Terms of Service ("TOS")

Updated 03/28/2020

Welcome to XMDigital.com’s Terms of Service! We are truly excited to have you aboard. Thank you for choosing to use our services.

Below we have listed important legal terms that apply to anyone who visits our website or uses our services. These terms are necessary in order to protect both you and us and to make our services possible and more enjoyable for everyone. XM Digital offers a wide range of services and features and part of the terms below may not be relevant to the specific services you use.

We understand that legal terms can be exhausting to read, and we’ve tried to make the experience more pleasant. If you have any suggestions on how we can improve them, you are more than welcome to contact us at support [at] xmdigital.com.

Account Terms

  • You must be 18 years or older to use our Services.
  • You acknowledge that XM Digital will use the email address and/or phone number you provide as the primary method for communication.
  • You are responsible for keeping your passwords secure. XM Digital cannot and will not be liable for any loss or damage from your failure to maintain the security of any Service provided by XM Digital.
  • You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (“Materials”).
  • A breach or violation of any term in the Terms of Service, as determined in the sole discretion of XM Digital will result in an immediate termination of your services.

General Conditions

  • You must read, agree with and accept all of the terms and conditions contained in the legal documents located at https://xmdigital.com/legal/, before you may become a XM Digital Client.
  • Technical support is only provided to paying Account holders and contacts they have provided that are authorized to make account changes.
  • Support is available Monday through Friday at 9 a.m. – 6 p.m. E.S.T.
  • XM Digital may not be available to answer our Client's calls immediately and may require scheduling a conference call to discuss your needs as we often have multiple projects in progress simultaneously.
  • To ensure a timely response, all Client's to-do’s, tasks, or support requests should strictly be sent to the Help Desk Support System as we cannot guarantee that emails sent to our team individually will be responded to appropriately.
  • All calls made to our office are monitored and recorded.
  • We will acknowledge all email support tickets within 24-48 working hours unless otherwise stated in your SLA.
  • We do not provide services or support for email.
  • Mandatory use of our managed DNS servers is required for Services.
  • The Client shall not be charged for Open Source Software. If there is a charge for a website using Open Source Software, the Client is paying for the installation, configuration, and customization. Open Source Software is not owned by XM Digital nor the Client.

Fees & Payment Terms

Fees for the Services selected by you will be on a pre-paid basis, due and payable at the time of sale and billed every month on the anniversary date throughout the Term of the Agreement.

Late Fees: Client shall agree to pay a late fee of 5% to all invoices paid 10 days past the due date, with a subsequent late fee of 5% of the total outstanding balance for each additional day.

Cancellation/Termination of Services

The Services shall remain in effect until terminated or canceled as set forth herein. Services may be terminated by any Party with a minimum of at least thirty (30) days' prior written notice emailed to contracts [at] xmdigital.com followed by a scheduled phone call to prepare offboarding.

Termination of Services and/or Services: All Services are paid-up front and billed re-occurring on the Anniversary day of every month and you can cancel at any time with a 30-day notice.

For Cause: XM Digital may immediately terminate any Services if XM Digital has reason to believe that (i) Client is attempting to disparage or defame XM Digital; expose XM Digital to legal liability, or otherwise act in a manner reasonably likely to harm XM Digital’s business interest; (ii) On-Demand Website Maintenance request are made impracticable or is delayed for at least thirty (30) days as a result of Customer's (a) failure to transfer a domain name or provide domain register's login credentials; (iii) threatened to file or filed a frivolous legal action against XM Digital (each "Termination for Cause"). If such breach cannot be cured or is not cured within thirty (30) days of written notice ("Cure Period"), XM Digital may immediately terminate All Services and/or pursue all other available remedies, including recovery from Customers of XM Digital’s costs and attorneys' fees incurred in pursuing such remedies (collectively "Termination Remedies"). Suspension of Services due to breach shall not relieve Client of its obligation to pay the Charges incurred for the Services during suspension or otherwise.

Past Due: XM Digital may terminate your account immediately without notice for Clients with past-due invoices.

Refunds

You agree that you understand and will abide by the XM Digital's refund policy. If you cancel, there are no refunds of any kind, this includes your one-time fees, monthly subscription/access fees and any additional fees paid to the Company for other services such as customizations and marketing. As indicated above, cancellation notifications must be sent to us electronically using the Company's ticket system. Service will be terminated immediately (not at the end of the billing period). In the event that the Company has been requested to perform customization or additional service and this request is canceled by you prior to completion, you are liable for any time/work the Company has already performed. No refunds for work performed or time spent will be given.

Disclaimer of Warranties

CLIENT ACKNOWLEDGES THAT CERTAIN SOFTWARE USED BY INTERNET USERS MAY NOT BE CAPABLE OF SUPPORTING CERTAIN FEATURES OR FUNCTIONALITY WHICH MAY BE INCLUDED IN SERVICES. XM DIGITAL SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIM RELATING TO ANY INTERNET USER'S INABILITY TO ACCESS THE SERVICES PROPERLY OR COMPLETELY OR FOR ANY CLAIM RELATING TO ANY ERRORS OR OMISSIONS IN THE SERVICES. THE SERVICES ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS AND DELAYS. NEITHER XM DIGITAL NOR ITS AFFILIATES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE SERVICES, THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR THAT THE SERVICES WILL BE ERROR FREE.

Limitations of Liability

XM DIGITAL'S, ITS AFFILIATES' AND ITS AGENTS' ENTIRE LIABILITY HEREUNDER, IF ANY, FOR ANY CLAIM MADE AGAINST THEM (OR ANY ONE OF THEM) FOR DAMAGES RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), SHALL BE LIMITED TO, IN THE AGGREGATE, ONE (1) MONTH'S XM DIGITAL FUNDS, ANY CLAIM FOR DAMAGES IN EXCESS THEREOF BEING HEREBY EXPRESSLY WAIVED BY YOU. IN NO EVENT WILL XM DIGITAL, ITS AFFILIATES OR ITS AGENTS BE LIABLE FOR ANY LOST PROFITS OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT OR RELATING IN WHOLE OR IN PART TO CLIENT RIGHTS HEREUNDER OR THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.

Indemnification

Client agrees to indemnify, defend and hold harmless XM Digital, its successors, officers, directors, employees, designees and agents (the "Indemnified Parties") from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) ("Claims") relating to or arising from the Client's provided Content,  Client's use of the Services, or breach (or alleged breach) of Client's representations, warranties and covenants under the Agreement. XM Digital agrees to indemnify, defend and hold harmless Client from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) relating to or arising from the XM Digital Content.

Force Majeure

XM Digital shall not be responsible for any delays, errors, failures to perform, interruption, or disruptions in the Services caused by or resulting from any act, omission or condition beyond XM Digital’s reasonable control, whether or not foreseeable or identified, including without limitation acts of God, strikes, lockouts, riots, acts of war, third-party hosting companies, general Internet outages, governmental regulations, insurrection or intervention of any government or authority, acts of war or terrorism, fire, power failure, earthquakes, severe weather, storms, explosions, floods or other natural disasters.

Copyright & Trademarks

The Client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to XM Digital for inclusion in the web design or advertising project are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect and defend XM Digital and its subcontractors from any claim or suit arising from the use of such elements furnished by the Customer.

Applicable Law

These Terms of Service will be governed by and construed in accordance with the laws of the State of North Carolina, without giving effect to its conflict of laws or your actual state or country of residence.

Contact Us

The Company welcomes your questions or comments regarding the Services. You may contact the Company at:

XM Digital, Inc.
150 Wrenn Dr. #5101
Cary, NC 27512
support [at] xmdigital.com
919-335-3164