The Vivio

Master Service Agreement (MSA)

In this agreement (“Agreement”), Vivio Technologies (“Vivio”, “we”, “us”) agrees to furnish products and services (the “Service”, “Services”) to the subscriber of Services (“client”, “customer”, “you”, “your”), subject to the following terms (“TOS”).

Vivio reserves the right to change this Agreement at any time. Such changes, modifications, additions or deletions shall be effective immediately upon posting on-line at this location. You acknowledge and agree that it is your responsibility to review this site and this Agreement periodically and to be aware of any modifications. Your continued use of the services after such modifications will constitute your:

  1. Acknowledgment of the modified Agreement; and
  2. agreement to abide and be bound by the modified TOS.

If you do not agree to these terms, cancel your services as described in these terms.

This Agreement contains provisions that you are required to pass on to your customers (“end users”) should you have them. It is your responsibility to ensure that these provisions are included in contracts and other agreements with your End Users. You are responsible for your End Users under this Agreement.

General Terms

Headings

The section headings appearing in this Terms of Service Agreement are used only for convenience and in no way define, limit, construe or describe the scope or extent of a section or in any way affect a section.

Service and Term

The pricing, features and term of the products and services you purchase from us are set out on the web page on which the particular products and/or services are described (the “Description Page”). The “Effective Date” is the date in which the service was activated. The Services are provided to you based on the Description Page as of the Effective Date and will continue to renew automatically until either party terminates this Agreement as described in the Termination clause of this Agreement.

Vivio Technologies will provide to you the Services as it was depicted on the Description Page as of the Effective Date. If the contents of the Description Page change during the term of your service, Vivio is under no obligation to modify your service based on the changes in the Description Page or to notify you of such changes. It is your responsibility to review the Description Page periodically and to notify Vivio if you would like your Service updated to match the Description Page.

Vivio will make every reasonable effort to make Services available to you, however, Vivio reserves the right to modify the Service or the way in which we provide them to you at any time for any reason.

Vivio reserves the right to refuse service to anyone for any reason.

Vivio will make every reasonable effort to make services accessible to you as quickly as possible. Should Vivio delay initial access to services for any reason, you agree that Vivio cannot be held liable for any damage caused by the delay.

Vivio reserves the right to publicize that you, your domain, or your web property is hosted on our servers or in our facility.

Certain aspects of the Service may be provided by third parties or third party software. These third parties may have reserved the right to make changes, including material changes, to the service or software that they provide. If a third party makes a change to its service or software, you agree that this change does not terminate or nullify this Agreement, in whole or in part, based on such a change, even if it materially affects the Service.

Eligibility

By using services provided by Vivio Technologies, you warrant and represent the following:

  1. That you are eighteen (18) years of age or older and able to enter into this Agreement with Vivio. Any use of Vivio services by anyone under the age of eighteen (18) years of age is a violation of this agreement and may result in immediate termination.

  2. If you are signing up for services on behalf of another party, you agree that you are authorized to bind the other party to this Agreement.

Service Ownership

When you sign up for a product or service, Vivio will request (through our website or other means) that you provide the full legal name, company name, telephone number, email address, and mailing address (collectively “Billing Data”) of the individual and/or company responsible for paying for the services being provided to you by Vivio.

When you provide us with this Billing Data, you agree and attest that:

  1. The information you are providing is true, accurate, current, and complete.
  2. That you will maintain and update the Billing Data as often as necessary so that it will remain true, accurate, current, and complete.
  3. That your use of Vivio services will not violate any applicable laws.

Should Vivio discover, be made aware of, or have suspicion to believe that any of the Billing Data is untrue, inaccurate, not current, or incomplete, Vivio, at its sole discretion and judgment, may terminate services as outlined in this Agreement with immediate effect and without prior notice.

The highest authority of a Service provided by Vivio is the individual or company identified in the Billing Data associated with the Service (the “Service Owner”). Should a company name be provided in the Service Billing Data, Vivio will consider the company to be the official Service Owner and the individual mentioned in the Billing Data to be a representative of that company.

The Service Owner is responsible for and agrees to assume all liability for:

  1. Management of the Service and all content associated with the Service.
  2. Any and all claims or complaints served upon Vivio in reference to content relating to the Service.
  3. Any and all activity that occurs on or is otherwise associated with the Service.
  4. Payment of all charges invoiced by Vivio resulting from the existence of the Service.

Should a Service’s Billing Data become untrue, inaccurate, out-of-date, or incomplete, you agree that Vivio will have the right, at its sole discretion and judgment, to update the Service Billing Data to what Vivio believes is the most current Billing Data available – even if such an update to the Service Billing Data results in a new Service Owner. Vivio will make every reasonable, good faith effort to ensure the accuracy of the new Billing Data, including, but not limited to, reviewing state or federal documents related to the company referred to in the original Billing Data, the person or company currently paying the invoices on the account, wills and testaments, or other information relating to the account that Vivio deems relevant.

Authorized Users

Service Owners may assign additional individuals to the Service who are able to make authoritative decisions regarding the Service (“Authorized Users”). With the exception of the ability to change the Service Owner, these Authorized Users will have all the same powers and be granted all the same access as the Service Owners regarding actions taken on the account.

While you may provide specific instructions regarding permissions of your Authorized Users, and Vivio will make ever reasonable effort adhere to your specific instructions, you understand and agree that Vivio cannot be held liable should your Authorized User obtain more access to your Service than you requested. You understand and agree that restricting access to your Content and Service is ultimately your responsibility, and you assume full liability for any actions taken on your account and on your content by your Authorized Users.

Change of Service Owner

Vivio reserves the right, at its sole discretion and judgment, to approve or deny any request to transfer ownership of any Service for any reason including, but not limited to, death of the current service owner, transfer of ownership of the Service Owner’s company, etc. Vivio may, at its sole discretion and judgment, request proof that the party requesting ownership transfer be authorized to do so. Failure to provide Vivio with adequate proof of authorization, will result in a denial of the ownership transfer request.

Responsible Use

Services are provided to you in a way that you will have access to configure them as needed. It is your responsibility to configure the Services. Any custom configuration will not be allowed to affect the operation of our network, our provisioning of the Services of other customers, and is otherwise subject to our approval. Vivio, at its sole discretion and judgment, may decide to refuse certain custom configurations from running within our network.

You agree to be fully responsible for all use of your account and for any actions that take place on or through your Services. It is your responsibility to maintain the integrity of your password and security of your Services.

You must use your Service in a responsible manner. You may not disrupt other users of the Service, or our network. If your use of the Service results in any such disruption, Vivio may require you to modify your use of the Service or discontinue use of the Service until such time as your use does not cause such interference.

Server Backups

Vivio Technologies provides Backup Services for many of the services we offer as a courtesy service only. Backup Services are provided on an as-is, as available service only. The Backup Service is designed to act as a supplement to, and not in lieu of your own backup programs. It is your responsibility to configure the Backup Service to your unique needs. Vivio Technologies is not responsible for the completeness, integrity, or freshness of your backup files, nor does Vivio Technologies guarantee that the service will be error-free or fail-safe.

 

Backup Services are provided for disaster recovery purposes only. Should you, or a third party, request that data held in our Backup Services be used for a purpose other then disaster recovery, in litigation for example, Vivio has no obligation to provide that to you. Should Vivio Technologies decide, at our sole and exclusive judgment, or should Vivio be required by law to provide data to you, you expressly authorize to create a backup of your data for use in litigation, and the data will be provided at our convenience and you will be billed at a rate of $250 per hour. You will also be responsible for any attorney’s fees we incur in reviewing, responding to, or producing your data. You may also be required to pay us a retainer fee to secure your obligations.

Third-Party Software

The Services provided by Vivio Technologies may come pre-installed with software owned by a Third-party (“Third-party Software”). If you represent to us that you already have a license to use the Third-party Software, we may require you to provide us with evidence of this license as well as proof of ownership.

You agree that Vivio Technologies is under no obligation to support any Third-party Software in any way. Should Vivio Technologies decide, at its sole discretion and judgment, to offer support for any Third-party Software, that support is not guaranteed or warranted in any way, and does not constitute as an agreement of any kind.

Vivio Technologies reserves the right to prohibit the use of any Third-party Software from within its network.

Material and Product Requirements

You must ensure that all material and data placed on Vivio Technologies’ equipment is in a condition that is “server-ready,” which is in a form requiring no additional manipulation by Vivio Technologies. Vivio Technologies will make no effort to validate any of this information for content, correctness or usability. If your material is not “server-ready”, Vivio Technologies may reject this material. Vivio Technologies will notify you of its refusal of the material and afford you the opportunity to modify the material to satisfy Vivio Technologies’ requirements.

Use of the Services requires a certain level of knowledge in the use of internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Website. You must have the necessary knowledge to create and maintain a website. Vivio Technologies does not provide this knowledge or customer support outside of the Services.

Software Patches

Vivio Technologies may provide software updates, upgrades, bug fixes, or enhancements offered by Third-party Software providers (“Patches”) with or without your requesting Vivio to do so. Patches may also be set to be applied automatically using automated patching systems. Vivio assumes no liability whatsoever for the consequences resulting from the installation of the Patches, or any attempt by us to install or remove the Patches. It is your sole and exclusive responsibility to determine if installation of the Patches will damage your data, or otherwise affect the operation of your services.

IP Addresses

Vivio may assign one or more Internet Protocol addresses (“IP address”) to you for use with your services. At all times and under any circumstance, Vivio retains the right to use that IP address, and may change the IP address assigned to you at any time for any reason. The IP address is not transferable. Upon termination of this agreement, you must cease use of the IP address that has been assigned to you.

Vivio’s use of IP addresses is guided by the policies set forth by ARIN. Those policies state that the use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses, when the service supports name-based virtual hosts. This means you are required to use name-based virtual hosting whenever possible.

IP Address Overlap

You may not use IP addresses that have not been directly assigned to you by Vivio Technologies. Any service found using IP’s which were not directly assigned by Vivio Technologies will be suspended from network access until such time as the IP address overlap has been corrected. Any interruption of service that results due to IP address overlap resulting from you using IP addresses that have not been directly assigned to you will be billed to your account. Furthermore, technical support time lost in tracking down the duplicate IP address will be billed to your account at a rate of $250 per hour.

IP Bandwidth

You understand and agree that you are fully responsible for the IP bandwidth assigned to you and any potential clients or sites that you host on your account. You understand and agree that you are responsible for any IP bandwidth which occurs as a result of any denial of service attack, virus, system or proxy compromise, or otherwise. You agree to secure your server, user accounts, network, and related elements at all times from attack, open proxy, hijack, or other potential abuse. You also agree that Vivio does not exercise any control, of any kind whatsoever, over the content of the information passing through the Internet at Vivio, and disclaims all responsibility and liability as relates to the content of the information passing through the Internet.

Billing and Payment

Vivio’s obligation to provide the Service is contingent on your payment of the fees and charges set out on the Product Description Page (“Fees”). Accepted methods of payment are credit card (Visa, MasterCard, American Express, and Discover Card), PayPal, check, or money order. You are responsible for any additional transaction fees that coincide with any payment methods. Checks and money orders should be sent at least 7 days prior to the invoice due date to help ensure that the payment is received by Vivio in a timely manner.

Vivio requires payment terms of Net 10 (“Due Date”), unless otherwise agreed upon. It is your responsibility to ensure that Vivio receives payment of the Fees. Accounts not brought current will be assessed a $5.00 late fee at 10 days overdue, with recurring late fees assessed every 30 days thereafter also for $5.00. Accounts 15 days overdue will be suspended and will incur a suspension fee.

You understand, agree and authorize Vivio to charge your account, including any credit cards we may have on file, should any charge or fee become due.

All setup fees and domain name registration fees are non-refundable for any reason.

Unless other terms have been agreed upon that expressly guarantee pricing for a specific prepaid term, Vivio reserves the right to change pricing at any time for any reason. The customer is responsible for all money owed on the account from the time it was established to the time that the customer notifies Vivio Technologies to request for termination of services. All payment is in U.S. Currency. Vivio Technologies will bill each client up to $60.00 per returned check and per credit card charge-back received.

Should the Service be suspended for any reason, Fees will continue to accrue.

Remediation Events

Should service be interrupted for nonpayment, Vivio may, at its sole discretion and judgment and without any further notice or demand, choose to take any of the following actions, concurrently or in succession:

  1. Subject the account to a $200 per-service suspension fee. Service reactivation will only occur once the outstanding balance has been received in full. If multiple services are deactivated due to nonpayment, all outstanding invoices must be paid in full before any one service will be reactivated. Vivio reserves the right to keep any service deactivated until funds paid have cleared with our financial institution.
  2. Turn the account over to collections. Should the account be turned over to collections, you agree to cover all costs, charges, and fees associated with turning the account over to collections in addition to the account balance that was submitted to collections.
  3. Recover all reasonable attorneys’ fees and other expenses incurred in connection with collecting amounts owed, providing that Vivio is the prevailing party in any suit or proceeding.
  4. Remove and/or liquidate customer property from Vivio’s Data Center and recover from customer, upon demand, the entire amount expended by Vivio to perform such an action. Proceeds from property liquidation will be applied to customers outstanding balance.

Some services may require some additional events of default in addition to those mentioned above.

Refunds and Disputes

All payments to Vivio Technologies are nonrefundable. This includes one-time setup fees, prepayment fees, and subsequent charges regardless of usage. You shall not be entitled to any refunds, pro-rated or otherwise, in the event of early termination of this Agreement by Vivio or by you according to the terms outlined by this Agreement.

Vivio Technologies, at its sole discretion and judgment, may determine to offer you a refund, pro-rated or otherwise. Depending on the amount of the refund, Vivio may opt to issue the refund in increments. The size and frequency that Vivio issues refunds is determined exclusively by Vivio. Under most circumstances Vivio will issue a refund as a credit to an existing account. Under special circumstances Vivio may opt to issue a refund via a check.

If you believe there is an error in your bill you must contact Vivio within 60 days of the invoice in question (“Dispute Deadline”) in order to file a dispute. You and Vivio each agree to work together in good faith to resolve the billing dispute. Your dispute must include sufficient facts for us to investigate your claims. You agree to waive your right to dispute any charges or Fees if you fail to meet the Dispute Deadline. If we find that your claim is valid, we agree to credit the account that is the subject of the dispute on your next bill. If you contact your credit card company, prior to notifying us of the dispute, and initiate a charge back based on this dispute, or your charge back claim is past the Dispute Deadline, you will be charged a $200 Administration Fee.

Taxes

All payments required by this Agreement do not include federal, state, municipal, or other governmental excise, sales, privilege, transaction, value-added, use, personal property, or occupational taxes, excises, or other obligations (“Governmental Tax Obligations”). You understand and agree to be fully responsible for and to pay all applicable Governmental Tax Obligations except for taxes based on Vivio’s net income. In the event Vivio is required to pay any such Governmental Tax Obligations, Vivio will provide you with receipts or other evidence of payment and you agree to compensate Vivio for such payments within 30 days of being presented with such evidence.

Adult Content

Adult content, pornography and sex-related merchandising are prohibited within the Vivio Technologies Network. This includes sites that may infer sexual content or link to adult content elsewhere.

Because the Internet is a global communication tool, it is difficult to dictate what is considered “adult content.” It is not our function to discriminate against those who choose to utilize adult content or adult related material. However, Vivio Technologies has chosen to enforce its “no adult content” policy.

What is Adult Content?

  1. Sexually explicit pictures, writing, or other material/products whose primary purpose is to cause sexual arousal.
  2. Sexually explicit pictures, writing or any material/products that involves children (anyone under the age of 18) is strictly prohibited.
  3. Photos, videos or animated depiction showing nudity in women or men for non-scientific or non-artistic purposes.
  4. Any site whose revenue is gained all or in part from its adult content or products.
  5. Revenue-generating hyperlinks to sites that violate any part of descriptions 1-4.

Vivio Technologies reserves the right to decide what it considers “adult content”, “adult material”, “sexually explicit”, or “sexually related”.

Child Pornography

Our policy on child pornography is zero-tolerance. Vivio Technologies will cooperate fully with any criminal investigation into a Customer’s violation of the Child Protection Act of 1984 concerning child pornography. Customers are ultimately responsible for the actions of their clients over the Vivio Technologies Network, and will be liable for illegal material posted by their clients.

According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.

Violations of the Child Protection Act may be reported to the U.S. Customs Agency at 1-800-BEALERT

Right to Audit

Vivio Technologies reserves the right to audit all accounts for integrity and security purposes in order to protect our hardware and network from damages associated with inadequate security settings or controls. It is the customer’s responsibility to maintain strong security for their account at all times. Vivio Technologies reserves the right to audit your passwords and other security settings or controls to ensure they are of adequate strength and integrity. If your password or security settings fail the audit, we will give you 24 hours to make the necessary changes, otherwise we reserve the right to change the password or make other security-related adjustments for you in order to protect our network and our other clients who use it.

Right of Inspection

Vivio Technologies reserves the right to monitor activity on our servers and network for the purposes of integrity, security, performance, and good business practices. By ordering an account, you consent to such monitoring of files, applications, Internet traffic and any other content uploaded or received through the Vivio Technologies network or servers.

Any attempt to circumvent, alter, or otherwise bypass our ability to accurately monitor our services is prohibited and can result in a termination of services, without any possibility of a refund.

Vivio Technologies will adhere to its Privacy Policy when monitoring its network and services. Should any issues arise out of such monitoring, the customer will be notified before action is taken unless Vivio, at its sole discretion, deems the issue as an emergency in which immediate action is required.

Content Caching

You expressly grant to Vivio Technologies a license to cache or copy the entirety of your data, including your website files and content supplied by third parties, hosted by Vivio Technologies under this Agreement. You expressly agree that such caching or copying is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.

Digital Millennium Copyright Act (DMCA)

Notice and Procedure for Making Claims of Copyright Infringement.

Pursuant to Title 17, United States Code, Section 512(c)(2), all notifications of claimed copyright infringement on the Vivio Technologies system or website should be sent ONLY to our Designated Agent.

NOTE: THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR NOTIFYING VIVIO THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED.

WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER’S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.

DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (e.g. REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OF E-MAIL ABUSE, etc.) TO THE CONTACT LISTED BELOW. YOU WILL NOT RECEIVE A RESPONSE IF SENT TO THAT CONTACT.

Written notification must be submitted to the following Designated Agent:

Vivio Technologies
Legal Department
POB 345
Walla Walla, WA 99362
abuse@viviotech.net

Under Title 17, United States Code, Section 512(c)(3)(A), the Notification of Claimed Infringement must include the following:

  1. Physical or electronic signature of a person authorized to act on behalf of the copyright owner.
  2. Identification of the copyrighted work claimed to have been infringed or a representative list if multiple works are involved.
  3. Identification of the material that is claimed to be infringing that should be removed or access to disabled and information reasonably sufficient to enable the online service provider to locate the material (usually a URL to the relevant page).
  4. Information reasonably sufficient to allow the online service provider to contact the complaining party (address, phone number, e-mail address).
  5. Statement that the complaining party has “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.”
  6. Statement that the information in the notice is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner.

Harassment and Abuse

Vivio will not tolerate abuse of any kind towards its employees. This includes verbal harassment, yelling, swearing, rudeness, threats, or any intentionally disruptive behavior directed at Vivio or any of its employees or agents. You agree to engage Vivio employees in a professional manner whether in email, support tickets, live chat, forums, or telephone calls. You agree that any abuse originating from you toward a Vivio employee for any reason, even regarding a breach by Vivio, will be construed as a violation of this Agreement. No refunds will be provided for any service termination which arises as a result of a violation of this clause.

Server Abuse

Any attempt to undermine or cause harm to a server, or customer, of Vivio Technologies is strictly prohibited.

Unauthorized use of other people’s accounts or computers is strictly prohibited. Vivio Technologies will strongly react to any use, or attempted use, of an Internet account or computer without the owner’s authorization. Such attempts include: “Internet scamming” (tricking other people into releasing their passwords), password robbery, security hole scanning etc.

Any unauthorized use of accounts or computers by a Vivio Technologies customer, whether or not the attacked account or computer belongs to Vivio Technologies, will result in action against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack.

Server abuse can also include, but is NOT limited to: any form of IRC, bulk emailing, unsolicited emailing, newsgroup spamming, pornographic content, adult content, illegal content, copyright infringement, trademark infringement, warez, cracks, software serial numbers, and/or anything else determined by Vivio Technologies to be unacceptable use of Vivio Technologies’ services including abuse of server resources.

All hosting accounts may be terminated that include the following content or which have links to the following content:

  1. Providing material that is grossly offensive to the Web community including blatant expressions of bigotry, racism or hatred.
  2. Promoting or providing instructional information about illegal activities, or promoting physical harm or injury against any group or individual.
  3. Displaying material that exploits children under 18 years of age.
  4. Acts of copyright infringement including offering pirated computer programs or links to such programs, information used to circumvent manufacturer-installed copy-protect devices, including serial or registration numbers for software programs, or any type of cracker utilities.
  5. Exporting encryption software over the internet or otherwise, to points outside the United States.
  6. Distributing information regarding the creation of and sending internet viruses, worms, Trojan horses, pinging, flooding, mailbombing, or denial of service attacks. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment.
  7. Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this MSA, which includes the facilitation of the means to spam, initiation of pinging, flooding, mailbombing, denial of service attacks, and piracy of software.
  8. Any account that is deactivated by the abuse team will be charged the following reactivation fees:

    1st offense – $25.00
    2. 2nd offense – $100.00
    3. 3rd offense – $500.00 + Account termination

This fee will only be waived if it is determined by the abuse team that the account was disabled without cause.

Vivio Technologies reserves the right to decide what it considers “server abuse”.

Unsolicited Email (Spam)

Unsolicited commercial advertisements (spam) are not allowed in e-mail, and will likely result in account cancellation.

Vivio Technologies takes a zero-tolerance approach to spam originating from our servers or for spam advertising of domains hosted on our servers. The following activities are not allowed:

  1. Unsolicited bulk or commercial messages (“spam”). This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts. Such messages may only be sent to those who have explicitly requested it from your domain.
  2. Forging, altering or removing electronic mail headers is prohibited. Any domain sending stealth spam will be terminated without warning and without refund.
  3. Sending numerous copies of the same or substantially similar message with the intent to disrupt a server or account (“mail bombing”).
  4. Spamming Newsgroups: Commercial advertisements are unwelcome in most Usenet discussion groups and on most e-mail mailing lists. Inappropriate posting may result in account cancellation. See the newsgroup or mailing list’s charter for whether advertising is allowed or not. “Spamming,” or sending a message to many different off-topic newsgroups, is particularly unethical and will be treated as such.
  5. Mail may not be used to harass or intimidate others. Harassment, whether through language, frequency of messages, or size of messages, is prohibited. Sending a single unwelcome message may be considered harassment. If a recipient asks to stop receiving e-mail, you must not send that person any further messages.
  6. Providing spamware (software used to send bulk email or software used to harvest email addresses) or links to sites providing spamware is strictly prohibited and subject to demand for removal or account cancellation.

Note: If you use the services of another provider (including but not limited to the use of address lists obtained from a third party vendor or provider) to promote a website hosted by or through Vivio Technologies (spamvertising), then the provisions of the above Policy shall apply as if the spam were sent through our servers.

Penalty: Depending on the severity of your SPAMMING, Vivio Technologies reserves the right to charge you between $1.00 – $100.00 PER SPAM sent through our network. Your website content will also be confiscated and it will NEVER be returned to you.

You understand, agree and authorize Vivio to charge your account, including any credit cards we may have on file, should your account incur penalties regarding SPAM originating from your use of the Services.

Internet Relay Chat (IRC)

Any kind of IRC clients or IRC bots are strictly forbidden within the Vivio network. We understand that occasionally there are acceptable uses for these services but due to the frequency at which these services are abused, and the rarity with which they are used to useful purpose, we have chosen to exclude them from our network. Anyone found to be in violation of this policy risks immediate account termination.

Termination

Vivio Technologies reserves the right, at its sole discretion and judgment, to terminate this Agreement and/or the Services provided herein for any reason at any time with or without warning or prior notice. Vivio may choose to make reasonable effort to notify you of the reason for this decision, and to work with you to rectify any problems that may have affected our decision.

In order for you to terminate this Agreement, you must contact Vivio before the end of the services billing cycle. Different services may require different termination procedures, most of which are outlined in this MSA. Termination requests must be in writing and must originate from the Service Owner information that corresponds with Vivio’s records. In order to help protect you from unauthorized termination, Vivio reserves the right to verify the legitimacy of the Service Owner for purposes of termination for up to 30 days before the termination occurs.

Liability and Obligations upon Termination

Fees paid in advance of cancellation may, at Vivio’s sole discretion, be pro-rated and returned to you by Vivio if either you or Vivio institutes its right of termination.

If this Agreement is terminated due to any violation of these terms, policies, rules, requirements, or obligations, any pre-payments, fees, or other monies sent to Vivio are forfeit and will not be pro-rated or returned. Further, any violation of policies, rules, requirements or obligations on your part which result in extra costs will be billed to your account with full payment due immediately. You agree to be liable for any termination charges resulting from a breach of this Agreement.

Damages

You acknowledge and agree that the service provided is of such a nature that service can be interrupted for many reasons, the cause of which can be difficult if not impossible to ascertain. You agree that Vivio shall not be held liable for any damages arising from such causes beyond the direct and exclusive control of Vivio. You further acknowledge that Vivio’s liability for its own negligence may not in any event exceed an amount equivalent to charges payable by you for services during the period damages occurred. In no event shall Vivio be liable for any special or consequential damages, loss, or injury. IN NO EVENT SHALL Vivio Technologies’ MAXIMUM LIABILITY EXCEED FIVE HUNDRED ($500.00) DOLLARS.

You understand and agree that service resources such as storage, compute, memory, or other resources may be terminated or replaced due to failure, service retirement, or other reasons at Vivio’s sole discretion and judgement. You agree that Vivio has no liability whatsoever for any damages, liabilities, losses, or any other consequences resulting from your use of Vivio services, including but not limited to any loss of data caused by corruption, deletion, or any other method, applications, functionality, or profits.

YOU UNDERSTAND AND AGREE THAT THE USE OF VIVIO SERVICES DOES NOT GRANT YOU, AND YOU AGREE TO WAIVE, THE RIGHT TO ACCESS OR HAVE PHYSICAL POSSESSION OF VIVIO SERVERS, EQUIPMENT, REAL OR PERSONAL PROPERTY, OR OTHER ASSETS. YOU UNDERSTAND AND AGREE THAT VIVIO HAS NO OBLIGATION TO COPY, BACKUP, RESTORE, MANIPULATE, OR OTHERWISE HANDLE YOUR PERSONAL DATA, INTELLECTUAL PROPERTY, OR ANY OTHER TANGIBLE OR INTANGIBLE ASSETS THAT MAY BE PRESENT ON VIVIO SERVERS.

Indemnification

YOU AGREE TO DEFEND, INDEMNIFY, SAVE AND HOLD VIVIO HARMLESS FROM ANY AND ALL DEMANDS, LIABILITIES, LOSSES, COSTS AND CLAIMS, INCLUDING REASONABLE ATTORNEY’S FEES ASSERTED AGAINST VIVIO, ITS AGENTS, ITS CUSTOMERS, OFFICERS AND EMPLOYEES, THAT MAY ARISE OR RESULT FROM ANY SERVICE PROVIDED OR PERFORMED OR AGREED TO BE PERFORMED OR ANY PRODUCT SOLD BY CUSTOMER, ITS AGENTS, EMPLOYEES OR ASSIGNS. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD VIVIO HARMLESS AGAINST LIABILITIES ARISING OUT OF:

  1. ANY INJURY TO PERSON OR PROPERTY CAUSED BY ANY PRODUCTS SOLD OR OTHERWISE DISTRIBUTED IN CONNECTION WITH A VIVIO SERVER.
  2. ANY MATERIAL SUPPLIED BY CUSTOMER INFRINGING OR ALLEGEDLY INFRINGING ON THE PROPRIETARY RIGHTS OF A THIRD PARTY.
  3. COPYRIGHT INFRINGEMENT.
  4. ANY DEFECTIVE PRODUCTS SOLD TO CUSTOMER FROM A VIVIO SERVER.

Non-Waiver

No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement.

Severability

If any portion of this Agreement or accompanying documents, or the application thereof to any person, place, or circumstance, shall be held by an arbitrator or a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of the document and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect, and such provisions shall be enforced to the fullest extent consistent with applicable law.

Force Majeure

You agree that Vivio is not responsible for any damages, delays, or other failures to fulfill its obligations hereunder as a result of war, fire, strike, riot or insurrection, natural disaster, delay of carriers, governmental order or regulation, complete or partial shutdown of plant, unavailability of materials or equipment from suppliers, failures or blackouts, labor disputes, and/or other circumstances or occurrences beyond our control . whether or not it is similar to those listed above.

Disclaimers

VIVIO WILL NOT BE RESPONSIBLE FOR ANY DAMAGES YOUR BUSINESS MAY SUFFER. VIVIO MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED FOR SERVICES WE PROVIDE. Vivio Technologies DISCLAIMS ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS INCLUDES LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY Vivio Technologies AND ITS EMPLOYEES. Vivio Technologies RESERVES THE RIGHT TO REVISE ITS POLICIES AT ANY TIME.

ALL SUB-NETWORKS, RESELLERS AND DEDICATED SERVERS OF VIVIO MUST ADHERE TO THIS MSA.

FAILURE TO FOLLOW ANY TERM OR CONDITION WILL BE GROUNDS FOR IMMEDIATE ACCOUNT TERMINATION.

Lawful Purpose

You may only use Vivio servers for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, and material protected by trade secrets. The designation of any materials as such described above is left entirely to the discretion of Vivio management.

Litigation

Regardless of your location, you agree that for purposes of venue and jurisdiction this contract was entered into and performed in Walla Walla County, Washington, and any dispute will be litigated or arbitrated in Walla Walla County, Washington. You further waive all objections to venue or jurisdiction and acknowledge that venue and jurisdiction in any such litigation will be held in Walla Walla County Courts. IN NO EVENT SHALL Vivio Technologies’ MAXIMUM LIABILITY EXCEED FIVE HUNDRED ($500.00) DOLLARS.

Dispute Resolution Costs

In the event that either party institutes litigation or any other dispute resolution process with regards to this Agreement (including to collect sums owed by You to Vivio), the prevailing party shall be entitled to its reasonable attorneys’ fees ad costs incurred by it in connection with the litigation or other dispute resolution process.

Assignment

You agree that you do not have the right to assign this Agreement without the explicit written permission of Vivio. This Agreement shall be in force and effect to the total benefit of You and Vivio, and their successors and permitted assigns.

Giveaways & Awards

Winner must be 18 years or older in order to qualify. Odds of winning will depend on the number of eligible entries received. Awards, giveaways, and prizes (collectively: Award) will have no cash value. All federal, state, and local taxes, licensing, or other fees associated with the Award are the responsibility of the Winner. No substitution or transfer of the Award will be permitted without the express permission of Vivio. Winner assumes all liability for any damages or claims arising out of the acceptance or redemption of this award. Vivio assumes no liability or responsibility for typographical or other errors in the printing of an Award, administration of the awarding process, or in the announcement of the Award winner. Vivio reserves the right to publicize the Winner’s names and likenesses for the purposes of promotion.

Service Level Agreement

30-day Money Back Guarantee

If, for any reason, you are not satisfied with your account here at Vivio Technologies, simply let us know by sending a message to our billing department within 30 days of when your service is activated, and you will receive a full, 100% refund of all service fees. We do ask that you tell us why you’re canceling (so we know what to improve!) but the reason can be anything you like!

The guarantee period starts when the service is activated within our systems and ends 30 days after that date, regardless of any other term such as free trial or other promotions. Due to the nature of the products, domain names and SSL certificates cannot be covered by this guarantee. Any violation of this MSA will void this guarantee. All refunds are subject to approval.

100% Network Uptime Guarantee

This 100% uptime guarantee applies to any Vivio Technologies Hosting Client in good financial standing with Vivio Technologies at the time of a service outage.

Vivio Technologies endeavors to have our public network available to any party in the world 100% of the time. Network downtime (unavailability) is defined as 100% packet loss from Vivio Technologies to its backbone providers. Downtime is measured past 10 minutes after notification of network failure via Vivio Technologies’ online ticketing system. If the ticketing system itself is unreachable, the ticket must be started by calling the Vivio Technologies NOC, or other emergency contact methods. Vivio Technologies’ administrators will determine the end of the downtime by a trace-route to the backbone providers from Vivio Technologies network.

In the event that our public network does not experience 100% network uptime in a given month, Vivio Technologies will credit 5% of the customer’s monthly service fees for customers affected services after the first 10 minutes of service outage. Additional credit will be issued in increments of 5% for each additional 30 minutes of network downtime experienced up to 100% of the monthly service fee. All credit requests must be received within 7 days of network downtime incident.

Customer shall not receive any credits under this Agreement in connection with any failure or deficiency of network availability caused by or associated with:

  1. Circumstances beyond Vivio Technologies’ reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, 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, virus attacks or hackers, DDoS attacks, failure of third party software (including, without limitation, ecommerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this Agreement.
  2. Failure of bandwidth providers to the Vivio Technologies Network, unless such failure is caused solely by Vivio Technologies.
  3. Scheduled maintenance, emergency maintenance, or upgrades.
  4. DNS issues outside the direct control of Vivio Technologies.
  5. Issues with FTP. POP, IMAP, or SMTP customer access.
  6. False breaches reported as a result of outages or errors of any Vivio Technologies measurement system.
  7. Customer’s acts or omissions (or acts or omissions of others engaged or authorized by customer), including, without limitation, custom scripting or coding (e.g., CGI, Perl, HTML, PHP, etc), any negligence, willful misconduct, or use of the Services in breach of Vivio Technologies’ Terms of Service.
  8. E-mail or webmail delivery and transmission.
  9. DNS (Domain Name Server) Propagation.
  10. Outages elsewhere on the Internet that hinder access to your account. Vivio Technologies is not responsible for browser or DNS caching that may make your site appear inaccessible when others can still access it.

Vivio Technologies will guarantee only those areas considered under the control of Vivio Technologies:

  1. Vivio Technologies server links to the internet.
  2. Vivio Technologies routers.
  3. Vivio Technologies servers.

Shared Hosting Terms

Site Transfers

Free site transfers using cPanel’s Backup and Restore features is provided as a courtesy service, and comes with no guarantees, warranties, or other promises of any kind. Vivio also does not warrant or guarantee the amount of time it will take for us to perform the transfer. Vivio will make every reasonable effort to transfer your site as quickly and efficiently as possible, but every host is different, and in some rare cases Vivio may be unable to assist you in transferring your site.

Free site transfer assistance is available for a period of 30 days after the initial purchase of your hosting account. After the initial 30 days the free site transfer service will no longer be available for free, but Vivio may opt to perform a transfer for accounts currently operating under SysOps Support. Please email sales at viviotech dot net for complete details.

Unlimited Disk Space

The Unlimited Disk Space feature is a figurative description for clients who legitimately use the shared hosting service to host public-facing websites. The Unlimited Disk Space feature has several limitations, including, but not limited to the following:

  1. Sites whose primary function is file sharing, hosting, or backup
  2. FTP services which allow users not affiliated with the site to connect and download files
  3. Sites containing an above average number of files not linked from a realistic web page
  4. Sites containing an above average number of extremely large files

In general, files stored on a hosting account should be used either directly on an informational web page or files used to accentuate the point of a web page. Vivio, at its sole discretion, will determine what constitutes acceptable use of the Unlimited Disk Space policy.

Unlimited Bandwidth

The Unlimited Bandwidth feature is a figurative description for clients who legitimately use the shared hosting service to host public-facing websites. The Unlimited Bandwidth feature has several limitations, including, but not limited to the following:

  1. Sites whose primary function is to use bandwidth
  2. Audio or video streaming services
  3. Bulk email or related services
  4. Banner ad or other bulk image hosting services
  5. Any form of proxy or relay service

Vivio, at its sole discretion, will determine what constitutes acceptable use of the Unlimited Bandwidth policy.

Server Resource Abuse

Shared hosting accounts are limited in use of the amount of server resources. Shared server resource abuse includes any process or service usage that affects normal shared server operation, resources or connectivity, and which causes a server to become overloaded. Shared server resources include CPU and memory usage, number of concurrent processes, number of concurrent port or database connections and total bandwidth.

Possible causes of server resource abuse include, but are not limited to, the use of: CGI, Perl, Sendmail, mySQL, MSSQL, PHP, ASP, CFML, HTTP, SMTP, POP3 and FTP. If server resource abuse is detected, possible actions include, but are not limited to: disabling of the offending script or scripts, disabling of the specific service, disabling of the entire account or account cancellation. If server overload is a result of server resource abuse, these actions will be taken without prior notice or warning.

Excessive Use/Overages

You will not exceed the bandwidth, storage, domain, and email or other resource usage limits outlined by your particular web hosting package. In the case of “unlimited” resources, Vivio Technologies may, at its sole discretion, elect to re-negotiate resource usage terms if we determine resource usage to be extraordinary. If you use any resource in excess of the agreed upon number of megabytes per month, Vivio Technologies may, in its sole discretion, assess you with additional charges. If Vivio Technologies elects to take any corrective action, Vivio Technologies will not refund any unused pre-paid fees.

Your use of your account and access to it is your responsibility. You are responsible for any unauthorized access to your account resulting in exceeding the limits outlined in your particular web hosting package specifications and resultant charges.

Colocation

Colocation Service Description

Subject to these Terms of Service, Vivio will license to You a portion of our data center as identified on the Product Description page, you will have the right to access, use, and occupy for the placement of network, computer and other equipment, that has been provided by, is owned by, or is otherwise controlled by You – with the exception of any leased hardware Vivio may have provided you with.

Compliance with Law

You agree that you will at all times comply with all applicable laws and regulations, and that it is your sole responsibility to ensure that the information you transmit and receive through your Colocation Service complies with all applicable laws and regulations.

Equipment and Damages

You agree that you will be solely responsible for all costs, maintenance, upgrades, software, improvements, and expenses with regards to your fixtures, furnishings, equipment, or personal property (“Customer Equipment” or “your equipment”) that you purchase and bring to the Vivio Data Center.

In most cases, the equipment Vivio provides (“Vivio Colocation Equipment”) will include the following:

  1. Server racks including doors, sides, locks, and separators
  2. Patch panel hardware present in each rack
  3. Copper and/or fiber network cabling from patch panel to Vivio Cross-Connect location(s)
  4. Power Distribution Units (including possible network cabling to PDUs)

You further understand and agree that while normal wear and tear is expected, should Vivio Colocation Equipment become damaged to the point of it not being usable due to your use or due to any action resulting from your use, that you will be billed for and be responsible for the replacement of Vivio Colocation Equipment. You agree that Vivio, at its sole discretion and judgment, will determine both whether such damages have occurred, who the responsible party is, what equipment will be used to replace the damaged equipment, and how quickly the replacement will be executed should such damage occur.

You understand and agree that it is your responsibility to ensure that all Vivio Colocation Equipment is in full working order before attaching your hardware. If you find fault with Vivio Colocation Equipment before you attach your hardware, Vivio will replace the damaged Vivio Colocation Equipment free of charge.

Access and Security

You agree that you will be fully responsible for any charges, costs, expenses, and third-party claims that may result from your use of, or access to Vivio offices, Data Center, or equipment. Except with the advanced written consent of Vivio, Your access to the Vivio Data Center will be limited solely to the individuals identified and authorized by You to have access to the Vivio Data Center in accordance with this Agreement.

You agree that Vivio, at its sole discretion and judgment, has the right to establish and enforce protocols designed to keep Vivio’s Data Center and Colocation Area secure from access by unauthorized personnel and to preserve the security and integrity of the Vivio Data Center and the equipment located there. You agree that you shall abide by these protocols and that you shall require your employees, authorized agents, or anyone else that you allow to access your equipment located at the Vivio Data Center to also follow these protocols. You further authorize Vivio to refuse access to certain individuals should those individuals be found guilty of not following those security protocols as outlined by Vivio.

In addition to such protocols, you understand and agree that the following substances and devices are not allowed in the Vivio Data Center or Colocation Area at any time unless expressly authorized by Vivio in writing:

  1. Food or drink;
  2. Animals, except working service animals in such conditions as Vivio may reasonably require to maintain the integrity of the environment in the Vivio Data Center;
  3. Tobacco or marijuana products;
  4. Explosives or weapons of any kind;
  5. Heating devices;
  6. Aerosol sprays;
  7. Matches or lighters;
  8. Alcohol, drugs, or other intoxicants;
  9. Electro-magnetic devices which could interfere with computer or telecommunications equipment; and
  10. Radioactive or other hazardous material;

You expressly permit Vivio to deny access to your equipment, the Colocation Area, or the Vivio Data Center should any person authorized by you be found possessing the above materials and Vivio may prevent such access to such individuals for any length of time as reasonably determined exclusively by Vivio.

Insurance

You agree to keep in full force and effect during the term of this Agreement:

  1. Comprehensive general liability insurance in an amount not less than $1 million per occurrence for bodily injury and property damage;
  2. Employer’s liability insurance in an amount not less than $1 million per occurrence; and
  3. Workers’ compensation insurance in an amount not less than that required by applicable law.

You agree that you will be solely responsible for ensuring that your agents (including contractors and subcontractors) maintain, other insurance at levels no less than those required by applicable law and customary in your and your agents’ industries.

Prior to installation of any Customer Equipment in the Customer Area, Customer will furnish Vivio with certificates of insurance which evidence with minimum levels of insurance set forth above.

IP Bandwidth

You agree that you will be solely responsible for obtaining IP Bandwidth to your collocated equipment. You agree that Vivio does not exercise any control, of any kind whatsoever, over the content or information passing through our network, your equipment, or the Internet. You further agree that Vivio cannot be held liable or claim any responsibility for content or information passing through the Internet.

Cross-Connections

You understand that you may request Vivio to perform cross-connections between you and third-parties within Vivio’s Data Center. You agree to provide Vivio with all necessary details in order to provide the necessary cross-connection successfully. You agree to pay Vivio the required cross-connection fee and agree that Vivio, at its sole discretion and judgment may determine the conduit, cable routes, or other details necessary to perform such a cross-connection.

The responsibilities of Vivio when performing a cross-connection will be to run and terminate a physical cable (copper or fiber) and test the cable to determine the continuity of the cables physical layout. You agree that the responsibility for the circuit underlying such a cross-connection are yours and yours alone. You agree that Vivio is not responsible in any whatsoever for the nature, performance, quality, integration, protocol, timeliness, utility, or other features of circuit(s) provided by third-party providers – which shall be governed solely by your agreement(s) with those third-party providers.

No Lease

This Agreement is a service agreement and is not intended to and will not constitute a lease of any real or personal property. You acknowledge and agree that:

  1. you have been granted only a license to occupy the Colocation Area of the Vivio Data Center in accordance with this Agreement,
  2. you have not been granted any real property interest in the Vivio Data Center or its Offices, and
  3. you have no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances.

Alterations

Vivio may, at its sole discretion and judgement, allow a client to have an alteration performed on the Vivio Data Center Colocation Area in order to satisfy a specific customer need. Vivio reserves the right to select the contractor or service provider who will perform such alterations.

Depending on the alterations to be performed, Vivio may require that you compensate Vivio for the cost of such alterations. Vivio will work closely with you and notify you regarding the cost of such alterations and Vivio agrees to obtain your written approval for such costs via email or postal mail before such alterations are made and costs are incurred.

Metered Power Usage Rates

Metered Usage Power is provided to Vivio from Utility providers. Accordingly, utility providers may, from time to time, increase the amounts charged to Vivio for delivery of the power used in the Vivio Data Center. In the event such an increase occurs, you understand and authorize Vivio to pass the increased cost for delivery of such power on to you as the end user for such Metered Power.

Casualty

Should the Colocation Area of the Vivio Data Center be wholly or partially damaged by fire, water, or any other casualty, Vivio shall restore the Colocation Area with reasonable diligence provided that Vivio shall have no obligation to restore improvements not originally provided by VIvio or to replace any of your equipment. You agree to be responsible for reinstalling your equipment to the Colocation Area. You further agree that Vivio need not commence repairs until a substantial portion of the insurance proceeds are available and shall not be required to expend more than the actual insurance proceeds received. Proceeds of insurance payable with respect to a fire or other casualty shall be received and held by Vivio. In the event the Colocation Area is destroyed or damaged by any fire or casualty not covered by the insurance maintained by Vivio or to the extent of not less than 25% of the replacement cost thereof, or if the fire or casualty occurs within the last year of the Term, then you or Vivio shall have the option to terminate this agreement by giving notice to the other party within 60 days after the occurrence of such damage or destruction, in which case Vivio shall retain all insurance proceeds with respect to the Colocation Area as its own property. If neither you nor Vivio elects to terminate this Agreement as provided above, this Agreement shall continue in full force and effect, but any Colocation Fees shall be equitably abated as determined in Vivio’s reasonable discretion until the restoration is substantially complete.

Customer Equipment

You agree that your right to install or use equipment of any kind in Vivio’s Data Center and Colocation Area is subject to Vivio’s approval. You understand and agree that before you install any equipment in the Vivio Data Center, you will give written notice identifying the equipment you wish to install. You agree to install all your equipment in a professional and organized manner consistent with Vivio’s installation standards and industry practices.

Your agree that all your equipment will be configured and operated at all times in compliance with the manufacturer’s specifications, including with regards to the power outlets, power consumption and clearance requirements.

Effect of Termination

Upon the effective expiration or termination of this agreement as outlined by these Terms of Service, the following will occur.

  1. Vivio will immediately cease providing colocation including power to the collocated customer equipment present in the Colocation Area of the Vivio Data Center.
  2. All payment obligations shall become due immediately.
  3. You agree to remove your equipment and your other property which you transferred to the Vivio Data Center within five (5) days of such expiration or termination and return the Vivio Data Center hardware, including but not limited to racks, PDU’s, cabling, and patch panel hardware, in the same condition as it was on the Service Effective Date – normal wear and tear is expected.

If you do not remove your property from the Vivio Data Center within such five-day period, Vivio will have the option to move any and all such property to secure storage and charge Customer for the cost of such removal and storage. Furthermore, you agree that if you fail to remove such property from Vivio holding within sixty (60) days you forfeit any and all claims to such property, and you agree that any such property shall at that point become the sole and exclusive property of Vivio.

Domain Name Registration

Domain Registration Services

Domain name registration or reservation services (“Domain Services”) are not effective until the registry administrator puts them into effect. Domain name registrations are only for limited terms, terms which end on the expiration date. The term begins on the date the domain name registration is acknowledged by the applicable registry. Vivio may place orders for domain names on your behalf with an ICANN accredited registrar. You agree that Vivio is not liable or responsible in any way for any errors, omissions, or any other actions arising out of or related to a request to register, renew, modify the settings for, or transfer of a domain name through a registrar. You further agree that domain name registration is a service, that domain name registrations do not exist independently from services provided pursuant to this or a similar registration agreement with a registrar, and that domain name registration services do not create a property interest.

Domain Name Payment

You agree to pay Vivio prior to the effectiveness of the desired Domain Services, and prior to the subsequent renewals of such services.

Your requested domain name will not be registered unless and until we receive actual payment of the full registration fee, and have confirmed your registration in an email from Vivio to the email address indicated in your registration application. In the event of a charge-back by a credit card company (or similar action by another payment provider allowed by Vivio) in connection with the payments of the registration fee for your domain name registration, You agree and acknowledge that the domain name registration shall be transferred to Vivio as the paying entity for that registration to the registry and that we reserve all rights regarding such domain name including, without limitation, the right to make the domain name available to other parties for purchase. Vivio will reinstate your domain name registration solely at Vivio’s discretion, and subject to our receipt of the initial registration or renewal fee as well as any applied reinstatement fee.

Domain Name Refunds

All fees regarding domain names are non-refundable, in whole or in part, even if your domain name registration is suspended, canceled or transferred prior to the end of your then-current registration term. Vivio reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion.

Authorized Agent

Occasionally, you may request that Vivio act as an authorized agent to register a domain on your behalf. By requesting a domain name be registered by Vivio, you agree to allow Vivio to use the Vivio “Host Master” contact information for the domain’s Administrative and Technical Contacts in order to protect your privacy and manage your domain as your authorized agent.

Domain Transfers

You agree that transfer of your domain name(s) services shall be governed by ICANN’s transfer policy, available at http://www.icann.org/transfers/, as this policy may be modified from time to time. You agree that we may place a “Registrar Lock” on your domain name services and that this will prevent your domain name services from being transferred without your authorization, though we are not required to do so. By allowing your domain name services to remain locked, you provide express objection to any and all transfer requests until the lock is removed.

Any client in good financial standing may request a domain name transfer. Any account not in good financial standing must have their account made current and all balance due’s paid in full before a domain name can be transferred.

A request for transfer must originate from the email address or phone number that corresponds to the owner of the domain as stated by Vivio’s billing records. Vivio reserves the right to refuse a domain transfer if Vivio cannot verify the authenticity of such an originating request.

Domain names may not be transferred within 60 calendar days of initial registration, within 60 calendar days of a transfer, if there is a dispute regarding the identity of the domain name registrant, if you are bankrupt, or if you fail to pay any balances due on your account.

Transfer requests typically take five business days to be processed. A transfer will not be processed if, during this time, the domain name registration services expire in which event you may need to reinstate the transfer request. You may be required to resubmit a transfer request if there is a communication failure. AS A CONSEQUENCE, YOU ACKNOWLEDGE THAT YOU ASSUME ALL RISK FOR FAILURE OF A TRANSFER IF THE TRANSFER PROCESS IS INITIATED CLOSE TO THE END OF A REGISTRATION TERM.

Proper Use

Vivio does not check to ensure that any domain name you select infringes on the legal rights of others. You agree that it is your sole responsibility to know whether or not the domain name you select or use infringes on the legal rights of others. Vivio may be ordered by a court to cancel, modify, or transfer your domain name. It is your responsibility to communicate with litigants, potential litigants, or other governmental authorities. Is is not the responsibility of Vivio to forward court orders or other communications to you. You also agree to allow Vivio to provide litigants or potential litigants with your contact information should you be using Vivio as a registrar proxy or have privacy controls enabled on your domain name.

Disputes

In the event of a dispute, you agree to the Uniform Domain Name Dispute Resolution Policy (“UDRP”) – a copy of which can be found at the following URL: http://www.icann.org/dndr/udrp/policy.htm. You agree that the UDRP may be changed by ICANN (or ICANN’s successor) at any time and that such a change will be binding upon you. You agree that, if the registration of your domain name is challenged by a third party, you will be subject to the provisions specified in the UDRP in effect at the time of your domain name registration is disputed by the third party.

You also agree that, in the event a domain name dispute arises with any third party, you will indemnify and hold Vivio harmless pursuant to the terms and conditions of the UDRP. You also understand that it is important for you to regularly monitor email sent to the email address associated with your account and domain names because, among other reasons, if a dispute arises regarding Domain Services provided to you, you may lose your rights to receive the Domain Services during or after the dispute.

Renewal Notices and Expiration

As a convenience to you, Vivio may choose to send renewal notifications when the time to renew Domain Services approaches. You understand and agree that Vivio is under no obligation to send renewal notices. You further understand and agree that it is your responsibility to keep your own records and ensure your Domain Services are properly renewed and all renewal fees are paid in full before the Domain Services expiration date.

You understand and agree that should any renewal fee go unpaid before the Domain Services expiration date, they will expire or be canceled.

You understand and agree that it is your responsibility to ensure your billing information is correct, up to date, and complete. Vivio cannot be held liable for expired or canceled Domain Services that result from inaccurate, incomplete, or out of date billing information.

Automatic Renewal

In an effort to help ensure that you do not experience a costly interruption or loss of Domain Services, Vivio may decide, at its sole discretion and judgment, to provide automatic renewal options for Domain Services. When you select the automatic renewal options, or the automatic renewal options are included by default with your Domain Services, you agree to allow Vivio to automatically renew the Domain Services for a renewal term that is equal to or less than the time of the original service term. For example, if your original service term was for two years, your automatic renewal term will be for two years or less.

You understand and agree that automatic renewal options for Domain Services are provided as a courtesy service only, and are provided as an as-is, as available service only. You understand and agree that it is ultimately your responsibility to ensure that your Domain Services are renewed in a timely fashion, and that Vivio is under no obligation to renew your Domain Services should the original service term expire. You understand and agree that Vivio does not guarantee that the automatic renewal processes will be error-free or fail-safe and cannot be held liable for errors, omissions, failures, or the completeness of any automatic renewal process.

You understand and agree that Vivio cannot be held liable for your failure to notify Vivio, or your failure to update your account settings in order to disable or discontinue automatic renewals for your Domain Services. Should you notify Vivio that you no longer wish to renew your Domain Services after an automatic renewal has taken place, Vivio may choose, at its sole discretion and judgment, to issue a refund for the automatically renewed Domain Services, provided that the Domain Services can immediately be canceled and that Vivio’s cost for renewing such services can be recovered.

Expiration

Should Domain Services expire due to lack of payment or other reason, you understand that Vivio or its upstream registrar may direct the domain name to name-servers or IP addresses chosen by us or our upstream registrar. You further understand that we may choose to either leave the domain WHOIS information in tact or change it as we see fit.

Domain Service Liability

LIMITATION OF LIABILITY: YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY SUSPENSION OR LOSS OF DOMAIN SERVICES, USE OF DOMAIN SERVICES, INTERRUPTION OF DOMAIN SERVICES OR INTERRUPTION OF YOUR BUSINESS, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO OUR WEBSITES OR DOMAIN SERVICES OR DELAYS OR ACCESS INTERRUPTIONS YOU EXPERIENCE IN RELATION TO A DOMAIN NAME REGISTERED WITH US. YOU AGREE THAT WE WILL NOT BE LIABLE FOR LOSS OR LIABILITY RESULTING FROM ACTS OF OR EVENTS BEYOND OUR CONTROL, DATA NON-DELIVERY, MISDELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION. YOU AGREE THAT WE WILL NOT BE LIABLE FOR THE PROCESSING OF AN APPLICATION FOR A DOMAIN NAME REGISTRATION, LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT OR PASSWORD, OR THE APPLICATION OF THE DISPUTE RESOLUTION POLICY.

YOU UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR REGISTRATION OF THE DOMAIN NAME. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR AND/OR YOUR PRIMARY SERVICE PROVIDER’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Domain Service Warranty

YOU REPRESENT THAT, TO THE BEST OF YOUR KNOWLEDGE AND BELIEF, NEITHER THE REGISTRATION OF A DOMAIN NAME NOR THE MANNER IN WHICH IT IS DIRECTLY OR INDIRECTLY USED NOR THE USE OF THE DOMAIN SERVICES INFRINGES THE LEGAL RIGHTS OF A THIRD PARTY. YOU FURTHER REPRESENT AND WARRANT THAT ALL INFORMATION PROVIDED BY YOU IN CONNECTION WITH YOUR PROCUREMENT OF THE DOMAIN SERVICES IS ACCURATE. ALL DOMAIN SERVICES ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS. VIVIO MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE DOMAIN SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. WITHOUT ANY LIMITATION TO THE FOREGOING, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT REGISTRATION OR USE OF A DOMAIN NAME UNDER THIS AGREEMENT WILL IMMUNIZE YOU EITHER FROM CHALLENGES TO YOUR DOMAIN NAME REGISTRATION, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF THE DOMAIN NAME REGISTERED TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

Right of Cancellation

Vivio reserves the right, at its s sole discretion, to deny, cancel, terminate, suspend, lock, or modify access to or control of any account or any Domain Services for any reason.

SSL Certificates

SSL Service Description

A SSL Certificate is a digitally signed message that contains an organization’s public key and associates it with information authenticated by a Certificate Authority, A Certificate Authority is a third-party (such as GeoTrust, Comodo, Symantec, Thawte, etc) that verifies certain information supplied to it (such as email address, postal address, business name, etc) and signs a public key affirming that this information is true and correct.

By purchasing and/or utilizing a SSL certificate through Vivio, you acknowledge and understand that Vivio is not a Certificate Authority, and is in no way responsible for the quality, integrity, completeness, truth, or accuracy of any SSL certificate purchased through our services.

SSL Refund Policy

Vivio includes a 30-day refund guarantee on many of the SSL products we offer. You understand and agree that Vivio has the right, at its sole discretion and judgment, to refuse a refund request for any reason, including improper or incomplete refund requests. In order for a refund request to be considered for approval by Vivio, you agrees and attest to the following with regard to the certificate you are requesting a refund for:

– The SSL certificate is no longer in use
– The SSL certificate has been uninstalled and deleted

The refund request for any SSL certificate must be received within 30 days of the original order date. Account refunds will be assigned to either to the credit account used to purchase the SSL certificate, or the billing contact of the account used to purchase the SSL certificate. Vivio is not responsible for lost, stolen, incorrect, incomplete, illegible, or undelivered refunds or incorrect, incomplete, or old billing contact information.

Expiration and Renewals

You acknowledge and understand that it is your responsibility to keep and maintain your own records regarding your SSL Certificates and the dates they are set to expire. As a convenience to you, and not an obligation or a binding commitment, we may send you renewal notifications to inform you when SSL Services are about to expire.

Revocation

Vivio reserves the right to revoke any SSL certificate at any time without notice should Vivio have any reason to believe any of the following:

– The information within your SSL Certificate is no longer valid
– You fail to perform your obligations under these Terms of Service
– At Vivio’s sole discretion and judgment, Vivio believes you have engaged in activities which are harmful or unlawful

Authorized Agent

If you are ordering a SSL Certificate at the request of a client, you attest and agree that you have been authorized to purchase the SSL certificate on behalf of the client you are ordering for, and to enter into this binding agreement with Vivio on their behalf. Vivio reserves the right, but without obligation, to verify the authenticity of any request made by an authorized agent on behalf of an Account Owner. Vivio may at its sole discretion and judgment, refuse service to any authorized agent for any reason.

SSL Services Liability

UNDER NO CIRCUMSTANCES SHALL VIVIO BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER RELATED TO THIS AGREEMENT, SSL SERVICES, YOUR USE OR INABILITY TO USE OUR WEBSITE(S) OR THE MATERIALS AND CONTENT OF THE WEBSITE(S) OR ANY OTHER WEBSITES LINKED TO SUCH WEBSITE(S) OR YOUR PROVISION OF ANY PERSONALLY IDENTIFIABLE INFORMATION TO BACKEND SERVICE PROVIDER OR ANY THIRD PARTY. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF VIVIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. BECAUSE CERTAIN JURISDICTIONS DO NOT PERMIT THE LIMITATION OR ELIMINATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF ANY PROVISION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE UNENFORCEABLE, ONLY SUCH PROVISION SHALL BE REMOVED AND THE REMAINDER SHALL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY LAW.

Privacy Policy

As a Hosting Service Provider that is trusted by thousands around the world with the care and protection of critical and sensitive information, the subject of Privacy is very near and dear to the hearts of everyone that works at Vivio Technologies. It is this extreme concern that drives us to apply the same protections on your personal information that we would want as clients of any other company. In order to help demonstrate our commitment to your privacy, Vivio voluntarily participates in the EU-U.S. Data Privacy Framework program, the UK Extension to the EU-U.S. DPF, and the Swiss-U.S. Data Privacy Framework program, which gives you unprecedented control of your personal data within our systems.

Because we gather certain types of information about the users of Vivio services, we feel you should fully understand what information we gather and how we use that information.

Vivio employees are required to familiarize themselves with this privacy policy as a condition of their employment, and any employee violating the policy is subject to disciplinary action.

Data Privacy Framework

Vivio Technologies complies with the EU-U.S. Data Privacy Framework program (EU-U.S. DPF), the UK Extension to the EU-U.S. DPF, and the Swiss-U.S. Data Privacy Framework program (Swiss-U.S. DPF) as set forth by the U.S. Department of Commerce.

Vivio Technologies has certified to the U.S. Department of Commerce that it adheres to the EU-U.S. Data Privacy Framework Principles (EU-U.S. DPF Principles) with regard to the processing of personal data received from the European Union in reliance on the EU-U.S. DPF and from the United Kingdom (and Gibraltar) in reliance on the UK Extension to the EU-U.S. DPF.

Vivio Technologies has certified to the U.S. Department of Commerce that it adheres to the Swiss-U.S. Data Privacy Framework program Principles (Swiss-U.S. DPF Principles) with regard to the processing of personal data received from Switzerland in reliance on the Swiss-U.S. DPF.

If there is any conflict between the terms in this privacy policy and the EU-U.S. DPF Principles and/or the Swiss-U.S. DPF Principles, the Principles shall govern. To learn more about the Data Privacy Framework (DPF) program, and to view our certification, please visit https://www.dataprivacyframework.gov/.

What Information is Gathered

When you register for a Vivio account, Vivio obtains contact information, such as your name, postal address, email address, and phone number, as well as payment information, such as your credit card number.

When you use the Vivio website, our systems record information about your session, such as the dates and times of use, and the specific IP address assigned to you during your visit. Vivio also tracks requests you make for information on Vivio products and services, and responses you provide to Vivio surveys.

When you use Vivio services, the hardware and software used to provide you that service keep logs of various transmissions and transactions that come through them. This includes, but isn’t limited to, DNS requests, number of connections, amount of traffic, incoming and outgoing ports, ip addresses making the connections, and other information stored in logs by the equipment servicing those requests.

Finally, Vivio also keeps records of your payment history and any communications you have with the Vivio Support Team.

How this Information is Used

Vivio uses the information it gathers during your visit to our website in order to provide you with the best online experience possible. Contact information is used to contact you concerning your services. Payment information is used to validate your identity and to bill you for the services and products you order. Information on your online sessions is used to allocate system resources and to ensure compliance with Vivio’s Terms of Service. Information in your communications with the Vivio support team is used to address the issues raised by your communications.

As a client of Vivio, Vivio may need to occasionally send security bulletins and other important information to your email or postal address regarding your services. Vivio may also call the number you have on file with us in order to provide you with security bulletins and other important information that requires your immediate attention.

Vivio may be required to share EU, UK, and Swiss personal data in response to lawful requests from public authorities including to meet national security and law enforcement requirements.

Personal Information and Third Parties

In order to provide you with services, Vivio may share your information with certain agent third-parties. Where possible, this information will be limited to only the information necessary to complete the agent-third-parties purpose, such as processing a payment, or fulfilling a service order. These agent third-parties include the following:

– Credit Card Processing Services,
– Anti-Fraud Checking Services,
– Domain Name Registrars,
– SSL Service Providers,
– Content Delivery Network Providers, or
– Security Service Vendors.

In order to facilitate good communication between Vivio and its clients, Vivio may request to place your email address on a newsletter mailing list so that you can receive notifications about service changes that may affect you. Vivio’s newsletter mailing list is provided as a courtesy to you, is completely optional, and you are welcome to opt-out by unsubscribing at any time for any reason.

Vivio will not sell, rent, share, or disclose personally identifiable information regarding its clients to non-agent third-parties except:

– when we receive legal process such as a court order,
– when reasonably necessary to protect the company’s rights or property, or
– in emergencies where we can reasonably believe someone’s safety is at risk.

Under certain circumstances, Vivio may be liable for the transfer of personal information from the EU, UK, or Switzerland to third parties outside the US. Learn more about the Data Privacy Framework (DPF) program here: https://www.dataprivacyframework.gov/.

Personal Information Use Choices

The personal information you provide Vivio Technologies is kept strictly confidential and will not be shared or sold to any third party except as needed in order to provide services. To this end, Vivio makes every effort to limit the amount of information we collect to only the information that we require in order to process requests for services. This is the information required by credit card processing services, or third-party service providers like domain names or SSL certificates. As such, all the information that is requested during the order process is required in order to provide the services you are requesting. If you no longer wish to share this personal information with Vivio, you may terminate services and your personal information will be handled according to the Post Termination clause of this policy.

Updating Personal Information

Vivio Technologies acknowledges the right of individuals whose data we are processing, to access, correct, or delete their personal data, as it is their right under the Data Privacy Framework program. To make changes or corrections to your personal information that is held by Vivio, you may either log in to your account on the Vivio site and update your information yourself, or you may call or email the Vivio Billing Department from an authorized email address or phone number. Please understand when calling or emailing that, for security purposes, we may ask you to prove your identity before making changes to your account, although Vivio is not obligated to do so. We reserve the right to refuse to make changes to your account if we, at our sole discretion and judgment, are not satisfied by your proof of identity.

Privacy Mediation

In compliance with the EU-US Data Privacy Framework Principles, Vivio Technologies commits to resolve complaints about your privacy and our collection or use of your personal information transferred to the United States pursuant to the DPF Principles. European Union, Swiss and United Kingdom individuals with DPF inquiries or complaints should first contact Vivio Technologies directly at:

privacy@viviotech.net

Vivio Technologies has further committed to refer unresolved privacy complaints under the DPF Principles to an independent dispute resolution mechanism, Data Privacy Framework Services, operated by BBB National Programs. If you do not receive timely acknowledgment of your complaint, or if your complaint is not satisfactorily addressed, please visit https://bbbprograms.org/programs/all-programs/dpf-consumers/ProcessForConsumers for more information and to file a complaint. This service is provided free of charge to you.

If your DPF complaint cannot be resolved through the above channels, under certain conditions, you may invoke binding arbitration for some residual claims not resolved by other redress mechanisms. See https://www.dataprivacyframework.gov/s/article/G-Arbitration-Procedures-dpf?tabset-35584=2

The Federal Trade Commission has jurisdiction over Vivio Technologies’s compliance with the EU-U.S. Data Privacy Framework (EU-U.S. DPF) and the UK Extension to the EU-U.S. DPF, and the Swiss-U.S. Data Privacy Framework (Swiss-U.S. DPF).

Changes to this Data Privacy Framework

This Data Privacy Framework may be amended from time to time consistent with the requirements of the Data Privacy Framework program. Appropriate notice regarding such amendments will be provided.

Post Termination

If you ever leave Vivio, Vivio will preserve account information for a period of time in the event you wish to reactivate your account, record-keeping purposes, and for tax reporting purposes. When account information is no longer useful for these purposes, Vivio will normally delete this personally identifiable information unless we are under a legal obligation to retain it. In the event of any accounting irregularities, Vivio reserves the right to retain your contact and billing information as necessary to resolve the matter.

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