XceedIT

Terms and Conditions


By using the XceedIT, Inc. services, you agree to be bound by the following terms and conditions. XceedIT reserves the right to change the Terms and Conditions at any time without notice, and your continued use of XceedIT constitutes your consent to such changes.

1. DESCRIPTION OF SERVICES. XceedIT will provide services as described on the signup page for each specific service. XceedIT will not be responsible for work that is beyond the scope of services set forth in the subscription plan in effect at the time Client initiates the service. Any changes to the scope of services will not be effective unless approved by both parties.

2. CURRENT BASE RATES. Consulting: $135Business Hours On-Site Support: $120, After Hours & Emergency On-Site Support: $160, Remote & Phone Support: $100, After Hours & Emergency Remote Support: $120
2.1. HOURLY RATE. The hourly rates are defined for all system engineers and are billable for services outside the scope specifically defined in this agreement or any attached schedule(s) and may be changed with 60-days written notice. Current hourly rates and billable minimums are published at https://www.xceedit.com/terms-and-conditions/. Client agrees to verify current rates and minimum charges online prior to requesting any billable service. The hourly rate is for time worked and is not tied to a resolution.
2.2. BUSINESS HOURS. Normal business hours are defined as Monday through Friday, 8:00 AM to 5:00 PM EST. 
2.3. TRAVEL EXPENSES. XceedIT will invoice for any additional travel expenses to include parking and tolls.
2.4. ADDITIONAL CHARGES. There shall be added to the charges due an amount equal to all taxes based upon all services, equipment, hardware, software, freight and other applicable charges. This includes all state and local sales and use taxes based on gross revenue, and any taxes or amount in lieu thereof paid or payable by XceedIT in respect to the foregoing.

3. MANAGEMENT RESPONSIBILITY. XceedIT will provide certain tools, methods and resources to Client that are intended to help Client grow and build its business. However, Client is fully and exclusively responsible for its own business performance and Client satisfaction. In addition, Client has full and exclusive responsibility for understanding and ensuring compliance with any regulatory, legal or contractual obligations related to Client’s business, including without limitation, data held by Client and its Clients, information provided by Client to Clients and/or other third parties and any safeguarding and security measures that may be required. XceedIT may participate in implementing needed systems services and functions, but Client is solely responsible for the final outcomes, actions taken and results produced.

4. COPYRIGHT. All content produced by XceedIT within the scope of Services including software and code, contents, graphics and design, or material developed or licensed by XceedIT for Client as part of the Services is copyrighted by XceedIT and remains the exclusive property of XceedIT. Upon termination of this Agreement copyrights shall remain with XceedIT.
4.1. MANAGED WEBSITE COPYRIGHT. After eighteen paid months of Managed Website Standard service or twelve paid months of Managed Website Extended service, if Client chooses to cancel the service per the conditions in Section 6 below, all XceedIT copyrighted Client website content, EXCEPT software, web code, WordPress themes and plug-ins, PSD files and other files or code used to create the Client website and newsletter can be used indefinitely by Client for their company website, newsletter and other marketing collateral. This use will be restricted to the Client company use only and Client does not have any rights to resell, license or otherwise allow 3rd parties use of the content.

5. LOANED EQUIPMENT. Client agrees that certain items, including by not limited to the backup storage device, phones, PBX server, network equipment, and any devices provided with the managed services plan shall remain the property of XceedIT, and must be returned if requested. Client further agrees to cease the use of any technology that remains the property of XceedIT upon termination of this agreement. If any equipment at the Customer site owned by XceedIT is stolen, damaged or destroyed, Client must pay the equivalent of the current retail replacement value of the device within 15 days of said event.

6. TERM/TERMINATION. Except for reasons of non-performance by either party, this Agreement shall remain in effect until formally terminated in writing by either party. XceedIT will start subscription billing to Client beginning the date (“Renewal Date”) client agrees to these terms of services and it shall automatically renew for subsequent one (1) month periods until it is formally terminated in writing or email. Termination of this Agreement requires written or email notice delivered thirty (30) days prior to the desired date of termination. Services cancelled or downgraded within six (6) months will incur an early cancellation fee, equal to 2 months of the cancelled service cost. A repeated failure to make payment by date due during any period gives XceedIT the option for immediate termination. Upon the expiration or termination of this Agreement for non-payment or non-performance by client, (i) all licenses granted by XceedIT to Client hereunder shall automatically terminate and Client shall immediately cease its use of the licensed content and other provided marketing collateral, and (ii) Client’s right to the Services afforded to XceedIT’s Clients shall automatically terminate.

7. PAYMENT FOR SERVICES. Client will pay XceedIT for Services as described in XceedIT plan and for the license to use the XceedIT services, software and licensed content in conjunction with these services. Unless prior arrangements are made, payment is due when services are rendered. Payment may be by cash, check, credit card or certified instrument. Returned checks will be assessed a thirty-five dollar ($35.00) return fee.  Invoices will include monthly subscription fees and any additional fees for elective or other additional Services that have been purchased by the Client. There is a late payment penalty of 5% of the amount past due. In addition, all past due amounts, including the late charge, shall bear interest at 1.5% per month for each month past due. If there is any late payment(s) on your account, XceedIT, at its sole discretion and without waiving other rights it may have, may suspend, interrupt, or disconnect the Services on your account, without notice to you. 
7.1. CHECK ELECTRONIC DEBIT. When payment is made by check, Client authorizes XceedIT make a one-time electronic debit from the check account, for the specified check amount, on or after the date we receive the check payment.
7.2. CREDIT CARD AUTO-PAY. If enrolled, XceedIT will charge Client services automatically with the credit card designated on a recurring basis from the time to enroll until Client indicates to us to stop the automatic charges and we have had a reasonable time to implement the instructions.
7.3. ACH AUTO-PAY. If enrolled, client authorizes XceedIT to debit the bank account indicated for the noted amount each month, and, if necessary, initiate adjustments for any transactions credited/debited in error. Client agrees that this authorization will remain in effect until the provided services end, or until Client cancels it in writing, which ever comes first, and Client agrees to notify the XceedIT in writing of any changes in Client account information or termination of this authorization at least 15 days prior to the next billing date.

8. TITLE TO GOODS. Title to purchased goods is retained by XceedIT until such goods are paid for in full by the purchaser or purchaser’s agent.

9. ABANDONED ITEMS. Unless prior arrangements are made, any item left for repair that is not picked up and paid for within 60 days of completion of said repair will be considered as abandoned. XceedIT will notify you that XceedIT considers your item abandoned by you and if the item is not picked up and paid for within 15 days of our notification of your receipt of said notice, the item will be recycled by our e-waste recycler. The notice sent to you and further, accepted by you together with your failure to contact us within the 15 day time frame is your acknowledgement the item is indeed abandoned and you thereby transfer title to XceedIT for disposition. Abandoning and subsequent e-waste recycling of your item does not relieve you from the amounts due. XceedIT reserves the right to pursue collections and by failing to respond you agree to be liable for any and all costs incurred in such collections. Prior to any further transactions with XceedIT, you will be required to remit in full on any previous amounts due plus provide pre-payment for any further services.

10. HELPDESK SUPPORT. XceedIT will attempt to resolve issues over the phone or via remote access. You understand and agree that prior to contacting or allowing XceedIT to perform diagnostic repair on your computer, it is your responsibility to back-up the data, software, information or other files stored on your computer disks and/or drives. You acknowledge and agree that XceedIT shall not be responsible under any circumstance for any loss or corruption of data and/or software. If an issue is unable to be resolved in the manner, XceedIT will schedule an engineer for an on-site visit. XceedIT reserves the right to dispatch an engineer for any phone support exceeding 30 minutes or at the sole discretion of XceedIT should common practice dictate it would be more efficient to address the issue onsite.

11. ON-SITE SERVICE. Standard service hours are Monday-Friday, 8 AM to 5 PM. Additional charges will apply for emergency services or service outside of standard service hours. On-site services are billed portal-to-portal. The hourly charges for on-site service begins when a billable staff member leaves XceedIT headquarters and ends when that member finishes on-site. XceedIT will bill for any additional travel expenses to include parking and tolls. IT IS YOUR RESPONSIBILITY TO BACK UP ALL SOFTWARE AND DATA THAT IS STORED ON YOUR COMPUTER’S HARD DISK DRIVE(S) AND/OR ON ANY OTHER STORAGE DEVICES YOU MAY HAVE PRIOR TO THE ARRIVAL OF THE XCEEDIT AGENT TO YOUR LOCATION. XCEEDIT AND/OR ITS THIRD PARTY SERVICE PROVIDER SHALL NOT BE RESPONSIBLE AT ANY TIME FOR ANY LOSS, ALTERATION OR CORRUPTION OF ANY SOFTWARE, DATA OR FILES.

12. WARRANTY. XceedIT shall provide its services and meet its obligations under this Agreement in a timely and professional manner, using knowledge and skills consistent with generally acceptable standards in XceedIT’s industry, and will provide a standard of care based on commercially reasonable efforts. The services and all products provided as part of the services are provided “as is” and XceedIT disclaims, and client waives, any warranties, express or implied, as to the merchantability, fitness for a particular use or purpose, title, non-infringement or any other warranty, condition, guaranty or representation related to the services. XceedIT does not warrant that the software or any products or services provided hereunder will be uninterrupted or error-free.

13. MANUFACTURER WARRANTY. Computer systems, hardware components, peripheral devices, software and any other tangible component sold by XceedIT, are warranted only by the manufacturer or publisher of such component and are limited to the terms set forth by said manufacturer or publisher. XceedIT is not responsible for obtaining warranty services or performance of warranty terms for any such component. You will be charged for all repairs performed by us. Services rendered by XceedIT may void manufacturer warranties for a computer system, computer network system, or a related device. XceedIT does not assume any liability or warranty in the event that the manufacturer warranties are voided. XceedIT offers no verbal or written warranty, either expressed or implied, regarding the success of services rendered.

14. LIMITATION OF LIABILITYIn no event shall XceedIT, its subsidiaries or affiliates, or it’s respective officers, directors, employees, representatives, agents, contractors or suppliers (collectively, “XceedIT”) be held liable for special, incidental, consequential, punitive, direct, indirect, physical, compensatory, punitive or any other damages, including but not limited to, physical injury, loss of data, loss of use, or loss of profits, however caused, whether for breach of contract, negligence, or otherwise, regardless if XceedIT has been advised of the possibility of any such damages. You agree that the total liability of us and our Affiliates and the sole remedy of you and any End User for any claims regarding our services is limited to your right to terminate this Agreement. Further, should a court nonetheless find that a remedy is not exclusive or that we are for any reason nonetheless liable for money damages, our cumulative liability in connection with this Agreement and our Services, whether in contract, tort or otherwise, shall not exceed the amount paid to us under this Agreement during the three months preceding the events giving rise to such liability. The existence of more than one claim shall not enlarge that limitation of liability.

15. THIRD PARTY REPRESENTATION. Except as expressly provided in the Agreement, you acknowledge that (a) we are in no manner responsible for any action or inaction of any third party, including, but not limited to, hardware or software vendors or Internet service providers; (b) we have not represented that the Services shall be uninterrupted, error-free, or without delay; and (c) we do not and cannot control the flow of data through the Internet, and such flow depends in large part on the performance of third parties whose actions or inaction can, at times, produce situations in which connections to the Internet (or portions thereof) may be impaired or disrupted. ACCORDINGLY, YOU ACKNOWLEDGE THAT WE DISCLAIM ALL LIABILITY RELATED TO EVENTS OUTSIDE OF OUR CONTROL AND/OR IN THE CONTROL OF THIRD PARTIES, AND YOU SHALL HAVE NO RIGHT TO RELY UPON ANY REPRESENTATION OR WARRANTY OF ANY THIRD PARTY IN RESPECT TO THE SERVICES. Further, you acknowledge that, in providing the Services, we shall necessarily rely upon information, instructions, and services from you, your Administrator, employees, and agents, and any other third parties providing computer and communications hardware, software, and Internet services. Except as expressly provided in the Agreement, you fully assume the risk associated with errors in such information, instructions, and services.

16. INDEMNITY. Each party hereby agrees to indemnify and hold the other party harmless from and against any and all third party claims, demands, actions, losses, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of or resulting from the performance, or lack of performance, of each party’s activities under this Agreement except to the extent caused by either party’s negligence or willful misconduct. XceedIT shall defend and indemnify Client against all claims, damages, etc. arising from XceedIT employees ’and agents ’ activities at XceedIT facilities.

17. SOLICITATION OF EMPLOYEES. Client acknowledges that XceedIT is involved in a highly strategic and competitive business. Client further acknowledges that Client  would gain substantial benefit and that XceedIT would be deprived of such benefit, if Client were to directly hire any personnel employed by XceedIT . Except as otherwise provided by law, Client shall not, without the prior written consent of XceedIT , solicit the employment of XceedIT personnel or induce any XceedIT personnel to leave to go to another firm during the term of this Agreement and for a period of two (2) years following the termination or expiration of this Agreement. Client agrees that XceedIT damages resulting from breach by Client of this provision would be impracticable and that it would be extremely difficult to ascertain the actual amount of damages. Therefore, in the event Client violates this provision, Client shall immediately pay XceedIT an amount equal to US $50,000 as liquidated damages. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs XceedIT would incur to identify, recruit, hire and train suitable replacements for such personnel.

18. CONFIDENTIAL INFORMATION. Confidential Information shall mean any proprietary information, whether furnished before, on, or after the date of this Agreement, in any form, whether tangible or intangible, including information regarding operations, programs, contracts, business plans, business strategies, know- how, trade secrets, industry expertise, billing rates and other financial information, designs, plans, configurations, algorithms, source code, object code, writings, drawings, computer disks and other electronic media, samples, plans, and verbal communications, and any other information that is provided by or on behalf of XceedIT or Client, or the representatives or affiliates of XceedIT or Client. The term Confidential Information also shall include any analyses, reports, compilations, studies, or other documents or records prepared by the Disclosing Party or the Receiving Party to the extent that such documents or records contain, reflect, or are generated from the Disclosing Party’s Confidential Information.
18.1 EXCLUSIONS The term Confidential Information shall not include any of the following: (i) information that was available to the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party; (ii) information that is or becomes generally available to the public, other than as a result of a disclosure by the Receiving Party or its agents or a disclosure caused, aided, or enabled by the Receiving Party or its agents; or (iii) information that becomes available to the Receiving Party on a non-confidential basis from a person or entity other than the Disclosing Party, provided that such other person or entity, at the time the information becomes available to the Receiving Party, is neither bound by a confidentiality agreement with regard to the information being disclosed nor otherwise prohibited from transmitting the information to the Receiving Party.
18.2 AGENTS & EMPLOYEES. Each party may disclose Confidential Information only on a need-to-know basis to its employees and agents under appropriate written burden of confidentiality. Each party shall take appropriate action with its employees and agents to satisfy its obligations under this Agreement. Each party shall be responsible to the other for any violation of this Agreement by its own employees or consultants.
18.3 NONDISCLOSURE  Each party shall use its reasonable best efforts to keep the other’s Confidential Information secret. Each party shall use at least the same degree of care to avoid unauthorized disclosure or use of the other’s Confidential Information as it employs with respect to its own Confidential Information of like importance. Neither party may use the other’s Confidential Information for any purpose but the approved Business Purpose.

19. GOVERNING LAW. You agree that these Terms and Conditions shall be treated as though they were executed and performed in North Carolina and shall be governed by and construed in accordance with the laws of North Carolina (without regard to conflict of law principles). All legal proceedings arising out of or in connection with these Terms and Conditions or any other agreement related to the use of XceedIT services shall be brought solely in North Carolina.

20. DEFINITIONS
Computer system is defined as the CPU enclosure and software (operating system, applications and other installed software).
Hardware is defined as any individual component that is contained within the Computer System such as hard disk drives, main boards, processors, memory modules or any other component contained within the Computer System.
Peripheral device is defined as any hardware item which attaches to the Computer System such as Printers, Monitors, Cameras, etc.
Data is defined as any information which is not part of the operating system, application software or other installed software such as pictures, word processing documents, email, financial data, or any other user created information stored on the computer system.

 
 

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Signature Certificate
Document name: Terms and Conditions
Unique Document ID: 5723b92f4aa0ebcb894545d40c9b03a9fbe28780
Timestamp Audit
May 4, 2016 3:29 pm EDTTerms and Conditions Uploaded by Donald Paul - dpaul@xceedit.com IP 67.8.251.135