Xfactor Multimedia Inc Hosting Agreement  - Terms of service (TOS)

This user agreement governs the terms of the use by client of services offered by Xfactor Multimedia Inc. Client agrees to receive access to Xfactor Multimedia Inc, dedicated server hosting, e-Commerce Virtual Server Hosting Services, Storehost Store Creation, Storehost hosting, dedicated internet connection and iClarify eBusiness services according to the following terms and conditions: 

Definition of Duties 

Client acknowledges and agrees to terms under this agreement, are for web site hosting services made available by Xfactor Multimedia Inc. Xfactor Multimedia Inc is not responsible for Client site maintenance, changes, modifications, HTML coding, scripting, or programming, or site data back-up now or in the future. 

Compensation 

Client hereby retains Xfactor Multimedia Inc and Xfactor Multimedia Inc hereby agrees to provide web site or server co-location hosting for Client according to the terms listed in the Agreement. 

Payment for Services 

Client will pay for services provided under this Agreement by invoices submitted to Client by Xfactor Multimedia Inc. When initiating service, Client will be charged the published setup fee for the service plan selected, as well as a pro rated partial month charge according to the service plan for the number of days remaining in the calendar month from the time of initiation of service until the end of the month in which service is initiated. Service and set up fees are non-refundable.

On or about the fifteenth day of every month thereafter, Client will be invoiced for monthly payment for services according to Xfactor Multimedia Inc published schedule. Xfactor Multimedia Inc shall provide invoices and shall maintain, and provide, upon request, backup documentation for a period of one year from the date of the respective invoices. 

Late Payment 

Xfactor Multimedia Inc imposes finance late fees in the amount of 25 % for any account that is more than 5 days past due. At 10 days past due, the account will be locked. Locked accounts will be unlocked only upon receipt of all payments due. There will be an account re-activation fee of $75.00 dollars per site/account. 

Term

This Agreement shall commence on the date the account is activated, and shall remain in effect until all obligations under this Agreement have been properly completed. Either party to this Agreement may terminate this Agreement with or without cause by providing at least thirty days written notice to the other party. If either party is in default under this Agreement (including nonpayment), then the non-defaulting party may also immediately terminate the Agreement without prior notice to the other party. If the Client does not notify Xfactor Multimedia in writing thirty days in advance of termination of service Client will be liable for the full month after a written termination of service is received.

This Agreement will automatically renew for successive one- (1) month periods unless canceled in writing prior to the monthly renewal date. Xfactor Multimedia Inc reserves the right to refuse service and discontinue any and all hosting, co-location and site and shopping cart creation services and affiliates programs without prior notification. Storehost online commerce suite is provided as a service only, usage does not imply ownership and service may be discontinued per the terms of this document.

Compliance with Law 

Client will use the services offered by Xfactor Multimedia Inc in a manner consistent with all applicable local, state and federal laws and regulations. 

Prohibition of Publication of Certain Material 

Client shall not knowingly or unknowingly submit to Xfactor Multimedia Inc for publication any of the following material (including pictures, links, or any other content): 

(a) Any material which violates or infringes any copyright, trademark, trade secret, patent, statutory, common law or other proprietary rights of others; 

(b) Any material that is libelous or slanderous; 

(c) Any material which is or contains anything obscene or pornographic; or 

(d) Distribution lists to be used via unsolicited electronic mail or other mass electronic mailings. Spam or Spam software of any kind will not be tolerated. Clients guilty of Spamming or utilizing mass mailing on our network will have their service discontinued. Due to the public nature of the Internet, all material submitted by Client for publication will be considered publicly accessible. Xfactor Multimedia Inc does not screen in advance Client's material submitted to Xfactor Multimedia Inc for publication. Xfactor Multimedia Inc publication of material submitted by Client does not create any express or implied approval by Xfactor Multimedia Inc of such material, nor does it indicate that such material complies with the terms of this Agreement.

DMCA Notifications

Copyright Claims Pursuant to the Digital Millennium Copyright Act

Pursuant to Title II of the Digital Millennium Copyright Act, all claims of copyright infringement for material that is believed to be residing on Xfactor Multimedia Inc's network or servers should be promptly sent in the form of written notice to the Designated Agent for DMCA Notices listed below:

Brian McCoy - Designated Agent for DMCA Notices
Xfactor Multimedia Inc
1037 NE 65th St Suite 332
Seattle, WA 98115
Telephone: 206.774.8510
Email: copyright@xfactormm.com

To be considered effective, a notification of a claimed copyright infringement must be provided via email or regular mail to Xfactor Multimedia Inc and must include the following information:

1. An electronic signature of the copyright owner, or a person authorized to act on behalf of the owner, of an exclusive copyright that has allegedly been infringed.

2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on that site.

3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Xfactor Multimedia Inc to locate the material.

4. Information reasonably sufficient to permit Xfactor Multimedia Inc to contact the Complaining Party, such as an address, telephone number, and, if available, an electronic mail address at which the Complaining Party may be contacted.

5. A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

6. A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is the owner, or is authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.

 

7. Complaining party must make a reasonable effort to resolve DMCA copyright issues with Xfactor Multimedia Inc's customers before contacting Xfactor Multimedia Inc directly.

8. If complaining party makes no attempt to resolve DMCA copyright issues with Xfactor Multimedia Inc's customers and Xfactor Multimedia Inc is contacted directly it is Xfactor Multimedia Inc's policy to consider any action taken to be billable and will bill accordingly. By accessing our network, ip addresses, servers or hosted websites by any means means that you (Complaining party) agree to these terms. Non-payment will be sent in to collections and reported to the appropriate credit reporting agencies.

 

Failure to submit copyright infringement notification as described herein will result in no legal notice or action on behalf of Xfactor Multimedia Inc.

Misrepresentations: - any person who knowingly materially misrepresents under this section

 

1. that material or activity is infringing, or

 

2. that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorney's fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by Xfactor Multimedia Inc, who is injured by such misrepresentation, as the result of Xfactor Multimedia Inc relaying upon such misrepresentations in removing or ceasing to disable access to it.

 

Web Crawler's, Spiders, Automated data collection devices, Data collection servers and or Software.

Xfactor Multimedia Inc reserves the right to deny or limit access to our network, IP addresses, hosted sites and servers to any and all Web Crawler's, Spiders, Automated data collection devices, data collection servers and or software for any reason.

Web Crawler's, Spiders, Automated data collection devices, data collection servers and or software may be excluded for one or more of the following reasons but is not limited to:

1. Failure to respect robot.txt files and other industry standard practices

2. Misbehaving and causing network and server issues

3. Unauthorized data collection

DISCLAIMER OF WARRANTIES 

Xfactor Multimedia Inc, SERVICE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. 

Xfactor Multimedia Inc SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL Xfactor Multimedia Inc BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF Xfactor Multimedia Inc HAS BEEN ADVISED BY CLIENT OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IF Xfactor Multimedia Inc, SERVICE TO CLIENT IS DISRUPTED OR MALFUNCTIONS FOR ANY REASON, Xfactor Multimedia Inc, SHALL NOT BE RESPONSIBLE FOR LOSSES OF INCOME DUE TO DISRUPTION OF SERVICE, BEYOND THE FEES PAID BY CLIENT TO Xfactor Multimedia Inc FOR SERVICES, DURING THE PERIOD OF DISRUPTION OF MALFUNCTION. 

Limitation/Disclaimer of Liability 

Xfactor Multimedia Inc is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider or its customers may utilize. 

Xfactor Multimedia Inc does not represent or warrant to Client that Client will receive continual and uninterrupted service during the term of this Agreement. 

In no event shall Xfactor Multimedia Inc be liable to Client for any damages resulting from or related to any failure or delay of Xfactor Multimedia Inc to provide service under this Agreement if such delays or failures are due to strikes, riots, fire, inclement weather, acts of God, theft or vandalism or other causes beyond Xfactor Multimedia Inc control, as defined by standard practices in the industry. Such failure or delay shall not constitute a default under this Agreement. 

Indemnity 

Client agrees to defend, indemnify and hold Xfactor Multimedia Inc harmless from and against any and all claims, losses, liabilities and expenses (including attorneys' fees) related to or arising out of the services provided by Xfactor Multimedia Inc to Client under this Agreement, including without limitation claims made by third parties (including customers of Client) related to any false advertising claims, liability claims for products or services sold by Client, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided hereunder, or for any content submitted by Client for publication by Xfactor Multimedia Inc. 

IP Addresses 

Xfactor Multimedia Inc maintains control and any ownership of any and all IP numbers and addresses that may be assigned to Client and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses. 

File Back-up 

Xfactor Multimedia Inc is not responsible for Client's files residing on Xfactor Multimedia Inc servers. Client is solely responsible for independent backup of data stored on Xfactor Multimedia Inc servers. 

Warranties by Xfactor Multimedia Inc 

Xfactor Multimedia Inc represents and warrants to Client that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner; that it has the power to enter into and perform this Agreement; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party or violate any federal, state and municipal laws. However, Client will not determine or exercise control as to general procedures or formats necessary to have these services meet Client's satisfaction. Xfactor Multimedia Inc reserves the right to refuse service and discontinue any and all hosting, co-location and site creation services and affiliates programs without prior notification. 

Governing Law/Venue 

The laws of the State of Washington shall govern this Agreement. 

Relationship of the Parties 

The parties intend that an independent contractor relationship will be created by this contract, and that no partnership, joint venture or employee/employer relationship is intended. 

Taxes 

If any federal, state or local governmental entity with taxing authority over the services provided under this Agreement imposes a tax directly on the services provided by Xfactor Multimedia Inc to Client under this Agreement (excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes), then Xfactor Multimedia Inc may pass the direct amount of such cost on to Client, and Client shall promptly pay such cost. 

Waiver 

Any party's failure to insist on compliance or enforcement of any provision of this Agreement shall not affect its validity or enforceability or constitute a waiver of future enforcement of that provision or of any other provision of this Agreement. 

Attorneys' Fees 

If Xfactor Multimedia Inc brings a legal action to collect any sums due under this Agreement, it shall be entitled to collect, in addition to all damages, its costs of collection, including reasonable attorney's fees. 

Entire Agreement and Notice 

This agreement contains the entire understanding of the parties. Xfactor Multimedia Inc reserves the right to modify this agreement with out prior notification.

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