This Terms of Service (“Agreement”) governs your use of and access to the Services provided by RainStorm, LLC d/b/a Rainstorm.host (“Company”, “we”, “us”, or “Rainstorm”).
This Agreement is effective as of the date you submit your registration on Rainstorm.host (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not check the box below (or, if applicable, do not sign this Agreement). You represent and warrant that, if an individual, you are at least 18 years old and otherwise legally competent in all respects to be bound by this Agreement.
Except for Section 8.2 relating to mandatory arbitration and class action waiver, we may modify the terms of this Agreement upon 30 days prior written notice to you. You will have an opportunity to review and accept the modified Agreement. Any such acceptance shall become effective upon the commencement of your next renewal term. If you fail to accept such modified Agreement, we reserve the right to terminate your access and use of the Service upon the termination of your Subscription Term.
If you are registering a new domain name with us, or using or transferring a previously registered domain name in conjunction with your use of the Services, you hereby acknowledge and agree that your use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (“ICANN”) and that you have read the Registrant Rights and Responsibilities located at http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm.
During the Subscription Term, and subject to all terms and conditions of this Agreement, we will use commercially reasonable efforts to provide the Services to you consistent with your Service Plan. We may provide the Services using third party vendors or service providers. You agree to pay Company the fees, in the amounts and at the times specified in your selected Service Plan.
1.2 CHANGES TO THE SERVICE
We reserve the right to modify or discontinue the Service or any Service Plan (in whole or in part) at any time by giving at least 30 day’s written notice to you. Company may also make commercially reasonable modifications to the Service from time to time without prior notice.
We will not be responsible or liable for any failure in the Services resulting from or attributable to (a) your Systems, (b) network, telecommunications or other service or equipment, (c) your, or third party’s’ products, services, negligence, acts or omissions, (d) any force majeure or cause beyond our reasonable control, (e) scheduled maintenance or (f) unauthorized access or breach by third parties. You are responsible for maintaining the confidentiality of your account access password, and for all activities that occur under your account.
2. PROPRIETARY RIGHTS
2.1 CUSTOMER CONTENT
As between the parties, you shall own all Customer Content. You hereby grant us a nonexclusive and royalty-free right and license to use, copy, perform, display, and distribute said Customer Content and to prepare derivative works of Customer Content solely for the purpose of providing the Services, both to you and End-Users. You agree to indemnify and hold us harmless from all claims, damages, liabilities, losses, costs and expenses (including attorneys’ fees) arising out of any use or disclosure of Customer Content and your use of the Services.
You understand that you are solely responsible for all Customer Content posted on, transmitted through, or linked from the Service, including any Customer Content created or provided by End-Users. You acknowledge that we do not pre-screen or approve Customer Content, but that Company shall have the right (but not the obligation) in its sole discretion to refuse, delete or move any Customer Content that is available via the Service for violating the letter or spirit of this Agreement or for any other reason.
2.2 NO IMPLIED LICENSE
Except for the limited rights and licenses expressly granted hereunder, no other license is granted to you, no other use is permitted and we (and our licensors) shall retain all right, title and interest in and to the Service and all updates and modifications thereto (including all intellectual property and proprietary rights embodied therein). You shall not take any action inconsistent with such rights.
2.3 Rainstorm AS RESELLER OR LICENSOR
Rainstorm is acting only as a reseller or licensor of certain services, hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-Rainstorm Product”). Rainstorm shall not be responsible for any changes in the Services that cause the Non-Rainstorm Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. If you provide FTP access to a third party to utilize any Non-Rainstorm Product, Rainstorm is not liable for any malfunctions or defects or any losses of any kind resulting from such access. Any malfunction or manufacturer’s defects of Non-Rainstorm Product either sold, licensed or provided by Rainstorm to you or purchased directly by you used in connection with the Services will not be deemed a breach of Rainstorm’s obligations under this Agreement. Any rights or remedies you may have regarding the ownership, licensing, performance or compliance of Non-Rainstorm Product are limited to those rights extended to you by the provider of such Non-Rainstorm Product. You are entitled to use any Non-Rainstorm Product supplied by Rainstorm only in connection with your permitted use of the Services. You shall use your best efforts to protect and keep confidential all intellectual property provided by Rainstorm to you through any Non-Rainstorm Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. You shall not resell, transfer, export or re-export any Non-Rainstorm Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
3. SERVICE PLANS
3.1 SERVICE PLAN UPGRADES
Your Service Plan includes certain restrictions on your use of the Services. In the event your use of the Services exceeds any such limitations at any time, you consent and agree to your Service Plan being upgraded at the beginning of your next monthly billing cycle, to the Service Plan appropriate for your usage level. Any such upgrade shall not require your prior consent or any notice to you.
3.2 TRIAL PERIODS
If you signed up for a “Free Trial”, you will be permitted to access and use the Services until the end of your Trial Period. Upon the termination of such trial period, you must select a Service Plan other than a “Free Trial” and begin paying Subscription Charges as set forth in this Agreement. Trial periods shall be as set forth in your Service Plan, as otherwise agreed to in writing by the you and us.
4.1 CREDIT CARD INFORMATION
In order to set up an account with us, you must provide Company with accurate and complete billing information including legal name, address, telephone number.
If you are paying via credit card, PayPal, ACH debit or other electronic means of payment, you must provide valid information for such payment method (credit card number, ACH routing and account number, etc.). By submitting such information, you give us permission to charge all Subscription Charges and any other fees incurred for using the Services via such payment method. We reserve the right to terminate this Agreement and your access to and use of the Services in accordance with Section 7 hereto if you do not provide valid payment method information or the payment of fees hereunder, or if any Subscription Charges or other charges are not otherwise timely paid.
You authorize us to continue your Subscription Charges until cancelled and, on a recurring monthly basis (or whatever recurring basis has been otherwise agreed to in writing), to charge the payment method you provided for the then-current Subscription Charge if you do not cancel in accordance with this Agreement.
4.2 PAYMENT TERMS
The Subscription Charges are billed in advance upon commencement of your Subscription Term, and thereafter on a monthly basis, except as otherwise agreed to or as set forth in a Service Plan, and are non-refundable. There will be no refunds or credits for partial months of Service, upgrade/downgrade refunds. For any upgrades or downgrade in Service Plan level, your payment method will automatically be charged the new rate beginning with the next billing cycle. Any add-on features or Services not provided in your Service Plan will be billed in accordance with specific terms provided at the time the add-on features or Service is requested by you.
All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and you agree to bear and be responsible for the payment of all such charges, excluding taxes based upon our net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
4.4 REVISING SUBSCRIPTION CHARGES
We may revise Subscription Charges for the Services by providing you written notice (which may be by email) at least thirty days prior to the start of the following renewal term of your Subscription Term.
4.5 PROFESSIONAL SERVICES
In the event we provide any professional services to you in connection with the Services, in the absence of a separate written agreement between us and you, you will be invoiced for such Services monthly at the rate of $100/hour.
5.1 DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
FOR ITS OWN OPERATIONAL EFFICIENCIES AND PURPOSES, Rainstorm FROM TIME TO TIME BACKS UP DATA ON ITS SERVERS, BUT IS UNDER NO OBLIGATION OR DUTY TO YOU TO DO SO UNDER THESE TERMS. IT IS YOUR SOLE DUTY AND RESPONSIBILITY TO BACKUP YOUR FILES AND DATA ON Rainstorm SERVERS, AND UNDER NO CIRCUMSTANCE WILL Rainstorm BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF YOUR FILES AND/OR DATA ON ANY Rainstorm SERVER
6. LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO US HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD Rainstorm, ITS AFFILIATES AND ITS SPONSORS, PARTNERS, OTHER CO-BRANDERS AND THE RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES OF EACH HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COURT COSTS) ARISING OUT OF OR RELATING TO YOUR BREACH OF THIS AGREEMENT OR USE BY YOU OR ANY THIRD PARTY OF THE SERVICES, EXCEPT TO THE EXTENT THE FOREGOING DIRECTLY RESULT FROM Rainstorm’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Rainstorm RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
7. TERM AND TERMINATION
This Agreement shall commence on the Effective Date and shall continue in effect for the initial term specified in the Service Plan. If no initial term is specified in the Service Plan, the initial term shall be 1 month. Unless terminated earlier as permitted herein, the Agreement will be extended automatically for additional terms of equal length to the initial term, or if no initial term is specified, 1 month, at the end of the initial term and each renewal term (collectively, the “Subscription Term”). Either party may elect not to renew this Agreement by giving written notice thereof via email or the via our customer support ticketing system to the other party at least 10 days prior to the end of the then current initial or renewal term.
This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party,or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
7.3 EFFECTS OF TERMINATION
Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the Effective Date of termination (including without limitation, all payment obligations) shall survive, (b) we may, but shall not be obligated to, delete Customer Content and (c) the provisions of Sections 2 (Proprietary Rights), 4 (Payments), 5 (Disclaimers), 6 (Limitation of Liability), 8 (General Provisions) and this Section 7.3 shall survive. Following any termination or expiration of this Agreement, we reserve the right to delete your account information and all customer content immediately.
8. GENERAL PROVISIONS
8.1 ENTIRE AGREEMENT
This Agreement (together with the applicable Service Plan(s) and any agreement expressly accepted by you or incorporated herein by express reference) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between the Agreement and the Service Plan, the terms and conditions in the Service Plan will prevail and be controlling. No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered with any governmental authority, you shall cause such registration to be made and shall bear any expense or tax payable in respect thereof. If you discover anyone on the Rainstorm system violating this Agreement or notice anything suspicious from the Rainstorm network, you agree to report the violation or suspicious activity by opening a ticket with the Rainstorm for investigation.
8.2 GOVERNING LAW / BINDING ARBITRATION
This Agreement shall be treated as though executed and performed in the state of Indiana, and shall be governed by and construed in accordance with the laws of Indiana, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement.
Any dispute relating in any way to your use of the Services shall be submitted to confidential arbitration in Indiana, except that to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Indiana. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Indiana. Arbitration under this Agreement shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. We operate the Service from our offices in the State of Indiana.
In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 2, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed email, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Service Plan, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
This Agreement and the rights and obligations hereunder may be assigned upon 10 days prior written notice to the non-assigning party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
8.6 INDEPENDENT CONTRACTORS
The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
8.7 PROHIBITED PERSONS (COUNTRIES, ENTITIES, AND INDIVIDUALS)
8.7.1 Sanctioned Countries
The government of the United States of America, through various of its offices and agencies, including but not limited to, through one or more Executive Orders of the President of the United States, through rules and regulations of the United States Department of State, Department of the Treasury, and Department of Commerce, has determined that, with respect to all or certain commercial activities that would otherwise occur between i) the United States, its citizens or residents on the one hand and ii) the governments, citizens, or residents of certain other countries (“Sanctioned Countries”) on the other hand, said commercial activities are to be prohibited, embargoed, sanctioned, banned, and/or otherwise excluded. “Sanctioned Countries” shall be deemed automatically to be added to or otherwise modified from time to time consistent with the determination(s) of the government of the United States, and shall include all other countries with respect to which commercial activities are prohibited, embargoed, sanctioned, banned and/or otherwise excluded by determination(s) of the government of the United States from time to time.
Each Sanctioned Country, all governmental, commercial, or other entities located therein, and all individuals located in any Sanctioned Country are hereby prohibited from registering or signing up with, subscribing to, or using any service of Rainstorm.
Each individual which is a National or Citizen of a Sanctioned Country is hereby prohibited from registering or signing up with, subscribing to, or using any service of Rainstorm, regardless of where said individual is located.
Country-Code Top Level Domain Names for any Sanctioned Countries are hereby prohibited from use in connection with any service of Rainstorm
8.7.2. Prohibited Organizations/Entities
The government of the United States of America, through various of its offices and agencies, including but not limited to, through one or more Executive Orders of the President of the United States, through rules and regulations of the United States Department of State, Department of the Treasury, and Department of Commerce, has determined that certain organizations and/or entities (collectively “Prohibited Organizations/Entities” and individually “Prohibited Organization/Entity”) are to be prohibited, embargoed, sanctioned, banned, and/or otherwise excluded from all or certain commercial transactions with the United States, its citizens and residents. The Prohibited Organizations/Entities are those as set forth in the applicable records of the government of the United States, including without limit those set forth at: http://www.ustreas.gov/ofac; and, http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, as said determinations and resulting records may be amended, updated, or otherwise modified from time to time.
Each Prohibited Organization/Entity is hereby prohibited from registering or signing up with, subscribing to, or using any service of Rainstorm.
8.7.3 Prohibited Individuals
The government of the United States of America, through various of its offices and agencies, including but not limited to, through one or more Executive Orders of the President of the United States, through rules and regulations of the United States Department of State, Department of the Treasury, and Department of Commerce, has determined that certain individuals (collectively “Prohibited Individuals” and individually “Prohibited Individual”), including without limit, certain Specially Designated Nationals are to be prohibited, embargoed, sanctioned, banned, and/or otherwise excluded from all or certain commercial transactions with the United States, its citizens and residents. The Prohibited Individuals are those as set forth in the applicable records of the government of the United States, including without limit those set forth at: http://www.ustreas.gov/ofac; and, http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, as said determinations and resulting records may be amended, updated, or otherwise modified from time to time.
Each Prohibited Individual is hereby prohibited from registering or signing up with, subscribing to, or using any service of Rainstorm.
IF YOU, FOR YOURSELF OR ON BEHALF OF ONE OR MORE PERSONS YOU ARE REPRESENTING WITH RESPECT TO Rainstorm SERVICES, DO NOT AGREE TO ANY OF THE FOREGOING TERMS, YOU MUST, FOR YOURSELF AND ON BEHALF ANY SUCH PERSON(S), DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY A MEMBER, CANCEL YOUR Rainstorm ACCOUNT. BEGINNING NOW, ANY CONTINUATION BY YOU IN USING THE SERVICES CONSTITUTES FOR YOU AND THOSE REPRESENTED BY YOU AN EXPRESS AFFIRMATION AND COMMITMENT TO BE (OR TO CONTINUE TO BE, AS APPLICABLE) LEGALLY BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
“Customer Content” means all of your registration information and other information provided by you in connection with your use of the Services, including without limitation information, content, data, messages, text, files, images, photos, video, sounds, other materials, and any of the foregoing provided by any End-User via your or their use of the Services.
“End-User” means any person or entity other than you with whom you or your Affiliates interact using the Service.
“Service Plan” means the plan chosen by you during, or subsequent to your registration to use the Services.
“Services” means the web hosting and related products and services (including without limitation domain registration, VPS, and dedicated servers, professional consulting services, and services provided by 3rd parties) provided by us (or a third-party) as further described in your Service Plan. Any new or modified features added to the Service are also subject to this Agreement.
“Subscription Charges” means fees payable by you for your use of (a) the Services, as specifically set forth in your Service Plan, or (b) any add-on features or Services requested by you from time to time.
“Systems” means modems, servers, software, network and communications equipment and ancillary services and hardware that are owned, controlled or procured by you.