OhMaiSandy Terms of Service
October 1, 2013
OhMaiSandy is only willing to provide services to You upon the condition that You accept all of the terms contained in this Agreement. Please read this agreement carefully as it affects Your legal rights and remedies.
The following agreement ("Agreement") is entered into between You ("Customer" or "You") and OhMaiSandy, LLC ("OhMaiSandy"), a Utah limited liability company having a business at 1784 west grays place Lehi, UT 84043 and is made effective on the date of electronic acceptance. This agreement sets forth the terms and conditions that govern Your use of this website and the products and services (collectively, the "Services") found at this site, and is in addition to and not in lieu of any specific terms and conditions that apply to Your purchase of a particular Service. In the event that You provide a purchase order or other ordering document to facilitate Your purchase, the document is incorporated by reference only to the extent that it identifies the Services to be purchased, and all other terms and conditions included in such document are hereby rejected by OhMaiSandy.
Your electronic acceptance and/or use of the Services signifies that You have read, understood and agreed to be bound by the terms and conditions of this Agreement as well as any policies posted on this website and that by such acceptance and/or use of the Services You agree that any previous agreements between You and OhMaiSandy will be terminated and superseded by this Agreement. You acknowledge and agree that OhMaiSandy’s acceptance of this Agreement and the provision of Services are performed at OhMaiSandy’s offices in Lehi, Utah, USA. OhMaiSandy, in its sole discretion, may refuse to provide the Services to any one at any time and for any reason. If OhMaiSandy exercises this right, OhMaiSandy will not charge You for the Services and/or refund You for the amounts paid for the Services during the month that OhMaiSandy invokes its right to deny Service.
OhMaiSandy, in its sole and absolute discretion, may change or modify this Agreement, and the corporate policies and/or Service Specific Terms which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon the earlier of (i) our email notification to You advising You of such changes or modifications (ii) Your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the "Last Revised" date at the top of this page or (iii) Your continued use of the Services after OhMaiSandy posts the amended Agreement to OhMaiSandy.com.
2. Eligibility, Point of Contact, Account Ownership
The Services found at this Site are available only to Customers who can form legally binding contracts under applicable law. By using the Services found at this Site, You represent and warrant that You are (i) at least eighteen (18) years of age and/or (ii) otherwise recognized as being able to form legally binding contracts under applicable law. You further represent and warrant that You are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom OhMaiSandy is legally prohibited to provide the Services.
The Customer designated in the accompanying Order Form in the "Your Information" section shall be the single "Point of Contact." Customer’s Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that OhMaiSandy may rely on representations made by Customer’s Point of Contact. Customer may change its Point of Contact at any time by giving written notice to OhMaiSandy in accordance with the notice provisions of this Agreement. OhMaiSandy is under no obligation to accept instructions from anyone other than the Point of Contact. Notwithstanding the foregoing, OhMaiSandy shall not be liable for any loss or damage resulting from OhMaiSandy’s reliance on any instruction, notice, document or communication reasonably believed by OhMaiSandy to be genuine and originating from an authorized representative of Customer’s corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, OhMaiSandy reserves the right (but not the obligation) to require additional authentication from Customer. In order to permit OhMaiSandy to protect the quality of its products and services, You hereby consent to OhMaiSandy staff being able to access Your account and records on a case-by-case basis to investigate complaints or other allegations or abuse.
3. Dispute of Site or Account Ownership
The entity or person creating the account and designated as the owner shall be deemed the account owner. For security reasons, only the account owner or Point of Contact designated by the account owner shall be allowed to make changes, cancellations, or designate a new Point of Contact. Disputes sometimes arise between or among multiple persons claiming ownership of or rights in a site, store, or account. If multiple persons are claiming ownership of or rights in a site, store or account, and, in OhMaiSandy’s sole judgment, there is no certainty as to the ownership of or rights in said site or account, then OhMaiSandy will, to the extent of its knowledge and ability, notify said persons of the dispute and demand that said persons promptly, conclusively, and finally resolve the dispute in a manner which makes clear who the owner(s) and/or interest holder(s) is/are and in a manner which relieves OhMaiSandy of all liability or obligations concerning the dispute. If the disputing persons fail so to resolve the dispute within what OhMaiSandy, in its sole judgment, deems to be a reasonable time, then OhMaiSandy, at its sole option and without any obligation to do so, may suspend or terminate the account until such persons resolve said dispute and reach certainty regarding ownership of or rights in said site, store and/or account. The person or persons conclusively and finally determined by court order or settlement agreement to be the rightful owner(s) or interest holder(s) of said site, store and/or account shall be obligated to pay all amounts due and comply with the Transfer Policy, if required, to transfer ownership of the site, store and/or account to the rightful owner. Failure of the rightful owner of said site, store and/or account timely pay in full all of said amounts shall be deemed a breach of these Terms and shall subject the account to immediate termination.
To transfer ownership of an account, Customer must contact OhMaiSandy and comply with the Transfer Policy.
OhMaiSandy personnel may from time to time recommend third party software or other products and services for Your consideration. OhMaiSandy MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM OhMaiSandy, INCLUDING THE COMPATIBILITY OF SUCH PRODUCTS AND SERVICES WITH OhMaiSandy SOFTWARE. Your use of any such products and services is governed by the terms of Your agreement with the provider of those products and services.
5. Software Updates
From time to time, OhMaiSandy may update the software associated with a Service for many reasons, including but not limited to, (a) to maintain PCI compliance; (b) to fix bugs or problems in previous versions; and/or (c) to enhance functionality or features. OhMaiSandy makes no warranty that such updates will not affect Your use of the Services or introduce new but unknown bugs into the software. Further, OhMaiSandy shall not be responsible for the effect an update has on any code not provided by OhMaiSandy and any modifications to such code to restore functionality shall be Customer’s sole responsibility and cost.
Where support is provided by OhMaiSandy, OhMaiSandy will provide technical support for the most recent update or version of the Software associated with a Service. From time to time, OhMaiSandy may provide support for an older version(s), however OhMaiSandy reserves the right to suspend or terminate such support at any time, with or without notice.
6. Use of Customer’s Name and Trademarks
Customer hereby grants OhMaiSandy a non-exclusive right and license to use Customer’s name and such of Customer’s trade names, trademarks, and service marks (collectively, "") as are listed on Customer’s Content or otherwise provided to OhMaiSandy in connection with this Agreement (a) on OhMaiSandy’s own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing OhMaiSandy’s Services, and, (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use OhMaiSandy’s trade name, trademarks, and service marks (collectively, " ") in advertising and publicity in conjunction with the offering of Customer’s Content via OhMaiSandy, provided that Customer shall submit copy to OhMaiSandy for its prior written approval, and provided further that under no circumstances shall such use imply that OhMaiSandy endorses, sponsors, certifies, approves or is responsible for Customer’s Content. Notwithstanding the foregoing, Customer need not obtain OhMaiSandy’s prior written approval where use of OhMaiSandy’s Marks is limited to inclusion in a list of systems via which Customer’s Content is available.
7. Use of Customer’s User Content
Some of the features of this website or the Services found at this website may allow Customer to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice (""), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, " "). By providing User Content to OhMaiSandy via any method (e.g. site submission, email, survey responses, etc.), You represent and warrant to OhMaiSandy that (i) You have all necessary rights to distribute User Content via this website or via the Services found at this website, either because You are the author of the User Content and have the right to distribute the same, or because You have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) You do not violate the rights of any third party.
The provisions in this Section apply specifically to OhMaiSandy’s use of User Content posted to OhMaiSandy’s corporate websites or submitted directly to OhMaiSandy. The applicable provisions are not intended to and do not have the effect of transferring any ownership or licensed rights (including intellectual property rights) You may have in content posted to Your hosted websites.
You shall be solely responsible for any and all of Your User Content or User Content that is submitted through Your Account, and the consequences of, and requirements for, distributing it.
You acknowledge and agree that:
1. Your User Submissions are entirely voluntary.
2. Your User Submissions do not establish a confidential relationship or obligate OhMaiSandy to treat Your User Submissions as confidential or secret.
3. OhMaiSandy has no obligation, either express or implied, to develop or use Your User Submissions, and no compensation is due to You or to anyone else for any intentional or unintentional use of Your User Submissions.
4. OhMaiSandy may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.
OhMaiSandy shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions provided to OhMaiSandy by any method, and shall be entitled to the unrestricted use and dissemination of any User Submissions provided for any purpose, commercial or otherwise, without acknowledgment or compensation to You or to anyone else.
Customer may not sublicense or resell any of OhMaiSandy’s Services to any third parties without prior written permission of OhMaiSandy.
9. Fees and Payment
In consideration of the Services, Customer will pay to OhMaiSandy all fees due according to the prices and terms listed on the website. All sales are final and OhMaiSandy offers no partial or full refunds of any kind on any purchase unless otherwise expressly noted, even if Your Services are suspended, terminated or transferred before the end of the Services. OhMaiSandy expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this Site and effective immediately without need for further notice to You. If You have purchased Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal. OhMaiSandy may, at its sole option, extend payment terms to Customer. Should OhMaiSandy extend payment terms, You agree that Your obligation to pay OhMaiSandy for the Services ordered begins on the date of purchase and does not end until paid in full, even if the Services are abandoned, suspended, terminated or transferred prior to such time.
Unless otherwise agreed to by OhMaiSandy, all payments are due upon signup, the Services will not begin until payment is received. All recurring charges will be due every 30 days from the date of Your initial signup. It is Customer’s obligation to review all monthly charges for accuracy. Failure to dispute a charge within six (6) months following such charge shall constitute Customer’s agreement that all charges are valid and Customer agrees to waive any claims it may have had regarding such charge. If a payment is returned or rejected by OhMaiSandy’s bank, or incurs additional costs for OhMaiSandy (e.g., bank fees) for any reason, then Customer may be charged a service fee of $40 and be required reimburse all such fees and costs incurred by OhMaiSandy, and Customer shall be immediately deemed to be in default of this Agreement. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is greater, until fully paid. If Customer defaults, Customer agrees to pay OhMaiSandy its reasonable expenses, including attorney, in house legal expenses, and collection agency fees, incurred in enforcing its rights.
We offer billing via credit card or debit card charge only. All initial fees must be paid prior to service setup. These fees may include service setup fees and first month service charge. Our billing cycle begins on the day we set up Your account, and is due every 30 days thereafter. OhMaiSandy attempts to automatically charge the credit card on file for any past due invoice for current, suspended and cancelled accounts. Accounts suspended and reactivated must pay all past due and current amounts and may also have to pay a reactivation fee. If you cancel Your service for any reason, You must sign up for new service and pay the full setup fees associated with the plan You choose. To cancel Your account, the Point of Contact must send an email to support@OhMaiSandy.com requesting cancellation. To ensure that You are not billed for another month of service, You must cancel Your account before Your billing cycle due date.
All billing correspondence (invoices, notifications, etc.) is done via email. It is crucial that You maintain a current email address with us.
All fees charged by OhMaiSandy for the Services are exclusive of all taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on OhMaiSandy’s net income. If OhMaiSandy is required to pay directly any such taxes, Customer will, upon receipt of OhMaiSandy’s invoice, promptly reimburse OhMaiSandy for any such taxes paid by OhMaiSandy.
Customer acknowledges that the Internet is not a secure or completely reliable system. OhMaiSandy will take those precautions OhMaiSandy deems reasonable in its sole discretion to secure Customer’s Web Site from attack, but OhMaiSandy makes no warranty that there will be no outages or interruptions of service, or that Customer’s Content will be secure against attack of any form by end users or other third parties.
11. PCI Guidelines
OhMaiSandy provides a framework to its customers which utilizes an encrypted SSL certificate. Authorize.net payment integration along with the use of Customer Information Manager ensures full PCI compliance. However, if a OhMaiSandy customer chooses to utilize the software other than as intended, utilize third party services or software, fail to install a SSL Certificate, or otherwise combine the software with software not approved by OhMaiSandy (each a "Customer Fail Point"), Customer may fail to comply with the minimum PCI standards regardless of OhMaiSandy’s framework.
Therefore, if a OhMaiSandy customer chooses to engage in one or more Customer Fail Points, that customer assumes all liability for their actions and the inherent risk associated with viewing, processing, storing or transmitting credit card information and agrees to indemnify OhMaiSandy of any costs, claims or damages associated with such risk. OhMaiSandy will not be responsible for any such risk or liability regardless of the security settings.
Further, if a merchant chooses to view credit card information, they are certifying that they understand and are following all PCI guidelines for viewing credit card information. These guidelines can be found at Visa’s website.
If a merchant does not follow all of the PCI guidelines when viewing credit card information, that merchant is in breach of its contract with OhMaiSandy and possibly Visa/Mastercard/Discover/American Express. You agree to indemnify and hold OhMaiSandy harmless from any and all claims, costs or damages associated with Your failure to follow PCI guidelines.
Regardless of any Customer Fail Point, a customer must comply with the PCI DSS and assume liability applicable to PCI DSS. In addition, per PCI guidelines, stores must use a strong security protocol such as SSL to safeguard sensitive cardholder data over networks.
At its discretion, OhMaiSandy reserves the right to change the security settings of any merchant at any time with or without warning. OhMaiSandy further reserves the right, but not the obligation, to suspend or terminate any merchant that is suspected or proven to be in violation of minimum PCI guidelines.
12. Prohibited Practices
OhMaiSandy shall have no duty or obligation to monitor Customer’s Content or any other Content provided or distributed by others, and OhMaiSandy shall not edit or otherwise exercise any control over Customer’s Content. Nevertheless, OhMaiSandy may, in its sole discretion at any time, without notice to Customer, and without liability to Customer, remove from public view, disconnect, or terminate the hosting of any of Customer’s Content or other Content that OhMaiSandy deems in its sole discretion to be offensive or illegal, for any one or more of the following reasons: (i) the content is adjudicated to be in violation of the laws of the state where the server resides; illegal or sexually explicit Content or activities, or any Content that allegedly violates the law, rules or regulations of any country or subdivision thereof; (ii) the content constitutes harassment of Users, including, but not limited to, by means of Customer’s billing practices; or (iii) Customer’s noncompliance with or material breach of any of the terms and conditions of the AUP or this Agreement; or (iv) claims made by third parties against OhMaiSandy that Customer or any of its end users has engaged in one or more of the above practices.
13. No Solicitation
Customer agrees Customer will NOT approach any employees of OhMaiSandy and its affiliates with proposals to hire them as its own employees or contractors. If You were to hire any of OhMaiSandy’s employees, You agree to pay OhMaiSandy for each employee hired the greater amount of three (3) years’ salary for that employee as You are to pay such employee, or $200,000.
14. Customer’s Indemnification
Customer shall indemnify and hold harmless OhMaiSandy from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees and fees attributable to in house legal personnel, arising from or relating to Customer’s provision, or an end user’s use, of Customer’s Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law. This indemnification is in addition to any indemnification required under the UDRP or any similar policy.
15. DISCLAIMER OF WARRANTIES
CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND AT THIS SITE ARE PROVIDED "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS". OhMaiSandy, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. OhMaiSandy, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ABILITY OF THE SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (III) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (IV) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND OhMaiSandy ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY OhMaiSandy, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES) WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
16. LIMITATION OF LIABILITY
WITH RESPECT TO CUSTOMER’S OR END USER’S USE OF THE SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, OR PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF OhMaiSandy IS AWARE OF THE POSSIBILITY THEREOF. OhMaiSandy SHALL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SITE OR THE SERVICES FOUND AT THIS SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
17. Term and Termination.
You may terminate Your right to access and use the Service - only by the Point of Contact sending an email requesting cancellation to support@OhMaiSandy.com. For security reasons, OhMaiSandy requires that You authenticate any cancellation, including paying any stated termination fee where applicable (i.e. Merchant Services, etc.). Failure to do so will result in the cancellation request not being processed and You will be liable for all recurring fees until such authentication is complete. that a cancellation of a particular Service may not cancel all Services associated with Your account.
OhMaiSandy may terminate this Agreement and/or Your right to access and use the Service, in whole or in part, at any time and for any reason. OhMaiSandy also reserves the right to immediately terminate this Agreement and/or Your right to access and use the Service, in whole or in part, if OhMaiSandy finds that You have been abusive to OhMaiSandy employees.
Upon expiration or effective termination of the Service by either party for any reason, (a) OhMaiSandy will cease providing the Service, (b) You will not be entitled to any refunds of any usage fees or any other fees, pro rata or otherwise, unless OhMaiSandy terminates such Service without cause, and (c) any outstanding balance for Your usage of the Service through the effective date of such termination or expiration will be immediately due and payable in full.
18. No Assignment by Customer
Customer may not assign this Agreement without the prior written consent of OhMaiSandy, which OhMaiSandy may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. OhMaiSandy may assign this Agreement, which shall be effective upon written notice provided to Customer.
19. No Third-Party Beneficiaries
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
20. Notices of Trademark and Copyright Infringement
OhMaiSandy supports the protection of intellectual property. If You would like to submit (i) a trademark claim for violation of a mark on which You hold a valid, registered trademark or service mark, or (ii) a copyright claim for material on which You hold a bona fide copyright, please refer to OhMaiSandy’s Trademark and/or Copyright Infringement Policy below.
To cover the increasing cost of processing abuse claims, OhMaiSandy reserves the right to charge Customer a processing fee for each instance of notification received from a legitimate copyright holder. OhMaiSandy reserves the right to suspend or terminate any Services if, upon notification, Customer fails to comply with a legitimate infringement claim within the specified time.
21. Proprietary Rights Notice
The Service, which includes but is not limited to, all intellectual property rights in the Service are, and shall remain, the property of OhMaiSandy or its licensor or assignee (as applicable). All rights not expressly granted to You in this Agreement are hereby expressly reserved and retained by OhMaiSandy and its licensors and assignees (as applicable). Without limiting the generality of the foregoing, You shall not (and shall not allow any third party to): (a) use the Service outside of the scope of the limited license herein granted, including but not limited to use for the sole purpose of obtaining a competitive advantage against OhMaiSandy; (b) sublicense, distribute, copy, modify, adapt, translate, or prepare derivative works from, to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of OhMaiSandy; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with OhMaiSandy (or any of its affiliates or licensors); (e) reverse engineer, disassemble, or decompile any software or otherwise attempt to discover any source code or trade secrets related to the Service, in any manner, except as permitted by applicable law; or (f) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
(i) Any notice or other communication ("") required or permitted under this Agreement shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested, to the address listed above in this Agreement, for OhMaiSandy or the physical or email address provided in the application form submitted with the payment for Customer; (ii) a Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by facsimile shall be deemed given when transmitted, provided that confirmation of that transmission was received. A Notice sent by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty eight (48) hours after it is mailed. A Notice given by email shall be deemed given when transmitted unless an error notification is received. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given; (iii) either party may designate, by Notice to the other, substitute addresses, addressees or facsimile numbers for Notices, and thereafter, Notices are to be directed to those substitute addresses, addressees or facsimile numbers.
Except for disputes governed by the Uniform Domain Name Resolution Policy, the laws of the State of Utah shall govern the validity and construction of this Agreement and any dispute arising out of or relating to this Agreement, without regard to the principles of conflict of laws; and You hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non convenes with respect to) the jurisdiction and venue of the federal and state courts of in Salt Lake County, Utah, USA. You agree to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement. The parties specifically exclude from application to this Agreement from the United Nations Convention on Contracts for the International Sale of Goods.
If a ruling by any court that one or more of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect shall not affect any other provision of this Agreement. Thereafter, this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had been amended to the extent necessary to be enforceable within the jurisdiction of the court making the ruling and to preserve the transactions originally contemplated by this Agreement to the greatest extent possible. The section and subsection headings have been included for convenience only, are not part of this Agreement and shall not be taken as an interpretation of any provision of this Agreement. This Agreement represents the entire understanding of the parties with respect to the subject matter hereof, and there are no representations, promises, warranties, covenants or understandings with respect thereto other than those contained in this Agreement. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any purchase order issued by Customer with respect to the Services provided under this Agreement shall not be applicable and that any acceptance of such purchase order by OhMaiSandy shall be for acknowledgment purposes only.
Failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time. The remedies set forth in this Agreement are cumulative and are in addition to any other remedies allowed by law. Resort to one form of remedy shall not constitute a waiver of alternate remedies.
24. Additional Service Specific Terms
In addition to the general Terms of Service above, You also agree to be bound by the additional service specific terms applicable to the Services You purchase and/or use. The following Service Specific Terms and Policies are hereby incorporated by reference and will be binding upon the parties.
OhMaiSandy grants You a limited, non-exclusive license to use the ecommerce solution as defined by the package You have selected for the sole purpose of operating an online service. All rights not expressly granted are hereby reserved by OhMaiSandy.
Service Level Warranty
OhMaiSandy warrants that the network will be available 99.9% of the time in a given month. This service level warranty shall not apply to performance issues: (1) to the extent caused by factors outside of OhMaiSandy’s reasonable control; (2) that resulted from any actions or inactions of Customer or any third parties not affiliated with OhMaiSandy; (3) that resulted from Customer’s equipment and/or third party equipment; (4) that resulted from software related issues; or (5) that are scheduled by OhMaiSandy for purposes of maintaining or updating the Web Site or the Software. The network availability measurement expressly excludes downtime caused by (1)-(5) above.
Subject to the Section of this Agreement titled "LIMITATION OF LIABILITY," if You experience Network Downtime above and beyond the 99.9% availability, upon request OhMaiSandy will refund a customer 5% of the monthly fee for each 30 minutes of Downtime (up to and not to exceed 100% of customer’s monthly fee). " Network Downtime" exists when a particular customer is unable to transmit and receive data and OhMaiSandy records such failure when the customer notifies OhMaiSandy through the OhMaiSandy support system. Network Downtime is measured from the time the support ticket is opened by the customer to the time the server is once again able to transmit and receive data. If Customer fails to comply with this requirement, Customer forfeits its right to a receive service credit.
Information Shared with Partners
As a condition of purchasing and using the ecommerce services, You acknowledge and agree OhMaiSandy may provide Your personal information to their partners, as required to provide the plans for which You are purchasing.
Additionally, in the event You elect to install or seek assistance from OhMaiSandy in connection with the installation of any third-party software, the following terms shall apply. You represent and warrant You have the right to use and install the third-party software, and have paid the applicable licensing fees for the third party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity. You agree to defend, indemnify and hold harmless OhMaiSandy and its employees, officers and directors for, from and against any and all claims brought against OhMaiSandy and its employees, officers and directors by a third-party alleging the software infringes: (i) the third-party’s rights; or (ii) a U.S. patent, trademark, copyright or other intellectual property right. You agree that in such an event You shall pay all resulting costs, damages, expenses and reasonable attorneys’ fees that a court awards and settlements incurred by OhMaiSandy in connection with any such claims.
Disclosure and Use of Information
You acknowledge and agree that OhMaiSandy may make available information You provide or that we otherwise maintain, to such public or private third parties as applicable laws require or permit, including, but not limited to, making publicly available, or directly available, some or all of such information: (i) for inspection by law enforcement officials (including in the case of potential criminal activity); (ii) to respond to criminal and civil subpoenas and court orders that reasonably appear to be valid; (iii) in connection with the sale of all or certain of our assets; (iv) to enforce or apply the terms of this Agreement; and (v) to protect the rights, property, or safety of OhMaiSandy, our users, or others, whether during or after the term of Your use of the Service.
You further acknowledge and agree that OhMaiSandy may make publicly available, or directly available to third parties, some, or all, of the information You provide, for purposes of inspection (such as through our WHOIS service) or for targeted marketing and other purposes as required or permitted by applicable laws.
You hereby consent to any and all such disclosures, guidelines, limits and restrictions on disclosure or use of, information provided by You in connection with any Services (including any updates to such information), whether during or after the term of Your registration of any Services. You hereby irrevocably waive any and all claims and causes of action You may have arising from such disclosure or use of information provided by You.
We will not process data about any identified or identifiable natural person that we obtain from You in a way incompatible with the purposes and other limitations which we describe in this Agreement.
OhMaiSandy will take reasonable precautions to protect the information it obtains from You from our loss, misuse, unauthorized access or disclosure or use, or alteration or destruction, of that information. However, OhMaiSandy will have no liability to You or any third party provided that such reasonable precautions are taken.
Suspension, Cancellation, Transfer or Modification of Service(s)
You acknowledge and agree that OhMaiSandy may suspend, cancel, transfer or modify Your use of the Services at any time, for any reason, in OhMaiSandy’s sole discretion and without notice to You. You also acknowledge and agree that OhMaiSandy shall not be liable to You or to any third party for any such modification, suspension or discontinuance of the Services.
Submission of Subpoenas
OhMaiSandy is headquartered in Lehi, Utah and all criminal subpoenas should be served at that location or mailed to:
1386 W. 1020 N.
Clinton, UT 84015
Notice to Customer and Response Time
Upon the receipt of a valid civil subpoena, OhMaiSandy will promptly notify the customer whose information is sought via e-mail or U.S. mail. If the circumstances do not amount to an emergency, OhMaiSandy will not immediately produce the customer information sought by the subpoena and will provide the customer an opportunity to move to quash the subpoena in court. OhMaiSandy reserves the right to charge an administration fee to the customer by charging the Payment Method the customer has on file with OhMaiSandy.
Fees for Subpoena Compliance
OhMaiSandy will charge the person or entity submitting the civil subpoena for costs associated with subpoena compliance. Payment must be made within thirty (30) days from the date of receipt of the OhMaiSandy invoice. Checks should be made out to OhMaiSandy LLC.
OhMaiSandy’s subpoena compliance costs are as follows:
· Research - $75.00/hour
· Federal Express - Cost as Billed
· Copies - $.25/page
OhMaiSandy gathers navigational information about where You go on our Web site. This information allows us to see which areas are most visited. This helps us improve the quality of visitors’ online shopping experiences by recognizing and delivering more of the features, services and products our visitors prefer. Additional non-personally identifiable information (i.e. domain type, browser version, service provider and IP address) may be collected which will provide information regarding Your use of our Web site (such as the time of Your last visit to a page on our site).
Disclosure of Personal Information
Any information You provide to us at this site when You establish or update an account, purchase credits online or request information (i.e. name, address, e-mail address, telephone number and credit card information), is maintained in private files on our secure Web server and our internal systems. This information is used to enable OhMaiSandy to deliver services to You. To ensure compliance with federal law, OhMaiSandy does not maintain information provided by children under the age of 16.
You should be aware that we may disclose specific information about You if necessary to do so by law or based on our good faith belief that it is necessary to conform or comply with the law or is necessary to protect the users of our Web site, the site or the public.
OhMaiSandy does not sell, rent or trade Your e-mail address to third parties. We may, however, use third parties to help us provide services and marketing to You, such as fulfilling orders, processing payments, monitoring site activity, conducting surveys, and administering e-mails. If personally identifiable information (i.e. name, address, e-mail address, telephone number) is provided to any of these third parties, we will require that such information be maintained by them in strictest confidence.
Questions/Changes in Policy
OhMaiSandy believes in providing a safe and secure shopping experience for all of our clients. We provide stringent and effective security measures on our Web site.
It is our policy to never send private information, such as Your credit card number, via e-mail. In fact, this is a practice we recommend You adopt in all of Your Internet activities.
OhMaiSandy will only provide access to an account to the designated Owner or Point of Contact of that account regardless of whether someone else maintains, pays for or otherwise administers the account. The "Owner" of the account is the person or entity whose name was used to set up the account. Only the Owner will be authorized to transfer the ownership of OhMaiSandy sites or other Services. OhMaiSandy is not a court of law and will not arbitrate or adjudicate disputes between potential Owners. If there is a dispute of the named Owner’s right to the store or Services, OhMaiSandy will comply with any court order or settlement agreement.
To transfer ownership of Your OhMaiSandy service, emailed to support@OhMaiSandy.com, marked to the attention of Account Services.