Terms and Conditions for Xerve Nine Hosting Technology Services
The following terms and conditions (“Terms of Service”) apply
to the provision of Xerve Nine LLC, (Xerve Nine) Hosting Technology Services
(“Services”) and to the Customer who orders Xerve Nine Services
- 1.1For purposes of these Terms of Service an order means (i) the online
order that you submit or accept for the Services, (ii) any other written
order (either in electronic or paper form) provided to you by Xerve Nine
for acceptance that describes the Services you are purchasing and the price
of such Services, signed by Customer, either manually or electronically,
and/or, (iii) your use of the Services, (“Order”).
- 1.2Customer’s use of the Services is governed by these Terms of Service,
which are incorporated by reference in the terms of your Order.
- 1.3Customer’s use of the Services includes a representation that
the individual placing the Order for Customer has the legal authority to
enter into contractual commitments and make purchases for the Customer.
- 1.4Xerve Nine’s obligation to begin providing Services is contingent
on Customer’s satisfying Xerve Nine’s credit approval criteria.
Further, Xerve Nine may, in its sole discretion, accept or reject any Order
- 1.5Customer warrants and represents that the Order is placed on behalf
of a business and not a consumer.
- 1.6The provision of the Services described in an Order constitutes Xerve Nine’s acceptance of the Order.
Xerve Nine will provide Services to Customer subject to these Terms of Service.
- 3.1Customer agrees: (i) comply with applicable law and these Terms of Service,
(ii) pay the fees for the Services when due, (iii) cooperate with Xerve Nine’s investigation of service outages and any suspected breach of
these Terms of Service, and (iv) ensure your customer account information
as it appears in the online control panel is true, accurate, and complete.
- 3.2Customer may resell the Services, in compliance with the terms of these
Terms of Service. Customer remains responsible for use of the Services by
any third party to the same extent as if Customer were using the Services.
If you resell any part of the Services that includes Microsoft software,
then you must include those Microsoft terms, and the terms of Acceptable
Use defined in paragraph 4 below, in an enforceable agreement with your customers.
- 3.3Customer is solely responsible for the security and content of all Customer
data stored in Xerve Nine’s hosted environment and all such data is
and at all times shall, remain Customer’s exclusive property (”Customer
- 3.4Customer is solely responsible for: (i) determining the suitability
of the Services in light of the type of Customer Data stored by you or your
end-user(s); (ii) the use of Xerve Nine’s hosted environment tool and/or
the Services by any of your employees or other user(s) who, either with or
without Customer’s authorization, gain access to the hosted environment;
and (iii) taking all commercially reasonable steps to mitigate the risks
inherent in transmitting Customer Data to and from and while stored on the
hosted environment using the Services, including any Customer Data loss or
- 3.5Customer shall encrypt at the application level all data, considered
sensitive data, which must be treated as confidential under state or federal
law or under Customer’s contractual obligations to others. Sensitive
data includes, but is not limited to, Social Security Numbers, financial
account numbers, driver’s license numbers, state identification numbers,
Protected Health Information (as that term is defined in Title II, Subtitle
F of the Health Insurance Portability and Accountability Act, as amended
(HIPAA) and regulations promulgated there under) and Nonpublic Personal Information
(as that term is defined in Financial Services Modernization Act of 1999
(Gramm-Leach-Bliley) and regulations promulgated there under).
- 3.6Customer shall be responsible for maintaining all backups for all Customer
Data on servers not covered by Xerve Nine’s Guardian Bare Metal Managed
Backup (“Guardian”). In the event Xerve Nine provides backup
assistance on servers not covered by Guardian, it is provided, without additional
charge, as a courtesy (“Courtesy Support”) to Customer. Xerve Nine has no liability for any lost or corrupted Customer Data resulting from
the provision of Courtesy Support.
- 3.7Customer is responsible for selecting and securing the appropriate authentication
procedures to allow access to Customer’s account. Customer is not authorized
to provide account access, passwords, or passphrases for technical
support to any third party.
- 3.8Customer shall only use or allow the use of the Services in compliance
with the terms of paragraph 4, (Acceptable Use) of these Terms of Service.
- 3.9Customer shall promptly notify Xerve Nine of any data breach or unauthorized
access to Xerve Nine’s network or servers and accounts. Customer will
take all commercially reasonable steps to cooperate with Xerve Nine’s
investigation and resolution of the reported breach or unauthorized access.
- 4.1Customer shall use the Services in compliance with all applicable state,
federal, or international laws, statutes or codes, specifically including
data protection and privacy laws, as well as laws relating to unsolicited
commercial electronic messages.
- 4.2Customer is responsible for all acts and omissions of its users in connection
with receipt or use of the Services. Customer agrees, and will ensure its
users agree, to act responsibly and not use the Services for any illegal
or unauthorized purpose including, but not limited to:
- Hacking, phishing, spamming, identity theft, financial fraud, e-mail
spoofing, virus distribution, network attacks, pirating software, harassment,
using malware, spyware, copyrighted infringement under the Digital
Millennium Copyright Act ("DMCA"), trademark infringement, sharing
illegal software, and any unauthorized use of images, internet accounts
or computers or any activity that would violate the Controlling the
Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of
- For the purposes of Acceptable Use, the term Spamming includes, but
is not limited to: (i) sending unsolicited outbound bulk email regardless
of the content; (ii) Junk mail; (iii) unsolicited commercial email; (iv)
unsolicited instant messaging; (v) unsolicited mobile phone messaging
advertising; (vi) email address cultivating, or any unauthorized collecting
of email addresses without prior notification of the email address owner
and (vii) mailing lists without closed-loop ("Confirmed Opt-in"), subscription
confirmation without retained messages and/or unsubscribe links.
- Unauthorized access to or use of data, systems or networks, including
any attempt to probe, scan or test the vulnerability of a system or network
or to breach security or authentication measures without express authorization
of the owner of the system or network.
- Monitoring data or traffic on any network or system without the express
authorization of the owner of the system or network.
- Intentionally or recklessly introducing any virus or other contaminating
code into the Xerve Nine hosted environment.
- Collecting or using information, including email addresses, screen
names or other identifiers, by deceit, (such as, phishing, Internet scamming,
password robbery, spidering, and harvesting).
- Use of any false, misleading, or deceptive TCP-IP packet header information
in an email or a newsgroup posting.
- Distributing software that covertly gathers or transmits information
about a user.
- Any activity intended to withhold or cloak identity or contact information,
including the omission, deletion, and forgery or misreporting of any
transmission or identification information, such as return mailing and
- Interference with service to any user of the Xerve Nine hosted environment
including, without limitation, mail bombing, flooding, or deliberate
attempts to overload a system and broadcast attacks.
- Any action that directly or indirectly results in any of Xerve Nine’s
IP space being listed on any abuse database (i.e. Spamhaus).
- Conducting any gambling activity in breach of the terms paragraph 4.1.
- Distribution or any other use of copyrighted material not owned by
Customer or Customer’s end-user.
- Any action that is otherwise illegal or solicits conduct that is illegal
under laws applicable to you or to Xerve Nine.
- Content that incites violence, threatens violence, is excessively violent,
or contains harassing content or hate speech.
- Any action that results in Customer’s official listing on the
Register of Known Spam Operations (ROKSO) database maintained at https://www.spamhaus.org/rokso/
- Use of public proxies, Internet Relay Chat (IRC), or any application
layer protocol when utilized to mask activities defined as malicious
within these terms.
- 4.3Customer may not use any shared system provided by Xerve Nine in a way
that unnecessarily interferes with the normal operation of the shared system,
or that consumes a disproportionate share of the resources of the system.
Note: the use of more than 10,000 inodes per GB on any Cloud Sites account
may result in a warning, and if no action is taken to reduce the excessive
use of inodes, your account may be suspended.
- 4.4Customer agrees that we may quarantine or delete any data stored on
a shared system if the data is infected with a virus, or is otherwise corrupted,
and has the potential to infect or corrupt the system or other customers’ data
that is stored on the same system.
- 5.1 Xerve Nine has the right to investigate potential violations paragraph
4. If Xerve Nine determines that a breach has occurred, then Xerve Nine may,
in its sole discretion:
- Restrict Customer’s and its users’ access to the Services;
- Remove or require removal of any offending Content;
- Terminate this Agreement for cause;
- Exercise any other rights and remedies it may have, at law or in equity.
- 5.2 Except in an emergency or as may otherwise be required by law, before
undertaking the actions in paragraph 5.1, Xerve Nine will attempt to notify
Customer by any reasonably practical means under the circumstances, such
as, without limitation, by telephone or e-mail. Customer will promptly notify
Xerve Nine of any event or circumstance related to this Agreement, Customer’s
or any user’s use of the Services, or content of which Customer becomes
aware, that could lead to a claim or demand against Xerve Nine, and Customer
will provide all relevant information relating to such event or circumstance
to Xerve Nine at Xerve Nine’s request.
- No refund will be made if your Service(s) are suspended or terminated for any violation of services.
- 6.1 Term. The initial term for each Order begins on the effective date
stated in an Order or, if no effective date is stated, the initial term shall
be begin on the date Xerve Nine makes the Services available for Customer’s
use (“Effective Date”) and continues for the period stated in
the Order. If no period is stated in the Order, then the initial term shall
be one (1) month. Upon expiration of the initial term, the Order will automatically
renew for successive renewal terms of one (1) month each, unless and until
either party gives the other a written notice of non-renewal prior to the
expiration of the initial term (or then-current renewal term, as applicable,
following the process in 6.2 below.
- 6.2 Cancellation/Non-Renewal. Customer may give notice of non-renewal or
cancelation by logging in to their account on www.xerve9.com/client and
submitting a cancellation ticket. No other form of cancellation will be effective
and the month-to-month agreement for services is automatically renewed each
month until such notice of cancellation ticket is provided.
- 7.1 Xerve Nine will charge Customer and Customer agrees to pay when due
the fees for the Services in accordance with its Order. Unless other payment
methods have been approved, Xerve Nine will charge Customer’s credit
card monthly, without invoice, beginning on the Effective Date and continuing
on the same date each successive month until the end of the term. Customer
shall pay all applicable taxes arising from Customer’s use of Services
or Customer’s payment of amounts due to Xerve Nine under the Order.
- 7.2 Xerve Nine may increase fees for the Services provided under an Order
upon thirty days advance written notice as follows:
- For Services provided on a month-to-month term, Xerve Nine may, increase
fees effective the first day of the next month following the notice
- For services provided over a term greater than one month, Xerve Nine
may, increase fees for the services provided under an Order as of the
first day of the next renewal term beginning more than thirty (30) days
from the date following the notice period.
- 7.3 Xerve Nine may suspend all Services (including services provided under
multiple Orders or other contracts with Customer) if charges to Customer’s
credit card or other payment facility are rejected, or Customer fails to
make payment by an agreed upon alternative payment method. Xerve Nine may
charge interest on overdue amounts at 1.5% per month (or the maximum legal
rate if it is less than 1.5%).
- 7.4 In the event Xerve Nine brings a legal action or engages a collection
agency to collect Customer’s unpaid balances, Customer will be liable
for payment of all reasonable costs of collection, including legal fees and
court costs. Any “credit” that Xerve Nine may owe Customer, such
as a credit for failure to meet a Service Level Agreement, will be applied
to fees due from you for Services, and will not be paid to you as a refund.
- 7.5 Refunds and Guarantees:
- Refunds for prepaid Services will be given for full months only in
accordance with the terms of the applicable Service Level Agreement.
- To be eligible for a refund or claim a SLA guarantee, Notice of cancellation
must be given before the month in question begins. Setup fees are not
refundable. Service Suspensions or cancellation due to breach of service will not warrant any refund. The cost of domain will be deducted from the money refunded
if the user’s domain was registered via Xerve Nine’s domain.
- 7.6 If there is a dispute with respect to any portion of an invoice, Customer
shall pay the undisputed portion of the fees when due and provide written
details specifying the basis of any disputed portion of the invoice.
- 7.7 Charges that are not disputed within sixty (60) days of the date charged
are conclusively deemed accurate.
- 7.8 Customer authorizes Xerve Nine to obtain a credit report on Customer
at any time during the term of an Order.
- 8.1 Xerve Nine may suspend some or all of the Services without liability
to Customer if Customer (i) fails to pay the applicable fees for the Services
when due (ii) the Services are being used, have been used, or will, with
commercially reasonable certainty, be used in breach of these Terms of Service;
(iii) Customer fails to cooperate with an investigation of any suspected
breach of the Acceptable Use provisions of these Terms of Service; (iv) Xerve Nine reasonably believes that the Services have been accessed or utilized
in any way by a third party without Customer’s consent, or (v) suspension
of services is reasonably necessary to protect Xerve Nine’s hosting
environment and/or its customers.
- 8.2 Xerve Nine will provide Customer reasonable advance notice of a suspension
based on a violation of these Terms of Service and a chance to cure the violation
on which the suspension is based, unless Xerve Nine determines, in its reasonable
commercial judgment, that an immediate suspension is necessary to protect
Xerve Nine’s network and its customers’ data from an imminent,
significant operational, network integrity or security risk.
- 8.3 Suspensions based on Customer’s breach of these Terms of Service
will not relieve Customer’s obligation to pay for the suspended Services
during the period of suspension. Any suspension imposed under this paragraph
will be terminated up Customer’s cure of the breach causing the suspension.
In the event the Customer is unable to cure the breach within fifteen (15)
days from the date on which the breach occurred, the suspension may be treated
as a termination for Cause. If Customer’s Services are compromised,
then Customer must resolve the cause of the compromise before Xerve Nine
will reinstate service.
- 8.4 In the case that Service is suspended for Customer’s breach of
these Terms of Service Xerve Nine shall have the right to deny access to,
and/or, destroy data stored on the compromised server or account. Xerve Nine may at its own discretion allow access to a suspended account. Service Suspensions or cancellation due to breach of service will not warrant any refund.
- 9.1 Customer may, upon written notice, terminate an Order for breach of
these Terms of Service if Xerve Nine (i) materially fails to provide the
Services as agreed and does not remedy that failure within fifteen (15) days
of your written notice describing the failure; (ii) materially fails to meet
any other obligation stated in the Order and does not remedy that failure
within thirty (30) days of Customer’s written notice describing the
- 9.2 Xerve Nine may, upon written notice, terminate an Order if Customer
(i) provided materially inaccurate or incomplete information of the purpose
of obtaining the Services; (ii) Customer did not have the legal right or
authority to enter the Order; (iii) Customer fails to make payment of any
invoiced overdue amount within five (5) Business Days of our written notice
of delinquency; (iv) Customer made payment arrangements via credit card or
other third party, and the third party refuses to honor or reverses Xerve Nine’s charges; (v) Customer is in breach of the Acceptable Use provisions
of these Terms of Service and (v) Customer fails to comply with any other
obligation stated in the applicable Order and does not remedy the failure
within fifteen (15) days of Xerve Nine’s written notice to Customer
describing the failure.
- 9.3 Either party may terminate the an Order with immediate effect on written
notice if the other party (or we reasonably believe that the other party)
(i) is unable to pay its debts; (ii) enters into compulsory or voluntary
liquidation; (iii) convenes a meeting of its creditors; (iv) has a receiver
or manager or an administrator appointed (or an application is made to the
court for the same); or (v) ceases for any reason to carry on business or
takes or suffers any similar action which means that it may be unable to
pay its debts (each an "Insolvency Event"). Notwithstanding anything to the
contrary in the Order, the fees for the Services shall become due immediately
upon the occurrence of an Insolvency Event.
- 10.1Xerve Nine will provide all Services in compliance with the Dedicated/VPS
Service Level Agreement.
- 10.2Xerve Nine technical support services are provided via phone, email
- 10.3Xerve Nine technical support is available only to its Customers.
- 10.4Xerve Nine has no support obligation to any other party.
- 10.5Dedicated Server Support: Xerve Nine provides Basic technical support
and maintenance of dedicated servers at the rate specified in Customer’s
Order. Additional technical support will be provided, as agreed upon between
the parties from time to time.
- 10.6Any services that we are not contractually obligated to provide but
that we may perform for you at your request and without any additional charge
are provided on an AS IS basis
- 10.7Xerve Nine has no obligation to provide security other than as expressly
stated in the agreement or order.
- 10.8Some of the Services are designed to help you comply with various regulatory
requirements that may be applicable to you. However, you are responsible
for understanding the legal and regulatory requirements applicable to you
and your use of the Services, and for selecting and using those Services
in a manner that complies with your obligations under the Agreement and the
applicable legal and regulatory requirements.
- 10.9Xerve Nine personnel may from time to time recommend third party software
or other products and services for your consideration and may also make available
to you third-party products or services, including third-party applications
through deployment or implementation tools. Xerve Nine makes no representation
or warranty whatsoever regarding products and services that are not purchased
from Xerve Nine or produced/manufactured by Xerve Nine. Your use of any such
products and services is governed by the terms of your agreement with the
provider of those products and services.
- 10.10Xerve Nine may periodically run security scans on Fully-Managed servers.
A specific user account called ‘lwadmin’ will be present on all
Fully-Managed servers for the purpose of security scans and other management
- 11.1Customer acknowledges that Xerve Nine is reselling (and not itself
providing) products purchased by customer including, without limitation,
hardware, software and/or software licenses (“Product(s)”)
- 11.2Xerve Nine shall pass through to Customer, the manufacturer’s
warranties for each Product and agrees to facilitate utilization of manufacturer’s
product return policies. In no event will Xerve Nine provide product return
or warranty coverage beyond that provided by the manufacturer. Products that
are accepted for return are subject to the manufacturer’s applicable
- 11.3Customer acknowledges the terms and conditions governing the use of
such Products shall be solely between Customer and the manufacturer.
- 11.4Customer will not use the Products sold by Xerve Nine for use in life
support, life sustaining, nuclear or other applications in which failure
of such Products could reasonably be expected to result in personal injury,
loss of life or catastrophic property damage. Customer agrees that Xerve Nine is not liable, in whole or in part, for any claim or damage arising from
use of such Products.
- 11.5All shipments of Products by Xerve Nine to Customer are FOB point of
shipment. Insurance coverage, transportation costs and all other expenses
applicable to shipment from Xerve Nine to Customer’s identified point
of delivery will be the responsibility of the Customer.
- 11.6Risk of loss will pass to the Customer upon delivery of the Products
to the common carrier (regardless of who pays such common carrier) or the
Customer’s representative at Xerve Nine’s point of shipment.
- 11.7Customer grants Xerve Nine a security interest in and to the Products
as security for payment in full of the purchase price. Customer authorizes
Xerve Nine to file and/or record any documents it deems necessary to perfect
this security interest.
- 11.8Customer will obtain all licenses, permits and approvals for the use
of the Services or Products, which may be required by any governmental agency,
foreign or domestic, having jurisdiction over the transaction.
Bandwidth usage for bundled bandwidth packages, for Internet data transfer,
will be calculated based upon outgoing bandwidth transfer. Incoming data transfer
will not be counted towards your bundled bandwidth usage. Incoming data transfer
is free of charge. If your actual data transfer usage exceeds the amount of
your bandwidth package you will be charged a bandwidth overage fee in addition
to your Bundled Bandwidth Charge. The bandwidth overage fee will be specified
in your order.
- 13.1Xerve Nine DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES,
INCLUDING IMPLIED TERMS CONDITIONS OR WARRANTIES RELATING TO SATISFACTORY
QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- 13.2ALL SERVICES PROVIDED BY Xerve Nine ARE ON AN “AS IS” BASIS
AND Xerve Nine MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PROVISION
OF SUCH SERVICES.
When using the Xerve Nine Content Delivery Network (CDN) Customer is responsible
for all bandwidth costs associated with the delivery of content over the public
Internet, including any content delivery caused by unauthorized use of your
CDN connection. Xerve Nine will not enable “hot-linking” capability
by default. In the event “hot-linking” capability is activated
at Customer’s request, Customer remains responsible for all network usage.
- 15.1Xerve Nine will use its commercially reasonable efforts to provide
services 24 hours a day, seven days a week.
- 15.2Customer acknowledges that from time to time the services may be inaccessible
or inoperable for various reasons, including:
- Periodic maintenance procedures or upgrades ("Scheduled
- Service malfunctions, and causes beyond Xerve Nine’s control or which are not reasonably foreseeable by Xerve Nine, including the interruption or failure of telecommunications or digital
- Hostile network attacks, or network congestion
or other failures.
- 15.3Xerve Nine is not responsible for any downtime caused by conditions
specified in 15.2 or due to Customer’s actions that breach any term
of this Order.
- 15.4Xerve Nine will provide a minimum of 48 hours advance notice to the
Customer for non-emergency maintenance or Scheduled Downtime, and will use
commercially reasonable efforts to minimize any other disruption, inaccessibility
and/or inoperability of its web servers.
- 16.1 Customer agrees to indemnify and hold Xerve Nine, and each of its
directors, officers, employees, shareholders and agents (each an “Indemnified
Party”) harmless from any and all damages, liabilities, fines, penalties,
losses and/or claims of whatsoever kind or nature, arising from the Customer’s
use of Xerve Nine’s hosted environment or the Services
- 16.2 Xerve Nine may from time to time, at the request of the Customer,
be enlisted to perform server administration tasks on Customer hardware,
which is co-located at a Xerve Nine facility (“Remote Hands Service”).
Customer agrees and holds Xerve Nine harmless against any damage caused to
Customer in the performance of Remote Hands Service.
Customer represents and warrants:
- That Customer is not located in or a national of any
country that is embargoed or restricted under export regulations or are otherwise
a person or entity to which Xerve Nine is legally prohibited from providing
- Customer will not possess, use, import, export or resell
(and shall not permit the possession, use, importation, exportation, or resale
of) the Services or any Information or technical data provided by Xerve Nine under these Terms of Service or any Order or agreement in which they
are incorporated in any manner which would cause Xerve Nine to breach any
applicable export control laws, rules, or regulations.
- Customer represents, and warrants without limitation,
that it will not provide or facilitate administrative access to or permit
use of the Services by any persons (including any natural person, government
or private entity or other form of body corporate) that is located in or
is a national of any country that is embargoed or highly restricted under
applicable export laws, rules or regulations.
Customer grants Xerve Nine a non-transferable, non-exclusive license to utilize
Customer trademarks and logos for Xerve Nine promotional materials.
- 19.1No work or professional services performed and/or provided by Xerve Nine under this Order shall be deemed to be “Work For Hire” and
shall remain at all times the sole property of Xerve Nine. For so long as
Customer is not in default on any obligation under these Terms and Conditions,
Xerve Nine grants Customer a non-exclusive, non-transferable license to use
the work product of such services. Such license terminates upon the termination
of the applicable Order or agreement pursuant to which they were performed.
- 19.2All software that provided to Customer is subject to these Terms of
Service and any Order or agreement in which they are incorporated including
software that we may authorize you to install on devices located outside
of our data center. Customer shall not use any software provided by Xerve Nine after the expiration or termination of these Terms of Service or any
Order or agreement in which they are incorporated.
- 19.3Customer shall not remove, modify or obscure any copyright, trademark
or other proprietary rights notices that appear on any software we provide
- 19.4Unless permitted by the terms of an open source software license, Customer
may not reverse engineer, decompile or disassemble any software we provide
for Customer’s use except and to the extent that Customer is expressly
permitted by applicable law to do so and then following at a minimum of ten
(10) days’ advance written notice to Xerve Nine. Any additional restrictions,
which may apply to software we utilize in the performance of the Services,
will be specified in the applicable Order.
- 19.5Where specifically prohibited, Customer shall not mix software license
ownership when utilizing Xerve Nine services. In such cases, where the Customer
provides all licensed products, including the OS, all licenses must be provided
by the Customer and may not be mixed with Xerve Nine licensed products. Requirements
vary by software vendor.
EXCEPT AS OTHERWISE PROVIDED IN AN APPLICABLE SERVICE LEVEL AGREEMENT, XERVE NINE’S LIABILITY TO CUSTOMER SHALL NOT EXCEED THE PURCHASE PRICE PAID
FOR THE PRODUCT OR SERVICE THAT IS THE BASIS FOR THE CLAIM. FOR REMOTE MANAGEMENT
OF CUSTOMER’S ENVIRONMENT AND/OR Xerve Nine CLOUD SERVICES, THE TOTAL
LIABILITY OF Xerve Nine FOR THE PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS
SHALL NOT EXCEED AN AMOUNT EQUAL TO THE MOST RECENT SIX MONTH’S BASE
CHARGE FOR THE SERVICE (S) THAT IS THE BASIS FOR THE PARTICULAR CLAIM. XERVE NINE WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST
PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY),
HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR
SERVICE, OR IN ANY WAY CONNECTED TO THESE TERMS OF SALE, EVEN IF Xerve Nine
HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY
A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM
IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR
OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION,
The failure of either party to insist upon strict performance of any of the
provisions of these Terms of Service will not be deemed a waiver of any breach
or default. The remedies provided to Xerve Nine hereunder are not a waiver
of the remedies of Xerve Nine under applicable law.
The Customer may bring no action, regardless of form, arising out of or relating
to an Order, more than three (3) months from the date on which the cause of
action accrues. The parties expressly agree that this part, as to the Customer
only, supplants and replaces any and all periods of limitation otherwise provided
for by law and applicable hereto. All periods of limitation otherwise applicable
to actions by Xerve Nine remain as provided by law.
All disputes between Xerve Nine and a Customer shall be determined by a final
and binding arbitration conducted by the American Arbitration Association pursuant
to its then current commercial arbitration rules. The arbitrator shall decide
any dispute in accordance with Michigan law, without the application of choice
of law principles. Each party shall bear its own expenses and legal fees for
the arbitration. The arbitration shall be conducted in Ingham County, Michigan,
unless both parties agree in writing to a different location. The arbitration
award is enforceable as a judgment of any court having proper jurisdiction.
Information designated as confidential by either Xerve Nine or Customer, whether
before or after the effective date of these Terms of Service shall be held
in strict confidence and used only for purposes of these Terms of Service.
Except as required by law, no Confidential Information shall be disclosed without
the prior written consent of the party designating the information as confidential.
If either party is legally required to disclose any confidential information
of the other party, the party so required shall notify the other party immediately
and shall cooperate in seeking a reasonable protective order. This Section
shall not apply to information, which is (i) in the public domain, (ii) already
known to the recipient, (iii) developed independently or (iv) received from
a third party without similar restriction and without breach of this or a similar
If any provision of these Terms of Service is unenforceable as a matter of
law, all other provisions will remain in effect.
Xerve Nine will not be liable for any delay or failure of performance whatsoever
due to acts of God, earthquakes, shortage of supplies, transportation difficulties,
labor disputes, riots, war, fire, epidemics or other circumstances beyond XERVE NINE’s control.
- 27.1These Terms and Conditions are incorporated in Customer’s Order
by reference to Xerve Nine’s website https://www.xerve9.com/terms-and-conditions.html.
In the event Xerve Nine revises the Terms of Service on its website, those
revisions will not be effective as to an Order that we accepted prior to
the date Xerve Nine posted the revision and your Order will continued to
be governed by the Terms of Service posted on the effective day of the Order.
- 27.2By opening an account, or by the use of any Xerve Nine service, the
Customer agrees to be bound by these Terms and Conditions.
The relationship between the parties is that of independent contractors and
not business partners. Neither party is the agent for the other; neither party
has the right to bind the other to any agreement with a third party.
Neither party may assign the an Order in whole or in part without the prior
written consent of the other party, provided however, Xerve Nine may assign
an Order in whole or in part to an affiliate with sufficient financial standing
in order to meet its obligations under the Order or as part of a bona fide
corporate reorganization or a sale of its business, and we may transfer your
Confidential Information as part of any such transaction. Xerve Nine may use
affiliates and third party service providers to perform all or any part of
the Services, but Xerve Nine remains responsible to you under the Order for
Services performed by its Affiliates and third party service providers to the
same extent as if Xerve Nine performed the Services.