Terms & Conditions
Between: NETSTORM
and THE CUSTOMER
who is using any of or
applying for a
service or account with NetStorm
RECITALS:
BY DOWNLOADING OR USING ANY OF NETSTORM (INCLUDING, WITHOUT LIMITATION, NETSTORM FREE
OR PAY SERVICES, SOFTWARE OR SERVICES DISTRIBUTED OR MADE AVAILABLE BY NETSTORM
, EMAIL SERVICES AND ANY SERVICES PROVIDED ON ANY OF THE WEB SITES MANAGED OR
OWNED BY NETSTORM (COLLECTIVELY, THE
"NETSTORM OR PROVIDER")), YOU AGREE TO BE BOUND BY THESE TERMS AND
CONDITIONS, THE ACCEPTABLE USE
GUIDELINES FOR NETSTORM , AND THE NETSTORM PRIVACY STATEMENT WHICH ARE REFERRED TO
COLLECTIVELY AS THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT,
YOU SHOULD DISCONTINUE REGISTRATION, OR YOU’RE USE OF, NETSTORM AND DESTROY ALL
COPIES OF NETSTORM SOFTWARE. YOUR NETSTORM ACCOUNT WILL NOT BE ACTIVATED OR
YOUR SERVICE WILL BE TERMINATED.
1.0 General
Please review the Agreement at the NetStorm Website prior to
accessing NetStorm since the Agreement may have changed since the date of
production of this software. NetStorm may change the Agreement and the scope of
NetStorm, in whole or in part, at any time. Posting of the updated Agreement at
the NetStorm website will constitute notice to you of any such changes,
although NetStorm may choose other types of notice for certain changes. Changes
will be effective upon notice, although NetStorm will use reasonable efforts to
provide you advance notice of material changes that adversely impact you. Your
continued use of NetStorm following notice constitutes your acceptance of all
changes, and each use of NetStorm constitutes your reaffirmation of your
acceptance of the Agreement. If you do
not agree to changes to the Agreement or the scope of NetStorm, your sole and
exclusive remedy will be to terminate your use of NetStorm, although if you
have a prepaid account you will not have the right to terminate your use of NetStorm
unless the change is material and adverse to you. The Agreement is your
entire agreement with NetStorm and governs your use of NetStorm. NetStorm reserves the right to prohibit any
conduct or to remove any materials or content in violation of the Agreement or
which NetStorm believes in its sole discretion to be illegal or potentially
harmful to others or may expose NetStorm to harm or liability. NetStorm may
suspend or terminate your use of NetStorm for any reason at any time, including
if it determines that you have failed to comply with any of the Agreement. NetStorm reserves the right to take or
terminate the use of any user name or email address at any time.
- NetStorm
Internet Services (Hereinafter: Provider) owns and operates as NetStorm.
- Provider
has agreed to provide such Service on the terms and conditions set out in
this agreement.
- The
Customer has requested Provider to provide the Service to be used by the
Customer.
- The
Customer certifies that they are not under the age of 18.
- The
Customer acknowledges that unauthorized access by under-aged users is a
violation of applicable laws relating to unauthorized access to computer
systems.
- The
Customer accepts full responsibility (legal, financial, and all others
related to the Customer's account) for the actions of the Customer. In
particular the customer takes full responsibility for all under-aged users
that the Customer allows to use the Customer's account.
2.0 Services to be provided by Provider
Provider will provide the Service to the Customer in
accordance with the terms and conditions of this Agreement. The Service will include provision of and
access to the following:
A modified web proxy/caching server that stands between the
user and the World Wide Web sites being visited and the Client Software. It is
designed to handle some of the HTTP requests and other data transactions
between the user's computer and the websites or other computers on the Internet
and employs compression, caching and other transformation of some of the
responses in order to increase perceived speed of the browsing by the user. The acceleration does not normally increase
the speed of file downloads, email file attachments, or other “raw”
downloads. The user is advised that the
use of the caching may cause delivery of a “stale” response instead of a
“fresh” one. If the user employs
"ad blocking" and "pop up blocking" features of the server,
the user authorizes Provider to block any content, which is recognized by the
Provider's software as an 'ad' or 'pop up'.
3.0 Fees and Payment
The Customer must pay the Fee in respect of the Service
supplied by Provider to the Customer at the times and in the manner specified
on the Provider’s website. Any variation
to the Fee will be at the discretion of Provider. Provider reserve the right to
decrease the Fee for the new users, while old users would be charged the Fee
before such decrease. Should the
customer not wish to pay any increased Fee when the next payment is due, they
may elect to terminate this agreement. Provider reserves the right to terminate
any accounts that are not renewed at the expiration of their term. Provider may
offer the Customer an "Unlimited" or "Perpetual" service
option. If the Customer paid for this option, Provider has the right to change
the service option to the "annually", on the terms that the Customer
would be receiving if the customer would select that option initially. If
Provider exercises this option, Provider must reimburse the customer the
difference between the paid fee and the fee for one year of the service at the
option "annually". For a period of 30 days after exercising this
option, Provider must allow the Customer to cancel the service for full
reimbursement of the remaining part of the payment. Additionally, Provider may
not exercise this option in the first 6 months after the Commencement Day. At the time of the credit card submission,
the Customer authorizes Provider to "pre-authorize" the Customer's
credit or ATM card for the sum of the first payment. There are no refunds after expiration of the
trial period. If the Customer paid for
12 months of the Service and wishes to cancel after less than 6 months,
Provider may or may not refund the rest of the paid sum, after deducting the
corresponding monthly Service fees for all full and partial months since
Service term start and deducting the processing fee.
4.0 Term
Subject to clause 12, this agreement will commence on the
Commencement Date and, will continue for the Initial Period. At the end of this
term either party may terminate this agreement. The term will automatically
renew every period (equal to the Initial Period) on the terms that and
conditions set forth herein so long as the Customer makes payments or in the
case of nonpaying customers so long as they use the service.
5.0 [Reserved]
6.0 Maintenance and Support of Service
Provider will use reasonable efforts to provide the Customer
with the Service.
Provider will use reasonable efforts to restore all faults.
Provider's obligations do not cover maintenance necessitated
as a result of:
Any fault in equipment or software not forming part of the
Service.
Damage due to causes external to the
Service.
Any upgrades required by changes in technology.
7.0 Responsibilities of Customer
At the request of Provider, the Customer must provide such
information and assistance as are reasonably required by Provider in order to
enable Provider to meet its obligations under this agreement. The Customer must comply with all reasonable
directions and instructions of Provider in relation to the Customer's use of
the Service and must ensure that anyone using the Customer's account also
comply with all reasonable directions and instructions of Provider in relation
to the Customer's use of the Service provided, so long as notice is given to
the Customer of any of the same, and made known to the Customer. The Customer shall not use, or suffer or
permit another person to use the Service in, or in relation to the commission
of an offense against the laws of the United States or of any State or
territory of the United States. The
Customer shall take every reasonable precaution that no person is able to make
unauthorized use of or gain unauthorized access to the Service provided to the
Customer pursuant to this agreement. The
Customer may use the Service on one computer system only. Using the service on
more than one computer with the same Access Code constitutes fraud and/or
theft.
Providing credit card information to Provider, the Customer
acknowledges and agrees to the following:
Provider shall charge the credit card for the fees, as
described above, and the Customer will pay all such charges. Provider does not disclose any credit card
information to third party solicitors. In the event of unauthorized use of the
credit card, the Customer must notify its credit card provider in accordance
with its reporting rules and procedures.
If there is any dispute regarding charges billed by Provider to the
Customer’s credit card, the Customer will contact Provider regarding such
disputed charges (along with a reasonably detailed explanation of the dispute)
and shall work with Provider in good faith to resolve the dispute. The Customer
agrees not to submit a chargeback request related to any disputed charge until the
Customer has first engaged in the foregoing dispute resolution process.
8.0 Privacy Rights, Confidentiality and Ownership of Data
For information regarding the Customer’s privacy and
Provider, please see the Privacy Policy statement on the Provider’s website. We
encourage the Customer to periodically review this statement. Customer agrees to receive commercial emails
from Provider for the term of this Agreement and for the period of 18 months
after its termination. Disclosure of any
information, derived from the use of the Product, including the results of any
benchmark test to any third party without NetStorm's prior written approval is
prohibited. This clause shall survive the EULA termination.
9.0 Warranties
Provider gives no warranty or guarantee in relation to the
performance, features, compatibility, content or otherwise of any connected
Internet service or host/computer connected to the Service. IN ADDITION, EXCEPT
FOR THE EXPRESS WARRANTIES AND UNDERTAKINGS SET FORTH IN THIS AGREEMENT, NETSTORM
DISCLAIMS ALL WARRANTIES RESPECTING THE EFFICACY OF ITS SERVICES PROVIDED UNDER
THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
10. Indemnity
The Customer agrees to indemnify Provider and holds Provider
harmless from and against any loss, cost, expense or liability arising from any
claims, demands or proceedings by any person against Provider whatsoever
arising out of:
- the
use or attempted use of the Service by the Customer or by any person
authorized by the Customer or from the use of any facility or equipment
connected to the Service by the Customer or any person authorized by the
Customer; or
- any
hardware or software contamination resulting from the use by the Customer
or by any person authorized by the Customer;
The Customer agrees to indemnify Provider and holds Provider
harmless from and against any loss, cost, expense or liability arising from any
claims, demands or proceedings by any person against Provider whatsoever
arising out of any action brought by any third party against Provider for
infringement of that third party's Intellectual Property Rights due to the
Customer's use of the Service provided to the Customer pursuant to this
agreement or due to the use of the Service by any person authorized by the
Customer to use the Service provided to the Customer pursuant to this agreement
or Provider's possession of Customer's information in accordance with this
agreement except to the extent that such loss, cost, expense or liability arises
from or is attributable to any willful misconduct on the part of Provider.
11. Liability
Except as provided to the contrary in this Agreement and to
the full extent permitted by law, all terms, conditions, warranties,
undertakings, inducements or representations whether express, implied,
statutory or otherwise relating in any way to the provision of the Service or
other obligations under this agreement will be excluded. Without limiting the
generality of the preceding sentence and except as expressly provided in this
agreement, Provider will not be under any liability (including liability as to
negligence) to the Customer or to any third party in respect of any loss or
damage (including consequential loss or damage), however caused, which may be
suffered or incurred or which may arise directly or indirectly as a result of
or in connection with the provision of the Services or Provider's failure to
comply with Provider's obligations under this Agreement except as expressly
provided in this Agreement.
12. Termination
Either party is entitled to terminate this agreement at any
time by notice in writing to the other party.
Customer may terminate the agreement by electronic means,
using a cancellation procedure, recommended by the Provider. Currently, the
cancellation procedure consists of canceling the Service in the My Account area
on the Provider’s website and of running the Software, provided by the
Provider, with the option “Un-Install”, on the computer, connected to the
Service. Provider may terminate the
agreement electronically by sending an email message to the Customer or by
displaying a message on the monitor of the Customer's computer using the
Service. The termination of this
agreement for whatever reason is without prejudice to any rights that have
accrued to either party prior to the date of termination. If the Provider
terminates the Service during a paid period, the Provider may or may not reimburse the
Customer for the unused part of the period prorated from the month following
the termination date. Provider shall not reimburse Customer if Customer
terminates the Agreement or if the Agreement is terminated for breach of this
Agreement by Customer. Provider may
suspend or restrict provision of the Service to the Customer at any time in the
event of an emergency or whenever Provider considers it necessary or reasonable
in order to safeguard provision of the Service.
13. Disputes
A dispute must, as far as possible, be settled amicably
between the parties. All disputes that arise out of or under this
Agreement shall be subject to binding arbitration. The parties will jointly
appoint an arbiter. If there is not agreement as to the arbiter within one (1)
week then an arbiter will be appointed by the American Association of
Arbitrators. For disputes that arise out
of or under this Agreement the prevailing party shall be entitled to recover
reasonable attorney fees and all costs incurred in litigating or arbitrating
the dispute. If the dispute relates to the construction or interpretation of
the terms and conditions of this agreement, the dispute must be dealt with by a
court. All other disputes must be dealt
with by referral to an expert nominated jointly by the parties, or failing
agreement, within 14 days after either party's request to the other party for
such, to mediation with a mediator provided by the American Association of
Arbitrators. The mediator's fees shall be paid by the parties in equal shares
unless the mediator determines that the conduct of a party is such that such
party should bear all such costs.
14. Tax
The Customer must pay, and must keep Provider indemnified
against any Tax with the exception of income tax payable upon or in respect of
this agreement or any services, payments, document, transaction or matter
referred to in or contemplated by this agreement.
15. General
15.1 Assignment
The Customer must not assign any of the Customer's rights
under this agreement without the prior written consent of
Provider. Provider may assign any of its rights under this Agreement
without the consent of the Customer; however Provider must notify the Customer
in the event that Provider exercises this power.
15.2 Severance
A provision of, or the application
of a provision of, this agreement that is prohibited in any jurisdiction, is in
that jurisdiction, ineffective only to the extent of that prohibition. A provision of, or the
application of a provision of, this agreement which is void, illegal or
unenforceable in any jurisdiction does not affect the validity, legality or
enforceability of that provision in any other jurisdiction or of the remaining
provisions in that or any other jurisdiction.
If a provision of this agreement is void, illegal or unenforceable, it
may be severed without affecting the validity, legality or enforceability of
the other provisions of this agreement.
15.3 Waiver
Waiver of a breach of this agreement, or of any rights
created by, or arising upon default, under this agreement, must be in writing
and signed by the party granting the waiver.
A breach of this agreement is not waived by a failure to exercise, a
delay in exercising, or a partial exercise of, any remedy available under this
agreement or in law or equity. A right
created by, or arising upon, default under this agreement, is not waived by a
failure exercise, a delay in exercising, or a partial exercise of, that right.
Variation of a term of this agreement must be in writing and
signed by the parties.
15.4 Entire Agreement
This agreement is the entire agreement between the parties
in respect to this subject matter. Provider may amend these terms and conditions
at its discretion, however the amended terms and conditions come into force if
and when the Agreement is next renewed, until then the agreed to terms and
conditions remain in force.
15.5 Force Majeure
If a party is prevented from performing an obligation under
this agreement because of events or circumstances beyond the reasonable control
of, and not reasonably foreseeable by, the party, the party will be granted a
reasonable extension of time to perform the obligation if:
- the
party notifies the other party as soon as is reasonably practicable of the
events or circumstances and of the period that the party expects to be
prevented from performing the obligation; and
- the party takes all reasonable steps to avoid or limit the
effects of the events or circumstances or to render to the reasonable
satisfaction of the other party the equivalent of performance of the
obligation.
If a party is, or is reasonably likely to be, prevented from
performing a material obligation for a period greater than 3 months, the other
party may terminate this agreement immediately by giving notice in writing to
the first mentioned party. The
events and circumstances contemplated under clause 15.5 include (but are not
limited to) acts of God, war, hurricanes, tornadoes, earthquakes, flood,
legislation and strikes.
15.6 No Partnership
Nothing in this agreement will constitute or be deemed to
constitute a partnership between the parties or constitute or be deemed to
constitute the Customer as agent for Provider for any purpose and neither party
has the authority or power to bind the other or contract in the name of the
other in any way or for any purpose other than as specifically contemplated by
this agreement.
15.7 Sub-Contracting
Provider may sub-contract for the performance of this
agreement or any part thereof.
15.8 Notices
Any notice given under or pursuant to this agreement must be
in writing and will be deemed duly given or made if delivered or sent by United
States Postal Service First Class mail, hand delivery, electronic mail with
return receipt requested, by posting to a document on NetStorm World Wide Web
site, or by facsimile transmission to the address of the relevant party
specified in this agreement and marked to the attention of:
- (in
the case of Provider) – the Accounts Manager.
- (in
the case of the Customer) - the account in the
Application Form. In addition: any notice, demand or other communication
will be deemed, in the absence of proof to the contrary, to have been
received by the person to whom it was sent:
- In
the case of hand delivery, upon delivery;
- In
the case of United States Postal Service First Class mail, ten (10) days
after the date of dispatch;
- In
the case of electronic mail, twelve (12) hours if no delivery trouble has
been reported.
- In
the case of posting to NetStorm’s World Wide Web Site seven (7) days.
- In
the case of facsimile transmission, on the next business day following
successful transmission as evidenced by the sender's facsimile machine
statement.
15.9 Governing Law
This agreement is governed by and will be construed in
accordance with the laws of the State of Mississippi, United States of America.
15.10 Negotiation of special terms
All terms within agreement may be modified on a case by case
basis, however the cost of having an attorney licensed in California review
each modification will be prorated along with the normal Fee over one year for
the new agreement.
15.11 Export Control Laws
Software available on NetStorm web site is subject to United
States export controls. No software from this site may be downloaded or
otherwise exported or re-exported: (1) into (or to a national or resident of)
Cuba, Iraq, Libya, Sudan, North Korea, Iran, or any other country to which the
United States has embargoed goods; or (2) to anyone on the United States
Treasury Department's list of Specially Designated Nationals or the United
States Commerce Department's Table of Denial and Prohibition Orders.
By downloading or using software from this site, you are
agreeing to the foregoing and all applicable export control laws. You are also
warranting that you are not under the control of, located in, or a resident or
national of any such country or on any such list.
The information on export laws provided herein is not
necessarily complete. For more information on export laws, please telephone the
United States Commerce Department, Bureau of Export Administration.
15.12 Use of Client Software.
If the Customer downloads software from the Provider’s
website, the Customer agrees to be bound by the following license.
NETSTORM SOFTWARE LICENSE AGREEMENT
UPON ACCEPTANCE OF THIS SOFTWARE LICENSE AGREEMENT (THE
"AGREEMENT"), NETSTORM GRANTS TO THE REQUESTER A LIMITED
NON-EXCLUSIVE LICENSE TO USE THE SOFTWARE AND DOCUMENTATION (THE
"PROGRAMS") AS FOLLOWS:
LICENSE:
Following download, Licensee may install and use the
Software and documentation (the "Programs") on one computer system
and for the number of users specified in the License to be delivered by NetStorm.
Licensee shall not remove any copyright notices or other proprietary notices
from the Programs, and Licensee must reproduce such notices on all copies or
extracts of the Programs. Licensee may use the Software only as long as he or
she is a subscriber in good standing to NetStorm Service
OWNERSHIP:
The Programs are owned by NetStorm supplier, and are
protected by copyright laws. Licensee acquires only the non-exclusive right to
use the Programs at no charge, and does not acquire any right of ownership in
the Programs.
RESTRICTIONS:
Licensee may NOT use, copy, distribute, electronically
transfer, reverse assemble or reverse compile the Programs or any portion
thereof, or translate or convert them to human readable form. If Licensee
modifies, reverse engineers, reverse assembles, or makes any modifications to
the code, any such action automatically terminates the license agreement and NetStorm
is not responsible for any side effects resulting from such reverse
engineering. Licensee may not use the Programs for any development, commercial
or production purpose. Licensee may not enhance, improve, adapt or modify the
Programs, except as expressly permitted or required by NetStorm. In the event
Licensee devises, designs, discovers or formulates any enhancement,
improvement, adaptation or modification ("the Work") to the Programs,
Licensee shall provide full details thereof to NetStorm’s supplier who shall
have exclusive ownership of the Work.
WARRANTY DISCLAIMER:
The Programs are provided on an "as is" basis,
without warranty of any kind, including without limitation the warranties of
merchantability, fitness for a particular purpose and non-infringement. NetStorm
does not warrant that the Programs will meet Licensee’s requirements, nor does
it warrant that the operation of the Programs be error-free. Licensee agrees to
assume the responsibility to take adequate precautions against damages to
Licensee’s operations, which could be caused by defects or deficiencies in the
Programs.
LIMITATION ON LIABILITY:
NEITHER NETSTORM NOR ITS LICENSORS SHALL BE LIABLE FOR ANY LOSS
OR DAMAGE HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY INACCURACY OF DATA,
LOSS OF PROFITS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SUPPORT:
The Program is provided on an "as is" basis.
Installation and setup assistance may be provided through email or NetStorm’s
website. This Agreement does not entitle Licensee to any other maintenance,
services, updates or new versions of the Programs.
TERMINATION:
All disclaimers of warranties and limitations of liability
shall survive any termination of this Agreement.
16.
Prohibited Uses of Services and Products
In addition to the
other requirements of these Terms of Service, Customer may only use the
Services and Products in a manner that, in the Company's sole judgment, is
consistent with the purposes of such Services and Products. If Customer is
unsure of whether any contemplated use or action is permitted, please contact
the Company as provided above. Any customer who violates the policies described below may be subject to a service charge of up $250 US dollars. This fee is subjective and primarily determined by the severity of any incidental opportunistic costs or downtime that is incurred because of the violation. By way of example, and not limitation, uses
described below of the Services and Products are expressly prohibited.
16.1 General
16.1.1 Pornography and pornographic
related merchandising are prohibited under all the Provider’s services. This
includes sites that include links to pornographic content elsewhere. Further
examples of unacceptable content or links include pirated software,
"hacker" programs, archives of "Warez
Sites", game rooms or MUDs, IRC Bots, Egg Drop programs, any kind of
illegal software or shareware. In addition, sites offering online gambling,
casino functionality, sportsbook betting (including offshore), and internet
lotteries are prohibited.
16.1.2 Violations of the rights of any
Person protected by copyright, trade secret, patent or other intellectual
property or similar laws or regulations, including, but not limited to, the
installation or distribution of "pirated" or other software products
that are not appropriately licensed for use by Customer.
16.1.3 Actions that restrict or inhibit
any Person, whether a customer of Provider or otherwise, in its use or
enjoyment of any of the Provider’s Services or Products.
16.2 System and Network
16.2.1 Introduction of malicious programs
into the Provider’s network or server (e.g., viruses and worms).
16.2.2 Effecting security breaches or
disruptions of Internet communication. Security breaches include, but are not
limited to, accessing data of which Customer is not an intended recipient or
logging into a server or account that Customer is not expressly authorized to
access. For purposes of this Section "disruption" includes, but is
not limited to, port scans, flood pings, packet spoofing and forged routing
information.
16.2.3 Executing any form of network monitoring
which will intercept data not intended for the Customer's server.
16.2.4 Circumventing user authentication
or security of any host, network or account.
16.2.5 Interfering with or denying service
to any user other than Customer's host (for example, denial of service attack).
16.2.6 Using any program/script/command,
or sending messages of any kind, designed to interfere with, or to disable, a
user's terminal session, via any means, locally or via the Internet.
16.2.7 Creating an "active" full
time connection on a Company-provided account by using artificial means
involving software, programming or any other method.
16.2.8 Any attempt to circumvent or alter
monitoring, bandwidth tracking or utilization reporting, or other actions which
have the effect of complicating the normal operational procedures of the
Company, including but not limited to altering, removing or in any way
modifying or tampering with Company created log files.
16.2.9 Any action which the Provider
determines, in its own judgment, will reflect poorly on the Provider or
negatively impact its operations.
16.2.10 Any action which the Provider deems
to be an unacceptable use of resources, business practice or otherwise
unacceptable to the Company.
16.3. Billing
16.3.1 Furnishing false or incorrect data
on the order form, contract or online application, including fraudulent use of
credit card numbers.
16.3.2 Attempting to circumvent or alter
the processes any billing procedures or procedures to measure time, bandwidth
utilization, or other methods to document "use" of the Provider’s Services
and Products.
16.4 Mail
16.4.1 Sending unsolicited commercial
email messages (UCE), including the sending of "junk mail" or other
advertising material to individuals who did not specifically request such
material, who were not previous customers of Customer or with whom Customer
does not have an existing business relationship ("email spam").
16.4.2 Sending UCE referencing an email
address for any domain hosted by the Provider;
16.4.3 Sending UCE referencing a domain
hosted by the Provider;
16.4.4 Sending UCE referencing an IP
address hosted by the Provider;
16.4.5 Posting advertisements on IRC, ICQ,
or any other public chat system containing an email address hosted by the Provider,
a domain hosted by the Provider, an IP address belonging to the Provider;
16.4.6 The Company will be the sole
arbiter as to what constitutes a violation of these provisions.
16.4.7 Harassment, whether through
language, frequency or size of messages.
16.4.8 Unauthorized use, or forging, of
mail header information.
16.4.9 Solicitations of mail for any other
E-mail address other than that of the poster's account or service with the
intent to harass or to collect replies.
16.4.10 Creating or forwarding "chain
letters" or other "pyramid schemes" of any type.
16.4.11 Use of unsolicited email
originating from within the Provider’s network or networks of other Internet
Service Providers on behalf of, or to advertise, any service hosted by the Provider,
or connected via the Provider’s network.
16.4.12 Activities deemed to be unsolicited
marketing efforts or otherwise harassing in any way.
16.4.13 Customer will be charged a service fee
for each instance of a verifiable UCE that is reported to the Provider and
faces immediate account suspension and/or termination, as well as further
penalties.
16.5 Customer Support
16.5.1 The Provider promotes a
mutually-professional relationship with its customers. Abusive, threatening,
obscene or otherwise harassing communications with agents of the Provider, via
telephone, email, online chat or other means will result in immediate account
termination not withstanding any other terms of this agreement. Violation
of this or any section of this Agreement will result in refund ineligibility.
17. Additional Policy Disclaimers
In addition
to the other requirements of these Terms of Service, Customer and certain
Employees are subject to certain specific policies of the Provider. The following sections present these
disclaimers.
17.1 Referral and Sales
17.1.1 The terms and provisions of the
Provider’s sales and/or referral programs are subject to change.
17.1.2 All changes are solely at the discretion
of the Provider.
17.1.3 Marketing materials may become
outdated and no longer valid even though the promotion or price is still seen
through a marketing vehicle. Provider does not assume any responsibility or
liability for such events.
17.2 Billing Policies
17.2.1 If a Customer payment generates a
NSF (non sufficient funds) transaction and or fee, the customer account is
subject to a fee by Provider. The
Provider fee will be charged to the Customer account, and service may be denied
by the Provider until the balance is made current.
17.2.2 If an account is unpaid for an
extended period of time, the Customer may be turned over to a 3rd
party collection agency. The Customer
account is then in the hands of this 3rd party. Additionally, service may be denied by the
Provider until the balance is made current.
17.2.3 Customers paying by check or money
order will be subject to a fee for the billing service. Other fees may apply to customers who are
late on paying the Provider after a certain period of time. These fees may change and are solely at the
discretion of the Provider.
17.2.4 Customers who participate in a
30 day risk free must call within the specified period and request the
refund and cancellation of the account.
Provider may deny the refund for customers paying by any method other
than credit or debit cards.
17.2.5 Customer accounts are prepaid for a
specific term and may or may not be permitted a refund. Accounts are normally prepaid and are not
subject to refunds outside any trial period. Add on items which are outside of the main
service offerings may differ in this policy.
17.2.6 Providers prices, discounts,
promotions, and terms may change and solely at the discretion of the Provider.
17.2.7 Customer accounts that are
suspended, for whatever reason, will be denied service until the situation is
resolved. The accounts may be removed
from the Provider after a certain period of time if the payment (or other)
situation is not resolved.
17.3 Technical
17.3.1 Accounts may be subject to the
backbone network operator’s policies (or Providers) for abuse and lengthy
connection times. These may include connection
time limits at specific intervals. These
interruptions are standard procedures that most all ISP’s must follow, and are
not normally enforce by the ISP, but by the network operators.
17.3.2 Actual throughput speeds will vary
based on certain conditions and may not exactly match the Provider’s claimed
speeds. These factors include, but are
not limited to, things such as physical distance from the point-of-presence
(POP), number of active users, hardware technologies, atmospheric states,
quality of service filters, and end user configurations. All Internet Service Providers and their users
are subjected to these limitations.
17.3.3 The Provider makes ever effort to
ensure records are kept secure and private.
In the event that any data becomes irretrievable, corrupted, or
compromised, Provider will attempt to recover the data, but does not assume
responsibility for any of the consequences experienced by the Customer.
17.4 Operations
17.4.1 Any of the Providers operational changes,
including but not limited to buyouts and any declaration of fiscal insolvency,
may affect Customer accounts. Provider
does not assume responsibility for any effects or changes caused by such
events.
18. Definitions and Interpretation
18.1 Definitions In this agreement:
"Application Form" means the form used to apply for
the Service.
"Business day" means any day, other than a Saturday, Sunday or
recognized public holiday in the state of Mississippi.
"Commencement Date" means the date on which this
agreement is agreed to.
"Customer" The person agreeing to this agreement.
"Fee" means the fee as set out on NetStorm Website payable by the
Customer in accordance with this agreement for the provision the Service.
"Intellectual Property Rights" means:
- inventions,
discoveries and novel designs, whether or not patented, patent pending, or
patentable, including (but not limited to) developments or improvements of
equipment, products technology, processes, methods, techniques, or any
other novel concepts reduced to practice;
- copyright
(including future copyright) throughout the world in all literary works,
artistic works, computer software, and any other works or subject matter
in which copyright subsists and may in the future subsist;
- confidential
information, trade secrets and trade and service marks (whether registered
or unregistered); and
- proprietary rights under the Semiconductor Chip Protection Act of
1984.
"Internet" means the international network of data networks utilizing
the TCP/IP communications protocol of which the Provider Internet Access
Service Network forms part.
"Initial Period" means the initial term of payment (monthly,
quarterly, yearly or as arranged) from the commencement date. The length of
this period depends on the initial payment by the Customer. For nonpaying
customers, the initial period is for the duration of the customer’s use of the
service.
"Netiquette" means those sets of norms that are generally
recognized by the Internet community as acceptable means of interaction. The
provider is the final arbiter of disputed breaches of netiquette.
"Normal Business Hours" means 9:00 AM to 5:00 PM Central
Standard Time, Monday through Friday.
"Provider Internet Access Service Network" means the data communication
network owned and operated by Provider and based on TCP/IP and other Internet
protocols which provides interconnection between the computer networks of
various persons and entities and other computer networks within the United
States and overseas.
"Provider Internet Point of Presence" means the location at which the
telecommunications equipment, used by Provider to provide the Service to the
Customer, is situated and to which each user of the Service obtains connection
in order to use the Service and gain access to the Provider Internet Access
Service Network.
"Provider Customer Service" means the Provider point of contact
for reporting of faults in the Service, the contact details for which are
specified on the Provider’s website.
"Spamming" means the sending of mail with the deliberate effect of
rendering a server, network, site, discussion group, e-mail address or any
other Internet resource unusable for its intended purpose. Such usage includes,
but is not limited to, any action having as its effect the disabling of an
Internet server's ability to perform its function due to excessive load, the
over use of network bandwidth with intent to deny service, "spamming"
an e-mail address or newsgroup with content inappropriate for the forum and
designed to "drown out" or otherwise make regular communication
impossible, or the intentional sending of large quantities of unsolicited
messages over the Internet. This is generally viewed a serious misuse of the
Internet it is not tolerated by the Provider.
"Tax" means:
any tax, levy, charge, impost, duty, fee, deduction,
compulsory loan or charge; any stamp or transaction duty, tax or
charge; that is assessed, levied, imposed or collected by any governmental
body and includes (but is not limited to) any interest, fine, penalty, charge,
fee or other amount imposed on or in respect of any of the above.
"TCP/IP" means the Transmission Control Protocol/Internet Protocol
in general use throughout the Internet.
"Under-age" mean any human who has yet to reach the age of majority
within their jurisdiction or the age of majority within Mississippi (currently
18 years of age), whichever is higher.
"World Wide Web Server" means a computer system that
facilitates access to multimedia documents using the Hypertext Transfer
Protocol (HTTP).
"Written" or "in writing" includes printing and
other means of representing or reproducing words in material form (such as
electronic mail).
"Year" means calendar year.
18.2 Interpretations and Considerations
In this document unless the context otherwise requires:
- words
importing the singular include the plural and vice versa;
- words
importing any gender include the other genders;
- references
to persons include corporations, partnerships, entities and all other
bodies politic;
- references
to a person include the legal personal representatives, successors and
assigns of that person;
- a
reference to a statute, ordinance, code or other law includes regulations
and other statutory instruments under it and consolidations, amendments,
reenactments or replacements or any to them (whether of the same or any
other legislative authority having jurisdiction), and includes a reference
to reasonably equivalent statutes, ordinances, codes or laws in other
jurisdiction;
- references
to this or any other document include the document as varied or replaced,
and notwithstanding any change in the identity of the parties;
- references
to writing include any mode of representing or reproducing words in
visible form, and includes electronic mail, telex and facsimile
transmissions;
- an
obligation imposed on customers numbering two or more shall bind them
jointly and severally;
- If a
word or phrase is defined, cognate words and phrases have corresponding
definitions.
- Headings
shall be ignored in construing the Agreement.
BY AGREEING TO THE ABOVE CONDITIONS, LICENSEE ACKNOWLEDGES
THAT LICENSEE HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND THAT LICENSEE IS DULY AUTHORIZED TO DO SO.