Xfactor Multimedia Inc
Hosting Agreement - Terms of
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.
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
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.
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
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. Cancellation of services
must be initiated by the primary account contact or in the case of that contact
being no longer available a written service cancellation from a corporate
officer on company letterhead will be considered valid with verbal verification.
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
(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.
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
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
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
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:
Failure to respect robot.txt
files and other industry standard practices
Misbehaving and causing
network and server issues
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
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.
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.
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.
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
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.
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
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
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