- This Agreement is intended to cover any and all services made available to the Subscriber by Avivasoft. In the event that any terms set forth herein apply specifically to a service available but not used by Subscriber, such terms shall not apply to Subscriber. The specific service fee of each service to be provided by Avivasoft to the Subscriber is identified in each Order Form. Any Order Form submitted by Subscriber in writing or online and accepted by Avivasoft is hereby incorporated by reference into this Agreement.
- Avivasoft may revise the terms and conditions of this Agreement and change the Services provided under this Agreement from time to time in its sole discretion. Subscriber agrees to be bound by any such revision or change which shall be effective upon posting at http://www.avivasoft.com. Subscriber agrees to review this Agreement as posted at the abovementioned location periodically to maintain an awareness of any revisions.
1.2 Definitions & Interpretation
2. DELIVERY OF SERVICES; TERMS; FEES
- "Advance Payment" means a non-refundable prepayment (payable within 3 Working Days from the date on which Avivasoft accepted the Order Form submitted by Subscriber) of service fee made by Subscriber to Avivasoft which will be utilized in settling the service fee due by Subscriber to Avivasoft from Service Commencement Date.
- "Avivasoft System" means Avivasoft's equipment and / or servers used to store Material.
- "Avivasoft Technology" means Avivasoft's proprietary technology, including the Services, software tools, hardware designs, algorithms, software in source and object forms, user interface designs, architecture, class libraries, objects and documentation , network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Avivasoft or licensed to Avivasoft from a third party) and also including any derivatives through out the world, improvements, enhancements or extensions of any of the foregoing conceived, or developed during the term of this Agreement by Avivasoft.
- "Domain Name Services" means the service term as specified in Section 10.
- "Extended Term" means the service term following the Initial Term as specified in Section 2.2.
- "Initial Term" means the minimum term for which Avivasoft will provide the Service(s) to Subscriber, as indicated on the Order Form.
- "Material" means the text, data, graphics, photographs, music, video, software, website and other material of or licensed to Subscriber and Qualified Customer that are stored on Avivasoft System.
- "Qualified Customer" means any entity or individual and its users using the Services provided by Subscriber or reseller (who resells the Services provided by Avivasoft to Subscriber) of Subscriber. It is understood that a Qualified Customer is NOT a customer of Avivasoft, it is a customer of either the Subscriber or reseller of Subscriber.
- "Service Commencement Date" means with respect of each Service, the date (Hong Kong time GMT +8) Avivasoft will begin providing the Service to Subscriber.
- "Service Fee Deposit" means the service fee deposit specified in the Order Form (payable within 3 Working Days from the date on which Avivasoft accepted the Order Form submitted by Subscriber), which will be refunded to Subscriber pursuant to Section 3.6.
- "Service(s)" means the service(s) provided by Avivasoft as indicated on the Order Form and any change of such service(s) from time to time.
- "Subscriber" means any entity or individual using the Services provided by Avivasoft through a contractual agreement with Avivasoft directly.
- "Working Day" means a day on which banks in Hong Kong are open for business.
2.1 Delivery of Services
- General. By submitting an Order Form, Subscriber agrees to take and pay for, and, by accepting the Order Form, Avivasoft agrees to provide, the Service(s) during the Initial Term and for any Extended Term. Any time or date for delivery of Service(s) given by Avivasoft is given in good faith but is an estimate only, Avivasoft will in no event be liable for any costs, charges, losses or expenses of any kind arising out of delay in meeting installation, delivery or performance date. The estimated delivery of each Service is counting from the date after Avivasoft received any applicable Service Fee Deposit and / or Advance Payment from Subscriber indicated on the Order Form.
3. PRICING AND PAYMENT TERMS
- Term Commencement. The term for each Service will commence on the Service Commencement Date when Avivasoft begins providing each Service to Subscriber.
- Extended Term. Each Service will continuously be provided by Avivasoft to Subscriber, who shall pay in accordance with the terms of this Agreement upon expiry of the Initial Term unless thirty (30) days prior written notice is given by either party. Avivasoft may change the prices for any Service after the Initial Term effective thirty (30) days after providing notice to Subscriber.
3.1 Fees and Expenses
- In respect of each Service, Subscriber will pay all fees due according to the terms listed in the Order Form. The prices listed in the Order Form will remain in effect during the Initial Term and any Extended Term, unless modified in accordance with Section 2.2(B).
3.2 Payment Terms
Monthly charges will start counting from the Service Commencement Date. Subscriber will be billed an amount equal to all non-recurring and recurring charges indicated in the Order Form per calendar month basis. Monthly service fees are charged on a pro-rata basis in arrear of the provision of relevant Service. All pro-rata fees will be calculated on a 30-day month basis (number of days in service / 30 days x monthly service fee), regardless the actual number of days in any calendar month. Payment for all fees is due upon receipt of each Avivasoft invoice.
3.3 Late Payments
Any payment not received within fifteen (15) days of the invoice date will accrue interest, calculated on a daily basis, at a rate of two (2%) percent per month, or the highest rate allowed by applicable law, whichever is lower, until payment in full is received by Avivasoft. If Subscriber is default in its payments, Avivasoft may, upon notice to Subscriber, suspend or terminate the Service. Re-activation of suspended or terminated account is subject to the then published services charges
All fees charged by Avivasoft for Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Subscriber will be responsible for and will pay in full, except for taxes based on Avivasoft's net income.
3.5 Disputed Charges
In the event Subscriber disputes any portion of an Avivasoft's invoice, Subscriber must pay the entire bill and submit a claim for the disputed amount. All claims must be submitted in writing to and acknowledged by Avivasoft within thirty (30) days of invoiced date. Subscriber agrees that invoiced amounts not disputed within the 30-day period shall be deemed undisputed and accepted by Subscriber.
3.6 Service Fee Deposit
4. INTELLECTUAL PROPERTY OWNERSHIP; LICENSE GRANTS
The Service Fee Deposit is interest free and refundable within 30 days from termination of Services after deduction of all fees due to Avivasoft. The Service Fee Deposit does not relieve the Subscriber from its obligation to pay amounts to Avivasoft as they become due and payable, nor does it enable the Subscriber to make allowance by way of set off, deduction or withholding from such amount.
4.1 Intellectual Property
Ownership. Except for the rights expressly granted herein and the assignment expressly made in Section 4.2, this Agreement does not transfer from Avivasoft to Subscriber any Avivasoft Technology, and all right, title and interest in and to Avivasoft Technology will remain solely with Avivasoft. Subscriber agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Avivasoft.
4.2 License Grants
5. WARRANTY; PRIVACY
License. Avivasoft hereby grants to Subscriber a nonexclusive, royalty-free license, during the term of this Agreement, to use the Avivasoft Technology and / or Avivasoft System solely for purposes of using the Service(s). Avivasoft further grants to Subscriber the right to sub-license the Services to Qualified Customer on an "as is" and "as available" basis. Subscriber shall have no right to use or sub-license the Avivasoft Technology and / or Avivasoft System for any purpose other than using the Service(s).
Agreement with Qualified Customer. Subscriber accepts that the right to sub-license the Services is subject to its consent to execute agreements with Qualified Customers that are not materially less protective of Avivasoft's rights than the terms of this Agreement. Subscriber is prohibited from and will preclude its resellers from offering any warranties with respect to the Services and/or the Services in the name of Avivsoft, unless it is agreed in writing.
- Avivasoft warrants the Subscriber that the relevant Service will be provided on a 24 hours x 7 days basis on all days and in respect of each Service during the Initial Term or Extended Term as the case may be, excluding outages resulting from (i) interruption due to scheduled maintenance, alteration, modification, or implementation; (ii) negligence or other conduct of Subscriber or its agents or Qualified Customer, including a failure or malfunction resulting from equipment, applications or services provided by Subscriber or Qualified Customer; (iii) shut down due to circumstances reasonably believed by Avivasoft to be a significant threat to the normal operation of the Services, Avivasoft System, Avivasoft Technology or access to or integrity of Material (e.g. hacker or virus attack, spamming); (iv) failure or malfunction of any equipment or services not under the sole control of Avivasoft; or (v) other circumstances beyond the reasonable control of Avivasoft.
6. SUBSCRIBER OBLIGATIONS
- Avivasoft will not sell, rent, disclose personally identifiable information of Subscriber and Qualified Customer to third party, nor intentionally monitor any Material except it is required by law, in accordance with the terms of this Agreement, to protect the integrity and operation of the Service, or with express permission of the Subscriber or Qualified Customer.
6.1 Subscriber Warranties
7. LIMITATIONS OF LIABILITY & DISCLAIMER
General. Subscriber represents and warrants that (i) it will use the Services only for lawful purposes and in accordance with this Agreement, and comply at all times with all applicable laws and regulations. Subscriber acknowledges that neither Avivasoft exercises any control of nor monitor Material and that it is the sole responsibility of Subscriber to ensure that the information it and Qualified Customer transmit, distribute or store complies with all applicable laws and regulations; (ii) it may not transmit, distribute, or store any material in violation of any applicable law or regulation. This includes, without limitation, material protected by copyright, trademark, trade secret or intellectual property right used without proper authorization and material that is obscene, defamatory or constitutes an illegal threat; (iii) it may not circumvent user authentication or security of any host, network, or account (referred to as "cracking" or "hacking"), nor interfere with service to any other use, host, or network (referred to as "denial of service attacks'); (iv) it will not use any application or attempt by whatever means to overloads the Avivasoft host computers, network hubs and / or point of presence.
- Account, Password and Security. Subscriber will receive a password and account designation on or before Service Commencement Date. Subscriber warrants that it will maintain the confidentiality of the password and account, and is fully responsible for all of its and Qualified Customers' activities. Subscriber agrees to notify Avivasoft immediately of any unauthorized use of its or Qualified Customers' passwords or accounts or any other breach of security.
- Breach of Warranties. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Avivasoft will have the right, in its sole discretion, to suspend or terminate immediately any Services if deemed necessary.
- Disclaimer. The Service is provided on an "as is" and "as available" basis. Avivasoft does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non infringement, and any warranties arising from a course of dealing, usage, or trade practice. Avivasoft does not warrant that the Services will be uninterrupted, error-free, timely or completely secure. Avivasoft further disclaims liability of any loss or damage (including loss of Material) suffered by Subscriber or Qualified Customers arising directly or indirectly from configuration or installation activities conducted by Avivasoft or through delivery or use of the Services.
- Avivasoft's liability in contract, tort or otherwise (including negligence) however arising out of or in connection with this Agreement, in respect of any single or multiple incidents, will be limited to the paid service fees in the month in which the incident occurs.
- Avivasoft & Subscriber acknowledge and agree that Qualified Customers shall purchase the Services under contracts with Subscriber and that Avivasoft shall have no contractual interest in such customer relationships.
- Consequential Damages Waiver. In no event will either party be liable or responsible to the other for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise.
9. TERMINATION & SUSPENSION OF SERVICES
- Indemnification. To the extent allowed by law, the Subscriber agrees to indemnify and hold Avivasoft and its parents, subsidiaries, affiliates, officers, sponsors, partners, and employees, harmless from any claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of Material Subscriber submits, posts, transmits or makes available through the Service, its use / connection to the Service, its violation of the Agreement, or its violation of any rights of any other party.
9.1 Termination for Cause
- Either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and, in the case of a remediable breach, fails to remedy within thirty (30) days after receipt notice of the same. For these purposes, a failure by the Subscriber to pay any outstanding service fees to Avivasoft within 15 days after they are due will constitute a material breach. Termination of this Agreement will not relieve either party of any liability for breach of this Agreement; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
9.2 Effect of Termination
- Avivasoft will repossess all Internet Protocol (IP) addresses allocated to the Subscriber in connection with this Agreement, if any.
- After fifteen (15) Working Days of such termination, Avivasoft may erase Material from the Avivasoft System at its sole discretion.
- The following provisions will survive any expiration or termination of the Agreement: Sections 3, 4, 6, 7, 8, 9, 10 and 11.
9.4 Early Termination
10. DOMAIN NAME SERVICES
- If this Agreement is terminated before the expiry of the Initial Term or Extended Term for any reason other than Section 11.1, Subscriber shall be liable to pay an early termination fee to Avivasoft equal to one hundred percent (100%) of the service fee for the Services payable from the date of early termination to the date of the expiry of the Initial term or Extended Term.
11. MISCELLANEOUS PROVISIONS
- Avivasoft is a service partner of (1) Hong Kong Domain Name Registration Company Ltd. (HKDNR), which is the registry & registrar of domain names under .hk country code top level domain, and (2) Web Commerce Communications Ltd., which is an ICANN accredited domain registrar for all the Generic Top Level domain (gTLD) like .com, .net, .org, .biz, .info, .name, etc., registration services and certain country code top level domains (ccTLD), like .cn, .com.tw, etc. Subscriber accepts that all domain name services under .hk (.com.hk, .org.hk, .net.hk, .gov.hk, .edu.hk, .idv.hk or .hk) are subject to the terms and conditions of this Agreement and the Registration Agreement issued by HKDNR located at HTTP://WWW.HKDNR.NET.HK and all other domain name services are subject to the terms and conditions of this Agreement and the Registration Agreement of Web commerce Communications Ltd. located at http://www.webnic.cc
- Avivasoft makes no representation and gives no warranty to Subscriber of the availability of any chosen domain name for registration or use, even if an inquiry suggests that the domain name is available.
- Subscriber undertakes to investigate if its registration or use of the chosen domain name infringes legal rights of others and agrees to indemnify Avivasoft against all claims arising out of the registration and use of the chosen domain name.
- Subscriber acknowledges that it is its obligation to renew domain name registration. Unless it is authorized by Subscriber, Avivasoft will not take the initiative to renew domain name registration for Subscriber. Non renewal of domain name registration is subject to cancellation.
- Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, governmental act or failure of the Internet (not resulting from the actions or inactions of Avivasoft), provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If Avivasoft is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, Subscriber may cancel the Service(s).
Governing Law. This Agreement is governed in all respects by and shall be construed in accordance with the laws of Hong Kong Special Administrative Region and the parties hereby submit themselves to the exclusive jurisdiction of Courts of Hong Kong Special Administrative Region in the event of any dispute.
Severability; Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
Assignment. Neither party may assign its rights or duties under this Agreement without the prior written consent of the other; provided that either party may assign all or part of its rights or duties under this Agreement on notice to the other party to an entity that controls, is controlled by or is under common control with the assigning party or to an entity that acquires substantially all of the assets of the assigning party, or to any successor in interest without the prior written consent of the other party. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
Notice. Any notice or communication in connection with this Agreement must be in writing and must be (i) left at the address, (ii) send by prepaid post to the address, (iii) sent by facsimile to the facsimile number, or (iv) posted on the pages within the Service or send by electronic mail; of the latest known street address or facsimile number or electronic mail address of the receiving party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.
Relationship of Parties. Avivasoft and Subscriber are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Avivasoft and Subscriber.
Gender & Number. The masculine gender shall include the feminine and neuter and the singular number shall include the plural & vice versa.
Internet Protocol Address. The Subscriber acknowledges that any IP Address allocated to the Subscriber in connection to the Service is not portable, nor transferable. The Subscriber further acknowledges that it has no right, title or interest in it, except for the rights granted herein and its use of IP Address is governed by this Agreement.
Entire Understanding. This Agreement, and with the Order Form(s) submitted by Subscriber and accepted by Avivasoft, represents the entire understanding between Avivasoft and Subscriber with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations and agreements, written and oral, regarding such subject matter.
Official Language. Web pages of the Services, site contents of Aviavsoft, communications between the parties, etc. which are translated from English to other languages may contain errors / omissions. If for any reason the translated text is incorrect, or misleading, the English text shall be deemed as official.