Terms & Conditions
This Agreement (“Agreement”) is by and between XMLA (“XMLA”) a/an California company and You, Your heirs, agents, successors, and assigns (“You”), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of XMLA software (“Software”) and services (“Services”) and explains XMLA’s obligations to You and Your obligations to XMLA in relation to the Software and Services You purchase.
This Agreement as well as any additional XMLA policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and XMLA concerning Your use of XMLA’s Software and Services and supersede and govern all prior proposals, agreements, or other communications. All XMLA policies and agreements specific to particular Software and Service are incorporated herein and made part of this Agreement by reference, including the dispute policy (“UDRP”). By purchasing XMLA’ Software or Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which XMLA may establish from time to time, and any agreements that XMLA is currently bound by or will be bound by in the future. You may view the latest version of this Agreement online.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You’ve established with XMLA, whether or not the transactions were in Your behalf.
The General Terms in Section A apply to all customers of XMLA. The Software and Services Specific Agreements incorporated in Section B apply only to customers who have purchased those referenced Services.
GENERAL TERMS APPLICABLE TO ALL SOFTWARE AND SERVICES
TERM OF AGREEMENT; MODIFICATIONS You agree that XMLA may modify this Agreement and the Services from time to time. You agree to be bound by any changes XMLA may reasonably make to this Agreement when such changes are made. If You have purchased Services or Software from XMLA, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Software or Services. In the event You terminate Your usage, XMLA will not refund any amounts You have paid. You agree that XMLA shall not be bound by any representations made by third parties who You may use to purchase Services from XMLA and that any statement of a general nature, which may be posted on XMLA’ Web site or contained in XMLA’ promotional materials, will not bind XSite Media, Los Angeles. XMLA may, at times, offer certain promotions with different charges and features. You agree that You will be responsible for notifying XMLA should You desire to terminate Your use of XMLA’ Services. Notification of Your intent to terminate must be provided to XMLA no earlier than 10 days prior to Your billing date but no later than three days prior to Your billing date.
You agree You are entirely responsible for maintaining the confidentiality of Your customer login, password, and credit card number (collectively, the “Account Access Information”). You agree You are entirely responsible for any and all activities that occur under Your account. You agree to notify XMLA immediately of any unauthorized use of Your account or any other breach of security. You agree XMLA will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by XMLA or another party due to someone else using Your Account Access Information. For security purposes, You should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that You will be responsible for all activity in Your account, whether initiated by You, or by others on Your behalf, or by any other means. XMLA specifically disclaims liability for any activity in Your account, whether authorized by You or not.
NO UNLAWFUL CONDUCT OR IMPROPER USE
As a condition of Your use of XMLA’s Software and Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal, and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to XMLA if, for any reason, XMLA takes corrective action with respect to Your improper or illegal use of its Services. XMLA reserves the right at all times to disclose any information as XMLA deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, in XMLA’s sole discretion. If You have purchased Services, XMLA has no obligation to monitor Your use of the Services. XMLA reserves the right to review Your use of the Services and to cancel the Services in its sole discretion. XMLA reserves the right to terminate Your access to the Services at any time, without notice, for any reason whatsoever. XMLA reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against XMLA or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. XMLA may review every account for excessive space and bandwidth utilization and terminate or apply additional fees to those Accounts that exceed allowed levels. Except as set forth below, XMLA may also cancel Your use of the Services, after thirty (30) days, if You are using the Services, as determined by XMLA in its sole discretion, in association with spam or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which You conduct business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; and activities designed to harm or use unethically minors in any way. Notwithstanding anything to the contrary herein, in the event XMLA cancels Your Services during the first thirty (30) days after You purchase the Services, You will receive a refund of any fees paid to XMLA in connection with the Services being canceled. In the event XMLA deletes Your Services because they are being used in association with spam or morally objectionable activities, no refund will be issued. You agree You will not be entitled to a refund of any fees paid to XMLA if, for any reason, XMLA takes corrective action with respect to Your improper or illegal use of its Services.
NO SPAM; LIQUIDATED DAMAGES
You agree XMLA may immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay XMLA liquidated damages of $1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your account, otherwise, You agree to pay XMLA’s actual damages. You acknowledge You have read and understand and agree to be bound by the terms and conditions of XMLA’ Anti-spam Policy, available here. Such terms and conditions are applicable to the use of all XMLA Software and Services and are incorporated herein.
You agree that XMLA or its licensor holds all rights, title, and interest in all Software and Services and all intellectual property, including other rights related to an intangible property unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such Services or Software. You understand and agree that all content and materials contained in this Agreement, other policies, the XMLA Web site, and any affiliated Web sites, are protected by the various copyright, patent, trademark, service mark, and trade secret laws of the United States, as well as any other applicable proprietary rights and laws and that XMLA or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of XMLA or its licensor. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.
USE OF XMLA SOFTWARE
If You have licensed software from XMLA, XMLA grants You a limited, non-exclusive, non-transferable, and non-assignable license to use the software for such purposes as are ordinary and customary. You agree to not alter or modify the Software. You agree You are not authorized to combine the Software with any other software program, create derivative works based upon the Software, nor are You authorized to integrate any plug-in or enhancement which uses or relies upon the Software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code. XMLA reserves all rights to the Software. The Software and any copies You are authorized to make are the intellectual property of XMLA. The source code and its organization are the exclusive property of XMLA and the Software is protected by copyright, including United States Copyright Law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the Software and all rights are reserved by XMLA. XMLA provides this Software “as is” without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.
FEES AND PAYMENT
As consideration for the Software or Services purchased by You and provided to You by XMLA, You agree to pay XMLA at the time You order. All fees are due immediately and are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. XMLA expressly reserves the right to modify pricing through email notification and/or notice on its Web site. Payment may be made by You by providing either a valid credit card, an online check, a personal check, or using XMLA’ prepaid service Good as Gold, (“Prepaid Services”) to establish a cash reserve for charge by XMLA (collectively, the “Payment Method”). Your Prepaid Services account may be funded by credit card, money order, or a personal check under as further described, below. Your Payment Method on file must be kept valid if You have any active products in Your account. If You signed up for a monthly payment plan, Your monthly billing date will be the 25th of every month. If You signed up for an annual (or longer) payment plan, and You elected the automatic renewal option, XMLA will automatically renew Your Services when they come up for renewal and will take payment from the Payment Method You have on file with XMLA, at XMLA’s then-current rates. If for any reason XMLA is unable to charge Your Payment Method for the full amount owed XMLA for the Services provided, or if XMLA is charged a penalty for any fee it previously charged to Your Payment Method, You agree that XMLA may pursue all available remedies in order to obtain payment.
RIGHT TO REFUND If you cancel your service with XMLA and you pre-paid for hosting services, you are entitled to a reimbursement of the prorated unused portion of your hosting payment. If you cancel your project development with XMLA before any work is performed, you are eligible for a refund within 30 days. If you are billed for service on expired domains not registered with XMLA, you are still responsible for payment as there is no way we could have known the domain was expired, therefore, it does not fall into our responsibility as service was provided even if it was not being actively used, your files were still stored and hosted for when you are able to reactivate or migrate your domain name. If you register a domain name and wish to cancel, you have 3 days for a refund less $1.00 for processing. After 3 days, there is no refund on domain names. Just let us know if you wish for your domain to not auto-renew. We set all domain names to auto-renew by default and enable privacy protection for identity protection and security. If you are a new customer and signup for managed or unmanaged website hosting services and are not satisfied with our service, you have up to 30 days from the creation date to cancel for a full refund. If you schedule equipment or studio rental, you may cancel within 24 hours notice with no penalty. There are no refunds available on software, plugins, or licenses purchased by third parties for your domain or website. SSL Certificates are non-refundable after the issue. If you are unsatisfied without work ( graphic design, website design, Photography, Video Production, Post Production ) – we will do our best to rectify the situation by matching you up with a different artist and attempt to correct any outstanding issues you may have. ) Refunds are not available after content has been delivered to the client or posted online on the client’s behalf. There are no refunds on print services. Print jobs that performed in error, in which case we will re-print a corrected version at no charge. If you are overcharged or billed in error, we will apply a credit for the overpayment to your account with us. In which any future invoices will deduct from this credit first. If you are no longer a client, we will refund your overcharge with the card on file or issue you a check for reimbursement.