BioGuard Website Terms

WEBSITE DEVELOPMENT TERMS AND CONDITIONS

Date of Last Revision: March 23, 2023

These terms and conditions are applicable to all web development projects that are undertaken by Xxela Marketing Services, Inc. Hereafter, the client will be known as the "Client" and Xxela will be known as the "Developer." By placing an order with Xxela Marketing Services, Inc., you confirm that you are in agreement with and bound by the terms and conditions below.

Website Design and Development
Every endeavor will be made to ensure that the website and any scripts or programs are free of errors, Developer cannot accept responsibility for any losses incurred due to malfunction, the website or any part of it.
Website Hosting
The Developer will establish a separate contract with an Internet Service Provider (ISP) for website hosting. Developer will not be liable for any costs incurred, compensation or loss of earnings due to the unavailability of the site, its servers, software or any material provided by its agents.
Domain Registration (Website Address)
Client may request Developer to acquire, if available, customized top-level domain name(s) for use in connection with the Client Sites as part of an Website Hosting Service (collectively, the “Client Domain Name”). Developer will use its reasonable commercial efforts to register the Client Domain Name if available, and, if successful in registering the Client Domain Name, will serve as registrant with respect to such Client Domain Name and will own and control the Client Domain Name (“Registrant”). Should the Client desire a specific domain name which is already owned by another party and negotiations for said domain name must be undertaken by the Developer, additional charges may apply. The Client will be contacted in advance before any negotiations of this nature are undertaken or charges are incurred. Client will not have any ownership interest in any such Client Domain Name, but will have a limited, revocable, nonexclusive, non-transferable, non-assignable, license to use such Client Domain Name solely during the term of the Client's Hosting Service Account in connection with the operation of its Client Sites through the Hosting Service. Any termination of Client’s Website Account, Client Domain Name will be transferred to Client.
Copyrights and Trademarks
Developer cannot take responsibility for any copyright infringements caused by materials submitted by the Client. We reserve the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material. The Client represents to the Developer and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Developer for inclusion in the Client's web site 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 the Developer and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
Limited Liability
EXCEPT IN CASE OF WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE, DEVELOPER'S ENTIRE LIABILITY TO CLIENT FOR DAMAGES OR OTHER AMOUNTS ARISING OUT OF OR IN CONNECTION WITH SERVICES OR OTHER MATERIAL OR INFORMATION PROVIDED BY DEVELOPER HEREUNDER, OR ANY OTHER ASPECT OF THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL AMOUNT OF PAYMENTS MADE BY CLIENT TO DEVELOPER DURING THE YEAR (1) YEAR PERIOD PRIOR TO THE CLAIM OR DEMAND. EXCEPT IN CASE OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL DEVELOPER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, OR ANY DAMAGES FOR LOST PROFITS, LOST DATA OR LOST BUSINESS, EVEN IF DEVELOPER HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. Client agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server or the Developer. PLEASE NOTE: The limit of liability of Developer is the cost of items or services ordered by the client during the year (1) year period prior to the claim or demand.
Release of Liability
Client's acceptance of these Terms and Conditions acts as a general release of Developer and any of its subsidiaries (and all of their officers, directors, agents, employees, and contractors) from any liability for any claims, loss and damages (both direct and indirect, including loss of profits, goodwill and business opportunity) arising out of or in any way connected to Client's use of the material and information developed by Client's using the Services.
Waiver
The waiver by any party of a breach or default by the other party of any provision of this Agreement shall not be construed as a waiver by such party of any succeeding breach or default by the other party in the same or other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any such right or remedy.
Governing Law
This Agreement will be governed by the laws of the State of Georgia, without regard to any rules governing conflicts of laws, and Developer and Client irrevocably consent to the jurisdiction and venue in the state and federal courts sitting in the City of Marietta, Georgia.
Indemnification
Client agrees that it shall defend, indemnify, save and hold the Developer harmless to the extent permitted by law and resulting from client’s negligence.
Third Party Material
Developer accepts no responsibility for the content of any third party material, including advertising or otherwise, on the Client’s web site.
Force Majeure
Either party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of such delay or failure.
Change of Conditions
Developer reserves the right to change, alter, vary or cancel services, or the Conditions pursuant to which the services are provided, upon notice communicated to the Client by email at least thirty (30) days prior to the changes coming into effect. Client may terminate the Contract by email notice sent within ten (10) days of receipt of such notice.
Arbitration
Any disputes in excess of $1,000 (or the maximum limit for small claims court) arising out of this Agreement shall be submitted to binding arbitration before the Joint Ethics Committee or a mutually agreed upon Arbitrator suitor pursuant to the rules of the American Arbitration Association. The Arbitrator's award shall be final, and judgment may be entered in any court having jurisdiction thereof. The Author shall pay all arbitration and court costs, reasonable attorney's fees and legal interest on any award or judgment in favor of the Developer.
Xxela Proprietary Rights in Provided Designs, Artwork and other Content
As part of the Hosting Service, Xxela may provide Client graphics, photographs, images, document layouts, artwork, text, fonts, software tools, and similar design and graphical content (referred to herein as “Design Content”). Such Design Content may be used by Xxela for the sole purpose of creating, operating and maintaining Client Sites through the Hosting Service. Xxela grants Client a non-exclusive, revocable, non-transferable, non-assignable, limited license to copy, use, reproduce, modify, and publish the Design Content for the sole purpose of creating, operating and maintaining the Client Sites through the Hosting Service during the term of the Client's Hosting Service Account. Client acknowledges and agrees that Xxela or its licensors own all legal right, title and interest in and to such Design Content, including any intellectual property rights. All rights in such Design Content are reserved worldwide and Xxela reserves all rights not expressly granted herein, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Design Content. It is strictly prohibited for Client or any other third party to use, modify, retain, copy, distribute, transmit, publish, prepare derivative works of, or use any portion of the Design Content except as expressly allowed in this Agreement for the sole purpose of creating, operating and maintaining the Client Site through the Hosting Service during the term of the Client's Hosting Service Account. Client, and not Xxela, is entirely responsible for its use of Design Content on the Client Site and for its combination with any other information or Client Content. Xxela is providing such Design Content to Client only as a convenience, and the inclusion of such content does not imply endorsement by Xxela of such content. Xxela reserves the right to add to, delete from, modify or remove completely any part of the Design Content at any time without prior notice, but Xxela is not responsible for any failure or delay in doing so. Without limiting the generality of the foregoing, upon any termination of Client's Hosting Service Account and/or the Hosting Service, the foregoing license shall automatically terminate and Client must immediately cease all use of and access to the Design Content.
Cancellation Policy
Either Client or Xxela may terminate or cancel Client's Hosting Account at any time, as follows:

Termination by Client. Client may cancel Client's Hosting Service Account at any time. To cancel, Client must call 1-877-939-9352. Client will receive a cancellation confirmation via email after Xxela processes the cancellation request. Upon confirmation of such cancellation, Client will forfeit all credits, pre-paid fees, and any other amounts accruing to Client, if any, and Xxela shall not be required to refund, redeem, or pay any such or other amounts to Client. Xxela also reserves the right to collect fees incurred before Client cancels Client's Hosting Service Account in addition to any applicable cancellation fee(s).
Client must provide Xxela with the following information in order for Xxela to process the cancellation: Company Name, Email Address, Phone Number, Website Address (Domain Name/URL), Reason for Canceling the Service
Termination by Xxela. Xxela, in its sole discretion, may terminate Client’s Hosting Service Account and Client's use of and access to the Hosting Service and Client Sites, including without limitation any related domain names, at any time and for any reason, including, without limitation if Client breaches this Agreement, including, without limitation, due to:
- Failure of Client to make any required payments to Xxela
- Xxela concludes in its sole discretion that Client’s use of or access to the Hosting Service or Client Sites may result in liability to Xxela or its suppliers or licensors
- Upon the bankruptcy or insolvency of Client. c. Effect of Termination. Upon cancellation or other termination of Client's Hosting Account for any reason, Xxela shall (a) collect all fees, commitments and obligations incurred or accrued by Client; (b) delete any Client Content, Client Data, listings, messages or other information in connection with Client's Hosting Account and Client's use of or access to the Hosting Service and Client Site. In no event shall Xxela be required to return any Client Content to Client upon any such termination. Xxela is not responsible for any damages to or losses incurred by Client or any third party in the event Client chooses to cancel the Client Account and Xxela takes any of the above actions.