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Service Agreement
All contents copyright ©
Tivilon, Inc.
All rights reserved.
This Agreement ("Agreement") is between Tivilon, Inc., a Delaware corporation ("Tivilon") with an
office at 1101 E. 33rd Street, Suite B309, Baltimore, MD 21218 and the party specified in the order annexed hereto
and incorporated herein by reference ("Order"). Such party shall be referred to herein as the
"Customer" and shall enter into this Agreement upon receipt of the Order. If the Customer does
not agree to these terms, the Customer must immediately notify Tivilon and the Order will be
immediately cancelled.
For good and valuable consideration, the parties agree as follows:
- SERVICES
Subject to the terms and conditions of this Agreement, Tivilon will provide to Customer the web
hosting and/or related services described in the plan selected by Customer from Tivilon's then
published list of services as offered from time to time ("Services"). The specific plan of Services
to be provided initially to Customer shall be as selected in the Order and thereafter as established
through correspondence between Customer and Tivilon.
- TERM
The initial term of this Agreement shall be as stated in the Order ("Initial Term"). The Initial
Term shall begin upon commencement of Service to Customer, provided, however, no Service shall
commence unless and until Tivilon receives and accepts a completed Order from Customer, plus payment
in full for Services to be rendered during the Initial Term and any setup charges (except for
Dedicated Server Customers whose initial payment requirement shall be set forth in the Order). Tivilon
reserves the right to reject any submitted Order for any or no reason prior to written acceptance
thereof by Tivilon. After the Initial Term, unless otherwise agreed to by the parties, this
Agreement shall automatically renew for successive terms of equal length as the Initial Term unless
terminated or canceled by either party only as provided in Paragraph 9 below. The Initial Term plus
all successive renewal periods during which Service is provided shall be collectively referred to as
the "Term."
- FEES AND PAYMENT
All fees for Services rendered or provided to Customer shall be in accordance with Tivilon's fee
schedule then in effect, the terms of which are incorporated herein by reference. Tivilon may,
with 30 days notice to Customer, amend the Services and/or the rates and fees it charges for the
Services. Fees for renewal periods after the Initial Term shall be due and owed the first day of
such renewal period. Customer will receive an invoice for the charges for the basic Services
rendered or provided by Tivilon for such renewal period, plus any additional Services rendered
or provided by Tivilon to Customer for the preceding month of the Term, and any other charges or
fees then due hereunder. Payment in full of such invoiced amount is due upon receipt of the
invoice. Should payment in full of any invoice not be received by Tivilon within thirty (30) days
after date of invoice, Tivilon may impose a debt service charge equal to one and one-half percent
(1.5%) of the overdue balance (or such lesser amount as may be required by law) for each month or
fraction thereof the overdue amount remains unpaid. In addition, in the event that any amount due
Tivilon remains unpaid thirty (30) days after presentation of an invoice to Customer, Tivilon, in
its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend
Services. Customer shall pay all taxes, fees and governmental charges relating to the Services
provided hereunder (other than Tivilon income taxes).
- CONTENT AND CUSTOMER'S RESPONSIBILITY
Customer agrees that neither Tivilon nor its suppliers shall, under any circumstances, be held responsible
or liable for situations where the data stored or communicated through the Service are accessed by third
parties through illegal or illicit means, including situations where such data is accessed through the
exploitation of security gaps, weaknesses or flaws (whether known or unknown to Tivilon at the time)
which may exist in the Service. Tivilon stores and facilitates the transmission of private electronic
communications pursuant to the Electronic Communications Privacy Act of 1986. Electronic communications
on this system are private, and only under situations where explicitly required or allowed by law will
such communications be accessed, intercepted, disclosed, or used without the consent of at least one of
the parties to the communication. Although Tivilon will not systematically monitor the content which
is submitted to, stored on or distributed via disseminated via the Service, Tivilon reserves the right,
in its sole discretion, to edit or delete any information or other content, regardless of whether it
violates the standards for content laid out in the Tivilon, Inc. Usage Policy found at
http://www.tivilon.com/legal/aup.asp ("Usage Policy").
- NO WARRANTY
Customer agrees to use all Tivilon's Services and facilities, and any information obtained through or
from Tivilon, at Customer's own risk. Customer acknowledges and understands that neither Tivilon,
nor any of its employees, representatives, agents or the like, warrant that the Services offered or
provided hereunder will be uninterrupted or error free, nor do they make any warranty or
representation as to the results that may be obtained from the use of the Service or as to the
accuracy, reliability or content of any information service or merchandise contained in or provided
through the Service, unless otherwise expressly stated in this Agreement. Tivilon specifically
disclaims all warranties of any kind, including, without limitation, the warranties of title,
merchantability, and fitness for a particular purpose, whether expressed or implied, for the Service
it is offering or providing hereunder.
- PROHIBITED USES
Customer warrants that all information submitted to, stored or distributed via the Service does not
infringe copyright or any other intellectual property right. Customer grants Tivilon the right to
reproduce, copy, use and distribute any materials submitted to, stored on or distributed via the
Service to the extent needed to operate the Service. Customer agrees that its use of the Service
and the software used to provide the Service will be in a manner consistent with this
Agreement. Customer shall not use, nor permit the use by any person of, the Service or
any part thereof, including any hyperlinks, in violation of the Usage Policy.
- LIMITED LIABILITY
Under no circumstances, including negligence, shall Tivilon, its officers, agents or anyone else
involved in creating, producing or distributing the Service hereunder be liable to Customer for
any indirect, incidental, special, or consequential, or punitive damages. Tivilon, its officers,
agents or anyone else involved in creating, producing or distributing the Service hereunder shall
not be liable to Customer for any loss or damages that result or have alleged to have resulted from
the use of or inability to use the Service; or that results from mistakes, omissions, interruptions,
deletion of files, loss of data, errors, defects, delays in operations, or transmission or any failure
of performance, whether or not limited to acts of God, communications failure, theft, destruction or
unauthorized access to Tivilon's records, programs or services. Furthermore, Tivilon shall have no
responsibility whatsoever to Customer for the accuracy or quality of information obtained through
or in connection with its Services provided hereunder. Notwithstanding anything to the contrary
in this Agreement, Customer's exclusive remedies for all damages, losses, costs or causes of actions
from any and all claims, whether in contract, quasi-contract, statutory, tort including negligence,
or otherwise, shall not exceed the aggregate dollar amount which Customer paid during the twelve
(12) months immediately preceding the claim or the term of this Agreement, whichever is less.
- INDEMNIFICATION
CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS TIVILON AND ITS SUPPLIERS FROM AND AGAINST ANY AND ALL
THIRD-PARTY CLAIMS AND RESULTING LIABILITIES, LOSSES, DAMAGES, COSTS AND EXPENSES, (INCLUDING
REASONABLE ATTORNEYS FEES) OF WHATEVER NATURE OR KIND ARISING OUT OF OR IN CONNECTION WITH:
(1) THE USE OF THE SERVICE BY THE CUSTOMER OR ANY USER OR (2) ANY ACTS OR OMISSIONS OF THE CUSTOMER
OR AUTHORIZED USERS. THIS INDEMNIFICATION INCLUDES ANY CAUSE OF ACTION BROUGHT AGAINST TIVILON
WHICH IS BASED IN WHOLE OR IN PART ON A CLAIM THAT TIVILON IS NEGLIGENT IN RELATION TO PROVISION
OF THE SERVICE TO THE CUSTOMER OR USER(S). CUSTOMER'S OBLIGATION TO INDEMNIFY TIVILON AND ITS
SUPPLIERS WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT BY EITHER PARTY FOR ANY
REASON. CUSTOMER SHALL PAY FOR THE DEFENSE OF ANY SUCH THIRD PARTY ACTION ARISING AS DESCRIBED
HEREIN UNLESS TIVILON AND CUSTOMER MUTUALLY AGREE THAT TIVILON WILL PAY FOR THE DEFENSE.
- TERMINATION
This Agreement may be terminated: (i) by either party, without cause, by giving the other party 30
days prior written notice; (ii) by Tivilon, at any time, upon 20 days' prior notice if in the sole
judgment of Tivilon, Customer breaches any material provision of this Agreement and has not cured
same by the end of the 20 days; (iii) by Tivilon in the event of nonpayment by Customer as provided
in Paragraph 3 above; and (iv) by Tivilon, at any time, without notice, if, in Tivilon's sole
judgment, Customer is in violation of any terms or conditions of the Usage Policy.
- ADDITIONAL TERMS AND CONDITIONS
Customer hereby acknowledges that it has reviewed the Usage Policy and that the terms of the Usage
Policy are incorporated herein by reference. Tivilon reserves the right to amend the Usage Policy
from time to time and Customer shall be bound by any such amendments. Customer shall have the
obligation to periodically visit Tivilon's web site to review its Usage Policy and to make certain
Customer is in full compliance therewith. In the event of any inconsistencies between this Agreement
and the Usage Policy, the terms of the Usage Policy shall govern.
- GUARANTEE
Each of Tivilon's hosting plans hereunder carries a 30-day unconditional money back guarantee. If
Customer is not completely satisfied with Tivilon's services provided hereunder within the first
30 days of the Initial Term, Customer will be given a full refund of any amounts paid to Tivilon
hereunder excluding setup fees (unless canceled prior to activation), domain registration fees
and overages. No refund is available after the 30th day of the Initial Term.
- NOTICE
All notices must be sent either in writing or by e-mail, except as otherwise expressly provided
herein that a notice must be in writing. All notices to Tivilon shall be delivered to Tivilon,
Inc., General Counsel, P.O. Box 854, College Park, MD 20741-0854. All notices to the Customer
shall be delivered to its mailing address or its e-mail address as provided on the Order. The
parties may change their respective address by notice delivered to the other party. All notices
delivered in writing must be sent either by overnight courier or certified mail, return receipt
requested. The delivering party must retain evidence of successful transmission of all notices
delivered by e-mail.
- MISCELLANEOUS
This Agreement sets forth the entire agreement between Tivilon and Customer with respect to the
subject matter hereof and supersedes all previous representations, understandings or agreements
and shall prevail notwithstanding any variance with terms and conditions of any other prior
writing between the parties. If any provision of this Agreement is held to be invalid by a
court of competent jurisdiction, then the remaining provisions shall nevertheless continue in
full force and effect. Customer may not transfer or assign this Agreement without Tivilon's
prior written consent. This Agreement shall be governed by the laws of the State of Maryland
and all claims concerning this Agreement shall be brought exclusively in the state or federal
courts located in Baltimore City. The parties hereby consent to submit to the
jurisdiction of such courts and waive any personal jurisdiction or venue defenses concerning
said forum. If not for personal use, Customer hereby represents and warrants to Tivilon that
the he or she is duly authorized to execute and deliver this Agreement on behalf of the legal
entity to whom the benefit of the service is being conferred, and that such entity will comply
with and be bound by the terms and conditions of this Agreement.
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