BamServers Service of Agreement and Acceptable Use Policy
Last Updated: October 24th 2020
THE CUSTOMER ACKNOWLEDGES THAT THE TERMS AND CONDITIONS OF THIS MASTER SERVICE AGREEMENT HAVE BEEN MADE AVAILABLE TO THE CUSTOMER AND HAVE BEEN REVIEWED BY THE CUSTOMER PRIOR TO THE CUSTOMER SUBMITTING THE ORDER REQUESTING THE PERFORMANCE OF SERVICES BY BAMSERVERS. THE CUSTOMER FURTHER ACKNOWLEDGES THAT SUBMISSION OF THE ORDER CONSTITUTES ACCEPTANCE OF THIS AGREEMENT AND WILL BIND THE CUSTOMER TO ALL OF THE TERMS AND CONDITIONS HEREOF.
Also, the terms, agreements and policies outlined in this document may be modified at anytime at the discretion of BamServers and its employees. Changes to this document will always be followed by an express notice to all customers notifying them of the updates made to this document.
In consideration of the mutual promises and covenants made herein, the parties agree as follows:
1.
Subject to the terms and conditions of this Agreement, BamServers will provide the Services specified in the Order (the "Services"). Subject to the Customer's right to terminate this Agreement as provided herein, BamServers may expand or contract the scope of the Services or terminate this Agreement for any reason by issuing an amended Order to the Customer 30 days in advance of such change. The Customer's continued use of BamServers' Services after modification of these Services constitutes Customer's acceptance of the modifications.
2.
The duration of the initial term of this Agreement is stated in the Order ("Initial Term"). The Initial Term shall commence on the later of: (a) the date upon which BamServers accepts the completed Order from the Customer; and (b) the date upon which Customer's first payment as set out in the Order has been received by BamServers (in accordance with the payment provisions set out in Section 20 hereof).
3.
Unless this Agreement is earlier terminated in accordance with the provisions hereof, this Agreement will at the conclusion of the Initial Term automatically renew for successive terms of equal length to the Initial Term upon the same terms and conditions as those specified herein.
4.
BamServers offers a 7 Day Money Back Guarantee to all new customers. The purpose of this guarantee is to allow customers to experience BamServers' Services and determine to their satisfaction that these Services meet or exceed industry standards for performance and reliability. If the Customer is not satisfied that BamServers has met industry standards for performance and reliability during the first 7 days of the Initial Term of this Agreement, the Customer may submit a "Money Back Guarantee" request form. To request this form, the Customer may send an email to support@bamservers.com. Upon receipt of the request form within the specified guarantee period, BamServers will terminate the Services to the Customer and will refund the fees paid by the Customer. This refund will not include any setup fees or hourly support fees paid to BamServers.
BamServers' NAC network will be maintained in such a manner as to provide the best possible performance to the Internet. In order to achieve this BamServers will use its best efforts to ensure:
Credits shall not be provided to the Customer if degraded network performance is the result of: a) scheduled maintenance as contemplated in Section 6; b) Emergency Suspension of Services as contemplated in Section 7; c) circumstances beyond BamServers' control, including but not limited to network attacks, third party network outages, war, fire, flood, sabotage, labor disturbance, government regulations or other government intervention; or d) a breach by the Customer of this Agreement or BamServers' Acceptable Use Policy as contemplated in Section 16.
The Customer agrees that from time to time, it may be necessary for BamServers to temporarily suspend Services for technical reasons or to maintain the NAC network, the hardware or any other facilities, the timing of which will be determined by BamServers. Provided BamServers provide the Customer with reasonable advance notice of the temporary suspension of Services, such suspension will not be deemed an interruption of the Services for the purpose of calculating network availability or the Customer's entitlement to credit for network interruption.
Maintenance windows will typically be conducted between 2am to 5am (EST) Monday mornings to minimize impact on customers. Maintenance windows will typically be 5 minutes or less in length.
7.
BamServers may at any time and from time to time suspend Services without penalty or liability for any claim by the Customer where necessary, acting reasonably, to prevent the improper or unlawful use of BamServers' services or equipment by the Customer or any other person. BamServers will provide the Customer with notice following such an emergency suspension to advise of the reasons for the suspension. Such emergency suspension of Services will not be deemed an interruption of the Services for the purpose of calculating network availability or the Customer's entitlement to credit for network interruption.
8.
The Customer shall not display or otherwise use any trade mark, trade name, copyright, logo, symbols, coined word or combination of words, or any other intellectual property whatsoever owned or used by BamServers, nor will Customer permit the same to be displayed or otherwise used in connection with any business conducted or controlled by the Customer, except in all cases as may be specified or approved in writing by BamServers.
9.
CUSTOMER AGREES THAT NEITHER BAMSERVERS NOR ANY OF ITS MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR REPRESENTATIVES OF BAMSERVERS (COLLECTIVELY, THE "BAMSERVERS INDEMNITIES") WILL AT ANY TIME BE HELD LIABLE FOR ANY LOSS OF BUSINESS OR INJURIES OR LOSSES TO PERSONS OR PROPERTY FROM WILLFUL, ACCIDENTAL OR MISTAKEN SUSPENSION OR DELETION OF CUSTOMER INFORMATION OR DATA.
The Customer acknowledges and agrees that in no event will BamServers or any of its members, shareholders, directors, officers, employees or representatives (collectively, the "BamServers Indemnitees") be liable for any special, indirect, consequential, punitive or exemplary damages, or economic damages (including but not limited to damages for loss of profits or revenues, loss of data, or loss of use) in connection with this Agreement, even if BamServers has been advised of the possibility of such damages.
If, despite the foregoing limitations, BamServers or any BamServers Indemnitee should become liable to the Customer in connection with this Agreement for any reason, then in no event will the aggregate liability of BamServers or any of the BamServers Indemnitees exceed the amount payable by the Customer to BamServers for one month of Services under this Agreement.
10.
The Customer will indemnify and save harmless BamServers and all BamServers Indemnitees from and against all damages, losses, liabilities, fines, costs and expenses (including actual legal fees and costs), incurred by or awarded, asserted or claimed against BamServers or any BamServers Indemnitee in connection with this Agreement which are attributable, in whole or in part, to any negligent or willful activities or omissions of the Customer or any breaches by the Customer of its obligations under this Agreement.
11.
This Agreement shall be interpreted in accordance with and be governed in all respects by the laws of the Province of Ontario and the laws of Canada applicable therein. The courts of Ontario shall have exclusive jurisdiction to entertain any action or proceeding brought by the parties in connection with this Agreement or any alleged breach of this Agreement.
12.
The Customer acknowledges that it accepts all risk of any unauthorized or illegal use of the BamServers network or any inter-connected network by third parties. BamServers provides no warranties, makes no representations, and accepts no liability for the unauthorized or illegal access or interference with the Customer's server and or network.
13.
The Customer is solely responsible for all aspects of its online activities, including the operation of any store or e-business. This includes, but is not limited to: a) the accuracy of statements and materials related to products and/or services offered online; b) the accuracy of accounting or billing; c) the accurate calculation and application of shipping and sales tax; d) the processing of orders, inquiries and complaints; and e) the maintaining of the confidentiality of client credit card numbers and personal information.
14.
BamServers assigns IP (Internet Protocol) addresses to the Customer for its use. The Customer has no right to use IP addresses not assigned to it, to move IPs between different servers or accounts or to use IP addresses in any manner not permitted by BamServers. BamServers maintains control of all IP addresses that are assigned to the Customer and reserves the right to change or remove them at its sole and absolute discretion. BamServers acknowledges that IP address changes are rare and typically made only at the request of ARIN. Also, the allocation of IP addresses is restricted by the policies of ARIN. These policies dictate that name-based hosting must be used whenever possible. BamServers reserves the right to periodically review IP address usage and revoke authorization to use those IP addresses not being utilized or where name-based hosting could be used.
15.
Unless otherwise negotiated and included in this Agreement by way of amendment, BamServers staff and management retain the right to administrative access to any and all servers on its network for the purposes of Datacenter, Network, Server maintenance, inventory and related activities. To facilitate this, all BamServers servers (not co-located servers) may include a BamServers administrative account designed for these purposes.
· The Customer shall at all times comply with the terms and conditions of the then-current version of the Acceptable Use Policy posted at www.bamservers.com, a current copy of which is incorporated into this Agreement by reference. The Customer agrees that BamServers reserves the right to amend the terms of the Acceptable Use Policy from time to time by posting a new or different version of the Acceptable Use Policy and advising Customer of same. The Customer's continued use of BamServers' Services after modification of the Acceptable Use Policy constitutes Customer's acceptance of the modifications. The Customer should relate the terms of this Acceptable Use Policy to its clients and use reasonable efforts to ensure their compliance with the terms and conditions thereof.
· BAMSERVERS' servers are to be used only for their intended purposes (running game, voice and shoutcast servers and web hosting).
· BAMSERVERS' servers may be used only for lawful activity.
· Customer must follow all written guidelines provided by BAMSERVERS for correct operation.
· You may not exceed the total player limit on game servers that you pay for, or run a Ranked game server when paying for Unranked.
17.
If any provision of this Agreement is held invalid or unenforceable for any reason by a court of competent jurisdiction, the offending provision will be severed but the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach
18.
No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.
19.
In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to recover its actual legal fees and disbursement costs from the other party.
20.
The Customer agrees to pay BamServers monthly fees for Services provided, based on the rates identified in the Order. The Customer is fully responsible to ensure payment of any and all amounts due are paid on time. Invoices are emailed. Dollar amounts and costs indicated on the Invoice are in the currency of the United States unless otherwise stated. BAMSERVERS will invoice the customer via email approximately five days in advance of the invoice due date.
· 20.1 Billing Information - The Customer is responsible for keeping its contact and billing information up-to-date and accurate, including but not limited to a properly functioning and reachable email address and telephone number. BamServers shall not be held liable if the Customers account is suspended or terminated because of BamServers' inability to contact the Customer due to incorrect contact or billing information.
· 20.2 Overdue Accounts - Overdue accounts may, at the discretion of BamServers, be suspended. After a period of 72 hours, suspended accounts may be terminated at the discretion of BamServers unless payment is received in full or alternative, suitable arrangements are made with BamServers. A minimum $25 reconnection fee will be charged on all accounts reconnected after being suspended. Declined credit cards will also be charged a $10 NSF fee.
· If an account is terminated, there is NO possibility that it can be restored or its data recovered. BamServers shall not be liable to the Customer or any other third party for any consequences of a Customer's account being terminated.
· 20.3 Other Charges - The Customer will pay all sales, excise and other value-added taxes, duties or levies of any kind whatsoever imposed by any authority, government agency or commission in connection with BamServers' Services as provided under this Agreement. The Customer is also responsible for collecting and remitting any such taxes, duties or levies from end users of the Customer's products and services.
· BamServers reserves the right to charge the Customer a standard hourly rate of $75/hour to cover the resolution of excessive or unusual problems or complaints.
· Cancellation Policy - The Customer is responsible for all costs over the entire term of the agreement. These costs must be paid monthly. If Customer cancels their service before the end of the Initial or Renewal Term then the remaining, unpaid costs for the agreed Term are due immediately. At least 30 days before the end of the Initial or Renewal Term of the Agreement, the Customer may submit a Cancellation Form informing BamServers they do not with to Renew the Agreement with BamServers. This form can be requested by emailing support@bamservers.com. There are no partial refunds or credits for early cancellations. All payments to BamServers are final and non-refundable except as otherwise set out herein. After canceling service, the customer will continue to receive service until the remaining portion of service already paid for has been delivered. For further questions, contact our sales department at sales@bamservers.com.
· This Agreement contains the entire understanding between BamServers and the Customer with respect to the Services described in the Order. This Agreement supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between BamServers and the Customer. The Customer acknowledges and agrees that all of its rights relating to BamServers' Services are as set forth in this Agreement and hereby waives all other rights that it may have by implication of law or otherwise.
22. AGE OF RESTRICTION AND MEMBERSHIP
· Age of Restriction. You represent and warrant you are at least 13 years of age and that you have the legal capacity to enter into this Agreement. If you are not at least 13 years of age, you terminate our use of our services immediately and may not use or access our services. Teenagers, ages 13 to 17 must have the permission of a parent or legal guardian to access, use or play on the SITE. You agree not to bypass any security and/or access features that we have installed. Additionally, we do not assume any responsibility or liability for any misrepresentations regarding a user’s age.
· Membership. Membership and passwords may not be assigned, transferred, or sold to a third party. BamServers and its affiliates disclaim any and all liability arising from fraudulent entry and use of our services. If a user fraudulently obtains access, we may terminate membership immediately and take all necessary and appropriate actions under applicable federal, state/provincial, municipal and international laws.
23. Technical Support
· BamServers DOES NOT PROVIDE TECHNICAL SUPPORT VIA THE TELEPHONE. Our support department can be reached by e-mail at support@bamservers.com.
· BAMSERVERS provides support for the hardware and operating system of our servers, except in the case where the customer has requested administrative level access to the operating system, in which case BAMSERVERS provides support for the hardware only.
· The customer is expected to have the basic level of knowledge and experience required to operate a server. BAMSERVERS cannot provide remedial teaching support.
· Servers which are rendered inoperable by action of the customer will be subject to a $30 reinstallation fee. A reinstallation will delete any existing data on the system.
24. Software
· BAMSERVERS provides the server operating system and one or more open source utilities (VNC, FTP, ect..) as needed.
· BAMSERVERS may pre-install one or more games, however the customer is responsible for meeting any licensing requirements for game server software and utilities (i.e. having a legitimate “software key”). Failure of the customer to do so may subject the customer to legal liability with respect to the software property owner. This applies whether the software was installed by the customer or by BAMSERVERS at customer’s request.
· The customer is responsible for meeting licensing requirements for any software he/she installs himself/herself, with or without the knowledge of BAMSERVERS.
25. Network Performance
· BAMSERVERS expends a large amount of effort to ensure the best possible network performance across the Internet. BAMSERVERS monitors key traffic exchange points across the Internet to develop reliable data upon which performance is measured.
· The Internet is not controlled by any single entity and BAMSERVERS has direct control ONLY over its own network, thus BAMSERVERS CANNOT make any guarantee whatsoever as to the consistency of network performance. However, BAMSERVERS will make a best effort at all times to ensure consistently high performance.
· In the event BAMSERVERS detects a network performance issue it will make every effort to reroute traffic if possible, and/or to resolve the issue as quickly as possible.
· BAMSERVERS measures network performance using the commonly accepted “ping” command included with every modern TCP/IP aware computer operating system (Windows, UNIX variants, and Mac OS 10). In Windows the command can be accessed via a DOS command prompt. In OS 10 and UNIX the command is available on the command line. The “ping” command is a reliable and accurate tool for measuring network latency, and is the ONLY tool BAMSERVERS will recognize for network diagnostics.
· BAMSERVERS DOES NOT RECOGNIZE “IN GAME” PING OR OTHER PERFORMANCE INDICATORS TAKEN FROM WITHIN GAME SOFTWARE. Such measurements are unreliable and are not standardized. In addition they are greatly affected by CPU utilization of the server and the customer’s computer, and therefore are NOT direct or reliable measurements of network performance.
