Exelion, LLC ("Exelion," "we," "us," or "our") owns and operates the website located at www.exelion.net (the "Site"). Please read these Terms of Service carefully. These Terms of Service state the terms and conditions under which you may use our services which are available through the Site (the "Services"). By clicking "I ACCEPT," you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Service and you represent and warrant that you are at least 18 years old or older. If you are accepting these Terms of Service on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions set forth herein. If you do not have such authority, or if you do not agree to any of these terms, then you are not permitted to use the Services. These Terms of Service may be updated by us from time to time without notice to you. If we change any material terms of these Terms of Service, we will notify you by posting a message upon your next log-in, and you will be required to click "I ACCEPT" in order to continue using the Services after the date of any such modification.
Through the Site, we offer unmanaged dedicated server hosting and related services. The Services are offered to you on a subscription basis ("Subscription").
You may create, store and/or transmit data through the Services (collectively, "Hosted Data"). We cannot and do not review it all--we may act as a passive conduit for distribution of the Hosted Data. That said, we may remove Hosted Data that does not adhere to our Acceptable Use Policy (located at www.exelion.net/aup), or that is offensive or otherwise unacceptable to us in our sole discretion.
As between us and you, you retain all copyrights and other intellectual property rights in and to the Hosted Data. You warrant and represent that (i) the Hosted Data provided through your account is legal and does not infringe on any intellectual property rights of any third party; and (ii) you either own, or have a sufficient license to, all Hosted Data provided through your account. You hereby grant us an irrevocable, non-exclusive, worldwide, royalty-free, sublicensable, transferable license to use your Hosted Data as reasonably necessary for us to provide the Services.
You are welcome to browse the Site as a visitor without providing any information to us. If you would like to use the Services, you will need to register as a user (a "Registered User") by creating an account. During the registration process, you will have to provide your name, company name (if applicable), and email address, and any other information requested during the registration process. You will also have to create a user name and password for your account. You represent and warrant that all registration information you submit is truthful and accurate and you will maintain the accuracy of such information. You are solely responsible for the confidentiality of your user account, as well as for its use and misuse. You will promptly inform us of any need to deactivate a user name or password. We reserve the right to delete or change your user name and/or password at any time and for any reason.
You agree to pay any applicable Subscription fees made known to you during registration. Any fees paid to us are non-refundable. We may use a third party service provider ("Third Party") to process your payment in connection with your use of the Services. You warrant and represent that you are the valid owner or an authorized user, of the credit card you provide to such Third Party, and that all credit information is accurate. We reserve the right to change any of the fees that we charge, or to institute new or additional fees, at any time upon notice to you.
It is important to note that when you sign up to use the Services, your Subscription will automatically renew until you cancel it. You may cancel at any time by notifying us in writing no later than ten (10) days before the next upcoming renewal, and the cancellation will take effect the following month subject to the terms and conditions set forth in the Section titled "Effect of Termination." At the end of each month, we will send you a reminder e-mail about the Subscription's automatic renewal. Again, if you do not cancel, then your Subscription will automatically renew under the same Subscription.
You agree not to exceed the allotted data transfer volume ("Internet Bandwidth") per month for your account. You may upgrade the Internet Bandwidth allowance for your account for additional fees.
Your use of the Site and/or the Services may involve the transmission to us of certain personally-identifiable information. Our policies with respect to the collection and use of such personally-identifiable information are governed according to our Privacy Policy (located at www.exelion.net/privacy), which is hereby incorporated by reference in its entirety.
As between Exelion and you, Exelion shall own all right, title, and interest in and to (i) the Services including, without limitation, all source code, object code, operating instructions, and interfaces developed for or relating to the same; (ii) all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements, and derivative works of the foregoing, and all intellectual property rights therein; and (iii) any other materials available on the Site and/or the Services that are provided by or on behalf of Exelion and all intellectual property rights therein (collectively, the "Exelion Intellectual Property"). Except as expressly permitted in these Terms of Service, you have no rights in or to the Exelion Intellectual Property.
By submitting any unsolicited information and materials, including comments, ideas, questions, designs, and other similar communications (collectively, "Unsolicited Information") to us, you agree to be bound by the following terms and conditions. If you do not agree with these terms and conditions, you should not provide us with any Unsolicited Information. All Unsolicited Information will be considered NON-CONFIDENTIAL and NON-PROPRIETARY. We, or any of our affiliates, may use such communication or material for any purpose whatsoever, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and further posting. Further, we and our affiliates are free to use any ideas, concepts, know-how, or techniques contained in any communication or material you send to us for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products. By submitting any Unsolicited Information, you are granting us a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer and sell such Unsolicited Information and to use your name and other identifying information in connection with such Unsolicited Information.
We take commercially reasonable efforts to keep the servers up and running and your Hosted Data available to you through the Services. However, there may be some scheduled and unscheduled downtime for maintenance or other reasons, and we make no guarantees or warranties with respect to the availability of the Services. We are not responsible or liable to you or any third party for any disruption in your access to the Services or your Hosted Data at any time. THE SITE AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, FUNCTIONS AND OTHER MATERIALS, ARE PROVIDED "AS IS" AND "AS AVAILABLE." EXELION DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, SECURITY OF HOSTED DATA, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. EXELION SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE SERVICES. EXELION SHALLL NOT BE RESPONSIBLE FOR THE SECURITY, LOSS, INTRUSION, OR AUTHORIZED ACCESS OF HOSTED DATA OR ANY LOSS OF OR DAMAGE TO ANY HOSTED DATA.
IN NO EVENT SHALL EXELION, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE "EXELION PARTIES") BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUES OR SAVINGS, OR LOSS OF DATA, EVEN IF SUCH EXELION PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF THE EXELION PARTIES FOR DIRECT DAMAGES ARISING UNDER THESE TERMS OF USE OR RELATING THERETO, EXCEED, THE TOTAL FEES PAID BY YOU IN THE ONE (1) MONTH IMMEDIATELY PRECEDING SUCH CLAIM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR NEGLIGENCE, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, IN SUCH JURISDICTIONS EXELION PARTIES LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
The Site and the Services may contain links to third-party websites ("External Sites"), but Exelion does not endorse and is not responsible for the content of any such External Sites. Please refer to the terms of use and privacy policies of the External Sites for more information.
You agree to defend, indemnify, and hold the Exelion Parties harmless from and against any and all claims, actions, or demands and relating costs, damages and liability (including, without limitation, reasonable attorneys" fees) arising or resulting from: (i) your breach of these Terms of Service; (ii) your access to, use, or misuse of the Site or the Services; (iii) any Hosted Data provided through your account; and (iv) your violation of any third-party right, including without limitation any intellectual property, or privacy right.
The Site and the Services are based in the United States, and are intended to be used only by residents of the United States that are age 18 years or older. We make no claims concerning whether the Site, the Services, or the Hosted Data may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Site, the Services or the Hosted Data from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
If you believe the Site contains any content that infringes your copyright, please contact our Copyright Agent, as detailed below, with the following information:
To contact our Copyright Agent by email, please write to support@exelion.net, with COPYRIGHT NOTICE in the subject line.
In the event that any portion of these Terms of Service is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of these Terms of Service shall remain in full force and effect. This section, the section entitled Exelion Intellectual Property, Indemnification, Warranties and Disclaimer, Limitation of Liability and Effect of Termination shall survive the termination of these Terms of Service. You may not assign these Terms of Service. No waiver shall be effective unless in writing. Neither the course of conduct between parties nor trade practice shall act to modify any provision of these Terms of Service. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York. Except for proceedings commenced by Exelion to protect its intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder shall be resolved exclusively by binding arbitration in accordance with the Commercial Arbitration Rules (the "Rules") of the American Arbitration Association ("AAA") then in effect. All arbitration proceedings shall take place in New York, New York. These Terms of Service contain the entire agreement of the parties concerning its subject matter, and supersede all existing agreements and all other oral, written or other communication between the parties concerning the subject matter.
You consent and agree that your clicking of the "I Accept" button constitutes your electronic signature, acceptance, and agreement under the United States federal E-SIGN legislation and that such electronic signature will meet the requirements of an original signature as if actually signed by you in writing. Further, you agree that no certification authority or other third-party verification is necessary to the enforceability of your signature. At our request, any electronically signed document must be re-executed in original form by you. No party hereto may raise the use of an electronic signature as a defense to the enforcement of these Terms of Service or any amendment or other document executed in compliance with these Terms of Service.