Terms and Conditions of Hosting Services
Hosting
This Agreement sets forth the Standard Terms and Conditions that apply to the use of the Microflare, Inc.'s ("Microflare") hosting services.
YOUR USE OF THE MICROFLARE HOSTING SERVICES INDICATES YOUR AGREEMENT TO BE BOUND BY THESE TERMS OF SERVICE.
Terms and Conditions
You agree to familiarize yourself with these terms, and abide by them if you choose to use the services to which such terms apply.
User Conduct
You agree to abide by all applicable local, state, national and international laws and regulations regarding your use of our service.
User Eligibility
You represent and warrant that you, as the person legally responsible for all use of this account, are at least 18 years of age.
If you are under 18 years of age, you must have parental consent in order to sign up, and the account must be ordered by a parent or
legal guardian, in their own name. You agree to supply Microflare with a current and truthful name, postal address and telephone number
for our records, and you have a continued obligation to keep this information current. You also agree that you are an authorized user of any
credit card that you supply to us, and you understand and agree that we have an obligation to fully investigate any possible fraudulent credit card use.
Contents of Messages
You are solely responsible for the contents of your messages and your website and the consequences thereof. You agree not to do anything
which would restrict or inhibit any other user from using and enjoying the Internet. You further agree not to use Microflare to send any
messages or material that are unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise constitute a
criminal offense, give rise to civil liability or otherwise objectionable material of any kind or nature or that encourages conduct that
could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international
law or regulation. Microflare reserves the right to terminate your account if Microflare becomes aware and determines, in its sole discretion,
that you are violating any of the foregoing guidelines.
Unlawful of Prohibited Use
As a condition of your use of the Microflare Hosting Service you warrant to Microflare that you will not use the Microflare Hosting
Service for any unlawful purpose. Transmission, distribution, or storage of any information, data or material in violation of United States
or state regulation or law, or by common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark,
trade secret, or any other statute. Microflare reserves the right to remove such illegal material from the Microflare servers immediately.
Terms of Payment
You agree to pay Microflare appropriate payment for the services received from Microflare, in advance of the time period during which such
services are provided. Payment may be made by check, credit card, money order or wire transfer, however Microflare requires users to return a
Credit Card Authorization Form for any payment cost over four hundred ($400) dollars. Microflare accepts American Express, Discover Card,
MasterCard and Visa. If you pay by credit card, you agree to provide Microflare with current billing and contact information and authorize
Microflare to bill all account and related charges to the credit card on file. You further agree that until and unless you notify Microflare
of your desire to cancel any or all services received, those services will be billed on a recurring basis. You agree that prepayments will be
billed and charged automatically, that Microflare may apply the amount due to the provided card at any time, and will issue absolutely no refunds.
If your credit card is denied for any reason on the first attempt, we will automatically attempt to resubmit such a card within ten business days
of the original attempt. Should the card be denied again, we may terminate the account. All files within the account may be deleted on termination.
You may notify us in advance not to bill your card, and to provide for alternative billing arrangements.
Users will have fifteen (15) days of due period to make payment. After fifteen (15) days of due period, Microflare will charge an additional
twenty-five ($25) dollars. After forty-five (45) days of due period, Microflare will terminate or delete your account.
No receipts or invoices will be sent by regular mail.
All accounts are setup and billed on an anniversary basis.
Microflare reserves the right to change prices at any time.
All payments are to be made in U.S. currency.
Fees
Microflare will charge a twenty five ($25.00) dollar processing fee on all returned checks, a twenty five ($25.00) dollar processing fee on
all wire payments and a fifty ($50.00) dollar processing fee for each individual charge back. Microflare will immediately suspend your account
upon receipt of a charge back. Microflare will charge a five ($5.00) dollar credit card resubmission fee if a credit card is declined more than
twice within any given year.
Web Site Content
Full back-ups are made weekly, and back-ups of new/changed data are made nightly. No guarantees are made of any kind, either expressed or
implied, as to the integrity of these back-ups. Back-ups are made for server restoration purposes only. You are responsible for keeping a
copy of your most current web site files as backup on a remote system. Microflare is not responsible for any lost files, information, or data.
However, if any loss of data occurs due to an error of Microflare, Microflare will use reasonable efforts to recover the data at no charge to
you. If data loss occurs due to your negligence in securing an account or due to an action on your part, Microflare will use reasonable efforts
to recover the data from the most recent archive for a fifty ($50.00) dollar fee.
User Responsibilities
You may not initiate sites that provide any of the following of the following content or links on the Microflare servers:
Pirated Software (Warez) or any software that is copyrighted and not freely available for distribution without cost.
Hacking, phreaking, viruses, anarchy, etc.
IRC Bots, Spamware.
Archives (music, video and program archives)
Sexually explicit, obscene or pornographic content (whether in text or graphics)
Speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, discriminatory
(whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise) or that promote
any illegal activity.
Graphic violence.
You agree not to interfere with the operation of the system. You further agree not to interfere with the proper operation of other
systems reachable through the Internet, including any attempt at unauthorized access. You agree to adhere to system policies as published
by Microflare, including restrictions on services available with each service type, restrictions on certain features, and all other policies.
You agree to abide by any and all future Microflare policy decisions. Microflare reserves the right to terminate any account that does not
conform to these requirements.
Zero Tolerance Spam Policy
Microflare takes a zero tolerance stance against sending of unsolicited e-mail, commonly known as spam. Any user who sends out spam
will have their account terminated without notice, and may be charged a one time administration fine of one hundred ($100) dollars if we
can show proof that the user sent the e-mail from our servers or network. Microflare reserves the right to require changes or disable as
necessary any web site, account, database, or other component that does not comply with this policy, at its sole discretion. Microflare
also reserves the right to make any such modifications in an emergency at our sole discretion.
Hosting Service Provider's Rights
You agree that Microflare has the right to monitor the service electronically from time to time and to disclose any information as
necessary to satisfy the law, or to protect itself or its subscribers. Microflare reserves the right to refuse to post or to remove
any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of
this agreement. Microflare also reserves the right to refuse refunds in cases where Microflare believes abuse has taken place.
Microflare reserves the right to monitor any and all communications through or with our facilities. You agree that Microflare is not
considered a "secure communications medium" for the purposes of the ECPA, and that no expectation of privacy is afforded.
Microflare does not set a usage limit on our Private Hosting customers, however if a customer consumes large amounts of system resources,
Microflare reserves the right to send an e-mail notice to the customer and set a limit on the customer's account.
Uptime Guarantee
Microflare guarantees the service will be available 99.9% of the time for a "99.9% Uptime Guarantee" to any of our customers in good financial
standing. If we fail to meet the 99.9% Uptime Guarantee, the following credits will apply to those who qualify:
95.0% to 99.8% - Microflare will credit back 25% of the monthly fee.
90.0% to 94.9% - Microflare will credit back 50% of the monthly fee.
89.9% or below - Microflare will credit back 100% of the monthly fee.
Customers must request such credit within seven (7) days after Network Unavailability. Microflare will calculate Network Unavailability in
a calendar month. Credits will not be provided to customers in the event that the Network Unavailability was due to (I) scheduled maintenance
as posted from time to time at Microflare, (ii) customer's behavior or the performance or failure of customer's equipment, facilities or
applications, or (iii) circumstances beyond Microflare's reasonable control, including, without limitation, acts of any governmental body,
war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation,
unavailability or interruption or delay in telecommunications or third party services (including DNS propagation), failure of third
part software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your web site.
Sharing of Account Space & Resale Restrictions
You represent and warrant that the account you purchase is purchased either for yourself or on behalf of a client if you are a reseller.
You agree that as a reseller, you are the individual solely responsible for all use of the account.
Refund Policy
Microflare will refund payments for the service within thirty (30) days of account activation, with the exception of setup fees,
domain registration fees and additional options charges. No refunds will be issued after thirty (30) days, whether in full or prorated.
All refunds will be made by company check or issued back to the credit card within thirty (30) days of receipt of cancellation. Accounts
terminated by Microflare for violation of the Terms of Service do not qualify for the 30-day money back guarantee. Account setup fees
and domain registration fees are not refundable.
Termination
Microflare may terminate this agreement and your access to any or all Microflare related services at any time, with or without cause,
effective immediately. Microflare shall have no responsibility to notify any third-party providers of services, merchandise, or information,
nor any responsibility for any consequences resulting from such discontinuance or lack of notification. Anyone determined by Microflare to
have violated these Terms may be barred from receiving any services from Microflare.
You may terminate this Agreement at any time via the telephone (408.762.2063) or
e-mail. No refund shall be issued. All termination requests must be
received by Microflare by midnight on the end of the current billing period in order to avoid paying for the next term's service.
Account cancellations for accounts with a negative balance will be passed on to collections, and all services rendered to the party
with the negative balance, including domain registrations, will be terminated.
Relationship of the Parties
Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint
enterprise between the parties. Neither party shall have authority to contract for or bind the other in any manner whatsoever.
Disclaimer of Warranties / Limitation of Liability
THE MICROFLARE HOSTING SERVICE PROVIDED IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. MICROFLARE
EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE MICROFLARE SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO
ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY MICROFLARE, ITS EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON
ANY SUCH INFORMATION OR ADVICE.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL MICROFLARE, OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE MICROFLARE HOSTING SERVICE, INCLUDING BUT NOT LIMITED TO
RELIANCE ON ANY INFORMATION OBTAINED ON THE MICROFLARE SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES
OR E-MAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE,
WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MICROFLARE RECORDS, PROGRAMS
OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PROVISION WILL APPLY WHETHER OR NOT MICROFLARE IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH
DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL SERVICES AVAILABLE FROM MICROFLARE AND ITS AFFILIATES.
UNDER NO CIRCUMSTANCES, UNDER THE TERMS OF THIS AGREEMENT, SHALL DAMAGES INCLUDE LOSS OF BUSINESS, OR LOSS OF PROFITS WHETHER BASED ON
BREACH OF AGREEMENT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE.
THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.
Copyright and Trademarks
All contents of the Microflare Web Site are proprietary to Microflare, and/or its suppliers and are protected under Copyright. All
rights are reserved. Microflare reserves any rights not expressly granted herein.
Furthermore, Microflare retains all rights to the web design provided to you through the Microflare Hosting Services.
Force Majeure
If by reason of failures of telecommunications or internet service providers, labor disputes, riots, inability to obtain labor or
materials, earthquake, fire or other action of the elements, accidents, governmental restrictions or other causes beyond the
control of Microflare, Microflare is unable to perform in whole or in part its obligations as set forth in this Agreement,
then Microflare shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform
shall not make Microflare liable to the User.
Governing Law
California law shall govern this Agreement, and any dispute arising from the relationship between the parties to this Agreement,
excluding any laws that direct the application of another jurisdiction's laws. In any litigation, arbitration, or other proceeding
by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration
of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and cost and
expenses incurred, subject to the Limitation of Liabilities clause. The parties consent to the exclusive jurisdiction and venue of the
courts of the State of California or to any Federal Court located within the State of California.
Arbitration
Any legal controversy or legal claim arising out of or relating to this Agreement or our services shall be settled by binding arbitration
before the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be
consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in California, as the
parties to this agreement agree to be governed by the laws of New York. Either party may seek any interim or preliminary relief from a
court of competent jurisdiction in California necessary to protect the rights or property of party pending the completion of arbitration.
The prevailing party from arbitration shall be entitled to reasonable attorney's fees, which shall be set forth by the arbitrator(s).
Judgment upon the award rendered may be entered in any court in the state of California with jurisdiction. The decision of the arbitrator
shall be final and binding on the parties. The parties shall bear equally all fees, costs and expenses of the arbitration, and each party
shall bear its own legal expenses, attorneys fees, and costs of all experts and witnesses, provided, however, the arbitration panel may
apportion between the parties, as said arbitrator may deem equitable, the cost incurred by either party.
Should either party file an action contrary to this provision, the other party may recover attorneys' fees and costs up to one thousand ($1000) dollars.
Sever ability
If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to
be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
Survivability
The terms of this Agreement apply to those obligations that survive any cancellation, termination, or rescission, namely - warranty,
indemnification, liability and limits thereon, rights and obligations upon and following termination and assignment.
Indemnification
You agree to defend, indemnify and hold harmless Microflare against any and all claims, losses, penalties, causes of action, damages,
liability, costs, expenses (including but not limited to reasonable attorneys' fees) or claims caused by or resulting indirectly from your
use of the Microflare service, without limitation or exception, including your violation of any third-party's rights, (including, without
limitation, infringement of any copyright trademark, service mark, trade secrets, right of privacy or publicity or any other third party right).
The terms of this section shall survive the termination of your relationship with.
Remedy
You agree that your sole and exclusive remedy to any issues relating to the Microflare Hosting Service is to discontinue using the Service.
Assignment
In the event of a merger or consolidation of Microflare, the surviving or new corporation and any subsidiaries are similarly subject to the
rights and obligations of this Agreement.
Entire Agreement
Unless otherwise specified herein, this Agreement constitutes the complete and exclusive statement of the Agreement between the parties
regarding the products and services provided hereunder, and supercedes any prior Agreements between the parties with respect thereto.
Waiver
The failure of Microflare to enforce a provision of this Agreement shall not be construed as a waiver or limitation of Microflare's right
to subsequently enforce and compel strict compliance with every provision of this Agreement.
Modification of Terms
Microflare reserves the right to modify this policy at any time and without advance notice, effective upon making the modified provisions
available on the Microflare Web Site. You are responsible for regularly reviewing these documents. Continued use of the Microflare Services
after any such changes shall constitute your consent to such changes. Microflare does not and will not assume any obligation to notify you
of any changes to these Terms.
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