GENERAL TERMS OF SERVICE FOR ORDERSTORM SOFTWARE AND SERVICES
This General Terms of Service for OrderStorm Software and Services Agreement (“Agreement”) is by and between OrderStorm Inc. (“OrderStorm”) a Colorado corporation and you, your heirs, agents, successors and assigns (“You”), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of OrderStorm software (“Software”) and services (“Services”) and explains OrderStorm`s obligations to You and Your obligations to OrderStorm in relation to the Software and Services You purchase.
This Agreement as well as any additional OrderStorm policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and OrderStorm concerning Your use of OrderStorm`s Software and Services, and supersede and govern all prior proposals, agreements, or other communications. All OrderStorm policies and agreements specific to particular Software and Service are incorporated herein and made part of this Agreement by reference, including the Internet Corporation for Assigned Names and Numbers (“ICANN”) Rules for Uniform Domain Name Dispute Resolution Policy (“UDRP”). http://www.icann.org/en/udrp/udrp-rules-24oct99.htm By purchasing OrderStorm`s Software or Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which OrderStorm may establish from time to time, and any agreements that OrderStorm is currently bound by or will be bound by in the future. You may view the latest versions of these Agreements here.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You`ve established with OrderStorm, whether or not the transactions were in Your behalf.
The General Terms in Section A apply to all customers of OrderStorm. The Software and Services Specific Agreements incorporated in Section B apply only to customers who have purchased those referenced Services.
A. GENERAL TERMS APPLICABLE TO ALL SOFTWARE AND SERVICES
1. TERM OF AGREEMENT; MODIFICATIONS.
You agree that OrderStorm may modify this Agreement and the Services from time to time. You agree to be bound by any changes OrderStorm may reasonably make to this Agreement when such changes are made. If You have purchased Services or Software from OrderStorm, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Software or Services. In the event You terminate Your usage, OrderStorm will not refund any amounts You have paid. You agree that OrderStorm shall not be bound by any representations made by third parties who You may use to purchase Services from OrderStorm, and that any statement of a general nature, which may be posted on OrderStorm`s web site or contained in OrderStorm`s promotional materials, will not bind OrderStorm. OrderStorm may, at times, offer certain promotions with different charges and features.
You agree that You will be responsible for notifying OrderStorm should You desire to terminate Your use of OrderStorm`s Services. Notification of Your intent to terminate must be provided to OrderStorm no earlier than ten (10) days prior to Your billing date but no later than three (3) days prior to Your billing date.
2. ACCURATE INFORMATION.
You agree to maintain accurate information by providing updates to OrderStorm, as needed, while You are using OrderStorm`s Services. You agree You will notify OrderStorm within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by OrderStorm to determine the validity of information provided by You will constitute a material breach of this Agreement.
4. ACCOUNT SECURITY.
You agree that You are entirely responsible for maintaining the confidentiality of Your customer login and password (collectively, the “Account Access Information”). For security purposes, OrderStorm recommends that You change Your password every six (6) months, for every OrderStorm account, subject to OrderStorm`s password guidelines. You agree that You are entirely responsible for any and all activities that occur under Your account. You agree to notify OrderStorm immediately of any unauthorized use of Your account or any other breach of security. You agree OrderStorm will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by OrderStorm or another party due to someone else using Your Account Access Information. You should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that You will be responsible for all activity in Your account, whether initiated by You, or by others on Your behalf, or by any other means. OrderStorm specifically disclaims liability for any activity in Your account, whether authorized by You or not.
5. NO UNLAWFUL CONDUCT OR IMPROPER USE.
As a condition of Your use of OrderStorm`s Software and Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to OrderStorm if, for any reason, OrderStorm takes corrective action with respect to Your improper or illegal use of its Services.
OrderStorm reserves the right at all times to disclose any information as OrderStorm deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in OrderStorm`s sole discretion.
If You have purchased Services, OrderStorm has no obligation to monitor Your use of the Services. OrderStorm reserves the right to review Your use of the Services and to cancel the Services in its sole discretion. OrderStorm reserves the right to terminate Your access to the Services at any time, without notice, for any reason whatsoever.
OrderStorm reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against OrderStorm or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. OrderStorm may review every account for excessive space and bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed levels.
Except as set forth below, OrderStorm may also cancel Your use of the Services, after thirty (30) days, if You are using the Services, as determined by OrderStorm in its sole discretion, in association with spam or morally objectionable activities. Morally objectionable activities will include, but not be limited to:
* activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties;
* activities prohibited by the laws of the United States and/or foreign territories in which You conduct business;
* activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography;
* activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable;
* activities designed to impersonate the identity of a third party;
* illegal access to other computers or networks (i.e., hacking);
* distribution of Internet viruses or similar destructive activities;
* activities designed to harm or use unethically minors in any way; and
* activities associated with the sale or distribution of prescription medication without a valid prescription.
Notwithstanding anything to the contrary herein, in the event OrderStorm cancels Your Services during the first thirty (30) days after You purchase the Services, You will receive a refund of any fees paid to OrderStorm in connection with the Services being cancelled. In the event OrderStorm deletes Your Services because they are being used in association with spam or morally objectionable activities, no refund will be issued. You agree You will not be entitled to a refund of any fees paid to OrderStorm if, for any reason, OrderStorm takes corrective action with respect to Your improper or illegal use of its Services.
6. NO SPAM; LIQUIDATED DAMAGES.
You agree OrderStorm may immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay OrderStorm liquidated damages of $1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your account, otherwise You agree to pay OrderStorm`s actual damages. You acknowledge You have read and understand and agree to be bound by the terms and conditions of OrderStorm `s Anti-Spam Policy, available here . Such terms and conditions are applicable to the use of all OrderStorm Software and Services and are incorporated herein.
7. INTELLECTUAL PROPERTY.
You agree that OrderStorm or its licensor holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such Services or Software.
You understand and agree that all content and materials contained in this Agreement, other policies, the OrderStorm web site, and any affiliated web sites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that OrderStorm or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of OrderStorm or its licensor. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.
8. USE OF ORDERSTORM E-COMMERCE SOFTWARE.
If You have licensed e-commerce software from OrderStorm, OrderStorm grants You a limited, non-exclusive, nontransferable and non-assignable license to use the software for such purposes as are ordinary and customary.
You agree to not alter or modify the Software. You agree You are not authorized to combine the Software with any other software program, create derivative works based upon the Software, nor are You authorized to integrate any plug-in or enhancement which uses or relies upon the Software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.
OrderStorm reserves all rights to the Software. The Software and any copies You are authorized to make are the intellectual property of OrderStorm. The source code and its organization are the exclusive property of OrderStorm and the Software is protected by copyright, including United States Copyright Law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the Software and all rights are reserved by OrderStorm.
ORDERSTORM PROVIDES THIS SOFTWARE “AS IS” WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. FEES AND PAYMENT.
As consideration for the Software or Services purchased by You and provided to You by OrderStorm, You agree to pay OrderStorm at the time You order. All fees are due immediately and are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. OrderStorm expressly reserves the right to modify pricing through email notification and/or notice on its web site. Payment may be made by You by providing either a valid credit card, a personal check, money order, PayPal or wire transfer to establish a cash reserve for charge by OrderStorm (collectively, the “Payment Method”). Your Prepaid Services account may be funded by a money order or a personal check under as further described, below. Your Payment Method on file must be kept valid.
If You signed up for a monthly payment plan, Your monthly billing date will be the first day of each month. If You signed up for a semi-annual or annual payment plan, and You elected the automatic renewal option, OrderStorm will automatically renew Your Services when they come up for renewal and will take payment from the Payment Method You have on file with OrderStorm, at OrderStorm`s then current rates.
If for any reason OrderStorm is unable to charge Your Payment Method for the full amount owed OrderStorm for the Services provided, or if OrderStorm is charged a penalty for any fee it previously charged to Your Payment Method, You agree that OrderStorm may pursue all available remedies in order to obtain payment. If You pay by credit card and if for any reason OrderStorm is unable to charge Your credit card with the full amount of the Services provided, or if OrderStorm is charged back for any fee it previously charged to the credit card You provided, You agree that OrderStorm may pursue all available remedies in order to obtain payment. You agree that among the remedies OrderStorm may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any domain names or Services registered or renewed on Your behalf. OrderStorm reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular Services, including additional costs that it may incur in providing the Services and pass along to You. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties You have elected to use as payment methods, including PayPal, and disputes that require legal services. These charges will be billed to the Payment Method we have on file for You. You may change Your Payment Method at any time.
You agree that You are solely liable for arranging that Your Services are renewed, and that OrderStorm shall not be liable to You or any third party if it is unable to charge Your Payment Method in order to renew Your Services.
By giving OrderStorm a deposit, You can transfer funds to OrderStorm in advance and use the balance of Your Prepaid Services Account (“Account”) as You please. You can use Your Account to purchase any of the Software or Services of OrderStorm. As consideration for the Services purchased by You and provided to You by OrderStorm, You agree to pay OrderStorm in advance for the Services to be provided. Payment is to be made by You providing either a valid credit card, wire transfer, a money order, or personal check. All money orders will be delayed ten (10) days until the money is credited, which may delay Your usage of the product or Services, and any money order that does not clear will result in a $25 processing fee. All personal checks will be delayed seven (7) days until the money is credited, which may delay Your usage of the Software or Services. You agree that if the bank draft is returned unpaid, You will pay a service charge of $25.00 or the maximum amount allowed by law.
You acknowledge that funds transferred to Your Account will be held in an account by OrderStorm, which will not accrue or pay interest for Your benefit. To the extent interest may accrue, if any, You understand and agree that OrderStorm shall be entitled to receive and keep any such amounts to cover costs associated with the Prepaid Services.
10. REPRESENTATIONS AND WARRANTIES.
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are 18 years of age or older, or that You have an agent authorized by law to represent You who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party`s trademark or trade name.
OrderStorm expressly reserves the right to deny, cancel or transfer any domain name registration that it deems necessary, in its discretion, to protect the integrity and stability of the registry, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of OrderStorm, as well as its affiliates, subsidiaries, officers, directors and employees. OrderStorm also reserves the right to freeze a domain name during resolution of a dispute.
11. LIMITATION OF LIABILITY .
IN NO EVENT SHALL ORDERSTORM BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLDUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF ORDERSTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, OrderStorm`s liability is limited to the full extent permitted by law. You agree that in no event shall OrderStorm`s maximum aggregate liability exceed the total amount paid by You for the particular Software or Service in dispute purchased from OrderStorm.
12. DISCLAIMER OF WARRANTIES.
ORDERSTORM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SUCH SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ORDERSTORM MAKES NO WARRANTY THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. ORDERSTORM DOES NOT WARRANT, NOR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR RESULTS OF, ANY OF THE SERVICES IT PROVIDES, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Some jurisdictions do not allow the disclaimer of implied warranties, in which event the foregoing disclaimer may not apply to you.
You agree to defend, indemnify and hold harmless OrderStorm and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys` fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with OrderStorm whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from OrderStorm or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold OrderStorm harmless from any loss, liability, damages or expense, including reasonable attorneys` fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person`s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person`s trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should OrderStorm be notified of a pending law suit, or receive notice of the filing of a law suit, OrderStorm may seek a written confirmation from You concerning Your obligation to indemnify OrderStorm. Your failure to provide such a confirmation may be considered a breach of this Agreement. You agree that OrderStorm shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify OrderStorm of any such claim promptly in writing and to allow OrderStorm to control the proceedings. You agree to cooperate fully with OrderStorm during such proceedings.
You agree to cooperate fully with OrderStorm during such proceedings. You agree You will not be entitled to a refund of any fees paid to OrderStorm if, for any reason, OrderStorm takes corrective action with respect to Your improper or illegal use of its Services. You also agree that if OrderStorm is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a Site Analytics account of Yours with OrderStorm, that OrderStorm, in its sole discretion, may take whatever action OrderStorm deems necessary regarding further modification, assignment of and/or control of your account to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
14. GOVERNING LAW, VENUE; WAIVER OF TRIAL BY JURY.
This Agreement shall be deemed entered into in the State of Colorado. Except for disputes concerning the user of a domain name registered with OrderStorm, You agree that the laws and judicial decisions of Jefferson County, Colorado shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Jefferson County, Colorado. For the adjudication of disputes concerning the use of any domain name registered with OrderStorm, You agree to submit to jurisdiction and venue in the U.S. District Court for the District of Colorado located in Denver, Colorado.
You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.
You agree that all notices (except for notices concerning breach of this Agreement) from OrderStorm to You may be posted on our Web site. Notices concerning breach will be sent either to the email or postal address You have on file with OrderStorm. In either case, delivery shall be deemed to have been made five (5) days after the date sent.
Notices from You to OrderStorm shall be made either by email, sent to the address provided on the OrderStorm web site, or first class mail to OrderStorm`s address at:
11757 W. Ken Caryl Ave.
Littleton, CO 80127
The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.
17. ENTIRE AGREEMENT.
You agree that this Agreement including the policies and agreements it refers to (i.e. our Dispute Resolution Policy, etc.) constitute the complete and only Agreement between You and OrderStorm regarding the Services contemplated herein.
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
The failure of OrderStorm to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of OrderStorm thereafter to enforce such provisions.
20. FORCE MAJEURE.
OrderStorm will make every effort to keep its web site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold OrderStorm liable for any of the consequences of such interruptions.
Sections 1, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 shall survive any termination or cancellation of this Agreement.
22. NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
TERMS OF SERVICE (AGREEMENT)
Owner, User, You, Your = You, The paying Customer.
Fees = the Setup Fees, Recurring Fees and Non-Recurring Fees
Initial Term = that period of time commencing upon the initial signup date and ending upon expiration of the Service Contract period set forth by the initial payment.
Recurrence Period = the recurring period upon which you agree to pay for the Services as set forth in the Service Contract.
Recurring Fees = those fees set forth on the Service Contract that are due on a recurring basis throughout the term of this Agreement upon each Recurrence Period.
Renewal Term = the subsequent renewal of the Initial Term or any Renewal Term, commencing upon expiration of such Initial Term or Renewal Term and ending upon expiration of the Service Contract period.
Service Commencement Date = that date upon which you are given access by OrderStorm Inc, (OrderStorm) to begin using the Services.
Service Level Agreement = the OrderStorm Inc. Service Level Agreement as such agreement may be amended from time to time by OrderStorm.
Acceptable Use Policy or Policy = the OrderStorm Acceptable Use Policy may be amended from time to time by OrderStorm.
Support = means the telephone and online technical support provided by OrderStorm in connection with the Services.
OrderStorm has the right to monitor the Website, and at its sole discretion, to remove any content that OrderStorm finds objectionable for any reason, without prior notice to Owner. This includes but is not limited to: Pornography, Spamming, Phishing Scams, Illegal business practices, any material infringing on National or International Copyright.
Website Owner is solely responsible for any liability arising out of or related to the Web Site. Owner agrees to indemnify and hold OrderStorm harmless from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable attorney fees and experts fees, associated with any claim or action brought against OrderStorm related to or arising out of the Web Site or Owner’s breach of its warranties under this Agreement.
Website Owner agrees to maintain a valid encryption certificate (SSL) of 256 bits or more if they are accepting credit card data on their website. OrderStorm will be turned suspend service to any customer accepting credit card data on their WordPress site without a valid SSL certificate.
OrderStorm owns and retains full rights to any code/programs or software developed by OrderStorm.
You own all the content you placed into the website product or service, assuming it was original and does not infringe on existing copyrights.
Any software used in website product or service released under the General Public License (GPL) is governed by such.
OrderStorm reserves the right to modify and/or change these terms and conditions at any time.
Confidential Information means all confidential and proprietary information of a party disclosed either before or after the effective date of this Agreement and marked as such (if such information is capable of being so marked) regarding such party`s products and business that are disclosed by such party (the “Disclosing Party”) to the other party (the “Non-Disclosing Party”) under this Agreement including, but not limited to, the Disclosing Party’s intellectual property. Confidential Information also includes (a) the unpublished prices and other terms of service, audit and security reports, data center designs and other proprietary technology and (b) all information transmitted to or from, stored on or otherwise processed by the servers or other devices used in the provision of the Services. Confidential Information does not include information: (i) in the public domain at the time of delivery, (ii) subsequently published or otherwise made part of the public domain through no fault of the Non-Disclosing Party or its representatives, (iii) in the Non-Disclosing Party’s possession at the time of disclosure and not acquired by the Non-Disclosing party directly or indirectly from Disclosing Party or its representatives on a confidential basis, (iv) which becomes available to the Non-Disclosing Party on a non-confidential basis from a source not under an obligation of confidentiality to the Disclosing Party, or (v) information that is independently developed without reference to the Confidential Information, as evidenced by written records maintained in the ordinary course of business.
Subject to your compliance with all of the terms and conditions of this Agreement, OrderStorm shall provide the Services to you during the term of this Agreement in accordance with the commitments made in the Service Level Agreement. In the event of a failure by OrderStorm to meet the obligations of this Section 2, your sole and exclusive remedy and OrderStorm`s sole obligation are the issuances of Service Credits as set forth in the Service Level Agreement.
You are solely responsible for the content of any postings, data or transmissions using Services, or any other use of the Services by a User. You agree to fully comply with all of the obligations and restrictions set forth in the Acceptable Use Policy. You agree to comply with all of the terms and conditions of this Agreement, make all payments of Fees when due and comply with any and all laws applicable to your use of the Services. You shall cooperate with OrderStorm`s investigation of service outages, security issues or any suspected breach of the terms and conditions of this Agreement.
Your initial invoice will include any Setup Fees and the pro-rated portion of the Recurring Fees from the Service Commencement Date until expiration of the Recurrence Period. Thereafter, OrderStorm will invoice you in advance for the Recurring Fees and in arrears for the Non-Recurring Fees at the beginning of each Recurrence Period.
The Recurring Fees set forth in the Service Order shall remain fixed during the Initial Term. Upon commencement of any Renewal Term, the Recurring Fees for the Services shall be adjusted to the published fees then in-effect at the date of such renewal.
All payment terms shall be made in advance. You shall be responsible for and shall pay, and shall reimburse OrderStorm on request if OrderStorm is required to pay, any sales, use, value-added or other tax (excluding any tax that is based on OrderStorm’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Services.
You must notify OrderStorm in writing of any disputed Fees within fourteen (14) days of the invoice date for such Fees. If you do not notify OrderStorm within such period, you have waived any right to dispute such amounts, either directly or indirectly or as a set-off, or defense in any action or efforts to collect amounts due to OrderStorm.
Suspension of Services
You acknowledge and agree that OrderStorm may suspend providing the Services to you, in whole or in part, without liability if (i) you fail to pay the Fees due OrderStorm for a period of forty-five (45) days after the end date of the Service Agreement, (ii) you are in violation of the Acceptable Use Policy, (iii) you fail to reasonably cooperate with OrderStorm`s investigation of any suspected breaches of this Agreement, (iv) OrderStorm reasonably believes that the servers hosting the Services have been accessed or manipulated by a third party without your or OrderStorm`s consent, (v) OrderStorm reasonably believes that suspension of the Services is necessary to protect the OrderStorm environment generally, (vi) OrderStorm is obligated to suspend Services via subpoena, court order or otherwise as required by law, (vii) you accept credit card data on the WordPress site and fail to maintain a valid encryption certificate (SSL) of 256 bits or more. In the event of any suspension of Service pursuant to subsections (i), (ii) (iii)or (vii), you shall pay OrderStorm a reconnection fee of $150.00 as a condition of reactivation of the Services, in addition to full payment of the balance due on the account, including late payment interest, if any.
IN THE EVENT ORDERSTORM TAKES ANY ACTION PURSUANT TO THIS SECTION, IT SHALL HAVE NO LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU. Nothing herein shall preclude OrderStorm from pursuing other remedies available by statute or otherwise permitted by law.
The term of this Agreement shall be the Initial Term and any Renewal Terms. This Agreement will automatically renew for successive Renewal Terms at the end of the Initial Term or any Renewal Term unless either party provides a written notice of non-renewal at least thirty (30) days prior to the end of then-current contract term (the “Non-Renewal Notice”). Any Non-Renewal Notice sent by you should include: company name, contact name, telephone number, address and requested termination date and shall be sent OrderStorm using available contact methods.
You may cancel the Services within the first thirty (30) days of the Service Commencement Date without incurring any Early Termination Fees. Additionally, if the Recurrence Period is annual and the Services are canceled before the end of the term of this Agreement, there will be no credits or refunds issued.
The early termination notice should be sent to OrderStorm and should include company name, contact name, telephone #, address and requested cancellation date.
Termination for Breach
Without limiting your right to early termination pursuant to Section 8, you may terminate this Agreement in the event of a material breach by OrderStorm upon no less than fifteen (15) days prior written notice and opportunity to cure such material beach.
Without limiting OrderStorm`s rights to suspend the Services pursuant to Section 6 OrderStorm may terminate this Agreement in the event of a material breach by you upon no less than fifteen (15) days prior written notice and opportunity to cure such material beach. Notwithstanding the foregoing, OrderStorm may terminate this Agreement immediately if you violate the Acceptable Use Policy, whether or not you subsequently cure such violation.
Expiration or termination of this Agreement shall not relieve your requirement to pay Fees for Services provided prior to the effective date of termination.
Changes to Service
Any changes to the Services during the Term of this Agreement will result in a new Service Order and new agreement. Any unused payments under this Agreement shall be credited toward the new agreement.
OrderStorm may from time to time conduct routine tests, maintenance, upgrade or repair on any part of the network, and OrderStorm shall use commercially reasonable efforts to give you prior notice thereof. You acknowledge that there may be instances where it is not practicable for OrderStorm to give advance notice of a disruption, for example, in the event of an emergency, and OrderStorm shall be entitled to disrupt the Services to conduct restoration and remedial works without prior notice.
Each party will safeguard and keep confidential all Confidential Information of the other and will return the other`s Confidential Information upon request, except to the extent further retention of such Confidential Information is necessary for a party to perform any post-termination obligations or exercise any post-termination rights under this Agreement. Each party agrees to safeguard the other`s Confidential Information using measures that are equal to the standard of performance used by the Non-Disclosing to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care. Neither party will use any Confidential Information of the other party for any purpose except to implement its rights and obligations under this Agreement and as otherwise expressly contemplated by this Agreement; provided, however, that if any party or its representatives is requested or required to disclose any Confidential Information by a subpoena or court order, that party will promptly notify the other party (unless prohibited by such subpoena or order) of such request or requirement so that the other party may seek an appropriate protective order or other appropriate relief and/or waive compliance with provisions of this Agreement, and if, in the absence of such relief or waiver hereunder, any party or its representative are, in the opinion of its counsel, legally compelled to disclose Confidential Information, then that party may disclose so much of the Confidential Information the person compelling disclosure as is, according to such opinion, required, without liability hereunder.
OrderStorm represents that it shall provide the Services in compliance with its Service Level Agreement. EXCEPT FOR THIS WARRANTY, ORDERSTORM AND ITS LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED RELATING TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. ORDERSTORM SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, ORDERSTORM MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL HAVE NO LIABILITY WHATSOEVER, WITH RESPECT TO THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF DATA TRANSMITTED OVER THE INTERNET, OR ANY INTRUSION, VIRUS, DISRUPTION, LOSS OF COMMUNICATION, LOSS OR CORRUPTION OF DATA, OR OTHER ERROR OR EVENT CAUSED OR PERMITTED BY OR INTRODUCED THROUGH THE INTERNET OR THE SERVERS UPON WICH THE SERVICES ARE PROVIDED. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING ADEQUATE FIREWALL, PASSWORD AND OTHER SECURITY MEASURES TO PROTECT YOUR SYSTEMS, DATA AND APPLICATIONS FROM UNWANTED INTRUSION, WHETHER OVER THE INTERNET OR BY OTHER MEANS.
Limitation of Liability
EXCEPT FOR ORDERSTORM`S GROSS NEGLIGENCE OR WILFULL MISCONDUCT, ORDERSTORM�S AND ITS LICENSOR�S CUMULATIVE LIABILITY TO YOU AND ALL OTHER PARTIES FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU DURING THE PERIOD OF THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED OR THE PRORATA EQUIVALENT IF THE RECURRENCE PERIOD IS ANNUAL. EXCEPT TO THE EXTENT SET FORTH IN THE SERVICE LEVEL AGREEMENT, ORDERSTORM SHALL HAVE NO LIABILITY SHOULD THERE BE ANY DELAY IN THE PROVISION OF THE SERVICE.
ORDERSTORM AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR ANY DATA SUPPLIED THEREWITH OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES, EVEN IF OrderStorm HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCE SHALL ORDERSTORM ASSUME ANY LIABILITY OR RESPONSIBILITY TO YOU FOR SUSPENSION OF SERVICE TO THE EXTENT PERMITTED BY THIS AGREEMENT.
OrderStorm shall defend, indemnify and hold you, your affiliates or any of your or their respective employees, agents or suppliers, harmless from and against any and all costs, liabilities, judgments, actions, losses and expenses (including, but not limited to, reasonable attorneys` fees and fees of experts) (collectively, ‘Losses’) arising out of any threatened or actual claim, suit, action, arbitration or proceeding (collectively, ‘Claims’) by any third party arising out of or relating to (i) OrderStorm’s gross negligence or willful misconduct or (ii) a claim that the Services as provided by OrderStorm under this Agreement infringe upon the United States patent or copyright of a third party; provided that (a) you give OrderStorm prompt written notice of the claim, (b) you permit OrderStorm sole control over the defense and settlement of the claim and (c) you reasonably cooperate with OrderStorm in the defense and or settlement of the claim.
You shall defend, indemnify and hold OrderStorm, its affiliates or any of its respective employees, agents or suppliers, harmless from and against any and all Losses arising out of or relating to (i) your gross negligence or willful misconduct or (ii) your violation of the Acceptable Use Policy or the law; provided that (a) OrderStorm gives you prompt written notice of the claim, (b) OrderStorm permits you sole control over the defense and settlement of the claim and (c) OrderStorm reasonably cooperates with you in the defense and or settlement of the claim. Your obligation under this Section 15 includes claims arising out of acts or omissions by your employees, Users and any other person who gains access to the Services as a result of your failure to use reasonable security measures.
Ownership of Intellectual Property; Software; Hardware and IP Addresses
Each of us shall retain all right, title and interest in and to each party`s respective intellectual property rights, including without limitation, all patents, inventions, trademarks, copyrights and trade secrets. Any intellectual property used, developed or otherwise reduced to practice in providing the Services to you shall be the sole and exclusive property of OrderStorm and/or its licensors, unless we specifically agree in writing otherwise.
You acknowledge and agree that you do not acquire any ownership interest in any of the servers or other hardware used to provide the Services hereunder. Similarly, we do not acquire any ownership interest in the content or data that you store on the servers or transmit via the Services.
You acknowledge and agree that third party software and hardware are used in the provision of Services. Accordingly, you agree to abide by the terms and conditions of any end user licenses or other agreements relating to the use of such hardware or software.
You acknowledge and agree that any IP addresses that OrderStorm may assign to you in connection with the Services are registered to and owed by OrderStorm and upon any expiration or termination of this Agreement, you agree to release and cease using any such IP addresses.
Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, you shall not solicit or hire the services of any employee or subcontractor of OrderStorm without the prior written consent of OrderStorm.
Force Majeure. OrderStorm shall not be deemed to be in breach of this Agreement and shall have no liability hereunder if its obligations are delayed or prevented by any reason of any act of God, war, terrorism, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of your agents or your third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond its reasonable control.
Notice of Claim and Filing of Suit. You must present any claim in writing to OrderStorm within a reasonable time, and in no event longer than sixty (60) days after the event for which the claim is presented so as to permit the parties to attempt to resolve the claim. No action may be maintained against OrderStorm under this Agreement, unless timely written claim has been given as provided above.
Notices. Except to the extent that notices may be sent by electronic mail as specifically set forth in this Agreement, notices under this Agreement will be sufficient only if (i) mailed by certified or registered mail, return receipt requested, (ii) sent by internationally recognized overnight carrier or (iii) personally delivered. Notices shall be deemed delivered upon receipt by the other party. Notices to you shall be sent to the address set forth on the Service Order. Notices to OrderStorm shall be sent to OrderStorm, Inc., 11757 W. Ken Caryl Ave. F-129, Littleton, Colorado 80127, Attn: Legal. Either party may change their notices address by written notice to the other party.
Survival. The provisions of Sections 1, 12, 13, 14, 15, 16 and 17 shall survive any termination or expiration of this Agreement.
Modification; Authority; Assignment. Without limiting OrderStorm`s rights to modify the Acceptable Use Policy or Service Level Agreement as set forth therein, OrderStorm may modify any aspect of this Agreement upon thirty (30) days prior notice. Should you wish to terminate this Agreement as a result of such modification, you may do so by sending a notice of termination to email@example.com any time prior to the effective date of such modification and no Early Termination Fees will apply. Otherwise such modification will remain in effect for the remaining term of this Agreement.
You acknowledge that you have the authority to enter in to this Agreement on behalf of your company and that you may authorize other individuals to purchase additional services. This Agreement binds any of your authorized users, as well as your heirs, executors, successors, and assigns.
This Agreement may not be assigned by you without the prior written consent of OrderStorm, which shall not be unreasonably withheld or delayed.
Governing Law; Jurisdiction. This Agreement is governed by the laws of the State of Colorado, excluding its conflicts of laws principles. You hereby submit to the exclusive jurisdiction of the federal and state courts of the State of Colorado; provided, however, that OrderStorm shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in other jurisdictions in order to enforce OrderStorm’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
General. This Agreement, together with the Service Level Agreement, Acceptable Use Policy, any other documents referenced herein and any amendments signed between the parties, constitutes the entire understanding between OrderStorm and you with respect to subject matter hereof. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement, shall not become part of this Agreement unless specifically accepted by OrderStorm in writing.
ORDERSTORM INC. ACCEPTABLE USE POLICY
This Acceptable Use Policy (the Policy or AUP) is an integral part of your agreement with OrderStorm Inc. (OrderStorm) for the provision of services (collectively the “Services”) set forth on the Service and Pricing Order Form.
This Policy is designed to help protect OrderStorm`s customers from irresponsible and/or illegal activities. The Policy is a non-exclusive list of the actions prohibited by OrderStorm and OrderStorm reserves the right to modify the Policy at any time, effective upon notice to you. OrderStorm reserves the sole and absolute right to interpret, apply, define and implement this Policy.
Any use of OrderStorm Services in a manner which is defined or deemed to be statutorily illegal is a direct violation of OrderStorm`s AUP. This includes, but is not limited to: death threats, terroristic threats, threats of harm to another individual, multi-level marketing schemes, “ponzi schemes”, invasion of privacy, credit card fraud, racketeering, defamation, slander, and other common illegal activities.
You may not use any OrderStorm Service to distribute content or links to content that OrderStorm reasonably believes:
* Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
* Is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
* Is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
* Is defamatory or violates a person`s privacy;
* Creates a risk to a person`s safety or health, creates a risk to public safety or health, compromises national security or interferes with a investigation by law enforcement;
* Improperly exposes trade secrets or other confidential or proprietary information of another person;
* Is intended to assist others in defeating technical copyright protections;
* Infringes on another person`s copyright, trade or service mark, patent or other property right;
* Promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
* Is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to OrderStorm;
* Is otherwise malicious or fraudulent, or may result in retaliation against OrderStorm by offended recipients; or
* Is intended to harass or threaten.
OrderStorm has a zero-tolerance policy on child pornography and related sites. The display of child pornography, links to related sites or contact information is in direct violation of federal law and OrderStorm`s AUP.
Denial of Service
OrderStorm absolutely prohibits the use of services or network services for the origination or control of denial of service (“DOS”) attacks or distributed denial of service (“DDOS”) attacks. Any relation to DOS or DDOS type activity is a direct violation of OrderStorm`s Policy.
Any attempts to undermine or cause harm to an OrderStorm server or subscriber of OrderStorm is strictly prohibited including, but not limited to:
* Logging into a server or account that you are not authorized to access;
* Accessing data or taking any action to obtain services not intended for you or your use;
* Tampering, hacking, modifying, or otherwise corrupting or breaching security or authentication measures without proper authorization;
* Transmitting material that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines or engines with the intent or effect of damaging, destroying, disrupting or otherwise impairing a computer`s functionality or the operation of the OrderStorm systems;
* Interfering with, intercepting or expropriating any system, data or information to which you do not have the right to access; and
* Interfering with service to any user, host or network including, without limitation, by means of overloading, “flooding,” “mailbombing,” or “crashing” any computer system.
We do not allow IRC, Egg Drops, BNC, or IRC bots to be operated on our servers or network. Files with references to IRC or any likeness thereof are prohibited. Also, any program that acts like an IRC server or that provides chat functions that run as background processes are not allowed.
We do not allow proxy servers of any kind, whether for personal or business use. Files with references to any proxy or likeness thereof are prohibited.
We do not allow game servers (dedicated game server programs) of any kind.
OrderStorm prohibits utilizing dedicated services or network services for fraudulent activities. Participation in fraudulent activities is in direct violation of state and federal law and OrderStorm`s Policy.
Distribution of Malware
OrderStorm prohibits the storage, distribution, fabrication, or use of malware including virus software, root kits, password crackers, adware, keystroke capture programs and other programs normally used in malicious activity; provided, however, programs used in the normal ordinary course of business are deemed acceptable.
OrderStorm strictly prohibits any activity associated with Phishing or systems designed to collect personal information (name, account numbers, user names, passwords, etc.) under false pretense. Splash pages, phishing forms, email distribution, proxy email or any relation to phishing activities will result in immediate removal.
HYIP or Ponzi Schemes
High Yield Investment Plans or Ponzi schemes with the intent to defraud end users are illegal and not allowed on the network. This includes hosting, linking and or advertising via email websites or schemes designed to defraud.
Vulnerability Monitoring and Testing
You may not attempt to probe, scan, penetrate or test the vulnerability of an OrderStorm system, subsystem or network or to attempt to breach security or authentication measures, whether by passive or intrusive techniques, without OrderStorm`s express written consent.
IP Address Usage
You may only use IP addresses assigned to you by OrderStorm in connection with your OrderStorm Services.
You may not use any OrderStorm Service to send Bulk Mail. “Bulk Mail” means email messages of similar content that are sent to more than two hundred and fifty (250) recipients. Attempts to circumvent this restriction by breaking up bulk email over time, using multiple accounts, or other means will be a violation of this restriction. A mail message sent to other users within your domain names hosted on the OrderStorm system is not considered Bulk Mail.
You may not send unsolicited email. Email is unsolicited if you have no pre-existing relationship with the recipient, unless the recipient has published or otherwise provided his or her email address in a manner which implies consent to receive the email. You may not send email of any kind to a person who has indicated that they do not wish to receive it. Any such email shall comply with all laws and regulations, including without limitation, the CAN SPAM Act.
You may not obscure the source of your email in any manner, including by intentionally omitting, forging, or misrepresenting messages headers or return addresses.
Email Abuse Complaints
Complaints from email recipients and third party abuse agencies (e.g. SpamHaus or Spamcop) shall be deemed proof of the facts stated therein unless you provide compelling evidence to the contrary. OrderStorm shall have the right to terminate your mail service if we receive excessive or repeated complaints from your email recipients, regardless of whether you are in breach of this Policy or are otherwise at fault.
OrderStorm may terminate your Services if your email address or related IP number(s) is/are blacklisted by any third party, or OrderStorm is retaliated against as a result of your use of the mail system, regardless of whether you are in breach of this Policy or are otherwise at fault.
The use of dedicated services to send, receive, forward, or post UseNet unsolicited email or posts is a direct violation of OrderStorm`s Policy. This includes UseNet services located within the OrderStorm network or unrelated third party networks.
OrderStorm Administrative Access
You, the customer, acknowledge that to facilitate efficient server management, inventory and related activities, the OrderStorm servers may include an OrderStorm administrative account and password and/or a OrderStorm daemon. All reasonable precautions are made by OrderStorm to maintain the security of these tools and the privacy of client data. You will not tamper, hinder, delete or in any way change the functioning of these tools.
Resellers: If you resell, rent or otherwise allow third parties to use any OrderStorm Services, you are responsible for use of the Services by such third parties in violation of this Policy to the same extent as if you were using OrderStorm Services yourself. You are also responsible for all accounting and support for your end customers.
Disclosure to Law Enforcement
Occasionally, OrderStorm is required by law to submit customer information to law enforcement officials when presented with a valid subpoena or order from a court or governmental entity. Information requested is disclosed as directed pursuant to the subpoena or order. OrderStorm utilizes great care in keeping customer information safe and private and will only release information described in the subpoena order. OrderStorm will notify customer of the information request to the extent permitted by the subpoena or order.
Reporting Violation of the Acceptable Use Policy
OrderStorm accepts reports of alleged violations of this Policy via email. Reports of alleged violations must be verified and include name, contact information, IP address, and description of the violation. OrderStorm owes no duty to third parties reporting alleged violations; provided, however, OrderStorm will use commercially reasonable efforts to review all verified third party reports.
Resolution Process for Violations of OrderStorm`s Acceptable Use Policy
The ultimate goal of this Policy is to balance the rights of our customers while ensuring full compliance of this Policy. The goal of our Resolution Process is to mitigate service interruptions while resolving potential violations under this Policy. Our sales, support and abuse staff is dedicated to working with the customer in resolving potential violations, and are available via phone or email. The resolution process below provides the process for resolving all potential violations. Timing for resolution differs according to the degree of the violation, the nature of the violation, involvement of law enforcement, involvement of third party litigation, or other related factors. Overall, OrderStorm is dedicated to working with the customer in resolving all potential violations prior to any service interruptions.
Step 1: First alleged violation of Policy:
A ticket will be generated under OrderStorm to obtain the customer`s master user account with information regarding the potential violation of OrderStorm`s Policy. This is often a fact-finding email requiring further information or notifying customer of the potential violation and the required actions to resolve the issue.
Step 2: Acknowledgement of violation of Policy:
A ticket is generated under the customer`s master user account with information specific to the violation. This ticket will also include any additional facts about the situation and will notify customer of the action required to resolve the violation.
Step 3: Violation of Policy disregarded, not properly addressed, or continuing violation if a ticket has been disregarded, not properly addressed, or resolved by the customer for a specified period of time:
OrderStorm engineers will turn the public access to the customer`s Services off. Access to the Services may then be achieved through the secure private service network for customer resolution. As soon as the violation is addressed, the public access shall be restored and service will continue as normal.
Step 4: Failure to address violation and resolve violation:
If customer fails to address the violation AND resolve the violation, a suspension of services may occur at OrderStorm`s sole discretion. This is a last resort for OrderStorm and only results when the customer completely fails to participate in OrderStorm`s resolution process. A permanent suspension of services includes reclamation of all dedicated services and the destruction of customer`s data.
Disclaimer: OrderStorm retains the right, at its sole discretion, to refuse new service to any individual, group, or business. OrderStorm also retains the right to discontinue service to customers with excessive and/or multiple repeated violations.
ORDERSTORM INC. SERVICE LEVEL AGREEMENT
This Service Level Agreement (the “SLA”) is an integral part of your agreement with OrderStorm for the provision of services (collectively the “Services”) set forth on Service Order.
This SLA defines the terms of our responsibility with respect to the Services that we provide (the Service Commitments) and your remedies in the event that we fail to meet these Service Commitments. This SLA and the refunds set forth herein (the Service Credits) represent OrderStorm`s sole obligation and your sole remedy for our failure to meet such Service Commitments.
The Service Commitments under this SLA are as follows:
100% Network Uptime
OrderStorm guarantees 100% network uptime for our public Internet network, excluding scheduled maintenance. In the event that our network does not experience 100% network uptime in a given month (excluding scheduled maintenance), OrderStorm will refund 20% of your monthly service fees for each 3 hours of network downtime experienced up to 100% (for all Service Credits in a given month) of the monthly service fees for those Services affected. Notwithstanding the foregoing, you recognize that the Internet is comprised of thousands upon thousands of autonomous systems that are beyond the control of OrderStorm. This SLA and the 100% Network Uptime Service Commitment cover the provision of access by OrderStorm to the global internet “cloud”. Routing anomalies, asymmetries, inconsistencies and failures of the Internet outside of the control of OrderStorm can and will occur and such instances shall not be considered any failure of the 100% Network Uptime Service Commitment.
100% Infrastructure Uptime
OrderStorm guarantees that critical infrastructure systems will be available 100% of the time in a given month, excluding scheduled maintenance. In the event that critical infrastructure systems do not experience 100% availability in a given month (excluding scheduled maintenance), OrderStorm will refund 20% of your monthly fee for each 3 hours of downtime up to 100% (for all Service Credits in a given month) of your monthly fee for those Services affected. Critical infrastructure systems include all power and HVAC infrastructure, including UPSs, PDUs and cabling. Critical infrastructure systems do not include any software or services running on servers, nor do they include any server hardware.
Service Credit Requests
All SLA claims must be filed in writing to OrderStorm Accounting within 7 days of the incident. The support ticket must include all relevant information, including customer name, full description of the incident, and any logs (if applicable). All SLA credits will be issued as credits against future invoices for services.
In order to qualify for Service Credits, you must be current on all payment obligations, not be in violation of the Terms of Service, Acceptable Use Policy or any other policies and procedures of OrderStorm.
OrderStorm proactively monitors network uptime and infrastructure uptime. The results of these monitoring systems shall provide the sole and exclusive determination of network uptime and infrastructure uptime.
No Service Credits will be given for service interruptions: (i) caused by the action or failure to act by you or your personnel, (ii) which are the result of scheduled maintenance, (iii) due to a force majeure event, (iv) for which you are entitled to a Service Credit for the same or contemporaneous Service Commitment failure or (v) resulting from your breach of the Terms of Service, Acceptable Use Policy or any other policies and procedures of OrderStorm.
Total cumulative Service Credits during any given month shall not exceed your monthly fee for those Services affected.
OrderStorm may modify any aspect of this SLA upon thirty (30) days prior notice. Should you wish to terminate the Service as a result of such modification, you may do so by sending a termination notice to OrderStorm any time prior to the effective date of such modification. Absent such termination notice, the modified SLA shall apply from the effective date for as long as you continue to retain Services from OrderStorm.
The following are trademarks of Delta Kilo Holdings, LLC:
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