Terms & Conditions

OMAKAN IS ONLY WILLING TO PROVIDE THE 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.

 

1. Overview.

The following agreement ("Agreement") is entered into between you ("Customer" or "you") and omakan. ("omakan"), 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 omakan.

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and/or use of the Services you agree that any previous agreements between you and omakan will be terminated and superseded by this Agreement. You acknowledge and agree that omakan's acceptance of this Agreement and the provision of Services are performed at omakan.com, in its sole discretion, may refuse to provide the Services to any one at any time and for any reason. If omakan exercises this right, omakan will not charge you for the Services and/or refund you for the amounts paid for the Services during the month that omakan invokes its right to deny Service.

omakan, 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 omakan posts the amended Agreement to omakan.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 omakan is legally prohibited to provide the Services.

Customer shall designate a single "Point of Contact" in the accompanying Order Form. Customer's Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that omakan 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 omakan in accordance with the notice provisions of this Agreement. omakan is under no obligation to accept instructions from anyone other than the Point of Contact. Notwithstanding the foregoing, omakan shall not be liable for any loss or damage resulting from omakan's reliance on any instruction, notice, document or communication reasonably believed by omakan 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, omakan reserves the right (but not the obligation) to require additional authentication from Customer. In order to permit omakan to protect the quality of its products and services, you hereby consent to omakan 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. omakan is not obligated to and will not resolve any such disputes. If multiple persons are claiming ownership of or rights in a site, store or account, and, in omakan's sole judgment, there is no certainty as to the ownership of or rights in said site or account, then omakan 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 omakan of all liability or obligations concerning the dispute. If the disputing persons fail so to resolve the dispute within what omakan, in its sole judgment, deems to be a reasonable time, then omakan, 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 omakan and comply with the Transfer Policy.

4. Recommendations

omakan personnel may from time to time recommend third party software or other products and services for your consideration. omakan MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM omakan, INCLUDING THE COMPATIBILITY OF SUCH PRODCUTS AND SERVICES WITH omakan 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, omakan 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. omakan makes no warranty that such updates will not affect your use of the Services or introduce new but unknown bugs into the software. Further, omakan shall not be responsible for the effect an update has on any code not provided by omakan and any modifications to such code to restore functionality shall be Customer's sole responsibility and cost.

Where support is provided by omakan, omakan will provide technical support for the most recent update or version of the Software associated with a Service. From time to time, omakan may provide support for an older version(s), however omakan reserves the right to suspend or terminate such support at anytime, with or without notice.

6. Use of Customer's Name and Trademarks

Customer hereby grants omakan a non-exclusive right and license to use Customer's name and such of Customer's trade names, trademarks, and service marks (collectively, "Customer's Marks") as are listed on Customer's Content or otherwise provided to omakan in connection with this Agreement (a) on omakan's own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing omakan's Services, and, (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use omakan's trade name, trademarks, and service marks (collectively, "omakan's Marks") in advertising and publicity in conjunction with the offering of Customer's Content via omakan, provided that Customer shall submit copy to omakan for its prior written approval, and provided further that under no circumstances shall such use imply that omakan endorses, sponsors, certifies, approves or is responsible for Customer's Content. Notwithstanding the foregoing, Customer need not obtain omakan's prior written approval where use of omakan'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 ("User Submissions"), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, "User Content"). By providing User Content to omakan via any method (e.g. site submission, email, survey responses, etc.), you represent and warrant to omakan 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 omakan's use of User Content posted to omakan's corporate websites or submitted directly to omakan. 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 omakan to treat your User Submissions as confidential or secret.

3.       omakan 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.       omakan 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.

omakan shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions provided to omakan 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.

8. Sublicense

Customer may not sublicense or resell any of omakan's Services to any third parties without the prior written permission of omakan. By way of example and not limitation, Customer may not provide Web Hosting services through its omakan Services to any third party without omakan's prior written permission. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement.

9. Fees and Payment

A. Fees. In consideration of the Services, Customer will pay to omakan all fees due according to the prices and terms listed on the website. All sales are final and omakan 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. omakan 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.

B. Payment. All payments are due upon signup, the Services will not begin until payment is received. All recurring charges will be due on the monthly anniversary 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 omakan's bank, or incurs additional costs for omakan (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 omakan, 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 omakan its reasonable expenses, including attorney, in house legal expenses and collection agency fees, incurred in enforcing its rights.

C. Billing Policies and Cycles. 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 setup your account, and is due on that day each month thereafter. omakan 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. Accounts past due over 30 days cannot be reactivated. You must sign up for new service and pay the full setup fees associated with the plan you choose. To cancel your account, you must follow the procedure in Section 18. To ensure that you are not billed for another month of service, you must cancel your account before your billing cycle due date.

Note: All billing correspondence (invoices, notifications, etc.) is done via email. It is crucial that you maintain a current email address with us.

D. Taxes. All fees charged by omakan 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 omakan's net income. If omakan is required to pay directly any such taxes, Customer will, upon receipt of omakan's invoice, promptly reimburse omakan for any such taxes paid by omakan.

10. Acceptable Use Policy

A. Acceptable Use Policy. omakan maintains on its Web site omakan's then-current Acceptable Use Policy ("AUP"). Customer agrees to abide by the AUP. omakan may modify its AUP at any time, and shall post the then-current AUP on omakan's Web site, which will be effective upon posting.

B. End Users to Comply with AUP. Customer acknowledges that omakan may terminate an end user's access to Customer's Web Site for noncompliance with omakan's AUP. omakan may thus terminate such end user's access to Customer's Content even if the end user has not violated Customer's own terms and conditions of use of its Web Site. omakan acknowledges that Customer may terminate a User's access to Customer's Content for noncompliance with Customer's terms and conditions.

11. Security

Customer acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Services is to allow end users easy access to Customer's Content. omakan will take those precautions omakan deems reasonable in its sole discretion to secure Customer's Web Site from attack, but omakan 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.

12. Prohibited Practices

omakan shall have no duty or obligation to monitor Customer's Content or any other Content provided or distributed by others, and omakan shall not edit or otherwise exercise any control over Customer's Content. Nevertheless, omakan 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 omakan 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 omakan 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 omakan and its affiliates with proposals to hire them as its own employees or contractors. If you were to hire any of omakan's employees, you agree to pay omakan 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 omakan 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". OMAKAN, 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. OMAKAN, 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 OMAKAN 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 OMAKAN, 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

Omakan  ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER'S OR END USER'S USE OF THE SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, LOST REVENUE OR PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF omakan IS AWARE OF THE POSSIBILITY THEREOF. omakan 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 logging in to customercare.omakan.com and following the instructions available. For security reasons, omakan requires that you authenticate any cancellation, including paying the 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. PLEASE NOTE that a cancellation of a particular Service may not cancel all Services associated with your account.

omakan 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. omakan reserves the right, but not the obligation, to cancel or suspend your Service if your site(s) causes a sudden significant increased draw on system resources (i.e. a DDOS attack) that in omakan's sole opinion impairs its ability to provide Services to other customers. omakan 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 omakan finds that you have been abusive to omakan employees.

Upon expiration or effective termination of the Service by either party for any reason, (a) omakan 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 omakan 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 omakan, which omakan may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. omakan 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

omakan 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 omakan's Trademark and/or Copyright Infringement Policy below.

To cover the increasing cost of processing abuse claims, omakan reserves the right to charge Customer a processing fee for each instance of notification received from a legitimate copyright holder. omakan 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 omakan or its licensor (as applicable). All rights not expressly granted to you in this Agreement are hereby expressly reserved and retained by omakan and its licensors (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 omakan; (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 omakan; (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 omakan (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.

22. Notices

(i) Any notice or other communication ("Notice") 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 omakan or the 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. 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.

23. Miscellaneous

Except for disputes governed by the Uniform Domain Name Resolution Policy, the laws of the State of Texas 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 Travis County, Texas, 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 omakan 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.

E-Commerce/Hosting Services

E-commerce License

omakan 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 store. All rights not expressly granted are hereby reserved by omakan.

Hosting Services

omakan shall provide storage for the Software and content of Customer's Web Site and make it available for end-users to access (the "Hosting Services"). Customer will be allocated the disk space and SQL disk space as designated in the plan purchased. Should Customer use more than the designated disk space, omakan reserves the right to charge an Overage fee at then current list price. Disk space overages shall be calculated by using a daily average over a monthly period. You may monitor your disk space usage in myomakan. Customer agrees that if it goes over the allocated disk space, omakan shall charge and Customer shall pay an overage fee for each 1 GB block used in whole or in part. For clarity and not limitation, if Customer uses .5 GB over the allocated space, Customer will be charged for 1GB, if the customer uses 1.3 GB, Customer will be charged for 2GB. Customer will have the option to pre-purchase blocks of additional space above and beyond that included in the plan. Such blocks of additional space shall be sold as a reoccurring add-on to the Plan subject to the terms and conditions herein.

Should Customer use more than the designated SQL disk space, omakan reserves the right to clean SQL tables and charge Customer for such service, require Customer clean tables or otherwise reduce space usage, or charge a fee for such overage. omakan, in its sole discretion, may select to take any or all of the above actions; however it has no obligation to take any of the above actions.

The servers used to provide the Hosting Services are physically located in the United States of America and as such all content will be subject to the laws thereof.

You agree omakan has no control of availability of the Hosting Services on a continuous or uninterrupted basis. omakan makes no warranty that the Hosting Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, confidential information and property.

You further agree that as a normal course of its business, it may be necessary for omakan to migrate its servers. As a result, even though you may have a dedicated IP, You may be assigned a different IP number. omakan does not warrant that you will be able to consistently maintain Your given IP numbers.

Burst Capacity

From time to time your site may be subject to an event expected to cause a significant spike in traffic, such as appearance on a nationally syndicated television show or substantially advertised promotion. omakan reserves the right, but not the obligation to quarantine your site, throttle traffic or invoke other necessary techniques to protect other customers from being affected in the event of a sudden, significant increase in traffic. omakan encourages you to provide advanced notice of such planned events to us so that we can create a response plan to minimize the effect on your site. Unless otherwise agreed to by an authorized omakan Manager, any move to a quarantined or otherwise dedicated server will be will not last more than seven (7) days, and will not include any additional support, or any warranties of increased bandwidth, uptime, connections per second, or other enhanced performance metrics. Unless you purchase a Burst Capacity bundle and/or pre-pay for expected bandwidth overages, all normal overage fees shall apply. If you purchase a Burst Capacity bundle that includes Fraud Score, you will receive a 1 month subscription to the designated Fraud Score package. Your subscription will automatically renew as a recurring monthly subscription unless and until you cancel such subscription as provided for in Section 18.

Service Level Warranty

omakan 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 omakan's reasonable control; (2) that resulted from any actions or inactions of Customer or any third parties not affiliated with omakan, for example a DDOS attack on Customer's site or another customer's site hosted on the same server; (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 omakan 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 Section 17 of this Agreement, if you experience Network Downtime above and beyond the 99.9% availability, upon request omakan 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). This is your sole and exclusive remedy for failure to meet the Service Level Warranty. "Network Downtime" exists when a particular customer is unable to transmit and receive data and omakan records such failure in the omakan trouble ticket system. Network Downtime is measured from the time the trouble 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.

Web Site Content

You shall be solely responsible for providing, updating, uploading and maintaining your web site and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your web site, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. Your web site content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services. Notwithstanding anything in this Agreement to the contrary, in no event shall your web site violate omakan's AUP or consist of pages containing any of the following types of content:

1.       pornographic, obscene or excessively profane content;

2.       content intended to advocate or advance computer hacking or cracking;

3.       gambling;

4.       illegal activity;

5.       drug paraphernalia; or

6.       hate, violence or racial or ethnic intolerance.

Information Shared with Partners

As a condition of purchasing and using the Hosting Services, you acknowledge and agree omakan may provide your personal information to their partners, as required to provide the plans for which you are purchasing.

Your Obligations

You acknowledge and agree omakan shall have the right to seek justification in connection with your use of the Hosting Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by omakan pursuant to such justification. You acknowledge and agree that you are required to begin using at least ninety percent (90%) of your purchased IP addresses within thirty (30) days of assignment of such IP addresses to you. In the event you do not begin using at least ninety percent (90%) of your assigned IP addresses, you acknowledge and agree omakan shall have the right to reclaim any unused IP addresses after the expiration of such thirty (30) day period. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries, including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.

You represent and warrant to omakan that:

1.       Your Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation;

2.       infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and

3.       that you own your web site content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within your web site.

You also warrant that the web site being hosted by omakan will not be used in connection with any illegal activity. If you are hosting your web site on omakan's servers, you are responsible for ensuring there is no excessive overloading on omakan's DNS or servers. In the event you exceed your allotted bandwidth, compute cycles or disk space and thereby overload omakan's DNS or servers, you shall be assessed any and all fees, costs and penalties associated with such overloading. You may not use omakan's servers and your web site as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and omakan reserves the right to remove sites containing information about hacking or links to such information. Use of your web site as an anonymous gateway is prohibited. omakan prohibits the use of software or scripts run on its servers that cause the server to load beyond a reasonable level, as determined by omakan. You agree omakan reserves the right to remove your web site temporarily or permanently from its servers if omakan is the recipient of activities that threaten the stability of its network. You agree not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to:

1.       in any application or situation where failure of the Services could lead to death or serious bodil injury of any person, or to severe physical or environmental damage;

2.       disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email, or unreasonably large volumes of email on a daily basis, provided, omakan, in its sole discretion, may permit you, if you have a legitimate purpose and after request, to send more email than omakan's standard SMTP relay limit;

3.       disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious;

4.       disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person;

5.       create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;

6.       export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions;

7.       interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding your authorization;

8.       disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program;

9.       engage in any other activity deemed by omakan to be in conflict with the spirit or intent of this Agreement or any omakan policy; or

10.    use your server as an "open relay" or similar purposes.

omakan prohibits the running of a public recursive DNS service on any omakan server. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. omakan actively scans for the presence of public DNS services and reserves the right to remove any servers from the network that violate this restriction.

Storage and Security

At all times, you shall bear full risk of loss and damage to your web site and all of your web site content. You are entirely responsible for maintaining the confidentiality of your password and account information. You agree you are solely responsible for all acts, omissions and use under and charges incurred with your account or password or in connection with the Site or any of your web site content displayed, linked, transmitted through or stored on the Server. You shall be solely responsible for undertaking measures to:

1.       prevent any loss or damage to your web site content;

2.       maintain independent archival and backup copies of your web site content;

3.       ensure the security, confidentiality and integrity of all your web site content transmitted through or stored on omakan servers; and

4.       ensure the confidentiality of your password.

omakan's hosting servers are not an archive and omakan shall have no liability to you or any other person for loss, damage or destruction of any of your content. You are solely responsible for the backup of your content. omakan shall have no liability to you or any other person for your use of the Hosting Services in violation of these terms or any applicable law or regulation. You shall at all times use the Hosting Services as a conventional and/or traditional web site. You shall not use the Hosting Service in any way, as determined in omakan's sole discretion, that shall impair the functioning or operation of omakan's Services or equipment. You acknowledge and agree that omakan has the right to carry out a forensic examination in the event of a compromise to your server or account.

In the event you terminate, moving your web site off of the omakan hosting servers is your responsibility. omakan will not transfer or FTP your web site to another provider. In the event your use of the Services is terminated, omakan will not transfer or manage your Services or your web site content.

Third-Party Software

Additionally, in the event you elect to install or seek assistance from omakan 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 omakan and its employees, officers and directors for, from and against any and all claims brought against omakan 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 omakan in connection with any such claims.

Suspension of Hosting Services

omakan may suspend Services without liability if: (i) we reasonably believe that the Hosting Services are being used in violation of this Agreement or our Policies; (ii) you don't cooperate with our reasonable investigation of any suspected violation of this Agreement or our Policies; (iii) there is an attack on your hosted system or your hosted system is accessed or manipulated by a third party without your consent, (iv) we are required by law, or a regulatory or government body to suspend your Hosting Services; or (v) there is another event for which we reasonably believe that the suspension of Services is necessary to protect the omakan network or our other customers. We will use commercially reasonable efforts to give you advance notice of a suspension under this paragraph of at least twelve (12) business hours unless we determine in our sole discretion that a suspension on shorter or contemporaneous notice is necessary to protect omakan or its other customers from imminent and significant operational, legal or security risk.

Website Vulnerability

If your website is the target of a DDoS or other attack, you consent to omakan performing mitigation procedures with or without notice to you and without liability for any delay, disruption or interruption of service. Such procedures may include, but are not limited to, taking your website offline in order to isolate your website in a quarantine server, implementing ACL (access control lists), IP filtering, IP blocking, or any other mitigation techniques necessary to block the DDoS or other attack. Further, these techniques will remain in place until your website experiences at least 48 hours of continuous non-malicious, "normal" traffic.

If your website is moved to a quarantine Server, it will remain there for a minimum of 48 hours. After the initial 48 hour period, omakan will evaluate all traffic targeting your merchant website. If any traffic targeting your merchant website is deemed to be malicious, in omakan's sole discretion, your website will remain on said quarantine Server until it experiences 48 hours of continuous non-malicious, "normal" traffic.

omakan Points Program

When you enroll in the omakan Points™ program (the "Program"), you agree to be bound by these Program Terms and Conditions. omakan reserves the right at any time and from time to time, without notice, to add to, remove from, change or terminate the Program; for example, we may change the Program benefits, omakan Points credit levels, Program affiliations or redemption offers at any time with or without notice and without further obligation or liability to you. Participants are responsible for accessing these sites in order to keep informed of Program features applicable to Participants' rights and responsibilities with regard to the Program. omakan Points accrue and may be redeemed in accordance with these Program Terms and Conditions. We may further restrict the Program based on your place of residence.

Accrued omakan Points are not property and do not hold any independent monetary value. omakan Points are not transferable under any conditions, including upon a Participant's death, as part of a domestic relations matter, or in any other matter, and any purported transfer or exchange of omakan Points is null and void. Accrued omakan Points may not be combined with any other Program Participant's omakan Points. All accrued omakan Points will be forfeited upon your withdrawal from or termination of the Program.

omakan Points have no monetary value and may not be combined with any other offer, discount, coupon or promotion. omakan POINTS CAN NEVER BE CONVERTED TO CASH OR REFUNDED, EVEN UPON CANCELLATION OF YOUR ACCOUNT BY YOU OR TERMINATION OR SUSPENSION OF YOUR ACCOUNT BY US.

To the fullest extent allowed by law, omakan retains ownership rights in any and all omakan Points and grants you a limited, non-exclusive, non-transferable license to use omakan Points only as specifically designated as part of the Program. In the event that your account is cancelled or terminated by you or by omakan for any reason, then you will no longer have the right to use any omakan Points stored in or otherwise associated with your account, without any compensation to you or any liability of omakan. Once omakan Points are deleted from your account, they will not be reinstated. Your only recourse and rights, if any, with respect to omakan Points obtained by you is to redeem such omakan Points in accordance with these Program Terms and Conditions pursuant to eligible redemption offers as specifically designated from time to time in omakan's sole discretion.

Your omakan Points are accumulated when you purchase eligible goods and services in the amounts and for the terms as specified with each promotion. Such promotions are subject to change with or without notice at any time, and all such purchases will be governed by these Terms of Service. omakan Points may be used to 'purchase' discounts or coupons on future services. All points will be eligible for use thirty (30) days after issue and will expire one (1) year after issue. For any cancellations of goods or services purchased using omakan Points discounts or coupons, any allowable refunds will be issued for the cash value actually paid and will not include the value of omakan Points utilized in obtaining such discounts or coupons. We also may remove omakan Points from your account if they are posted to your account in connection with an activity that is subsequently voided, canceled or involves a return.

If you believe that you have validly obtained any omakan Points that have not posted to your account, then you must contact us within 30 days after the date you claimed to have obtained omakan Points. You acknowledge and agree that we may require reasonable documentation to support your claim and our resolution of your claim after our internal customer service review processes will be considered binding and final by you.

By redeeming a omakan Points, the Participant releases omakan, subsidiaries and affiliates from any and all liability regarding the Program or any redemption or use of omakan Points. omakan is not responsible for replacing lost, stolen or mutilated gift certificates, merchandise or anything else obtained by redemption of omakan Points.

You are responsible for all taxes, liabilities, surcharges and any other fees associated with participation in the Program.

TO THE FULLEST EXTENT ALLOWED BY LAW, omakan MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR OTHERWISE, REGARDING THE PROGRAM OR ANYTHING OBTAINED BY REDEMPTION OF omakan POINTS. FURTHER, omakan IS NOT LIABLE OR RESPONSIBLE FOR SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THE PROGRAM OR USE IN ANY MANNER OF ANYTHING OBTAINED BY REDEMPTION.

You acknowledge and agree that the results of our internal customer service review processes will be considered binding and final by you with respect to any and all matters arising from or related to the Program. omakan may audit any Participant's account at any time, with or without notice to the Participant, to ensure compliance with these Program Terms and Conditions. omakan, in its sole discretion, may cancel, suspend or otherwise limit your access to omakan Points stored in your account if there is any suspicious, fraudulent, abusive or unlawful activity associated with your account. If we cancel, suspend or otherwise limit access to omakan Points stored in your account, your right to use omakan Points stored in your account immediately ceases. We will use reasonable efforts to investigate accounts that are subject to access limitations and to reach a final decision on the limitations promptly. omakan reserves the right to pursue legal action in the event of fraud, misrepresentation, abuse or violation of the Program Terms and Conditions.

The Program and participation in the program is subject to the applicable laws, rules and regulations of the State of Texas. Void where prohibited.

Fraud Score

Fraud Score Service offered by omakan uses proprietary data, algorithms and other information and technology of omakan and its licensors to help merchants identify potentially fraudulent online transactions. You acknowledge and agree that omakan (or its licensors) may, in each of their sole discretion, respectively, change the form and nature of the Service at any time, from time to time