Terms of Service for LiliO Services (North America)
Please note: This is the Terms of Service Agreement for non-European customers. European customers should use the Terms of Service for Europe.
"Agreement" between LiliO, hereinafter referred to as "LiliO" and the client, hereinafter referred to as "Client". Both LiliO and Client are parties to this agreement, and can be hereinafter referred to as "Parties".
Agreement: This document and any Attachments.
Product: The solution LiliO delivers to the Client.
Attachments: Price quotation, specification, order confirmation, pages on the provider's website, etc., that describe the products/services to be delivered.
Services: The development and hosting provided by LiliO under this Agreement.
Web hosting: Storage space for files accessible over Internet. Usually includes email, FTP and HTTP services.
Scope of the Agreement
The agreement applies to all Products and Services provided by LiliO to Client.
Client grants LiliO the task of delivering Product and Service as described within the time limits set forth in any Attachments.
3. Maintenance – Service
Client can enter into a separate agreement with LiliO for additional maintenance, operations, services and support. LiliO is free to use subcontractors for such tasks.
For the implementation of Services, the LiliO and Client shall work under this Agreement and all Attachments.
Client retains copies of all source material. LiliO is not liable for loss of documents, descriptions and instructions if damaged or destroyed by a random event while in LiliO custody and outside Client premises.
Client retains full copyright and ownership of the Product, however LiliO is entitled to freely use the accumulated knowledge and general graphic elements (design), as well as the technical standard features (general classes) in other projects.
Client has exclusive rights to the custom software, documentation, and other materials used in the development of Product, including any improvements made in in the development of the Product.
Client has a non-exclusive right to material used for implementation and development to the extent that it is part of the Product.
Material made available to Client during development of the Product shall not be updated by LiliO without prior signed agreement between LiliO and Client.
7. Assignment Changes and Cooperation
7.1 Changes and additions
All requests for changes or additions to the original Agreement or Attachments shall be in writing, and must be approved by an authorized representative of the Client.
LiliO shall consider the consequences of any changes or additions upon Project cost and schedule, and provide Client with written analysis of probable impact within a reasonable period of time.
Client understands that changes or additions may severely impact estimated costs or schedules of the Product.
Any Party to this Agreement may in writing invite the other Parties to meet within three working days notice to discuss issues arising in connection with the implementation of this Agreement.
8. Delivery and Acceptance
Delivery shall be in accordance with the schedule described in the Attachments.
On the day of delivery, LiliO shall provide Client with written notice of deliverables.
No later than 14 days after delivery, Client shall conduct a test of the product in cooperation with LiliO. If the Client believes these tests indicate that the deliverables are in accordance with the expectations defined in this Agreement and included Attachments, this Product will be deemed completed and delivered.
If Client believes these tests indicate that the deliverables are not in accordance with the expectations defined in this Agreement and included Attachments, Client will send a written notice to LiliO within one week from the end of the test with an indication of the reasons for not accepting delivery. In such cases, LiliO will undertake to correct the noted conditions as soon as possible. LiliO may determine that the Product is in fact delivered in accordance with this Agreement if the identified conditions are immaterial to the Client's use of the Product.
9. Client Obligations
9.1. General obligations
a. Client is required to inform LiliO of any changes in contact information, including business and email addresses. If Client changes contact information without notifying LiliO, any messages sent by LiliO will be considered to have been received by the Client.
b. Email from Client shall be considered received and known, provided that Client can demonstrate that such an email has been sent.
c. Client shall carefully guard and retain any login credentials, including passwords, supplied by LiliO that provide access to secure services.
9.2 Domain Registration Obligations
a. Client agrees to comply with all applicable laws for domain registration. Any use of domains will be in accordance with the various top-level name policies.
b. Client is responsible to ensure that registered domains do not infringe third party rights (eg. trademarks).
c. Ordering a domain registration binds the Client to the purchase for the entire period of validity.
d. Client accepts that any domain name registered by LiliO for Client but not paid for by the Client within two (2) months, may be transferred to LiliO ownership. Client does not have the right to use a domain name before payment is completed.
e. Some domain types are registered through the subcontractor Dream Network, LLC. For registration and ownership of such domain names provided by LiliO, Client accepts the corresponding conditions available at: www.domeneshop.no / terms.cgi. An updated list of domain types to which these terms are in effect can be found here: www.lilio.no / domain shop.
9.3 Website Obligations
a. Client is responsible for creating, posting and updating all content on their own website. Client retains ownership and copyright of all content posted on their website. Client is legally responsible for all content posted on their website.
b. Client shall ensure that no material posted on their websites violates applicable laws.
c. Client shall not post any material which is covered by the terms "warez", "IRC," "pornography" or material that can damage the server or persons (physically or mentally).
d. Client is responsible for ensuring the validity of any necessary licenses from applicable government agencies.
e. Client shall hold LiliO harmless for any claims from third parties as directed against LiliO regarding alleged illegal content on Client's website.
f. Client shall stay informed on their use of storage and bandwidth capacity on the server. This can be done by periodically viewing the Client's Control Panel for the applicable domains, for example, www.example.com/cpanel, (where example.com is Client's domain on a LiliO server).
g. Client shall not upload software that adversely affects server performance.
h. Spam is strictly prohibited. All email marketing must be compliant with the CAN-SPAM Act. All bulk email must be solicited, meaning that the sender must be able to document an existing and provable relationship with the e-mail recipient, where the recipient has not requested not to receive future mailings from the sender. Client shall not use any LiliO provided services for sending of unsolicited bulk email. Neither shall any third party service or address list be used to solicit customers, replies or visitors to web sites or email addresses hosted by LiliO.
i. At LiliO's discretion, violations of Client obligations may result in immediate termination of Client website.
j. Client is responsible for ensuring that any material prepared on behalf of the Client by LiliO fully meets all requirements specified in Section 9.3.
10. LiliO's Obligations
10.1 General Obligations
a. LiliO shall notify Client of changes in prices and services as soon as possible after becoming aware of them.
b. LiliO shall notify and inform Client primarily through email.
10.2 Domain Obligations
a. LiliO shall provide support through email for problems directly related to domains. Support that is not directly related to the domain, such as setup and the use of third-party DNS servers, is billed at LiliO's regular hourly rate.
b. Upon request, LiliO shall assist Client in transferring domains away from LiliO registrars. LiliO shall provide assistance when Client does not have access to necessary LiliO domain management systems.
10.3 Hosting Obligations
a. Client should have ready access to their section of the server at any time.
b. Client's Internet services shall be available to users of the Internet.
c. LiliO shall provide support by email for direct server-related problems. Support that is not directly related to regular server maintenance, such as problems with Client-installed PHP or CGI scripts, shall incur standard LiliO hourly charges.
d. LiliO shall ensure that servers are available to Internet users without network problems with 99% of each calendar month with 0% packet loss, except in the event of major network outages or other unforeseen events beyond LiliO's control.
e. LiliO shall plan server upgrades in advance, and provide information to Client about breaks in connectivity or downtime on the server due to network or software upgrades, or replacement of equipment.
f. Client shall receive notice of planned breaks in connectivity or planned downtime per server through email as far in advance as possible. LiliO shall endeavor to ensure that this happens at least 24 hours in advance.
10.4 Hourly or Quote-Based Obligations
a. Based on the Client's project, LiliO may present a written time-and cost estimate. Unless otherwise agreed, work will begin only after Client approves this estimate. Written approval may be given through email.
b. Unless otherwise indicated, quotes and estimates are binding for up to, and no more than, three (3) months.
c. Any changes (extensions, additions or restrictions) to quotations or estimates supplied by LiliO may change Project scope, cost or schedule. Such changes will be made in cooperation with the Client.
11.1 Transfer of domain registrations
Client owns the rights to their domain registrations, and retains the right to transfer the domain registration to a second where it does not conflict with other parts of this Agreement. The transfer of domain registrations does not change the agreement on domain management, hosting, etc.
11.2 Transfer of hosting, and other services
Client may not assign their rights and obligations under this Agreement to others without the consent of LiliO. Such consent requires that the Client has paid for the ordered Service.
a. Design and development projects covered by this Agreement: Customer shall pay the compensation as stated in the accepted quotation, proposal, etc. Any costs associated with installation, start-up operations, new versions will appear in the supporting documentation.
b. Unless otherwise agreed, all hourly work will be performed at LiliO's current standard rate as noted in applicable Attachments.
c. Regular recurring charges (such as web hosting and domain name registrations) are billed in advance.
d. Recurring charges are billed for a period of twelve (12) months at a time unless otherwise agreed.
e. All services are due within fifteen (15) days of invoice date.
f. A fee may be charged for late payments. Late payment fees are calculated at 1/10 of outstanding charges.
g. If payment is still absent fifteen (15) days after notice, LiliO may disable applicable services.
h. The reactivation of a disabled service may incur a reactivation fee.
12.2 Changes in remuneration
a. Fees are subject to change with three (3) months notice effective agreement renewal or first maturity.
b. In the event of changes in applicable taxes, duties or other conditions affecting the total charge at the conclusion of a contract, LiliO may make immediate changes in fees.
c. Client shall be charged according to prevailing government rates for subsistence and travel expenses incurred in connection with the execution of this Agreement.
d. LiliO has a lien on all services until full payment has been made.
e. Unless otherwise noted, all prices quoted in this Agreement, and on LiliO websites, documents, or written communications exclude applicable taxes.
12.3 Exceeding the capacity limit
LiliO can bill for additional capacity or costs incurred if Client uses more than the agreed capacity as stated in the hosting agreement. This includes disk space, bandwidth and monthly traffic.
13. Confidentiality – Trade Secrets
a. The Parties shall keep confidential all information or materials that are marked confidential, all information about personal relationships, and all information that is prejudicial to a party or may be exploited by others in the industry.
b. The Parties agree to take whatever precautions are necessary to ensure that materials or information are not disclosed to others in contravention of the provisions on confidentiality, and that there is no accidental distribution of proprietary software or documents.
c. The duty of confidentiality applies to the employees and others acting on behalf of the Parties in connection with the implementation of the Agreement. The provisions on confidentiality continue to apply after the Agreement is terminated and after an employee resigns their position with one of the Parties.
14. Force Majeure
LiliO is not responsible for any damages or losses resulting from events beyond its control, including but not limited to government intervention, natural disasters, voltage fluctuations, wars, strikes, lockouts, as well as operational obstacles that are not caused by errors or omissions of LiliO's.
15. In title
a. If LiliO's performance violates copyright or other rights, it is considered a legal defect. In the event of claims from a third-party site, the Client is required to provide LiliO with written notice without undue delay.
b. Should a claim by raised by third parties on the basis of copyright infringement, etc., that are related to any part of the delivery of this Agreement, LiliO shall at our own expense also bring the case for the Client. From the time LiliO takes over the case from the Client for special compensation to assist the contractor but will not act on its own at any trial.
c. Should a dispute arise between the Client and LiliO for violation of rights is a precondition for this agreement, LiliO may choose to provide the Client the right to continued use, or make changes or amendments to the said right is not violated. If none of these options may reasonably be applied to the Client on LiliO's request to return the concerned section and a prorated refund. Refunds make reasonable allowances for accrued use of Services by the Client.
d. Beyond this, Client may not increase the liability above the current contract as a result of in title.
16. Claims and Defaults
Complaints relating to alleged breaches of this Agreement must be in writing and submitted immediately after the party learns of the breach.
16.2 Breach by the Client
a. There is a breach by the Client if the Client fails to perform its obligations under the Agreement.
b. If the Client does not deliver material within stipulated deadlines, there may be consequences as specified in the Attachments.
c. In case of payment default, ongoing LiliO performance in connection with this and other agreements with the Client may stop.
d. LiliO is entitled to recover any losses as a result of default by the Client.
16.3 Breach by LiliO
a. There is a breach by LiliO if LiliO fails to fulfill its obligations under the Agreement.
b. LiliO may not be held responsible for network issues that occur between the data center where the server is and the user. Whether the server's unavailability is outside the Contractor's responsibility, as described above, is determined by the Contractor in cooperation with subcontractors.
c. There is no breach if deviations from the Agreement are caused by events outside the control of LiliO.
d. There is a breach by LiliO if the performance does not meet Project specifications as defined in the Agreement and applicable Attachments. Client may request in writing that LiliO repair such defects by making corrections and changes to meet the specifications.
a. This agreement may be canceled if either party materially fails to fulfill its obligations under the Agreement and the relationship is not corrected within 30 days from written notice.
b. LiliO has the right to terminate the Agreement if payment is wholly or partially 30 days overdue. This applies if the Client goes bankrupt, suspends payments or otherwise fails to meet its payment obligations to LiliO.
a. The Client can not claim compensation, other than as expressly provided herein.
b. LiliO is not responsible for indirect losses, lost profits, consequential damages, liability for business interruption, loss of use, lost contracts, loss of data, loss of goodwill or the like.
c. If there is less than 99% availability due to unplanned breaks in server connectivity within one (1) month, Client shall be refunded a percentage of payments for the month according to the following distribution formula:
- 95-99% availability = 25% refund
- 90 to 94.9% available = 50% refund
- 89.9% or less = 100% refund
This shall constitute the full and maximum liability to LiliO in relation to downtime or reduced availability.
d. For the second type of liability, LiliO's total liability, regardless of the basis, shall not exceeding the amount the Client has already paid within the Agreement framework within the past year.
Rights or obligations under this Agreement may not be assigned or transferred to others without the other party's prior written consent, but this right can not be unreasonably withheld by either Party.
a. Unless Client terminates the Agreement within 30 days before the date of automatic renewal, regular services (such as web hosting and domain registration) is renewed automatically for another period.
b. Other services require two months notice.
c. Termination shall be in writing and can be made by either party without cause.
21. Disputes / Governing Law
Laws of the State of California and United States of America apply to this Agreement. Disagreement between the Parties in connection with this Agreement shall be resolved by negotiation or through mediated conflict resolution. If negotiations or conflict resolution are not satisfactorily resolved within 60 days, either Party may refer the dispute for decision to US District Court in Sonoma County, California, USA.
22. Other provisions
a. This Agreement with any attachments, supersedes all prior oral or written negotiations, discussions and/or agreements.
b. Changes or additions to this Agreement shall be in writing.
c. This Agreement with attachments shall be written in two (2) copies, one for each of the Parties or approved electronically by registering an IP address.
Version: 7, May 3, 2015