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 personnel can provide support and consultation services upon request for all devices, applications, peripherals, networks, or systems. The support and consultation can be provided onsite or remote, depending on the nature of the services requested, the customer’s preference, and the assigned consultant’s availability and preference.
2. BASE RATES. The hourly base rate is $135. The after-hours base rate is $200. The emergency and holiday rate is $270. Client agrees to verify rates and minimum charges prior to requesting any service. The hourly rate is for time worked and is not tied to a resolution.2.1. 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. REMOTE SERVICE. XceedIT will attempt to provide services over the phone or via remote access. You understand and agree that prior to contacting or allowing XceedIT to perform services remotely, it is your responsibility to back-up the data, software, information or other files stored on your devices, 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.
4. ON-SITE SERVICE. 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. You understand and agree that prior to contacting or allowing XceedIT to perform services on-site, it is your responsibility to back-up the data, software, information or other files stored on your devices, 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.
7. CHARGES AND PAYMENT TERMS. All fees and charges for Services are exclusive of any sales or use taxes and other federal, state, municipal, or other governmental taxes or levies applicable to the sale or use of Services hereunder (“Taxes”) now in force or enacted in the future, all of which the Client will be responsible for and will pay in full. The Client will be fully responsible for any charges, costs, expenses (other than those included in the Services), and third-party claims that may result from its use of, or access to, the Services, Data Center, and Equipment. 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. In addition to all of its other rights at law or in equity, if the Client is late in any payments hereunder, XceedIT may, upon written notice to the Client, require a Security Deposit or other assurances from the Client that XceedIT deems necessary to secure the Client’s future payment obligations. The Client shall pay XceedIT’s costs of collection of payments due under this Agreement, including collection, agency fees, reasonable attorneys’ fees and court costs7.1. 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.
11. 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.
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 LIABILITY. In no event shall XceedIT or its employees, affiliates, contractors, or agents be liable for any indirect, incidental, special, punitive, or consequential damages or for any lost or imputed profits, revenue, data, or use, regardless of the legal theory under which such liability is asserted, including, without limitation, legal theories of contract, tort, or strict liability, even if XceedIT has been advised of the possibility of such damages. In addition, in no event shall the Company’s liability for any damages exceed the actual dollar amount paid by the Customer to XceedIT during the six month period prior to the date the damages occurred or the cause of action arose.
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. 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. With respect to any Proceeding brought by someone other than the Client, or someone other than one or more XceedIT Indemnitees, against one or more XceedIT Indemnitees, arising out of this Agreement (each, a “Nonparty Claim”), unless otherwise stated in this Agreement, the Client shall indemnify those XceedIT Indemnitees against all Indemnifiable Losses arising out of that Proceeding, except to the extent that XceedIT was grossly negligent or intentionally caused those Indemnifiable Losses. The Client may contest, pay, or settle the Nonparty Claim without the consent of XceedIT Indemnitee only if that settlement (1) does not entail any admission on the part of XceedIT Indemnitee that it violated any law or infringed the rights of any Person, (2) has no effect on any other claim against XceedIT Indemnitee, (3) provides as the claimant’s sole relief monetary damages that are paid in full by the Client, and (4) requires that the claimant release XceedIT Indemnitee from all liability alleged in the Nonparty Claim.
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“Representative”, with respect to an entity, is defined as any of that entity’s directors, officers, employees, agents, consultants, advisors, and other representatives.“XceedIT Indemnitee” is defined as XceedIT, any Affiliate of XceedIT, each Representative of any of the foregoing, and each of the heirs, executors, successors, and assignees of any of the foregoing.“Indemnifiable Losses” is defined as the aggregate of Losses and Litigation Expenses.“Litigation Expense” means any out-of-pocket expense incurred in defending a Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.“Loss” means any amount awarded in, or paid in settlement of, any Proceeding, including any interest but excluding any Litigation Expenses.“Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding.
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