These terms govern the relationship between the user of XL.net Inc.’s services (“Client”) and XL.net Inc. (“Service Provider”) (with Client and Service Provider collectively referred to as the “parties”). Where a Client’s written agreement with Service Provider is inconsistent with this document, the agreement shall govern.
We may amend or modify this Agreement at any time by posting the revised agreement on this site. The revised terms shall be effective as of the time it is posted but will not apply retroactively. If you do not agree with any such modification, your sole and exclusive remedy is to terminate the relationship with Service Provider.
1. Term of Services
Services will continue unless terminated, which termination will occur upon ninety (90) days following receipt of written notice by either party of either party’s intent to terminate the relationship.
2. Fees and Payment Schedule
Client agrees to pay the fees set forth on the invoices provided to the Client (the “Services”). A late fee of 1.5% per month will be applied after the due date. Services may be suspended if payment is not received within 5 days of the due date. Any and all Services requested by Client that fall outside of the terms of the agreed monthly services will be considered “Projects” and will be quoted and billed as separate, additional and individual Services. Additionally, Service Provider will bill Client for the cost to Service Provider of any backup device deemed necessary by Service Provider (including replacements thereto).
3. Excluded Services and Client Responsibilities
Services under Service Provider’s monthly fee do not include:
- Parts, equipment or software not covered by vendor/manufacturer warranty or support.
- The cost of any hardware maintenance and repair, including without limitation parts, equipment, or shipping charges of any kind.
- The cost of any software, licensing, or software renewal or upgrade fees of any kind.
- The cost of any third-party vendor or manufacturer support or incident fees of any kind.
- The cost to bring Client’s environment up to standards.
- Service and repair made necessary by the alteration or modification of equipment other than that authorized by Service Provider, including alterations, software installations or modifications of equipment made by Client’s employees or anyone other than Service Provider, as well as new office installations, upgrades, new application installations, server or infrastructure upgrades.
- Maintenance of application software packages, whether acquired from Service Provider or otherwise, unless agreed in writing.
- Programming (modification of software code) and program (software) maintenance unless as specified in Appendix A, including without limitation macro development, database development or other new application development services.
- Changes that require more than 2 hours of labor will be billed separately as projects.
Client will: (a) provide timely access, cooperation, accurate information, administrator credentials, approvals, and safe working conditions; (b) maintain appropriate licenses, subscriptions, vendor support, backups, cybersecurity policies, insurance, and internal controls unless expressly included in the Services; (c) be responsible for Client users, content, systems, data, and third-party products; (d) promptly notify Service Provider of incidents, changes, or suspected unauthorized access; and (e) not circumvent, disable, or interfere with Service Provider’s tools, security controls, or recommended remediation. Service Provider is not responsible for delays, failures, vulnerabilities, data loss, security incidents, or increased costs caused by Client’s failure to satisfy these responsibilities.
4. Indemnity and Limitation of Liability
4.1 Indemnification
Client acknowledges that by entering into and performing its obligations under the relationship with Service Provider, Service Provider will not assume and should not be exposed to the business and operational risks associated with Client’s business, and Client therefore agrees to indemnify, defend and hold Service Provider, its representatives, subcontractors, affiliates, officers, directors, employees, successors and assigns harmless from any and all third party claims, actions, damages, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of or related to the conduct of Client’s business, including, without limitation, the use by Client of the Services.
4.2 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, OTHER THAN DAMAGES PROXIMATELY CAUSED BY REASON OF WILLFUL MISCONDUCT ON THE PART OF SERVICE PROVIDER, SERVICE PROVIDER, ITS REPRESENTATIVES, SUCCESSORS AND ASSIGNS DO NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY CAUSED BY THE SERVICES NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS, OR OTHERWISE FOR THE PROVISION OF SERVICES AND SUPPORT, EVEN IF NEGLIGENT. CLIENT ACKNOWLEDGES THIS ALLOCATION OF RISK BY ENGAGING IN A RELATIONSHIP WITH SERVICE PROVIDER AND/OR BY THE PAYMENT OF FEES TO SERVICE PROVIDER. IN NO EVENT WILL SERVICE PROVIDER BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. OTHER THAN AS EXPRESSLY PROVIDED IN THESE TERMS, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL SERVICE PROVIDER’S LIABILITY EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO SERVICE PROVIDER DURING THE 90-DAY PERIOD IMMEDIATELY PRECEDING THE ALLEGED CLAIM AND/OR TERMINATION OF THE RELATIONSHIP.
5. Confidentiality, No Solicitation of Personnel
5.1 Scope of Obligation
In connection with the Services performed pursuant to the relationship between the parties, the parties may have access to the other party’s Confidential Information. “Confidential Information” means non-public information that the disclosing party designates as being confidential or which under the circumstances surrounding disclosure ought to be treated as confidential and information received from others that the disclosing party is obligated to treat as confidential. Confidential Information includes, without limitation, information relating to the disclosing party’s software or hardware products which may include source code, data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods, as well as, information relating to the disclosing party’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, Client lists and financial results. Confidential Information includes all tangible materials which contain Confidential Information whether written or printed documents, computer disks or tapes whether user or machine readable. The parties agree to maintain the confidentiality of the Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. Each party agrees to maintain at least the same procedures regarding Confidential Information that it maintains with respect to its own Confidential Information, but in no event less than a reasonable standard of care. A party’s Confidential Information may only be used by the other party in order to fulfill its obligations under these terms.
5.2 Exceptions
Confidential Information shall not include any information that: (a) is already known to the receiving party or its affiliates to be free of any obligation to keep it confidential; (b) is or becomes publicly known through no wrongful act of the receiving party or its affiliates; (c) is received by the receiving party from a third party without any restriction on confidentiality; (d) is independently developed by the receiving party or its affiliates; (e) is disclosed to third parties by the disclosing party without any obligation of confidentiality; or (f) is approved for release by prior written authorization of the disclosing party.
5.3 Irreparable Harm
Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of these terms may cause the non-disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the non-disclosing party may request injunctive or other equitable relief seeking to restrain such use or disclosure.
5.4 Personnel
Client acknowledges that Service Provider makes a significant investment in its personnel and agrees that Client will not, directly or indirectly, solicit for employment any current or former employee of Service Provider nor take any action that would encourage an employee to quit in order to be hired by Client; provided that if an employee of Service Provider has left his or her employment and twelve (12) months have lapsed, Client will not be precluded from hiring this person, and Client is not prohibited from general solicitation directed to the public and not specifically intended for one of its former employees.
6. Independent Contractor
Service Provider is an independent contractor. Neither Service Provider nor Client are, or shall be deemed for any purpose to be, employees or agents of the other and neither party shall have the power or authority to bind the other party to any contract or obligation.
7. General Terms
7.1 Construction
If any provision of these terms will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of these terms is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited. The failure of a party to insist upon the performance of any provision of these terms or to execute any right or privilege granted that party in a particular instance or set of instances, shall not be construed as a waiver of any rights or remedies, and such provision will continue in force. The provisions of these terms are for the exclusive benefit of the parties hereto and not for the benefit of any third party, nor shall these terms be deemed to have conferred any rights, express or implied, upon any third party, unless otherwise expressly provided for herein.
7.2 Governing Law
These terms will be governed by the laws of the State of Illinois, without reference to the principles of conflicts of law.
7.3 Notices
Any notice or communication required or permitted under these terms shall be sufficiently given upon personal delivery on the next business day following deposit with a recognized overnight carrier, or on the third business day following deposit in the U.S. Mail, certified or registered, return receipt requested, in each case addressed as set forth below each party’s signature below or to such other address as one party may have furnished to the other in writing in accordance with this Section.
7.4 Survival
The following provisions shall survive the execution and any termination of the relationship: Section 5, Section 6 and Section 7.
7.5 Arbitration
In the event of any controversy or claim arising from or related to the relationship between Client and Service Provider, or any work performed thereunder, including the interpretation of these terms, Service Provider and Client will in good faith attempt to resolve the dispute within a reasonable period among themselves. Failing such attempt, any controversy or claim arising out of or relating to the relationship will be settled by arbitration exclusively in Chicago, Illinois, administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitrator shall hear summary judgment motions and enforce full discovery rights as an Illinois state court would, as provided in civil proceedings by Illinois Supreme Court Rules, the Illinois Code of Civil Procedure, and Circuit Court of Cook County Local Rules. The arbitration award shall be final. Judgment upon the award may be confirmed by any court having jurisdiction. The prevailing party in any dispute arising out of or relating to the relationship between the parties, these terms or a breach thereof, shall be entitled to recover from the other party reasonable costs and expenses, including reasonable attorneys’ fees and costs. The term “prevailing party” means that party whose position is substantially upheld in the arbitration. No action, regardless of form, arising out of or related to the relationship between the parties may be brought by either party more than two (2) years after such claim has accrued.
7.6 Force Majeure
Service Provider is not responsible for failure to render services due to circumstances beyond its control, including, but not limited to, acts of God.