account, VPS, or dedicated server. (YOU) may not resell individual (PACKAGES) within any single account such as web space, emails accounts, add on domains, or mailing lists. All domains, add—on domains, and sub domains must be for sites controlled by or promoting published content or businesses that are solely controlled by the owner of the account as described above.
5.7.4 (WE) respond to valid notices of alleged copyright infringement. Copyright complaints are handled pursuant to the Digital Millennium Copyright Act ("DMCA"). Complaints that do not comply with the DMCA will not be processed. (YOU) are required to comply with the DMCA in using (OUR) (PACKAGES), and presenting copyright complaints. For more information on how to submit a DMCA complaint and to view information on (OUR) designated part, please see (OUR) DMCA Policy.
5.8 — Resource Usage
5.8.1 — (YOUR) Utilization
18.104.22.168 Each (CUSTOMER) is required to utilize as little server resources as possible, so as to allow for reasonable performance by all (OUR) customers. Because server CPU and memory are shared resources, excessive consumption of these resources can interfere with or completely prevent normal (PACKAGE) performance for other users. (WE) reserve the right to suspend or terminate (PACKAGES) on any account that, at its sole discretion, is abusing server resources. Such suspension or termination can occur at any time without prior warning, and for any or no reason.
5.8.2 — Enforced Resource Limits For Small Business Hosting (PACKAGE):
- Child Pornography — Hosting, Distributing, or Linking to Pornography Involving a Person Under Legal Age.
- Copyright Infringement — Hosting, Distributing, or Linking to Copyright Infringed Materials.
- CPU/Memory/Resource Abuse — Consuming Excessive Amount of Server Resources Causing Server Performance Issues.
- DoS Source — Source of Denial of Service Attack.
- DoS Target — Target of Denial of Service Attack.
- File Scripts — File Dump/Mirror Scripts (similar to rapidshare).
- Forgery — Faking an IP Address, Hostname, E—Mail Address, or Header.
- Fraud Site — Hosting or Linking to a Website Intended to Deceive the Public including, but not limited to sites listed at aa419.org & escrow—fraud.com.
- HYIP — Hosting or Linking to a High Yield Investment Program Website.
- Identity Theft — Hosting, Distributing, or Linking to Stolen Account Identification Information.
- Infection — Hosting, Distributing, or Linking to Exploits, Trojans, Viruses, or Worms.
- Investment Sites — FOREX, E—Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme, High—Yield Interest Programs (HYIP) or Related Sites.
- IRC — Internet Relay Chat Server, including IRC Scripts/Bots.
- Mass Storage — Storing Mass Amounts of Backups, Archives, Videos, etc.
- PayDay Loan Sites — including any site related to PayDay loans, PayDay loan affiliate programs, etc.
- Pharmacy Sites — Sites that engage in the illegal distribution of prescription medications, including, but not limited to, promotion, marketing, or sale of prescription medications without a valid prescription.
- Phishing — Identity Theft by Email Under False Pretense.
- Proxy Site — Hosting of or linking to an Anonymous Proxy Server.
- Bulk Email — No more than 500 emails of similar content (Opt In).
- Spam Email — Unsolicited Commercial Email (UCE) or Unsolicited Bulk Email (UBE).
- Spam List — Hosting, Distributing, or Linking to Email Address Lists for Spam.
- Spam Site — A Site Advertised by Spam Email or Spam Web.
- Spam Ware — Hosting, Distributing, or Linking to Software Designed for Spamming.
- Spam Web — Unsolicited, Bulk, or Forged Site Advertisement in Web Logs, Forums, Guestbooks, or Social Media.
- Spamhaus — Spam Causing Blacklisting of an IP at www.spamhaus.org for Malicious Activity.
- Terrorist Site — Hosting or Linking to a Site Advocating Terrorism.
- Toolz — Hosting, Distributing, or Linking to Tools or Instructional Material on Hacking/Cracking or Other Illegal Activity.
- Trademark — Hosting, Distributing, or Linking to Trademark Infringed Materials.
- Warez — Hosting, Distributing, or Linking to Crackz, Hackz, KeyGenz, Serialz, or Pirated Software.
- Any other material (WE) judge to be threatening or obscene.
5.8.3 — Storage
22.214.171.124 All accounts are subject to the following restrictions on storage space usage: a) accounts must have valid, working websites, and not violate any previously subscribed terms; b) accounts are not for use of mass storage of backups, files, audio, video, zip files or others, as determined by (US), at its sole discretion; and c) accounts are not for use of mass distribution of files, such as torrents or mirrors. Any account found violating these terms may be suspended or terminated without warning.
5.8.4 — Bandwidth
126.96.36.199 (YOU) are allocated a monthly bandwidth allowance depending on the hosting package (YOU) purchase.
188.8.131.52 Should (YOUR) account pass the allocated amount, (WE) reserve the right to: a) suspend the account until the start of the next allocation, b) suspend the account until more bandwidth is purchased at an additional fee, c) suspend the account until (YOU) upgrade to a higher level of package, and/or d) charge (YOU) an additional fee for the overages.
184.108.40.206 Unused transfer in one month cannot be carried over to the next month and bandwidth is not pooled among multiple servers or accounts unless otherwise specified by a representative of (US) in writing.
220.127.116.11 Like other resources, customers are expected to demonstrate responsible usage of bandwidth resources, so as to allow for reasonable performance by all (OUR) customers. (WE) regularly monitors bandwidth usage and reserve the right to suspend, terminate, and/or limit (such as through port speed limiting) (PACKAGES) on any account, that at its sole discretion, is using an abnormally large amount of bandwidth. Such suspension, termination, or limitation can occur at any time without prior warning, and for any or no reason.
5.9 — Domain Name Registrations, Transfers, and Renewals
5.9.1 (WE) will make every effort to ensure domain names are registered, transferred, and/or renewed on time. If a domain name registration, renewal, or transfer is not processed when due, it is (YOUR) responsibility to contact (US) within fifteen (15) days of the incident for (US) to investigate by: please logging to your account at: (https://xarcell—studios.com/clientarea.php), and submit a support ticket in the hosting department: (https://xarcell—studios.com/submitticket.php?step=2&deptid=5). Redemption fees may be charged to (YOU) for domains that remain expired for more than thirty (30) days, when no contact is made to (US) in the required time frame. (OUR) liability is limited to the amount paid for the domain name.
5.10 — Expired Domain Deletion Policy
5.10.1 Immediately after the expiration of the term of a domain name's registration (PACKAGES) and before deletion of the domain name in the applicable registry's database, (YOU) acknowledge that (WE) may direct the domain name to name servers and IP address(es) designated by (US), including, without limitation, to no IP address or to IP address(es) which host a parking page and/or a commercial search engine that may display advertisements. (YOU) acknowledge that (WE) may either leave (YOUR) WHOIS information intact or that (WE) may change the contact information in the WHOIS output for the expired domain name so that (YOU) are no longer the listed registrant of the expired domain name.
5.10.2 For a period of approximately thirty (30) days after expiration of the term of domain name registration (PACKAGES), (YOU) acknowledge that (WE) may provide a procedure by which expired domain name registration (PACKAGES) may be renewed. (YOU) acknowledge and agree that (WE) may, but is not obligated to, offer this process, called the "reactivation period." (YOU) acknowledge that (YOU) assume all risks and all consequences if (YOU) wait until close to or after the expiration of the original term of domain name registration (PACKAGES) to attempt to renew the domain name registration (PACKAGES). (YOU) acknowledge that (WE), for any reason and in its sole discretion, may choose not to offer a reactivation period and that (WE) shall not be liable therefore. (YOU) acknowledge that reactivation period renewal processes, if any, may involve additional fees which (WE) may determine at its discretion. (YOU) acknowledge and agree that (WE) may make expired domain name (PACKAGES) available to third parties, that (WE) may auction off the rights to expired domain name (PACKAGES) (the auction beginning near the end or after the end of the reactivation period), and/or that expired domain name registration (PACKAGES) may be re—registered to any party at any time.
5.11 — Allocation
5.11.1 Any dedicated IP order, in addition to ones provided with a hosting (PACKAGE), may be subject to IP justification. Justification practices are subject to change to remain in conformity with policies of American Registry for Internet Numbers ("ARIN"). (WE) reserve the right to deny any dedicated IP request based on insufficient justification or current IP utilization.
5.12 — Multi—Location Hosting
5.12.1 (WE) do not guarantee the availability of any and all host locations, and reserves the right to add, move, modify, or remove any location at any time without notification. (WE) also reserve the right to deny the transfer of any account to a new location for any or no reason.
5.13 — Server Modifications
5.13.1 (WE) reserve the right to add, modify, or remove any or all features from any (PACKAGE) (WE) provide, at any time, with or without notice. This includes, but is not limited to, disk space limits, bandwidth limits, domain limits, pricing, and third party applications. These changes can be made for any, or no reason, and (WE) do not guarantee the availability of any feature, whether written or implied. If the removal of a feature materially impacts (YOUR) ability to use the (PACKAGE), (YOU) may terminate this (AGREEMENT). For the purposes of this paragraph only, the term "materially" means that a reasonable business person would not have purchased the (PACKAGES) for the purposes used by (YOU).
Section 6 — Photography Packages & Service Level Agreement
6.1 — 100% Satisfaction Guarantee
6.1.1 Unless otherwise stated on the Photography Solutions page for the (PACKAGE), all (PACKAGES) have a 100% satisfaction guarantee, or (YOUR) money back, or in some cases (YOU) will receive credit to (YOUR) account. If you are dissatisfied with your (PACKAGE), (YOUR) satisfaction guarantee must be claimed within 24 hours of receiving said (PACKAGE). (YOUR) satisfaction guarantee is subject to review and approval by (US).
6.2 — Photographer Availability
6.2.1 Photo shoots are subject to photographer availability. Sometimes, due unforeseen circumstances, a photographer’s availability is subject to change without notice. However, in such an event, we will try to give (YOU) a 24 hours’ notice any availability changes, if (YOUR) scheduled appointment will be missed.
6.3 — Copyright Law
6.3.1 In accordance with copyright law, (YOU) cannot order prints from anyone other than the photographer without a copyright release. Copyright Releases are sold as a photography (PACKAGE) addon.
Section 7 — Affiliates
7.1 — Affiliates may not mask, hide or modify the affiliate link. It must be used as displayed in the client area. Affiliates may not spam or advertise in areas or sections of websites that breach the rules of the displaying site. Doing so will result in the link being reported.
Section 8 — Protection Of Intellectual Property, Rights, And Licenses.
8.1 — (OUR) Intellectual Property
8.1.1 (YOU) acknowledge that content available through the (WEBSITE), including, without limitation, content in the form of text, graphics, software, music, sound, photographs, and videos (collectively, the “Intellectual Property”), is protected by copyright law, trademark law, patent law, and/or other proprietary rights and laws. All photographs displayed on this (WEBSITE) are the sole property of (OURS). All other content on this (WEBSITE) is owned by (US). Except as expressly authorized by (US) herein, (YOU) agree not to copy, modify, rent, lease, loan, sell, assign, distribute, license, reverse engineer, or create derivative works based on the (WEBSITE) or any content (including, without limitation, any software) available through the (WEBSITE).
8.2 — (OUR) Copyright Notice
8.2.1 (YOU) are hereby granted a nonexclusive, nontransferable, revocable, limited license to view content retrieved from the (WEBSITE) for (YOUR) personal, noncommercial purposes, provided that (YOU) do not remove or obscure the copyright notice or other notices displayed on or included with the content.
8.3 — (OUR) Creative Works
8.3.1 (YOU) may not download, transmit, reproduce, copy, reprint, modify, rewrite, create derivative works from, distribute, publicly display, publicly perform, license, lease, transfer or sell content retrieved from the (WEBSITE) in any way, for any public or commercial use or provide it to any commercial source, including other websites, regardless of whether or not (YOU) receive compensation, without the express, prior written permission from (US).
8.4 — (OUR) Trademark, Logo, Or Other Proprietary Information
8.4.1 (YOU) may not frame any trademark, logo, or other proprietary information on this (WEBSITE) without the express, prior written consent from (US). Except as expressly provided in the (AGREEMENT), nothing contained in the (AGREEMENT) or on the (WEBSITE) shall be construed as conferring any other license or right, expressly, by implication, by estoppel, or otherwise. Any rights not expressly granted herein are reserved.
8.5 — (OUR) Website
8.5.1 None of the material contained on this (WEBSITE) (including all software, HTML code and other code) may be reverse—engineered, disassembled, decompiled, transcribed, stored in a retrieval system, translated into any language or computer language, retransmitted in any form or by any means (electronic, mechanical, photo—reproduction, recordation or otherwise), resold or redistributed without the prior written permission from (US).
Section 9 — Disclaimer
9.1 — Assignment
9.1.1 This (AGREEMENT) may be assigned by (US). It may not be assigned by (YOU). This (AGREEMENT) shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
9.2 — No Agency
9.2.1 This (AGREEMENT) does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
9.3 — No Waiver
9.3.1 No waiver of rights under this (AGREEMENT) or any of (OUR) policies, or (AGREEMENT) between (YOU) and (US) shall constitute a subsequent waiver of this or any other right under this (AGREEMENT).
9.4 — Partial Invalidity
9.4.1 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. (WE) and the (YOU) agree to renegotiate any term held invalid and to be bound by mutually agreed substitute provision.
9.5 — Force Majeure
9.5.1 Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failure of telecommunication carriers, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day—to—day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible but in no event less than ten (10) days from the beginning of the event.
9.6 — Warranties
9.6.1 (YOU) EXPRESSLY AGREE THAT USE OF (OUR) (PACKAGES) IS AT (YOUR) OWN RISK. THE (PACKAGES) ARE PROVIDED AS—IS AND AS—AVAILABLE. OTHER THAN AS EXPRESSLY SET OUT IN THIS (AGREEMENT), (WE) HAVE NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTIES OR NON—INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OR MERCHANTABILITY, AND/OR TITLE. NEITHER (WE), ITS PARENT, ITS EMPLOYEES, AGENTS, RESELLERS, THIRD PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE, WARRANT THAT (OUR) (PACKAGES) 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 (PACKAGES) OR AS TO THE ACCURACY, OR RELIABILITY, OF ANY INFORMATION (PACKAGE) OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH (OUR) NETWORK, UNLESS OTHERWISE EXPRESSLY STATED IN THIS (AGREEMENT). (WE) SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES REGARDING (PACKAGES) PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE (PACKAGES) APPEAR TO BE PROVIDED BY (US). NO WARRANTIES MADE BY THESE THIRD PARTIES TO (US) SHALL BE PASSED THROUGH TO (YOU), NOR SHALL (YOU) CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
9.6.2 THE WARRANTY DISCLAIMERS CONTAINED IN THIS (AGREEMENT) EXTEND TO ANY ORAL OR WRITTEN INFORMATION (YOU) MAY HAVE RECEIVED FROM (US), ITS EMPLOYEES, THIRD—PARTY VENDORS, AGENTS OR AFFILIATES. (YOU) MAY NOT RELY ON SUCH INFORMATION.
9.6.3 SOME STATES DO NOT ALLOW (US) TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO (YOU), (YOUR) WARRANTY IS LIMITED TO NINETY (90) DAYS FROM THE EFFECTIVE DATE.
9.6.4 The parties expressly disclaim the applicability of the United Nations Convention on the International Sale of Goods.
9.7 — Limitation Of Liability
9.7.1 (YOU) ALSO ACKNOWLEDGE AND ACCEPT THAT ANY DAMAGES WILL BE LIMITED TO NO MORE THAN THE FEES PAID BY (YOU) FOR ONE (1) MONTH OF (PACKAGE).
9.7.2 UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL (WE), ITS OFFICERS, AGENTS OR THIRD PARTIES PROVIDING (PACKAGES) THROUGH (US), BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY (YOU), ANY OF (YOUR) END USERS OR ANY THIRD PARTY; 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 (OUR) RECORDS, PROGRAMS OR (PACKAGES). (YOU) AGREE THAT THIS PARAGRAPH APPLIES EVEN IF (WE) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (YOU) HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENTS ON ALL SERVERS AND ALL (PACKAGES). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; (YOU) AGREE THAT IN THOSE JURISDICTIONS, (OUR) LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
9.8 — Indemnification
9.8.1 (YOU) agree to indemnify, defend and hold harmless (US), and its parent, subsidiary and affiliated companies, third party (PACKAGE) providers and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and collectively, "indemnified parties") from and against any and all claims, damages, losses. liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of, or relating to: (i) (YOUR) use of the (PACKAGES); (ii) any violation by (YOU) of any of (OUR) policies; (iii) any breach of any of (YOUR) representations, warranties or covenants contained in this (AGREEMENT); or (iv) any acts or omissions by (YOU). The terms of this section shall survive any termination of this (AGREEMENT). For the purpose of this paragraph only, the terms used to designate (YOU) include (YOU), (YOUR) customers, visitors to (YOUR) website, and users of (YOUR) (PACKAGES) the use of which is facilities by (US).
9.9 — Changes To Terms Of This Agreement
9.9.1 (WE) reserve the right to modify this (AGREEMENT), in whole or in part, from time—to—time. (WE) will provide (YOU) with notices of such a change by posting notice on (YOUR) control panel. Unless (WE) are required to make a change in an emergency, any change will be effective thirty (30) days after it is posted. If such a change materially diminishes (YOUR) ability to use the (PACKAGES), (YOU) may terminate this (AGREEMENT). (YOU) are encouraged to review the content of this (AGREEMENT) on a regular basis.
9.10 — Jurisdiction
9.10.1 This (AGREEMENT) shall be governed by the laws of the State of North Carolina, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. Exclusive venue for all disputes arising out of or relating to this (AGREEMENT) shall be the state and federal courts in Durham County, North Carolina, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
Section 10 — Survival
10.1 The following paragraphs shall survive the termination of this (AGREEMENT): 19, 25 through 28, and 34.
- Run any type of interactive real—time chat applications that require server resources, but remotely—hosted services are fully allowed.
- Run stand—alone, unattended server—side processes at any point in time on the server. This includes any and all daemons, such as IRCD.
- Run any software that interfaces with an IRC (Internet Relay Chat) network.
- Run any bit torrent application, tracker, or client.
- Participate in any file—sharing/peer—to—peer activities.
- Use 15% or more of system resources for longer than 60 seconds.
- Own more than 50% of a servers total domain names.
- Run any MySQL queries longer than 20 seconds.
- Have more than 20 con—current processes.
- 15 Minute Max Execution Time.
- 500+ outgoing email messages per 60 minute period.
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