Effective as of July 26, 2006, last updated: May 15, 2011.
This agreement is a legal and binding contract between XLD Studios and all of our customers. By using or continuing the use of one of our products or services you are legally bound by this agreement. By using our services you agree with this contract.
This contract (“Agreement,” “Contract,” “Terms of Service,” “TOS”) is made and effective as of the start of service, by and between you (“Client,” “Customer,” “You”) and XLD Studios (“XLD,” “XLD Studios ,” “Us”).
1. XLD Studios Products and Services
1.1 XLD Studios agrees to provide the customer with the by customer selected products and/or services as stated/written/noted on www.xldstudios.com with no exception.
1.2 The products and services provided by XLD Studios will be in accordance with everything stated herein.
2. Payment, Billing and Invoicing
2.1 As laid out by the products and services on XLD Studios, the client is to pay XLD Studios in advance for hosting and related services the amount stated on our website and contained in our Client and Billing Center (https://my.xldstudios.com). A payment is to be made on a Annually or Monthly term as selected by the customer.
2.2 The price of our products and services may increase or decrease as set on our website. The customer will pay the amount as set forth on our website in accordance with this agreement.
2.3 Invoices generated on the cause of late fees, overuse fees, abuse-related charges and upgrade/downgrade fees are due within 48 hours of the invoice generation time. If a payment of the invoice is not received in that time frame may be subject to legal penalties, account suspension/termination or additional fees.
2.4 The customer is responsible of making sure that all charges are paid in due time for use of the XLD Studios products and services. The customer is obliged to know that no refunds should be given due to account termination/suspension that is done in event of term violation. Nor will refunds be given for loss of earnings due to any downtime, suspension and similar, non XLD Studios controlled events. In event of security breach/hacking, the customer shall be held liable for all use of the services under such time as the customer has not notified XLD Studios by submitting a ticket.
2.5 Invoices from XLD Studios are due within the time of the invoice generation and the last payment date. If XLD Studios does not receive the amount of balance on the payment date by latest, a late fee of no less than $5.00 USD and no more than $30.00 USD will be added. Any invoices not paid after three (3) days past the last payment date will be subject to temporarily suspension until a payment has ben received. If an invoice remains unpaid after ten (10) days past the last payment date the account(s) will be handed over to the Collections department and a collections charge of no less than $50.00 USD and no more than $150.00 USD will be applied to the account(s). We reserve ourselves the right to terminate an account without notice being unpaid after twenty two (22) days past the last payment date of the invoice. The client shall be held responsible for any fees due to collect the money after ten(10) days past the last payment date.
2.6 The customer shall receive a confirmation letter through e-mail directly afterwards of contacting XLD Studios to provide services, stating the fees and amounts which will be due to XLD Studios each billing cycle. A payment receipt shall also be sent to the customer after the invoice has been paid. If the payment receipt is not received after three (3) hours past the time of payment, contact the Sales Department.
3. Responsibilities and Rights of XLD Studios
3.1 XLD Studios shall provide the customer with the services and/or products as the customer is subscribed to as outlined in this agreement and on www.xldstudios.com. We reserve ourselves the right to control and direct nay means, manners, method by which the service and/or products is presented and/or performed.
3.2 XLD Studios reserves the right to be cooperating with legal authorities to investigate illegal use of our products and/or services at the point of where these uses can be to harm to others.
3.3 XLD Studios shall provide good support throughout email and other methods as outlined on www.xldstudios.com until this agreement is terminated.
3.4 XLD Studios reserves the right to modify any passwords to our customers accounts that is deemed too easy to hack by our password testing software. The customer will be noted of a password change if so is the case. These are measures of precaution to prevent customers accounts being hacked into and keeping the server environments safe.
4. Responsibilities and Rights of the customer
4.1 By agreeing to this agreement the customer represents and warrants that he or she (a) is at least eighteen (18) years old, (b) has the legal right to enter an agreement with XLD Studios and, (c) that the use of the XLD Studios products and services as outlined by this agreement do not violate any laws or breach any third-party contracts. The customer also agrees to assume all total risk and responsibilities by using XLD Studios products and/or services. The customer also agrees to provide XLD Studios with complete, accurate and current information required to register to use XLD Studios services and/or products. This includes but is not limited to customer’s legal name, address, telephone number, and e-mail address, furthermore the customer agrees that the customer information is held current within our database.
4.2 XLD Studios allows our customers to use third-party software within our services and/or products. The customer agrees to abide and be bound by the end user agreement for the third-party software. XLD Studios cannot be held responsible for customers third-party software’s on our servers. The customer is also to retain all responsibility for actions made on XLD Studios products and/or services.
4.3 The customer agrees to use the XLD Studios products and/or services only for purposes that is in accordance with the law and this agreement. The customer will agree to this agreement at all times when he or she is using our services and/or products and the customer is responsible to retain knowledge of the terms herein. XLD Studios reserves the right to change this agreement at any time without notice.
4.4 The customer using XLD Studios products and/or services may not use them for purposes such as advertising through e-mail, promotional materials, send spam and similar things which are not legal and in accordance with this agreement. Nor may the customer use XLD Studios to collect user information from other customers without prior consent of the customer and XLD Studios. We reserve ourselves the rights to block mass e-mails sent out by accounts from our servers and to suspend them without notice.
4.5 The customer warrants that he or she is held responsible for the contents of his or her website hosting on our servers or the contents entered in our products. The customer also agrees that the contents of the customers website will always comply with the Terms of Services (this document) set herein regardless of the customer is the owner of the website or not. All content hosted on the servers of XLD Studios must comply by the law and the agreements set herein.
5. Limitation of Liability, Warranty, Specials
5.1 Should a customer fail to comply with the XLD Studios Terms of Service stated herein or other policies, all specials and guarantees shall and will be considered null and void until compliance of the terms and policies are met.
5.2 XLD Studios promises great uptime, usually no less than 98% for a full month, however we do not have a special uptime guarantee that will refund you if small downtime will occur. The uptime guarantee stated under our guarantees will only be active if your site remains down a longer time and in such an event, compensation will be offered at an amount as deemed appropriate by XLD Studios.
5.3 We do not warrant or guarantee that services and/or products from XLD Studios will be error-free, uninterrupted, completely secure or fully operable.
5.4 XLD Studios specials are only available to new customers unless the special states otherwise, we reserve ourselves the right for misprints in the specials and should a misprint occur, the special will be valid from the non-misprinted, original special.
6. Disallowed Uses
6.1 Unsolicited (Commercial) E-mail Mailing unsolicited e-mails from within and through the servers of XLD Studios is strictly prohibited. Violation of this may result in account suspension pending termination.
6.2 Server Abuse Any attempt to cause harm or undermine servers and/or customers of XLD Studios is strictly prohibited. Attempts include but is not limited to hacking and DOS attacks. Customers violating this will be subject to immediate account termination.
6.3 Illegal Use XLD Studios products and services may not be used for any illegal use or to support illegal use. XLD Studios reserves the right to cooperate with legal authorities and/or third-parties that has sustained damage, to investigate any suspected crime related to misuse of XLD Studios products and/or services.
6.4 Harm to Minors Any use of XLD Studios products and/or services that is used to harm minors (people under 18 years) including but not limited to child pornography and child abuse will result in immediate account termination without notice.
6.5 Threats & Harassments Any use of XLD Studios’s services and products to transmit material that is used to harass, threaten or encourage bodily harm or destruction of property, or other that is deemed as such by XLD Studios is strictly prohibited.
6.6 Fraudulent Activity Use of XLD Studios’s services and products to make fraudulent offers to buy or sell products, financial scam, chain letters and fraud sites or other similar activity that is deemed fraudulent by XLD Studios is strictly prohibited.
6.7 Copyright or Trademark Infringement Use of XLD Studios’s services and products to transmit material that infringes to copyright, trademark patent, trade secret or other similar violations that or violations that is deemed as such by XLD Studios is prohibited. This includes but not limits copyright violation such as uploading material without consent of the owner. This will result in account suspension until matters has been solved.
6.8 Banned Site Types The following type of sites is banned from XLD Studios servers and any site on an account that is any of these types will be terminated.
- Hate Websites
- Warez/Serial Websites
- Adult Sites
- Fraudulent Websites
- Virus Distribution
- Spam Distribution
- And other types that is deemed as such by XLD Studios.
6.9 phpBB & Cute News All installations of phpBB and Cute News must be kept up-to date with the latest version, to prevent hacking. All accounts running older versions of phpBB, Cute News or any other easy to hack script is advised to update them, accounts running older versions of these scripts will be suspended. We further advice that all software installations be kept up-to-date for your security.
6.10 Consequences Any account in violation of the prohibited activity in section 6 (this section) of this agreement will be notified unless the action is deemed severe by XLD Studios, if the action is deemed severe it would be subject to immediate account termination.
6.11 XLD Studios’s rights We reserve ourselves the right to ban any scripts, site types and/or programs. XLD Studios will be the only one that determines which script will be banned on the servers.
7. Indemnification
7.1 The customer agrees and is to defend, indemnify and keep XLD Studios, its staff and licensors as well as its agents harmless from claim, loss, expense, demand, made by anyone from the violation of this agreement or any laws around this agreement.
7.2 XLD Studios will not be held liable for damages that results from the use of, incase of, our services and/or products.
7.3 XLD Studios will nor be held liable for any loss of profit due to downtime, neither will we be held liable for loss of data, goodwill, use and/or other losses.
8. Agreement Termination
8.1 Without Cause This agreement may be subject to termination by any party at any time during a renewal period without any reason as long as either party gives the other a notice at a minimum of five (5) days prior to the termination. The notice will be served by a support ticket though the Client Center or as an e-mail. The customer must then make sure to pay his or her invoices up to the date of termination.
8.2 With Cause In addition to additional rights given in this agreement, XLD Studios reserves the right to terminate or suspend this agreement and service without notice in event of either, (a) failure to pay invoice within twenty two (22) or more days of the last payment date, or (b) if the customer fails to comply with the agreement stated herein, referred to as the Terms of Service or any other of XLD Studios’s policies. In addition to the right of termination, XLD Studios reserves the right to remove any material which we find to fail to comply with this agreement.
8.3 Neither the customer, nor XLD Studios will be held liable to the other upon the act of termination or expiration of any service or product provided by XLD Studios in accordance with this agreement.
9. General Clauses
9.1 XLD Studios reserves the right to append, amend or modify this agreement at any given time without notice. It is the responsibility of the customer to make sure to stay up to date with this agreement. After a change has been made to this agreement the customer has five (5) days before the edit is intact.
9.2 These Terms of Services as well as any Exhibits below makes and forms the entire agreement between the customer and XLD Studios.
10. Web Design Agreement
This document states the terms of the working relationship between the two parties, client and designer as referenced in this contract. Any project or services that the designer is contracted to produce or provide to the client is subject to the following terms.
WORKING/BILLING PHASES — Based upon experience we have found that it is mutually beneficial for both parties to handle each project in working/billing phases. Based on concept revisions, extensive changes or marketing changes it can be impossible to estimate the total cost of a project accurately in advance. Therefore the phases allows for eventual adjustments that the client may request the designer to do. It will also allow designer or client to halt work before completion if the project is postponed or cancelled. Cancelled projects are only billed based on completed work by designer received by client. Client will receive a proposal/estimate that defines specifications, proposed services as well as a project budget, estimated by designer based on the project scope and time requirements including special requirements by client. The estimate will also include estimates for eventual out-of-pocket expenses, including but not limited to stock photography and resources.
Work will begin upon the approval by client of the written estimate. The approval, be it written or oral will act as an agreement between both parties.
PAYMENT/ESTIMATES — Client agrees to pay designer in accordance with the terms specified in the proposal/estimate as laid out in this contract. We reserve the right to require a 35% deposit of the total/estimated project fee before work starts for clients that has not been approved by our credit department.
We reserve the right to refuse work completion/delivery until past due balances has been paid. Interest on past due balances is 18% per annum or 1.5% per month.
Estimate billing reflects actual costs, estimated from experience by the project outline as given to designer by client. Estimates are valid 30 days from the date of the estimate. Additional requested changes by client will be billed additionally. Designer has the obligation to inform client of price changes by appropriate method included but not limited to email or phone.
OUT-OF-POCKET EXPENSES — Fees paid for professional services do not include outside purchases such as, but not limited to, printing, photography, colour printouts, lamination, illustrations, shipping and handling and/or courier services. All expenses are itemized on each invoice. Expenses are subject to local sales tax as applied by the company purchased from. If client requires out-of-town travels we will bill lodging, meals and transportation at cost. Mileage costs are calculated at current allowable rates.
REVISIONS/ALTERATIONS — Any new by client requested work as performed by designer after client has approved a proposal/estimate is deemed a revision or alteration. If a revision or alteration, as outlined in this contract, alters the specifications of the original estimate, we will submit to you a proposal revision, which both parties are to agree on before further work is to proceed. Alterations and other changes as requested after project completion will be billed at standard rates.
ERRORS/OMMISSIONS — Client has the responsibility to check proofs for accuracy in all respects including, but not limited to, spelling and illustrations. Designer cannot be held liable for any errors and omissions in work completed. Client’s signature of approval is required before any work is released for printing or other implementations.
ADVERTISING — At your request we will purchase advertising space on your behalf. Space will be billed to you at current rates plus standard commission as outlined in previous sections of this contract.
PROPERTY AND SUPPLIER’S PERFORMANCE — Designer will take all reasonable precautions to protect the property you entrust us. In the absence of negligence on our part, we are not responsible for loss, destruction or damage of unauthorized use by others of such property. We will do our best to ensure quality and timely delivery of printed materials and although we will do out best to guard against loss through failure of vendors, media or others, designer is not liable for their failure. If own vendors are used coordination may be requested to us. If such things are requested, we will do our best to comply within reasonable standards. We cannot be held responsible for their performance, price, and delivery or other by us uncontrollable things.
RIGHTS OF OWNERSHIP — After completion of work fully paid by client and delivered by designer to client, designer will assign reproduction rights for the services described in the proposal in accordance with the copyright laws. Designer will still own the copyright to works done for client unless an all rights license is negotiated between designer and client and/or their authorized representatives. Unless such a license is purchased, client agrees only to publish or reproduce works done by designer as outlined in the project specifications. If other reproduction is required a written agreement must be done with designer prior to any reproduction.
We also reserve the full right to photograph and/or distribute or publish work completed for promotional and marketing purposes including but not limited to mock-ips and/or presentations. All this in favour for our portfolio, newsletters, brochures or other materials by us deemed promotional for our company.
TERM AND TERMINATION — The term of this agreement will continue until terminated by either party upon thirty (30) days of written notice. If you, the client, should at any time wish to cancel or “put on hold” any previously authorized purchase we will comply provided you hold us harmless for any possibly incurred cost.
Upon termination of this agreement the designer agrees to transfer to client all by client owned property and materials in our control and for which you have paid. Client will indemnify and hold designer harmless for any loss or expense (including attorney’s fees) and agree to defend designer in any actual suit, claim or action arising in any way from our working relationship. This includes but is not limited to ascertains made against client and any of its products and services arising from publication of materials that we prepare and you approve before publication.
PRODUCTION SCHEDULES — All production schedules will be established and agreed to by client and designer. Neither is to be held liable due to delays caused by a state of war, riot, civil disorder, fire, labour trouble or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, action of government or civil authority, and acts of God or other causes beyond the control of the Client or the Designer. Where the client does not keep any production schedule, as detailed up-front, final delivery date(s) will be adjusted accordingly.