This Universal Terms of Service Agreement (this “Agreement”) is entered into by and between Brainstorm Hosting Company, an Arizona limited liability company (“Brainstorm Hosting”) and you, and is made effective as of the date of your use of this website (“Site”) or the date of electronic acceptance.
This Agreement sets forth the general terms and conditions of your use of the Site and the products and services purchased or accessed through this Site (individually and collectively, the “Services”), and is in addition to (not in lieu of) any specific terms and conditions that apply to the particular Services.
Whether you are simply browsing or using this Site or purchase Services, your use of this Site and your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with the following policies and the applicable product agreements, which are incorporated herein by reference.
- Acceptable Use Policy
- Cookies Policy
- Responsible Disclosure Policy
The following Terms of Service (“TOS,” “Terms” or “Agreement”) apply to all services provided by Brainstorm Hosting (“Brainstorm Hosting,” “we,” “us,” or “our”) to you. By purchasing services from us you agree to this TOS.
1. APPLICATION OF TERMS
- 1.2 This TOS, together with your Order, represent the entire agreement relating to the Services and supersedes any agreements previously entered into between you and Brainstorm Hosting. Any other contract provisions presented by you are expressly rejected.
- 1.3 In addition to this TOS, all domain name registrations are subject to the terms and conditions of any registrar Brainstorm Hosting may use to fulfill the Order and their rules and regulations. You agree to be bound by the rules and regulations and dispute resolution policies applicable to each domain name applied for on your behalf. Details of these terms and conditions are available in Section H of this TOS.
- 1.4 The current TOS is always available on Brainstorm Hosting’s website. We may alter this TOS at any time with notification to you by email and by posting a notice in your User Area. If you do not agree to any changes, you must terminate your Services within ten business days of the date of the change.
Only a Brainstorm Hosting officer may alter this TOS. No agent of, or person employed by, or under contract with, Brainstorm Hosting has any authority to alter or vary this TOS. No oral explanation or oral information given by any party shall alter the interpretation of this TOS.
2. GENERAL TERMS AND CONDITIONS
- 2.1 You will conform to the standards and acceptable use policies of Brainstorm Hosting which are set out in our AUP.
- 2.2 You are responsible for obtaining any licenses or permissions from any third party which are required to upload content to the Services.
- 2.4 You will receive passwords to be used when you log into your User Area, server and/or certain Services. You are solely responsible for all passwords. You must keep all passwords confidential and take security measures to prevent any person from gaining access to them.
- 2.5 Brainstorm Hosting’s Service Level Agreement in Section A (SLA) sets out the performance you can expect from us. The SLA is your sole and exclusive remedy for Service disruptions covered by it.
- 2.6 Certain aspects of the Services will only be licensed to you. These aspects may only be used by you while using the Services, and may not be transferred. Upon Termination of this TOS, or a particular Service, this license will end.
- 2.7 The Services are provided to you as configured for our standard customer. We may update or upgrade the Services and/or any software installed on your account at any time without prior notification to you. You bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs.
Your hardware, software and any other items you deem necessary to use the Services must be compatible with the Services. We are not obligated to modify the Services to accommodate your use.
- 2.8 The Services are provided on as-is basis. The hardware configurations may vary. Brainstorm Hosting may replace your host server hardware, transfer it from one datacenter to another, transfer your account to another server or modify certain software configurations when deemed necessary by Brainstorm Hosting. These differing configurations may result in slightly different performance from the Services.
- 2.9 The proprietary and third-party software we offer as part of the Service is provided as-is and is subject to all warranty disclaimers and limitations of liability set out herein. This software may have terms and conditions that are in addition to those set out in this TOS. You must agree to those terms to use the software. If you fail to do so, your ability to use the Service may be affected. Terms and conditions incorporated by reference are listed in the respective sections of this TOS.
- 2.10 We will use good faith efforts to backup data stored on the shared Services once a day (Shared Backups). Shared Backups are intended for internal use only and we cannot guarantee that a Shared Backup will be available for restore upon your request. It is your responsibility to backup data of all your content in order to prevent potential data loss.
Backup Services are provided “as-is.”. Even if you purchase Backup Services, you agree that you will maintain your own set of backups independent of those we maintain. If we provide data to you from a backup, it will be provided as raw data, and you may be required to reformat that data so that it reflects a prior configuration or use.
If you purchase Backup Services from us, our only obligation is to restore your Space to its operating condition. While we may provide assistance, it is your obligation to restore your website. We may determine that certain file extensions are not suitable for backup and exclude them from the backup. Examples include, but are not limited to, music, movies and/or archives. It is your obligation to verify whether particular files will be, or have been, backed up.
- 2.11 We provide certain Services designed to filter unwanted email. Depending on the Services set out in your Order, email filtering may be activated by default; in other cases, it is an additional paid Service. Email filtering will likely result in the capture of some legitimate email and the failure to capture some unwanted email that may contain spam, phishing scams and viruses. We recommend that you implement additional levels of protection. Email that is captured by our filtering system is not subject to our SLA.
- 2.12 When your account is activated, we may place an index page to which your domain points (Index Page). You may disable this Index Page at any time. If you terminate the Services, your domain may be pointed to a suspension page (Suspension Page). This page may contain advertising. We shall retain any benefits associated with the Index Page and Suspension Page.
- 3.1 You may purchase Services from us in many different ways. For ease of reference, in this TOS the method you use to choose which Services to purchase is referred to as an “Order.” Each Order for Services by you shall be deemed to be an offer by you to buy the Services from us subject to this TOS. No Order shall be deemed to be accepted by us until we provision your account.
The date on which we provide notice to you that the account is provisioned is the Effective Date of this Agreement. The Initial Term of the Services is set out on your Order (Initial Term). Upon the expiration of the Initial Term, we shall renew your services as described in our Renewal Policy.
- 3.2 You must be over the age of eighteen at the time you place your Order.
- 3.3 We will review all Orders to determine if they meet our financial, security and other reasonable criteria (Fraud Screen). We might ask you for additional information before we can process your Order. You may receive notice that your Order has been rejected because it fails to pass our Fraud Screen. We are unable to provide additional information about the reasons a particular Order fails to pass the Fraud Screen.
Orders that fail our Fraud Screen will not be accepted and Service will not be provided. We have no liability for Orders that are not processed because they have failed our Fraud Screen.
- 3.4 We are under no obligation to deliver any Services other than those identified in the Order.
- 3.5 You shall provide to Brainstorm Hosting, at your cost, any information, resources or facilities reasonably requested by Brainstorm Hosting for the delivery of the Services and, where necessary, ensure that your employees, contractors and other suppliers cooperate fully and promptly with Brainstorm Hosting.
- 3.6 Any instructions supplied by you to Brainstorm Hosting must be complete, accurate and clearly legible. We reserve the right to charge for any costs and any additional work incurred by Brainstorm Hosting due to any failure by you to comply with this paragraph and shall not be liable for any errors caused by such failure.
4. OWNERSHIP OF YOUR ACCOUNT
- 4.1 Your contact information is set out in the ‘My Details’ section in the User Area.
- 4.2 If you, on behalf of another person or entity, create an account, you warrant that you will administer the account in good faith, and will indemnify us against all losses and liabilities sustained by us should you administer the account in ways that are adverse to the End User and result in any claim against us.
- 4.3 For avoidance of doubt, the individual or entity set out in the Account Owner Information ‘My Details’ section of the User Area is considered by us to be the owner of the account and all associated services (Account Owner). If you are the Account Owner and are administering the account on behalf of a third party, you agree to administer this account in their best interests and indemnify us, pursuant to paragraph 11.2, should an individual or entity claim that they own the account, or its content, or that your administration has not, or is not, in their interest.
Domain names are owned as set out in applicable ICANN rules. If you purchase a domain name on behalf of a third party, and a dispute arises regarding your administration of that domain name, you agree to pay all registration fees during the time the dispute is pending. The individual or entity paying for the Services may not be considered to be the owner of the account.
It is your obligation to ensure that you correctly indicate ownership of your account. If there is a dispute about ownership, the account may be locked until the parties to the dispute agree on a resolution, or until the matter is resolved judicially.
- 4.4 You are responsible for providing valid contact information and keeping your contact details up to date. If you fail to do so, Brainstorm Hosting accepts no liability in the event that it grants access to the account or gives ownership of the account to another person.
- 5.1 You are responsible for the charges set out on the Order, in the currency specified on the Order (Fees).
- 5.2 Invoices are due immediately upon receipt (Due Date). Brainstorm Hosting reserves the right to suspend the Services until payment is made. Time for payment is of the essence. Domain name registration Fees must be paid in full before your domain name registration will be processed.
- 5.3 All Fees are net of applicable taxes, unless explicitly stated otherwise. You are responsible for all taxes and fees levied on the Services.
- 5.4 Our obligation to provide the Services is contingent on your payment of the Fees by the Due Date. You are responsible for keeping at least one current payment method on file. We reserve the right to make an alternative payment method primary if we determine that the current one is not active for any reason. It is your responsibility to ensure that we receive payment of the Fees. Should the Services be suspended, for any reason, Fees will continue to accrue. Domain name registration Fees are not refundable.
- 5.5 If you believe there is an error on your bill, you must contact us in writing. We each agree to work together in good faith to resolve any billing disputes. If you contact your credit card company, prior to notifying us of the dispute, and initiate a “chargeback” based on this dispute, we will charge you for investigation and processing.
This compensates us for the investigation your card issuer requires us to conduct in order to demonstrate our right to payment. All of your Services may be suspended during bill disputes. To reactivate your Services, you must first pay all outstanding Fees.
- 5.6 We will apply any refund using the same means of payment as you used for the initial transaction, unless we have expressly agreed otherwise. Brainstorm Hosting is not responsible for delays to refunds caused by processing institutions or expiration of the original payment method.
- 5.7 We may return part of a pre-paid Fee as credit added to your account (Brainstorm Hosting Wallet), unless a refund is required by law. Brainstorm Hosting Wallet amounts may only be used for future purchases and/or renewals of Brainstorm Hosting services.
Unless we specify otherwise, Brainstorm Hosting Wallet amounts will expire if unused for more than twelve months. Brainstorm Hosting Wallet amounts cannot be refunded.
6. TERMINATION AND CANCELLATION
Either party may terminate this TOS upon written notice to the other if one party materially breaches any terms of this TOS and the breaching party fails to correct the breach within ten days following the other party’s written notice, or immediately, if the breach is incapable of cure.
- 6.1 Termination by Brainstorm Hosting Brainstorm Hosting may terminate this TOS if (i) you fail to pay any sums due (including Fees) to Brainstorm Hosting as they are due; (ii) in Brainstorm Hosting’s reasonable opinion, you do not have sufficient technical expertise to use the Services without excessive ongoing technical support; (iii) Brainstorm Hosting determines in good faith that continued provision of the Service has become impractical or unfeasible for technical, legal, regulatory or any other material reason; or (iv) you violate this TOS or any agreement incorporated by reference. We may terminate a particular Order, or aspect of the Services, if a Third Party ceases to make components of the Service available to us, or if providing them to you becomes cost prohibitive.
- 6.2 Termination by you You may terminate the Services at any time through the User Area (Cancellation Request). We will send you an email confirmation to acknowledge your completion of the Cancellation Request (Cancellation Confirmation). If you do not complete all steps of the Cancellation Request, or if you fail to use a Cancellation Request to terminate the Services, the Services will not be terminated, and Fees will still be charged.
You must follow this procedure in order to terminate each Service. Once you complete a Cancellation Request, we will process it and issue a refund, if applicable as set out in our Money Back Guarantee.
You acknowledge and agree that your domain name registration is subject to suspension, cancellation, transfer or modification pursuant to the terms of any applicable rules or policies, including, but not limited to: (i) the UDRP; (ii) any ICANN adopted policy; (iii) any registrar (including Brainstorm Hosting) or registry administrator procedures; or (iv) any other ccTLD registry administrator procedures. It is important to understand that certain Services are bundled together.
As a result, termination of the Services that provide hosting (Hosting Account) may result in immediate termination of multiple aspects of the Services. We may keep data from terminated accounts for a reasonable period after termination and provide you with access to that data upon request and availability. IP addresses, space and backup (including data on Backup Services) are recycled.
It is your obligation to ensure that you arrange to transfer anything you need from the Services prior to termination. We have no obligation to forward e-mail following termination.
7. TECHNICAL SUPPORT
- Our technical support is available for all current customers and is provided on an as-is, as available basis. If your request for technical support exceeds that of similarly situated customers or is within the scope of our paid support and development services, we may charge you additional support fees.
- We will inform you, and receive your consent, prior to charging you for technical support. If you request technical support, you agree that we may have full access to all aspects of the Services accessible to us based on your request. You are solely responsible for any changes you make to your account after we complete your request.
- All support is provided as-is and is subject to the disclaimers of warranties and limitation of liability set out in this TOS. While we will use reasonable efforts to provide technical support to you and to perform any work you request in a timely and professional manner, we cannot guarantee the result you expect or that an issue might not occur again.
- We retain the right to refuse to provide technical support to you if your use of technical support exceeds that of similarly situated customers, or if you are verbally abusive to our employees or contractors. We may refuse to perform any request that requires changes not compatible with the Services or is not related to them or might create a security risk or endanger their performance.
- It is your obligation to perform and store a backup of your data and files prior to requesting technical support. In the event that you are not satisfied with the outcome of any technical support, it is your obligation to restore your files and data from your own backup.
8. INTELLECTUAL PROPERTY RIGHTS AND OTHER CONSENTS
- 8.1 Brainstorm Hosting retains ownership of all intellectual property rights in the Services. Brainstorm Hosting grants to you a limited license to access and use the Services. All trademarks, product names and company names or logos used by Brainstorm Hosting are Brainstorm Hosting’s property or the property of their respective owners. No permission is given by Brainstorm Hosting to you or an affiliate to use any such trademarks, product names, company names, logos or titles, and you acknowledge that such use is an infringement of the owner’s rights.
- 8.2 If we have not provided a license for you to use software as part of the Services, you agree to procure appropriate licenses to use all “Required Licenses.” “Required Licenses” means any licenses, consents or approvals required to use software, hardware and other items whose use is facilitated by the Service. You agree to provide us with copies of the Required Licenses promptly following our written request.
- 8.3 You are solely responsible for obtaining all intellectual property rights in the intellectual property of others, including, but not limited to, clearances and/or other consents and authorizations necessary to use the names, marks or other materials which are used by you in, or transmitted via, the Services (Objects).
On becoming aware of any dispute between you and any other individual or organization regarding the Objects, Brainstorm Hosting reserves the right, at its sole discretion and without notice or liability to you, to cease any further use of such Objects including, without limitation, deleting or suspending them from its computer systems and/or to make appropriate representations or provide information to any relevant authority or interested party.
- 8.4 Unless otherwise set out in this TOS, you own all right, title and interest to the information you place on our servers pursuant to the Services. If you submit feedback to us in the form of trouble tickets or in another similar manner, we shall have the right to use that information to improve our business processes. You have no right to any intellectual property that is based on an improvement to our business based on this feedback.
9. REPRESENTATIONS AND WARRANTIES
- 9.1 You represent and warrant that (i) you have the experience and knowledge necessary to use the Services; (ii) you and your End Users understand and appreciate the risks inherent to you and your business that come from accessing the Internet; (iii) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Services necessary to take advantage of them; (iv) you will not violate any applicable laws and/or regulations in your use of the Services; (v) you own all intellectual property rights in, or have a license to use, any information you provide to us necessary for us to perform the Services, or to any information transmitted by us through the Services; (vi) you will make backup copies of all information in a location independent of ours, and will not use Backup Services as your sole backup; and (vi) you will pass through the terms of this TOS, and any agreements incorporated by reference, to your End Users.
- 9.2 WE MAKE NO WARRANTIES, AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED. THE SERVICE(S) IS PROVIDED AS-IS. YOUR USE OF THE SERVICE(S) IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S) WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICE(S) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF.
10. LIMITATION OF LIABILITY
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS TOS OR UNDER ANY OTHER AGREEMENT OR DOCUMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE THREE MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU AGREE THAT IN THOSE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
- 11.1 We shall indemnify and hold you harmless from, and at our own expense agree to defend, or at our option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Services infringe any issued U.S. patent or registered copyright. This indemnification provision is expressly limited to aspects of the Services which are fully owned by us. It does not extend to products or services provided by third parties even if incorporated into the Services.
This paragraph will be conditioned on your notifying us promptly in writing of the claim and giving us full authority, information, and assistance for the defense and settlement of that claim. You shall have the right to participate in the defense of the claim at your expense.
If such claim has occurred, or in our opinion is likely to occur, you agree to permit us, at our option and expense, either to: (i) procure for you the right to continue using the Services; (ii) replace an individual component of the Services with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Services, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate our obligations (and your rights) under this TOS with regard to such Service and refund to you the price originally paid by you to us for the Service, or the Fee actually received by us from you for the three month period immediately preceding the occurrence of the event on which the indemnification claim is based.
This shall be your only remedy, and our only obligation to you, should a third party allege that the Services infringe any issued patent or registered copyright.
- 11.2 You agree to indemnify, defend and hold harmless us, our parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys’ fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to: (i) your use of the Services; (ii) any violation by you of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this TOS. For the purpose of this paragraph only, the term “you” as set out in subparagraphs (i) through (iv) includes you, End Users, visitors to your website, and users of your products or services, the use of which is facilitated by us.
- 12.1 Both you and Brainstorm Hosting undertake not to disclose to a third party any confidential information which you or Brainstorm Hosting receive relating to the contents or performance of this TOS, unless necessary for a party to perform their obligations under this TOS, the Services or the other party’s business in general, and shall procure that each of its directors and employees shall not do so, except with the prior consent in writing of the other party, as required by law, or to the extent to which that information is publicly available or already known to the receiving party at the date of receipt, other than through any unauthorized disclosure by any person.
- 12.2 Without prejudice to Paragraph
- 12.3 Brainstorm Hosting shall be entitled to mention your name as a client of Brainstorm Hosting and the name(s) of the Services which Brainstorm Hosting provides to you with your prior consent.
- 12.4 If a law or regulation compels disclosure of information held by us, we are required to respond. Unless notifying you is prohibited by the law, or a reasonable interpretation of that law, we will use reasonable efforts to contact the Account Owner. We are not required to respond to demands by you that we provide information about your account as part of litigation. However, if we agree to do so, we will charge you administrative hourly fee for each hour we spend responding to your request. You will also be charged the fees we are charged by our attorneys in responding to your request.
- 13.1 Any notice to be given by either party to the other may be sent by email, support ticket, fax or recorded delivery if (i) to you, the Account Owner; or (ii) to us, as set out in paragraph.
- 13.2 In addition, we may communicate with you using the Support ticketing system facilitated by our User Area. Notices of support tickets opened on your behalf are sent to you by email and shall be deemed received upon sending.
- 13.3 You are required to provide notices to us about the Services through the User Area. We will provide notices to you using the information you provide to us in the “My Details” section of the User Area. We have no responsibility for misdirected notices based on your failure to provide correct information.
- 13.4 Termination notices must be provided to us as set out in paragraph 6.
- 13.5 Legal Notices to us, which are effective only upon acknowledged receipt, shall be provided to us as follows: Brainstorm Hosting Company 2208 E. Hackamore St. Mesa, 85213 AZ Email: firstname.lastname@example.org
14. RESOLUTION OF DISPUTES AND CHOICE OF LAW
- 14.1 Any dispute, controversy or claim arising under this TOS shall be resolved in accordance with the procedures set forth in this Section.
- 14.2 In the event of a dispute between the parties relating to this TOS, each of the parties shall appoint a designated representative who has authority to settle the dispute and who is at the “C” level or above. This appointment will take place no later than five business days after the initial request for dispute resolution. The designated representatives shall meet as often as they reasonably deem necessary in order to discuss the dispute and negotiate in good faith in an effort to resolve the dispute. The specific format for such discussions will be left to the discretion of the designated representatives; however, all reasonable requests for relevant information made by one party to the other shall be honored.
- 14.3 If the procedure set out in the previous paragraph fails, the parties agree that all disputes shall be brought before the U.S. District Court for the Western District of Arizona (District Court). If the District Court may not consider the dispute, all disputes shall be brought before the appropriate state court located in Phoenix, Arizona. The parties agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this TOS or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the appropriate court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this TOS shall be governed by the substantive law of the State of Arizona, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
“End User” is the individual or entity who uses, or to whom you provide, your services; “ICANN” means the Internet Corporation for Assigned Names and Numbers; “Materials” means any information, reports, documents, software or other materials created by Brainstorm Hosting as part of the Services, including all methodologies, know-how and processes used to do so; “Server” means the computer server equipment operated by Brainstorm Hosting in connection with the provision of the Services; “Service” or “Services” means any and all services provided by Brainstorm Hosting under this TOS including, without limitation, domain name registration services, domain name portfolio management services, domain name searching, monitoring and recovery services, space hosting, web, email and usenet searching and monitoring services and professional services, and any other services requested by you which may be provided from time to time as set out on the portion of our website describing the individual Service (Product Pages); “Brainstorm Hosting” means the legal entity delivering the Services to you as set out on the Legal page on this Website and any of its subsidiaries or affiliated entities; “Space” means the area on the Server allocated to you by Brainstorm Hosting for use by you as a site on the Internet; “Term” means the prepaid period during which you receive Services from Brainstorm Hosting; “User Area” means the part of the Brainstorm Hosting website from which you can manage your services and to which you are given login credentials at the start of your Initial Term; and “You” and “your” mean the person, firm or company who purchases Services from Brainstorm Hosting.
- 16.1 If any provision of this TOS or part thereof shall be void for whatever reason, the offending words shall be deemed deleted, and the remaining provisions shall continue in full force and effect.
- 16.2 Your rights and obligations under this TOS are personal to you, and you shall not assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.
- 16.3 Brainstorm Hosting reserves the right to sub-contract any of the work required to fulfill the Services and to assign this TOS.
- 16.4 Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event later than ten days from the beginning of the event.
- 16.5 Any delay or forbearance by either party in enforcing any provisions of this TOS or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
- 16.6 Paragraph headings have been included in this TOS for convenience only and shall not be considered part of, or be used in interpreting, this TOS.
- 16.7 This TOS does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
- 16.8 SURVIVAL. Paragraphs 2.5, 2.10, 9.2, 10, 11, 12 (for a period of three years following Termination), 13, 14, 15, 16.1, 16.8, Section A shall survive the termination of this TOS.
Section A – Service Level Agreement (SLA)
Uptime Guarantee Brainstorm Hosting’s reliable hosting service is backed up by an industry-leading Service Level Agreement (SLA). We guarantee network uptime 99.9% of the time during a twelve month period, starting on the date you order your account. If we fall below that, we will notify you by email and we will automatically compensate your account as follows:
- 100% – 99.9% uptime: No compensation
- 99.9% – 99.00% uptime: 1 month free hosting
- An additional month of free hosting for every 1% of uptime lost below 99.00%
You can also check the status of your account’s server uptime from your Brainstorm Hosting User Area. You are always welcome to contact our support team if you believe an SLA event has occurred and you have not been compensated properly. Compensation is limited to the length of your current Term, but cannot exceed twelve months. Excused Downtime The following events do not count towards our calculation of uptime:
- Scheduled maintenance;
- Emergency maintenance, hardware and software failure remedied under 1 hour;
- Distributed denial of service (DDOS) attacks, hacker attacks, and other similar events;
- Downtime caused by you, your own configuration, or third-party applications you use;
- Downtime caused when you reach the maximum resources allocation for your plan;
- Downtime caused because you have violated this TOS;
- Downtime during work on your technical support request(s); or
- Force majeure.
Our calculation of network availability is based on our internal records. We will not accept Third Party reports as evidence that you are entitled to a credit under this SLA. This SLA is your sole and exclusive remedy for downtime, or any network, software, hardware or Equipment failure.
Section B – Money Back Guarantee
Our 30 day Money Back Guarantee gives you peace of mind that our Services will meet the expectations set out in the TOS. The Money Back Guarantee is your sole and exclusive remedy should our Services fail to meet the expectations set out in this TOS. The following conditions apply to our Money Back Guarantee:
- Service Termination requests must be posted through your User Area;
- Initial orders are covered within thirty days from the day we activate the Service(s);
- Renewal orders are not covered;
- Domain name and Domain Privacy (ID Protect) fees are not refundable and may be due upon cancellation even if waived initially as part of a special promotion;
- Cloud and Dedicated Hosting Services, Paid Support or Third Party Services are not covered by the Money Back Guarantee; and
- Reseller packages are only covered if the complete Reseller package is cancelled. The guarantee does not apply to termination of individual accounts in a Reseller package.
Section C – Renewal Policy
You may choose to renew your Service(s) manually at any time. All available Renewal Terms and the respective Renewal Fees are set out in your User Area. From time-to-time special promotions may be available only for manual renewal of your Services.
All Services are set to renew automatically, with the exception of Reseller Shared Hosting accounts and upgrades. Your current payment method is automatically charged the standard Fees for a Renewal Term:
- Fifteen days prior to the expiration of your current Term for Shared Hosting Services, Domain name registrations and related services, and SSL certificates;
- five days prior to expiration of your current Term for Cloud and Dedicated Server Services; or
- upon expiration of your current Term for all other Services.
If we cannot process a renewal charge at the scheduled date, we will make additional attempts to charge your payment method(s) until you renew or terminate the Services. We will always charge for renewal the primary payment method on file first.
Should the primary payment method fail, we will retry billing any other payment methods on file in the order listed in your User Area. We are not responsible for your data or domain name if Services are terminated because your payment method(s) have expired or are no longer valid for any reason.
Section D – Fair Use
Our Fair Use Policy sets out certain limitations on the allocation of Server resources, aiming to allocate all our customers fair and adequate use of the Services. Details on the resource allocation are set on the Product Page for your Hosting Plan.
When using the Services, you will ensure that neither you nor any of your End Users make excessive use of the Server resources to Brainstorm Hosting’s detriment or that of our other customers. The term “excessive” is defined by our experience with similarly situated customers. Your account includes a control panel that provides statistics setting out your use of the resources associated with the Services.
These statistics are the sole and exclusive method to determine whether your account has exceeded its allocated resources. Unmetered traffic (bandwidth) applies to your use of web pages only (html, php, etc.), not to upload or storage of movies, pictures or music files.
While we do not meter traffic, the maximum availability at any time will depend on current traffic usage and the technical specifications of our equipment. Certain Services have a fixed bandwidth allocation as set out on their Product Page.
If in any calendar month your use of bandwidth exceeds that basic allocation, the Service will be limited and an overage fee may be charged if you wish to restore it. Unused bandwidth may not be carried over from month-to-month. You agree that we have the sole right to decide what constitutes a violation of the Fair Use Policy and what is the appropriate severity of any corrective action to be applied.
Failure on your part to maintain your account in full compliance with the TOS may result in warning, resource usage limitations, suspension or immediate account termination with no refund.
You understand and agree that in the event of violation of the Fair Use Policy, we may provide you with a certain period of time to correct the issue. If you take no action during this period, we may apply corrective actions at our sole discretion.
You acknowledge that we can immediately suspend and/or terminate each account that violates the Fair Use Policy and will not be responsible for any data loss resulting from such termination of Services.
Section E – Upgrade/Downgrade Policy
You can choose to upgrade or downgrade the Hosting Services at any time. All available upgrade options will be listed in your User Area and are subject to the fees set out on the respective Product Pages (Upgrade Fees).
The Upgrade Fee covers any account data transfer from one Server to another that might be required as part of the upgrade process. Any additional Services you have on the account will also be transferred, as long as they are compatible with the features of the new plan.
Upgrade to another Shared Hosting Plan
If your current Term expires more than one month from the date you order an upgrade, we will charge you only for the difference in Fees for all remaining full months. Your Term and expiration date will not change.
If your current Term expires less than one month from the date you order an upgrade, we will directly charge you for renewal on the new plan, at a Renewal Term of your choice.
Upgrade to Cloud Hosting or Dedicated Server
Upon upgrade to Cloud Hosting or Dedicated Server Services, you will be required to select a new Term for your account. The new Term will begin on the date you order an upgrade. We will calculate any Fees remaining from unused time on your previous plan, we will prorate the amount based on the monthly Fee for your new plan, and will apply it as extension to your new Term.
Auto-scaling for Cloud Accounts
You can choose to temporarily upgrade the resource usage for your Cloud Services by activating the auto-scaling feature.
You will need to create an auto-scale event from your User Area by specifying what usage of your cloud account CPU or RAM should be reached before the feature is activated and how many units of the respective resource should be added if that usage is reached.
Whenever an event occurs, the additional resources you selected will be automatically applied to your Cloud Services and we will automatically charge you the respective service fees for a Term of one month (the “Additional Resources Term”). Resources that are not renewed will be scaled down upon expiration of their Term.
Scaling down the RAM of Cloud Services requires reboot the equipment and results in downtime.
Downgrade to another Brainstorm Hosting Hosting Service
You can choose to downgrade your account only if:
- your account was not previously upgraded from that plan because of violation of our Fair Use Policy; and
- your content does not require Server setup different from the standard Server setup. Different Server setup includes, but is not limited to, space size, installation of special PHP or Perl modules, open special ports, different MySQL versions, and/or SSH access.
You can request a downgrade through your User Area support section. We may refuse to process your request if your account does not meet the conditions for a downgrade or if in our reasonable opinion the new plan is not suitable for the account.
Upon downgrade of your Hosting Service we will calculate the difference in Fees between the two plans for any full months remaining from your Term and we will prorate that as extra time to your new plan.
If no full months remain, your account will keep its current Term. Any additional or free Services that are either not included in or are not compatible with the new plan will be terminated.
Section F – Website Transfer Services
We may transfer your website(s) to us upon request. Website transfers are subject to the Fees set out on the respective Product Page. You agree to give us access to your account with the previous host, so we can create a backup copy, transfer your website(s) and make all configurations necessary for your website to work on our Servers.
If we are not able to create a backup copy for reasons outside our control, you agree to make one available for us. Java and ASP.NET are not supported on our servers. If your previous host uses cPanel, we will make a backup copy of your account through cPanel. Restoring that backup on our servers will replace any data previously uploaded to your account.
The data to be transferred must be less than the permitted size of your Hosting Services. Transfer of your domain name(s) to Brainstorm Hosting and installation of external SSL certificate(s) are not included in our website transfer service and can be ordered separately from your User Area.
We may refuse to transfer your website(s), if your website(s) require configuration that is not compatible with our Servers or if in our reasonable opinion such transfer will require more resources than website transfers for similarly situated customers. In case we cannot transfer your website(s), any website transfer fees will be refunded.
Section G – Backup Services
We are pleased to provide you with Daily Backup and Backup Restore Services. As part of our Daily Backup services we keep a limited number of backup copies of your account as set out on the respective Product Page.
If you change the Services, we may delete the old backup copies created on your previous plan and start new backups of your account. If you order Daily Backup services for your Dedicated Server account, you subscribe for a certain backup space size.
In the event that your backup space exceeds that size, we will continue to make full backup of your account and will charge you overage fees with your next renewal invoice. Backup Restore services are part of our paid support services and can be ordered from your User Area.
Depending on the hosting Services you have chosen, we may provide backup restore tools or services to you. We may suspend the Daily Backup Service for your account or refuse to restore your data, if in our reasonable opinion such backup will result in a security risk or will alter the performance of our Server to the detriment of other customers.
Our Backup Services are provided as-is and are subject to all limitations of liability set out in this TOS. You agree to notify us through your User Area in case the Backup Service malfunctions and allow us reasonable time to resolve any issues. You agree that you will maintain your own set of backups independent of those we maintain.
In the event that you are not satisfied with the outcome of any Backup Restore, it shall be your obligation to restore your files and data from your own backup.
Section H – Domain names
Brainstorm Hosting resells top-level domains (TLDs) – gTLDs (generic top level domains) and ccTLDs (country-specific top level domains). Your use of a domain name is governed by this TOS, the Registrant Agreement provided by the respective Registry or Registrar, and.
- ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP)
- ICANN Policy
- TuCows Domain Registration Agreement
- ENOM Domain Registration Agreement
- Openprovider Terms and Conditions
- CIRA Registrant Agreement (for .ca domains)
- Domain name registration
1.1. Brainstorm Hosting does not warrant or guarantee that the domain name applied for in your Order will be registered in your name or is capable of being registered by you. You should not rely on the fact that you have submitted an Order to register a domain name until you have been notified by us that your requested domain name has been registered.
1.2. The registration of the domain name and its ongoing use are subject to the relevant naming authority’s terms and conditions of use, and you are responsible for ensuring that you are aware of those terms and conditions. You waive any claims you may have against Brainstorm Hosting should a naming authority refuse to register a domain name. Domain registration and renewal fees are non-refundable in any event. Renewal fees for expired domain names may vary depending on the Registrar of record.
1.3. Any dispute between you and any other individual or organization regarding a domain name must be resolved between the parties concerned. Brainstorm Hosting will take no part in any such dispute. We reserve the right, upon becoming aware of such a dispute, at our sole discretion to either suspend or cancel the domain name, and/or make appropriate representations to the relevant naming authority. You warrant and represent that to the best of your knowledge and belief, neither the registration of the domain name nor the manner in which it is directly or indirectly used by you and/or any affiliate directly or indirectly infringes the legal rights of a third party.
1.4. You are solely responsible for providing us with accurate and up-to-date contact information. We shall not accept any responsibility for any cancellation or refusal to renew a domain name by the relevant naming authority due to any failure to provide such information. Any changes made by you to your details using the Brainstorm Hosting User Area facility are your own responsibility. We are not responsible for the renewals of any domain name registrations, except when stated otherwise as part of a special promotion, and you should make your own arrangements for reminding yourself when any name is due for renewal. As a courtesy to you, to avoid SPAM, the email address in your WHOIS record will be registered to our address. If you would like to modify this address, please contact us.
1.5. Where Brainstorm Hosting is acting as registrar, the ICANN-adopted consensus policies on transfer of sponsorship of registrations between registrars shall apply.
1.6. Free domain name registration We may offer you a free domain name registration during your Initial Term and any Renewal Term (Free Domain Name) as part of some of the hosting services and special promotions we provide. You must satisfy the following criteria in order to take advantage of this offer:
- You must order a hosting service that includes a Free Domain Name registration as described on the Product Page.
- The Free Domain Name must be your first primary domain and must be associated with the initially ordered Hosting Service throughout the duration of your prepaid Term.
- The Free Domain Name must be for one of these tlds: .com, .net, .org, .biz, or .info. For visitors from certain countries, the local country-specific domains may be available for free registration and renewal.
We have no liability for domain names that are not registered by us and associated with your accounts.
1.8. Obligations relating to provided data If you provide information about a third party, you hereby represent that you have (a) provided notice to that third party of the disclosure and use of that party’s information as set forth in this TOS, and (b) that you have obtained that third party’s express consent to the disclosure and use of that party’s information as set forth in this TOS. You acknowledge that willfully providing inaccurate information or willfully failing to update information promptly, or failure to respond for over fifteen days to inquiries by Brainstorm Hosting concerning the accuracy of contact details associated with your registration will constitute a material breach of this TOS and will be sufficient basis for cancellation of your domain name registration.
1.9. Disclosure and use of registration information You agree and acknowledge that Brainstorm Hosting will make available domain name registration information you provide, or that Brainstorm Hosting otherwise maintains, to ICANN, to the registry administrator(s), and to other third parties as ICANN and applicable laws may require or permit. ICANN may establish guidelines, limits and/or requirements that relate to the amount and type of information that Brainstorm Hosting may or must make available to the public or to private entities and the manner in which such information is made available. You agree to abide by these policies and may not terminate this TOS based on such a change. You hereby consent to each of the disclosures set out in this TOS. You further consent to the use of the information you provide to us and guidelines, limits and restrictions on disclosure of, information provided by you in connection with the registration of a domain name (including any updates to such information). This applies whether during or after the term of your registration of the domain name. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of your domain name registration information by Brainstorm Hosting.
1.10. Ownership of data You agree and acknowledge that Brainstorm Hosting owns all database, compilation, collective and similar rights, title and interests worldwide in Brainstorm Hosting’s domain name database, and all information and derivative works generated from the domain name database. You further agree and acknowledge that Brainstorm Hosting owns the following information for those registrations for which Brainstorm Hosting is the registrar: (a) the original creation date of the registration; (b) the expiration date of the registration; (c) the name, postal address, all email addresses, telephone number, and where available, fax number of the technical contact, administrative contact, zone contact and billing contact for the domain name registration; (d) any remarks concerning the registered domain name that appear or should appear in the WHOIS or similar database; and (e) any other information Brainstorm Hosting generates or obtains in connection with the provision of domain name registration services, other than the domain name being registered, the IP addresses of the primary nameserver and any secondary nameservers for the domain name, and the corresponding names of those nameservers.
If set out in your Order, we will provide private domain name registration services to you (ID Protect). If we provide ID Protect to you, you agree that:
- This Service is provided on a reasonable efforts basis. We are not responsible if your identity is mistakenly disclosed;
- You warrant that you have purchased this Service for a legitimate use, and not to evade any legal, tld, ICANN or other requirement imposed by law, or an Internet authority;
- You will provide us with accurate information, and that you will ensure that this information is updated immediately when it changes;
- You will indemnify and hold us harmless based on any claims made against us based on providing ID Protect to you;
- You will immediately respond to all notices we provide to you that are forwarded to us as a result of providing the ID Protect service to you; and
- We may terminate all Services provided to you should we determine, in our reasonable discretion, that you are abusing the ID Protect service, or you do not immediately respond to our inquiries or the notices we forward to you.
- Domain Registrar Transfers
- the time passed after initial registration, after most recent transfer and after renewal of the domain name does not meet Registries’ requirements;
- the registration is within the last fifteen days prior to expiration of the domain;
- you have provided an incorrect or no Authorization (EPP) code or the special TAG attribute is not correctly set;
- you do not have access to the administrative email address for the domain;
- the domain name is in LOCKED status;
- the domain TLD is not with among the TLDs that Brainstorm Hosting can register;
- there is pending bankruptcy of the domain name holder;
- there is a dispute over the identity of the domain name holder;
- at the discretion of the then-current registrar;
- by operation of law; or
- in accordance with circumstances described in the Domain Name Dispute Policy.
Upon successful completion of the registrar transfer request, we shall immediately become the registrar of record. As set out in the terms of the respective Registry, your domain name registration term may be extended with up to two years either from the date your existing registration is set to expire or from the date the transfer is completed, provided that the total unexpired term of a registration does not exceed ten years.
Section I – Private SSL Certificates
We offer private SSL certificates to you through third party provider(s). This TOS incorporates by reference our providers’ terms and conditions
- Our SSL Certificates are only available to current customers with active Hosting Services. You may need a dedicated IP address in order to use a private SSL Certificate. Unless explicitly stated otherwise, the fee for a dedicated IP is not included in the SSL purchase price. Brainstorm Hosting may act on your behalf for the purpose of approving your SSL certificate Order/Activation request/Renewal with the SSL provider. If you do not complete the SSL confirmation process up to five business days after your Order/Activation request/Renewal, your SSL will be canceled and no refund will be due. We may provide certain SSL certificates for free as part of your Hosting Services or as part of a special promotion for a specific promotional Term. Any such certificate will be available for free use during the promotional Term as long as it is installed under an IP address within the Brainstorm Hosting network. If you attempt to transfer away an SSL during the promotional Term, the discount or other benefit provided by the special promotion will be removed, and your account will be re-billed as if it had been set up without the special promotion. If this results in additional fees, you will be charged for those fees.
Section J – WHMCS
WHMCS is a software supplied by WHMCS Limited that allows users to manage hosting accounts, domains, recurring billing and support. The WHMCS version we provide contains a “Powered by WHMCS” link. This TOS incorporates by reference the WHMCS Limited End User License Agreement
- WHMCS can be added only to Cloud Accounts. Additional setup fee may apply if you decide to use WHMCS for a domain different than the primary domain for your account. You agree that Brainstorm Hosting is not liable for any damages on your website that may result from any incompatibility of WHMCS and applications installed on your account.
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