SERVICES This Service Agreement ("Agreement") applies to the purchase from Lavabox of all services (collectively, the "Services") selected by Customer on the Order Form and the Domain Name Registration Form, as applicable, incorporated by reference and attached hereto. Lavabox reserves the right to modify its network and facilities used to provide the Services for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced services. LAVABOX shall use reasonable efforts to notify Customer of any planned changes to LAVABOX's network or facilities that may adversely affect the Services provided hereunder. This agreement does not apply to customers which resell LAVABOX services. Such resellers must sign the LAVABOX Reseller Agreement.
TERM This Agreement shall be for the term specified by Customer on the Order Form (the "Initial Term"). This Agreement will be automatically renewed, at the end of the Initial Term, on the same basis at then current rates unless either party provides thirty (30) days written notice to the other of termination of this Agreement prior to the end of the then current term. The Initial Term and all extensions thereof are collectively referred to herein as the "Term" of this Agreement.
a) Pricing: During the term of this Agreement, Customer shall pay the fees for the Services that are set forth on the Order Form and Domain Name Registration Form, as applicable. Such fees may include taxes, fees or assessments by governmental agencies and LAVABOX shall have the right, at any time, to pass through and invoice to Customer any new or increased taxes, fees, assessments or other charges imposed on or required to be collected by LAVABOX by any governmental agency. b) Terms Of Payment: Recurring charges must be paid for in advance either by Annual Billing or by automated credit card billing. Credit card charges will be posted on or around the First of the month. The Customer will receive a copy of the charges summary by email. c) Service Continuation After Initial Term: The fees set forth in the Order Form or Domain Name Registration Form are guaranteed during the Initial Term of this Agreement. If Customer continues to receive the Services after the Initial Term without entering into a new agreement or agreement extension, the fees charged after the Initial Term shall be at the then standard LAVABOX rates for such services, without discount, determined month to month. d) Service Charges: Late Payment: Customer will pay a late payment charge equal to 1.5% (or the highest amount permitted by law, whichever Is lower) per month or portion thereof on the outstanding balance of any invoice remaining unpaid thirty (30) days after the date upon which payment is due. NSF Cheque: There will be a $20 charge for all cheques returned NSF. Credit Card Declined: If, for any reason the credit card on file with Lavabox is declined, a $20 service charge will result. e) Suspension Or Interruption Of Service For Non-Payment: In the event Customer's account becomes past due, or is otherwise deemed insecure, LAVABOX may, in its sole discretion, suspend, interrupt or disconnect the Services. In the event of such suspension, interruption or disconnection, Customer may be required to post a deposit or such other security, as Lavabox deems necessary in order to resume receiving the Services. In addition, if LAVABOX in its sole discretion, deems Customer to be financially insecure, LAVABOX may require such other action of Customer, including letters of credit, security deposit(s), restrictions on available credit or other action as LAVABOX may require from time to time regardless of Customer's then-current status or payment history. Failure to satisfy LAVABOX's request for such action within timelines set by Lavabox may result in immediate termination of service without further notice.
a) Pricing: During the term of this Agreement, Customer shall pay the fees for the Services that are set forth on the Order Form and Domain Name Registration Form, as applicable. Such fees may include taxes, fees or assessments by governmental agencies and LAVABOX shall have the right, at any time, to pass through and invoice to Customer any new or increased taxes, fees, assessments or other charges imposed on or required to be collected by LAVABOX by any governmental agency.
b) Terms Of Payment: Recurring charges must be paid for in advance either by Annual Billing or by automated credit card billing. Credit card charges will be posted on or around the First of the month. The Customer will receive a copy of the charges summary by email.
c) Service Continuation After Initial Term: The fees set forth in the Order Form or Domain Name Registration Form are guaranteed during the Initial Term of this Agreement. If Customer continues to receive the Services after the Initial Term without entering into a new agreement or agreement extension, the fees charged after the Initial Term shall be at the then standard LAVABOX rates for such services, without discount, determined month to month.
d) Service Charges:
Late Payment: Customer will pay a late payment charge equal to 1.5% (or the highest amount permitted by law, whichever Is lower) per month or portion thereof on the outstanding balance of any invoice remaining unpaid thirty (30) days after the date upon which payment is due.
NSF Cheque: There will be a $20 charge for all cheques returned NSF.
Credit Card Declined: If, for any reason the credit card on file with Lavabox is declined, a $20 service charge will result.
e) Suspension Or Interruption Of Service For Non-Payment: In the event Customer's account becomes past due, or is otherwise deemed insecure, LAVABOX may, in its sole discretion, suspend, interrupt or disconnect the Services. In the event of such suspension, interruption or disconnection, Customer may be required to post a deposit or such other security, as Lavabox deems necessary in order to resume receiving the Services. In addition, if LAVABOX in its sole discretion, deems Customer to be financially insecure, LAVABOX may require such other action of Customer, including letters of credit, security deposit(s), restrictions on available credit or other action as LAVABOX may require from time to time regardless of Customer's then-current status or payment history. Failure to satisfy LAVABOX's request for such action within timelines set by Lavabox may result in immediate termination of service without further notice.
ACCEPTABLE USES Customer shall at all times adhere to the LAVABOX Acceptable Use Policy ("AUP") located at http://www.Lavabox.com, as amended from time to time by LAVABOX effective upon posting of the revised policy at the URL. Notwithstanding anything to the contrary contained herein, LAVABOX may immediately take corrective action, including disconnection or discontinuance of any and all Services, or terminate this Agreement in the event of notice of possible violation by Customer of the LAVABOX AUP. In the event LAVABOX takes corrective action due to a violation of the LAVABOX Acceptable Use Policy, LAVABOX shall not refund to Customer any fees paid in advance of such corrective action.
CANCELLATION POLICY Customer may terminate this Agreement by giving LAVABOX at least thirty (30) days prior written notice. However, if LAVABOX has purchased equipment on behalf of Customer, including but not limited to circuit and router, Customer shall assume responsibility for payments for such equipment, until paid in full. In order to terminate early, Customer's primary contact person on the account should notify LAVABOX of such request to do so. In the case of credit card orders, all termination requests should be signed by Customer's primary contact person on the account who must provide the last four digits of the credit card on file with LAVABOX. However, LAVABOX shall not be liable for unauthorized termination of an account. Any termination by LAVABOX or Customer shall not relieve Customer of any obligations to pay fees accrued prior to such termination. LAVABOX reserves the right to terminate or modify this Agreement without cause prior to the end of the term upon sixty (60) days written notice to Customer.
IP ADDRESS OWNERSHIP LAVABOX shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by LAVABOX and LAVABOX reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
BANDWIDTH AND/OR DISK USAGE Customer agrees that bandwidth and/or disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form. LAVABOX shall monitor the customer's usage. If bandwidth or disk usage exceeds the agreed upon number of megabytes per month, LAVABOX, in its sole discretion, may assess additional standard charges, disconnect or discontinue any and all Services, or terminate this Agreement. In the event that LAVABOX elects to take such action, Customer shall not be entitled to a refund of any fees paid in advance of such corrective action.
DISCLAIMER OF WARRANTY Customer acknowledges and agrees that Lavabox exercises no control whatsoever over the content, accuracy or quality of the information passing through its network or any products ordered by Customer via its network. The Services and any information or products obtained by Customer through the Services are provided "AS IS" without any warranties whatsoever, express or implied. The warranties of merchantability and fitness of the Services, such information and products for a particular purpose are hereby specifically disclaimed.
INDEMNIFICATION Customer will indemnify, save harmless, and defend LAVABOX and all directors, officers, employees, and agents of LAVABOX (collectively "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys' fees) arising out of or relating to the use of the Services by Customer, including any violation of the LAVABOX Acceptable Use Policy. Such claims shall include, but shall not be limited to, claims based upon trademark ,service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.
LIMITATION OF LIABILITY IN NO EVENT SHALL LAVABOX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, SUFFERED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF LAVABOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will LAVABOX's liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by Customer for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
FORCE MAJEURE LAVABOX shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, 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, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
INTELLECTUAL PROPERTY Customer represents and warrants that Customer's use of the Services shall not infringe the intellectual property or other proprietary rights of LAVABOX or any third party. Customer further acknowledges that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of LAVABOX (collectively, "LAVABOX Intellectual Property") is vested in LAVABOX and/or in LAVABOX's licensors. Unless otherwise specifically provided in this Agreement, Customer shall have no right, title, claims or interest in or to the LAVABOX Intellectual Property. Customer may not copy, modify or translate the LAVABOX Intellectual Property or related documentation, or decompile, disassemble or reverse engineer the LAVABOX Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so.
CONFIDENTIAL INFORMATION Each party acknowledges that, in the course of the performance of this Agreement, it may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of the other party ("Confidential Information"). Except as provided in LAVABOX's Acceptable Use Policy (AUP), each party agrees to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this Agreement.
Customer further agrees and acknowledges that LAVABOX may disclose Customer account information in accordance with LAVABOX's AUP, located at http://www.Lavabox.com, as amended from time to time by LAVABOX effective upon posting of the revised policy at the URL.
CUSTOMER DATA. Lavabox.com provides temporary storage of Customers data. However, Lavabox.com shall have no responsibility for failure to backup, or loss of, any of Customers data. Customer is responsible for its content residing on LAVABOX servers, and except as otherwise agreed with LAVABOX, for the backup thereof.
GOVERNING LAW. The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of British Columbia, Canada.
ENFORCEMENT OF AGREEMENT In the event it is necessary for LAVABOX to enforce its rights under this agreement, Customer agrees to pay all fees incurred by LAVABOX (including, but not limited to, attorney's fees and collection agency fees) AMENDMENT OR WAIVER Except as otherwise provided herein, this Agreement may not be amended except upon the written consent of Customer and an officer of LAVABOX. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself. ASSIGNMENT AND SEVERABILITY This Agreement shall be binding upon and inure to the benefit of Customer, LAVABOX and our respective successors, and assigns. Customer may not assign this Agreement without the prior written consent of LAVABOX, which consent will not be unreasonably withheld. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect. NOTICES All notices to Customer hereunder shall be given at the Billing Address provided on the signature page hereto. All notices to LAVABOX hereunder shall be given to:
LAVABOX1445 McGill Rd., Suite 2AKamloops, BC, V2C 6K7, CANADAFacsimile: 250-374-0915
Any notice hereunder shall be in writing and shall be given by registered, certified or Express mail, or reliable overnight courier addressed to the addresses in this Agreement, or by facsimile. Notice shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid.
ENTIRE AGREEMENT This Agreement, and any other document or agreements specifically identified in this Agreement, supercedes all previous representations, understandings or agreements.
ACCEPTANCE OF SERVICES ACCEPTANCE OF THIS AGREEMENT BY LAVABOX MAY BE SUBJECT, IN LAVABOX'S ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK AND CONTINUED CREDIT WORTHINESS OF CUSTOMER. ACTIVATION OF SERVICE SHALL INDICATE LAVABOX'S ACCEPTANCE OF THIS AGREEMENT. USE OF THE LAVABOX NETWORK CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER HAS FULL AUTHORITY AND RIGHT TO ENTER INTO THIS AGREEMENT. CUSTOMER FURTHER REPRESENTS AND WARRANTS THAT CUSTOMER IS AT LEAST 18 YEARS OF AGE.