X-Cart Hosting Service Level Agreement

Rev. date: Dec 12, 2021

1. Coverage and Terminology

This Service Level Agreement (“SLA”) covers performance guarantees for our network and server hardware, and is made between X-Cart Holdings LLC. (“X-Cart Hosting”, “Provider”, “we”, “us”, “our”) and you (“Client”, “you”). This document may be updated from time to time, and will be located online at https://www.x-cart.com/hosting_sla.html . Clients are responsible for checking this document from time to time.

This Service Level Agreement (“SLA”) applies to you (“customer”) if you currently hold an account with any of the Web Hosting services from Provider (the “Services”) and your account is current (i.e., not past due) with Provider.

As used herein, the term “Web Site Availability” means the percentage of a particular month (based on 24-hour days for the number of days in the subject month) that the content of customer’s Web site is available for access by third parties via HTTP and/or HTTPS, as measured by Provider.

2. Modification or Amendment of Agreement

Provider may modify or amend this Agreement. You agree that Provider’s posting of modifications or amendments to this web page constitutes adequate notice.

You further agree that it is your obligation to check Provider’s web site periodically for any modifications or amendments to this Agreement. If any modification or amendment to this Agreement is unacceptable to you, it is your responsibility to terminate the Agreement as specified in the “Cancellation” sections of this Agreement; if you do not terminate within 14 (fourteen) days of any amendment or modification of the Agreement by Provider, your continued use will constitute an acceptance of the amended or modified Agreement.

3. Service Level

3.1 Technical Support

Provider will provide You with technical support on setting up and configuring your account, access to Provider’s server at no additional cost. Technical support level on using X-Cart depends on your plan according to https://www.x-cart.com/hosting.html.

To request tech support You must open a support ticket in your personal Help Desk at https://secure.x-cart.com. You are obliged to submit your account username and provide a full description of the problem including error messages, screen-shots, and other troubleshooting information that may be requested by Provider’s Technical Support personnel.

The Provider’s response time to technical support tickets depends on the level of the purchased support service, complexity of the reported issue and current workload of the department. All tickets related to servers’ unavailability are processed by the Technical Support personnel at first place upon the notification from customer. Time to respond guarantee does not apply to any inquiries that require extensive research and testing.

3.2 Third-party software

Provider’s services do not include installation of third-party software beyond the standard configuration outlined in your plan’s description. Requests for modification to the standard configuration will be considered on a case-by-case basis. Approval of such modifications will be at the Provider’s sole discretion and will be based upon maintaining functionality, usability, security, and stability in the shared server environment.

3.3 Network Availability

Provider will use commercially reasonable efforts to make the Included Products and Services each available with a Monthly Uptime Percentage (defined below) of at least 99.99%, in each case during any monthly billing cycle. In the event any of the Included Products and Services do not meet this condition, you will be eligible to receive a Service Credit as described below

The credit will be calculated based on the monthly service charge for the affected Services.

3.4 Maintenance

a) Provider will do its best to announce any scheduled maintenance at least 24 hours ahead of time to the customer.

b) Provider reserves the right to perform emergency maintenance without any prior notification, should it be deemed necessary to protect and maintain the security and integrity of the Service.

3.5 Conditions

Customer shall not receive any credits under this Agreement in connection with any failure or deficiency of Web Site Availability caused by or associated with:

a) circumstances beyond Provider’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this Agreement;

b) failure of access circuits to the Provider’s Network or it’s upstream providers, unless such failure is caused solely by Provider;

c) scheduled maintenance and emergency maintenance and upgrades;

d) DNS issues outside the direct control of Provider;

e) issues with FTP, POP, IMAP, or SMTP customer access;

f) false SLA breaches reported as a result of outages or errors of any Provider’s measurement system;

g) customer’s acts or omissions (or acts or omissions of others engaged or authorized by customer), including, without limitation, custom scripting or coding (e.g., PHP, CGI, Perl, HTML, ASP, etc), any negligence, willful misconduct, or use of the Services in breach of Provider’s Terms of Service and Acceptable Use Policy;

h) e-mail or webmail delivery and transmission;

i) DNS (Domain Name Server) Propagation.

j) outages elsewhere on the Internet that hinder access to your account. Provider is not responsible for browser or DNS caching that may make your site appear inaccessible when others can still access it. Provider will guarantee only those areas considered under the control of Provider : Provider server links to the Internet, and Provider’s servers.

3.6 Server Software

Provider will exercise industry standard practices to ensure that all pre-installed software is correctly configured. In case there is more than one way to configure the software, Provider will choose the configuration it determines, in its sole discretion, to be the most appropriate.

Provider will install security patches, updates, and service packs as soon as practical. Software updates may change system behavior and functionality and as such may negatively affect your applications. Provider cannot foresee nor can it be responsible for service disruption or changes in functionality or performance due to implementation of software patches and upgrades. If such disruption or changes occur, Provider will provide its best efforts to remedy the situation as soon as possible after being notified of the problem by You.

Provider may be required by its software licensees to upgrade to the latest versions of the software. Licensor-required upgrades will be performed free of charge and upon reasonable notice to You. Software upgrades on Provider’s servers will occur at Provider’s discretion upon reasonable notice to You.

Provider is not responsible for problems that may arise from incompatibilities between new versions of the software and your content, regardless of whether it was a requested, required or discretionary upgrade. Nevertheless, Provider will provide its best efforts to help You to find a workaround.

Log processing (web reporting) software is provided on an “as is” basis. Provider will not be held responsible for bugs in the software or for interpreting the reports generated by the software. Provider, in its sole discretion, can upgrade the software to newer versions or replace it with different software upon providing a reasonable notice to You. Provider cannot foresee nor will it be responsible for any incompatibility of newer versions and other software You may choose use in conjunction with the log processing software.

3.7 Storage Capacity; Data Transfer; Server Resources

Each account is allotted storage capacity and data transfer amounts on Provider’s servers according to the plan and options selected by You. The servers may stop accepting, processing, or delivering data when the purchased limit is reached thus causing server unavailability or data loss. Provider shall not be held responsible for such unavailability or data losses.

Your Web and FTP servers are configured to log all requests to the log files. The normal retention period is two (2) months. The log files are stored within your domains allotted space and is counted towards your account’s allotted storage capacity.

3.8 Data Retention

PROVIDER SHALL NOT BE RESPONSIBLE FOR RETAINING ANY OF YOUR DATA AFTER ACCOUNT TERMINATION. ALL DATA IS DELETED FROM THE SERVERS AFTER THE ACCOUNT IS TERMINATED AND FROM BACK-UPS DURING SCHEDULED BACK-UP ROTATION. PROVIDER SHALL NOT RESTORE, PROVIDE ON ANY STORAGE MEDIA OR SEND OUT ANY DATA PERTAINING TO EXISTING OR TERMINATED ACCOUNTS.

3.9 Customer Responsibilities

To access Providers’s services You must provide at the very minimum:

an Internet connection with sufficient bandwidth and quality to allow trouble-free browsing and data uploading and downloading;

a fully functional Internet browser;

4. Fees & Taxes

4.1 Fees

You shall pay the fees set forth for the Services purchased by You in accordance with Provider’s Pricing that is incorporated into this Agreement by reference. Provider may change its Pricing and the fees for its Services from time to time. Provider’s changes to the policy are effective after Provider provides You with at least fourteen (14) days’ notice of the changes by posting the changes on the Provider’s website.

4.2 Payment terms

Provider will invoice You once a month, and all payments are due within five (5) days after Provider submits its invoice. If You fail to pay in full by the tenth (10) day after Provider submits its invoice Your Account may be suspended or terminated under Section 8 of this Agreement, but any suspension does not relieve You from the obligation to pay all fees due to Provider, including the monthly charge.

4.3 Taxes

All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on Provider’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the performance of the Services hereunder.

5. Credit Request

In order to receive a credit, customer must make a request using the Provider’s Support HelpDesk. Each request in connection with this SLA must include customer’s account name (per customer’s control panel login) and the dates and times of the unavailability of customer’s Web site and must be received by Provider within ten (10) business days after customer’s Web Site was not available. If the unavailability is confirmed by Provider, credits will be applied within two billing cycles after Provider’s receipt of customer’s credit request. Credits are not refundable and can be used only towards future billing charges.

Notwithstanding anything to the contrary herein, the total amount credited to customer in a particular month under this SLA shall not exceed the total hosting fee paid by customer for such month for the affected Services. Credits are exclusive of any applicable taxes charged to customer or collected by Provider and are customer’s sole and exclusive remedy with respect to any failure or deficiency in the Web Site Availability of customer’s Web site.

6. Limitation of liability

IN NO EVENT SHALL PROVIDER, ITS SUPPLIERS, OR SERVICE PROVIDERS, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE ADDITIONAL SOFTWARE, THE SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). SERVICE PROVIDER’S, ITS SUPPLIERS’, AND SERVICE PROVIDERS’, CUMULATIVE LIABILITY, AND THE LIABILITY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO [THE GREATER OF (A)] THE AMOUNT OF FEES YOU PAY TO SERVICE PROVIDER FOR THE SERVICES IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH THE ACTION GIVING RISE TO THE LIABILITY FIRST AROSE, AND (B) ONE HUNDRED U.S. DOLLARS (U.S. $100).

7. Indemnity

You agree to indemnify and hold Provider harmless from and against any and all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against Provider directly or indirectly arising from or in connection with Your marketing or support services of the product or services or the unauthorized representation of the product and services or any breach of this Agreement by You.

8. Breach

Without limiting other remedies, Provider may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Your account, in whole or in part, and refuse to provide some or all of the Services to You if: (a) You fail to pay any fees in accordance with Section 4 of this Agreement; (b) You breach this Agreement or the documents it incorporates by reference in any other manner; (c) Provider believes that Your actions may cause financial loss or legal liability for You, Your Store customers, or Service Provider.

9. Ownership Rights

9.1 Your User Data

When you use the Service, you will be providing us with information, accounts, data, and other information and materials pertaining to your business (referred to here as your “User Data”). We acknowledge that your User Data belongs to you. When you submit any User Data to Service Provider, you represent that you have all necessary rights in and to that User Data and you hereby grant us a license to use your User Data, solely for the purpose of making the Service available to you.

9.2 Service Provider Ownership and Intellectual Property Rights

(a) The X-Cart software and other resources used to provide the Service (and all copies of such software or other resources), and all associated intellectual property rights belong exclusively to Service Provider, and its licensors (the “Service Provider Property”). Nothing in this Agreement gives you any rights with respect to the Service Provider Property except for the access and usage rights expressly granted above.

(b) Except as permitted by this Agreement, neither the Service Provider Property nor any materials, assistance, instructions, or information that we provide in relation to any Service Provider Property (whether provided verbally, in writing , electronically or otherwise), may be copied, reproduced, modified, distributed, republished, displayed, posted, or transmitted in any form or by any means, in whole or in part, nor may you make any efforts to derive any source code, algorithms, program structure, or other trade-secret information therefrom, or allow any third party to do so, except to the extent such a restriction is expressly prohibited under applicable law.

(c) Nothing in this Agreement limits any rights that we may have under any trade secret, copyright, patent or other laws. Without limiting the foregoing, we will have the right to specific performance with respect to your obligations under this Section 7.

10. General

10.1 Governing law

This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, USA, excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Athens, the State of Georgia, USA and the parties hereby irrevocably consent to the personal jurisdiction thereof and venue therein. The parties agree, pursuant to Article 30(2)(b) of the Rules of the ICC, that the Expedited Procedure Rules shall apply irrespective of the amount in dispute.

10.2 Assignment

You shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. You agree that this Agreement may be assigned by Service Provider, in Service Provider’s sole discretion.

10.3 Termination

You agree to be bound by these terms and conditions until you close your account with Service Provider or until we terminate your account. You may cancel your account at any time, by submitting a request into Provider’s Support HelpDesk at https://secure.x-cart.com. Once your account has been canceled, we will delete all of your User Data unless other arrangements have been made for storing the User Data for you, as described under “terminating your account”.

We may terminate your account at any time without notice if: (a) you have breached any provision of this Agreement or, (b) if we believe in our sole discretion that we are required by law to terminate your account. We may terminate your account at any time in our own discretion on 30 days’ written notice to you.

10.4 Additional terms

The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to the Services offered by Service Provider:

(a) X-Cart Hosting Acceptable Use Policy: https://www.x-cart.com/xcart-hosting-aup.html

(b) Moneyback Policy: https://www.x-cart.com/terms-of-service.html#moneyback_policy

(c) Privacy policy: https://www.x-cart.com/terms-of-service.html#privacy_policy

(d) Trademark policy: https://www.x-cart.com/terms-of-service.html#trademark_policy

10.5 Notices

Except as explicitly stated otherwise, any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall be deemed to be delivered via Support Helpdesk which is located at https://secure.x-cart.com.