Terms of Service
This agreement (this "Agreement") is between TiVaHost and the person who submits TiVaHost's order form (the "Order") incorporating this Agreement by reference ("the Customer"). This Agreement governs the use of TiVaHost's hosting platform, e-mail services, and any other services provided to the Customer by TiVaHost.
Subject to the terms of this Agreement, and contingent on TiVaHost's approval requirements, TiVaHost agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that TiVaHost generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew unless TiVaHost or Customer provides the other with written notice of non-renewal through the customer center which is located at https://my.tivahost.com. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be monthly, quarter, semi-annually, annually, or bi-annually as indicated on the Order, beginning on the Service Commencement Date. TiVaHost may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes TiVaHost to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise TiVaHost will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 7th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in Canadian dollars. Customer is responsible for providing TiVaHost with changes to billing information (such as credit card expiration, change in billing address). TiVaHost may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay TiVaHost's reasonable reinstatement fee following a suspension of service for non-payment, and to pay TiVaHost's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases.
TiVaHost may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty-five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
Refunds are only valid on the initial term for shared web hosting packages. Refunds are not available on any other services not listed here. Refunds are not available on account renewals.
At times when a Credit is issued to an account for any reason, this credit is non-refundable. Furthermore, any positive credit balance on an account at the time of account termination is immediately forfeited.
All disputes and overcharges must be reported directly to the Company, in writing, within thirty (30) days. Any Customer that initiates a chargeback, reversal, retrieval request, or other dispute with their credit card issuing bank and/or PayPal ("Dispute") will be immediately suspended or terminated pending investigation.
Your use of TiVaHost Coupon Codes is subject to the following conditions:
- Coupon codes provided to you by TiVaHost Web Hosting (TiVaHost) or its partners or affiliates (the "Coupon Codes") will have the value, exclusions and limitations as notified to you at the time you were provided with the Coupon Code, and may be valid for limited periods.
- The Coupon Code is valid only for qualifying purchases made on the Site. A qualifying purchase means the purchase of the specified product or services in accordance with the conditions notified to you at the time you were provided with the Coupon Code.
- A Coupon Code may only be used once per qualifying transaction and is applied to the transaction as a whole. The Coupon Code can only be used during the Promotion Period. If a Coupon Code is no longer valid upon entry, you will be notified.
- To redeem the Coupon Code, you simply type the Coupon Code into the Promotional Code field in the check-out section of the Site, click the Apply Code button and the relevant discount will be automatically deducted from the final price of your qualifying purchase. If you fail to enter the Coupon Code at the time of purchase as specified above, your purchase will not be eligible for the discount.
- Discounts may not be claimed after you have confirmed your purchase on the Site.
- You may not redeem or exchange the Coupon Code or applicable discount for cash. You may not use or combine the Coupon Code with any other Promotions or Promotional codes unless permitted by TiVaHost.
- If you do not use any amounts available in the Coupon Code, you will forfeit such amounts.
- If your purchase exceeds the amount of the Coupon Code, you must pay for the balance.
- If you wish to change a product or service ordered using a Coupon Code after the Promotion Period, you will be required to pay the difference in price between your current product or service and the product or service you wish to upgrade to.
- If lost or stolen, the Coupon Code will not be replaced, except at the discretion of TiVaHost.
- TiVaHost prohibits the posting of the Coupon Code on the Internet or any public forum, or the forwarding or giving of the Coupon Code to any other person.
- In the event that a Coupon Code is not functional, your sole remedy, and the sole liability of TiVaHost, shall be the replacement of the non-functioning Coupon Code.
- In the event of any violation of these Terms and Conditions, TiVaHost reserves all of the rights and remedies available to TiVaHost, including without limitation, charging you for the amount of the discount obtained by your use of the Coupon Code, cancelling your product or service without a refund to you, and all other remedies available to TiVaHost.
- If a coupon is used and your entire order is cancelled or rejected, subject to our Refund Policy, you will be refunded the actual amount paid and your coupon will no longer be valid.
- TiVaHost reserves the right to change the Coupon Code and these Terms and Conditions from time to time in its sole discretion and to modify, suspend or cancel any Coupon Code or related Promotion at any time.
Customer agrees to use the service in compliance with applicable law and TiVaHost's Acceptable Use Policy (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that TiVaHost may, in its reasonable judgment, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of TiVaHost's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with TiVaHost's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between TiVaHost and Customer regarding the interpretation of the AUP, TiVaHost's reasonable interpretation of the AUP shall govern.
5. Customer Information
Customer represents and warrants to TiVaHost that the information that has been provided, and will provide to TiVaHost for purposes of establishing and maintaining the service, is accurate. TiVaHost may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contact.
Customer agrees to indemnify and hold harmless TiVaHost, TiVaHost's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.
7. Disclaimer of Warranties
TIVAHOST DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW TIVAHOST DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
8. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF TIVAHOST AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
(a) Suspension of Service.
Customer agrees that TiVaHost may suspend services to Customer without notice and without liability if: (i) TiVaHost reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) TiVaHost reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay TiVaHost's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if TiVaHost fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by TiVaHost prior to the expiration of the Initial Term or any Renewal Term, or anytime thereafter, without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within three (3) days of a written notice from TiVaHost describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
10. Requests for Customer Information
Customer agrees that TiVaHost may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's end users that TiVaHost believes violates applicable law, and (ii) provide any information that it has about Customer or any of its end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by TiVaHost notwithstanding any agreement by TiVaHost to provide back up services.
Backups will not be provided for accounts which are suspended due to non-payment. If an account is suspended for a breach of TiVaHost's Acceptable Use Policy backups may be provided, at TiVaHost's sole discretion, only after the fee for such backups has been paid.
12. Changes to TiVaHost's Network
Upgrades and other changes in TiVaHost's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. TiVaHost reserves the right to change its network in its commercially reasonable discretion, and TiVaHost shall not be liable for any resulting harm to Customer. In cases where such changes have been pre-planned TiVaHost will endeavour to provide as much advance notice to the Customer as possible.
Notices to TiVaHost under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on https://my.tivahost.com/contact.php . Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
14. Force Majeure
TiVaHost shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond TiVaHost's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15. Governing Law/Disputes
The Agreement shall be governed by the laws of the Province of Newfoundland & Labrador, exclusive of its choice of law principles, and the laws of Canada, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE PROVINCIAL AND FEDERAL COURTS IN ST. JOHN'S, NEWFOUNDLAND & LABRADOR, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on TiVaHost unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The headings in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Customer may not transfer the Agreement without TiVaHost's prior written consent. TiVaHost's approval for assignment is contingent on the assignee meeting TiVaHost's approval criteria. TiVaHost may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.
17. Refuse Service
TiVaHost reserves the right to refuse service to any active or inactive customers for any reason it deems necessary.
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