In this Agreement, Mailaka
Internet Services is referred to as ‘we’, ‘us’, ‘our’ and the like. You, the
Customer is referred to as ‘you’, ‘your’, ‘yours’, ‘user’, ‘their’ and the
like.
We agree to provide you with those
services set forth at the time of signup and you agree to abide by the
restrictions made below. In the event of any violation of the below terms and
conditions of using our service, we reserve the right to suspend or terminate
your account. If you do not wish to be bound by the below terms and conditions
of using our service, then you should not apply for service or you should cancel
the service immediately.
Warranty
Disclaimer
No warranties are made regarding
the service. We exercise no control whatsoever over the content of information
that is passed through our system. The service is provided on an "as is" basis.
Neither we nor any of our affiliates, our licensees, our contractors or their
respective employees warrant that the Service will be uninterrupted or error
free; nor do we make any warranty as to the results from use of the Service. No
advice or information given by us, our affiliates, licensees, contractors or
their respective employees shall create a warranty or change this Agreement in
any manner whatsoever.
Responsibility of
Use
User shall assume all
responsibility for all content distributed, accessed, or viewed while connected
to or using our service. Under no circumstance shall we be held liable for your
actions while you are using the service.
Limitation of
Liability
Under no circumstances shall we,
our agents, our providers, or employees be liable for any damages, which result
in any way from User's use or inability to use the Service or any part thereof.
This includes all direct and indirect damages, special, punitive or
consequential damages that may result from busy signals, errors, delays in the
service, deletion of files, viruses, theft, or alteration of a user's computer.
In the event that we are found liable under any circumstance under the terms of
this Agreement, our liability shall be limited to the unused balance of user's
subscription payment pro-rated to reflect the current term. If User is
dissatisfied with the Service or with any terms, conditions, rules, policies,
guidelines or practices of ours in operating the Service, User's sole and
exclusive remedy is to discontinue using the Service and to cancel their
account. Notwithstanding anything to the contrary herein contained, User agrees
to indemnify and hold us, our affiliates, licensees, contractors and their
respective employees harmless against any and all liability, loss, claim,
judgment, damage and expense including without limitation attorney's fees and
cost of litigation incurred or suffered by us, our licensees, affiliates,
contractors, and their respective employees as the result of any and all use of
User's account whether authorized or not authorized or as a result of the
negligence, willful misconduct, or breach of any of the terms of this Agreement
by User, including but not limited to claims, liabilities, losses, damage,
judgment and expense which arise out of alleged injury or death of any person or
damage to property of every kind and description. User shall promptly notify us
in writing of any claim of which it is obligated under this indemnity. We shall
have the right to assume the defense of any such claim. We and User shall confer
as to and agree on the legal counsel(s) to be selected in any such
defense.
Age
Limit
User represents to us that he or
she is 18 years of age or older. User understands that certain materials
available from Service provided under the terms of this Agreement may not be
suitable for individuals under the age of 18.
Sexually Explicit
Materials
User understands that the Internet
contains unedited materials some of which are sexually explicit or may be
offensive. User accesses such materials at his or her own risk. We have no
control over and accept no responsibility whatsoever for such
materials.
Restrictions of
Use
User understands that the
following restrictions are applied to the service:
User May Not:
Send SPAM, or bulk email when
dialed into the network; Post offensive, threatening, or SPAM, when
using newsgroups; Use their personal FTP site for business sites; Post or
transmit viruses or any harmful component to others; Transmit anything that is
protected by copyright without permission; Attempt to violate the security of
any computer network; Engage in any illegal activity; in any way, restrict or
inhibit any other user from using and enjoying the Internet or our
Service.
Information
Requests
We have no obligation to monitor
the Service. However, User agrees that we have the right to monitor the Service
electronically from time to time and to disclose any information as may be
necessary to satisfy any law, regulation or other governmental request, to
operate the Service properly, or to protect our self or our subscribers. We will
not intentionally monitor or disclose any private E-mail message unless
requested or required by law or an entity of a governing authority. We reserve
the right to refuse to post or to remove any information or materials, in whole
or in part, that, in our sole and absolute discretion, are unacceptable,
undesirable, or in violation of this Agreement. We reserve the right to suspend
access to the Service for User's account. The account's suspension may be
rescinded within our sole and absolute discretion following payment of a
reconnection charge, to be determined by us in our sole and absolute
discretion.
Dialup
Services
User agrees to allow provider to
force a ten-minute idle timeout and five-hour maximum session on their dial-up
account. Attempts to defeat the idle timer using a ping bot or system tool, or
the use of a redialer to automatically reconnect once disconnected is
prohibited. Inactivity is defined as less than 500 bytes of data transferred
between User's modem and the Service. User understands that unlimited service
does not mean dedicated service. Dedicated service shall be defined as an
average of more than ten channel hours a day, based on a thirty-day calendar
month. Unlimited Service shall be defined as less than an average of ten channel
hours per day, based on a thirty-day calendar month. User may be blocked and/or
forced to upgrade to continue service if their account is used as a dedicated
connection. User understands that some or all networks offered do not offer
unlimited hours. Under no circumstances do we guarantee that User will be able
to access Service via a non-toll call. User will not be given and may not
purchase more than one account in an attempt to get dedicated access. The right
to use the Service is not transferable. Accounts are for User's use only. User
shall be responsible for the confidentiality of User's password. Loaning User's
account to others, connecting a system used by multiple persons, group use of
user log-ins, and consuming more than one modem line are explicitly prohibited.
If User has multiple accounts, then User shall be limited to one login session
per system account at any time. Use of ISDN shall cause the User to be charged
for two dialup accounts. The sole purpose of any limitation on our systems is
intended to limit the amount of unnecessary use, in our sole discretion, of our
services by any such User, which restricts overall system availability for other
such Users.
Email
Services
User understands that Port 25
(SMTP) is blocked for all outgoing mail servers except our own; User may not
send to more than twenty-five recipients at a time; User may not send more than
one hundred emails per hour period; User may not send from an email address that
is not their own; User may not send an email that is over ten MB in size; User
may not forge message headers to hide the origin of their email; Provider may
block certain attachment types used in transmitting viruses; User agrees that
any unauthorized use of any email server located throughout the Internet for the
purposes of relaying or distributing messages is
prohibited.
Fraudulent
Content
User agrees to be held responsible
for the distribution of fraudulent materials. User agrees that the violation of
any terms of this Agreement will result in immediate termination of Services.
Furthermore, violation of any of these terms will result in the immediate
penalty of $200 per violation. We reserve the right to charge User’s credit
card, debit card, checking account or to invoice User for any fees or penalties.
In the event we invoice User, the User agrees to be responsible for a fee of
$200 per violation of these terms.
Hosting
Services
Although we advertise unlimited
bandwidth, we reserve the right to inform you that you must transfer your
website if an excessive amount of bandwidth is being used. User may not purchase
more than 1 hosting package and link them together in an attempt to get around
our bandwidth or website size restrictions. We currently do not allow websites
that exceed 15 GB of bandwidth per month to host on our servers. 15GB is
sufficient bandwidth for over 99% of web sites worldwide. If the request to reduce bandwidth is
not met within 5 days, we do reserve the right to remove the website from our
system.
You agree not to post any of the
following restricted contents: Illegal, Abusive or Unethical Activities include,
but are not limited to, pornography, obscenity, nudity, violations of privacy,
hacking, computer virus, gambling, or promotion of gambling, and any harassing
or harmful materials or uses, as determined by us. You agree to indemnify and
hold us harmless from any claim resulting from your publications or use of
Illegal, Abusive or Unethical materials.
We reserve the right to refuse to
post or to remove any information or materials, in whole or in part, that, in
our sole and absolute discretion, are unacceptable, undesirable, or in violation
of this Agreement.
Right to
Cancel
We reserve the right to cancel
your Service for any reason without prior notice. In the event that a User's
service is cancelled for a reason outside of this Use Policy, we will refund to
the User the unused portion of that month's service at the time of cancellation.
We will not refund any shipping or handling fees. Cancellations after the first
of the month will be charged for that month. User must notify us in writing or
e-mail to cancel Service. CANCELLATION REQUESTS MUST INCLUDE NAME AND PHONE
NUMBER, SO THAT WE MAY LOCATE YOUR ACCOUNT. ACCOUNT IS NOT CANCELED UNTIL USER
HAS RECEIVED AN EMAIL CONFIRMATION OF THE CANCELLATION, FROM US. No refunds are
issued for collected funds. Refunds are not issued for the calendar month of
cancellation. If payment was by check or checking account draft, any refund
shall be subject to a five dollar handling charge. User must keep the email
confirmation for twelve months after cancellation, as proof of
cancellation.
System
Backups
We do not and will not perform
system backups on any User's E-mail account(s). We shall not be held responsible
for any lost E-mail data, email attachments, or any E-mail message contents,
regardless of the reasoning for data loss or system causes. Except as otherwise
set forth herein, we will not provide historical data, to any party for any
reason, regarding any system or Internet activity.
Although we do perform system
backups on hosting content, we shall not be held responsible for any lost web
data, web files, or any website contents, regardless of the reasoning for data
loss or system causes. User should always keep their own backup of their
website. Except as otherwise set forth herein, we will not provide historical
data, to any party for any reason, regarding any system or Internet
activity.
No
Confidentiality
Information transmitted through us
and through the Internet in general is not confidential. We cannot and shall not
guarantee privacy or protection of any User. We reserve the right to monitor any
User's transmissions when deemed necessary for providing proper service and/or
to protect the rights and property of our company.
Billing
Policies
All monies are in US Funds. The
first charge to your credit/debit card or draft from your checking account shall
include a daily proration for the remainder of the month of signup, plus the
regular monthly rate for the following calendar month. Three dollars will
be added to this total if you choose to have a disk US Mailed to you. CHARGES
BEGIN THE DAY MAILAKA EMAILS (OR USMAILs) YOU YOUR ACCOUNT INFORMATION,
REGARDLESS OF INSTALLATION AND/OR ACTUAL USAGE OF SERVICE. Returned checks
are subject to a collection fee. Internet service will be suspended for
returned checks until such time as the check is made good. Any accounts
deactivated due to non-payment or that are past due are subject to a per login
id reactivation fee of five dollars (example: if you have three login ids the
fee will be fifteen dollars). All charges are considered valid unless
disputed in writing within sixty-days of the billing date. Adjustments
will not be made for charges that are more than sixty days old. Failure to use
the account does not relieve the user of payment obligations. By providing us
with credit/debit card information or checking account information, you agree to
allow us to charge or draft the periodic fee from your account each month.
Monthly charges are applied during the last seven days of the month for the
following month's service. Members may pay a discounted annual fee. If the
member pays annually and then cancels prior to the end of the twelve months, the
refund, if any is calculated at the regular monthly rate plus a five-dollar
processing fee. Any billing
disputes done through your bank or credit card company will result in the
immediate termination of your account with us. Direct all billing disputes to our
billing department. We will not be
responsible for non-sufficient funds fees imposed by Your banking institution
under any circumstances.
Broadband backup service gives the
user up to ten hours of calendar month usage with no added charge. Hours
in excess of ten are charged $1 per hour or part thereof. Mailaka reserves
the right to limit the account to twenty hours of usage in a calendar month. The
basic fee is charged regardless of usage. Outgoing email SMTP is also
included with the service for use when connecting with Mailaka’s Broadband
Backup service. Billing is done on or about the 1st of the
month for the current month’s service and the previous month’s
overage.
Failure to Comply With Terms and
Conditions
We may deny User access to all or
part of the Service without notice if User engages in any conduct or activities
that we in our sole discretion believes violates any of the terms and conditions
in this Agreement. If we deny User access to the Service because of such a
violation, User shall not have the right (1) to access through us any materials
stored on the Internet, (2) to obtain any credit(s) otherwise due to User, and
such credit(s) shall be forfeited, (3) to access third party services,
merchandise or information on the Internet through us, and we shall have no
responsibility to notify any third-party providers of services, merchandise or
information nor any responsibility for any consequences resulting from lack of
notification.
Miscellaneous
All times are GMT. User agrees to
remain signed into the network only when actually making use of same. User
authorizes us to enforce these restrictions by appropriate software and network
measures, automated and manual. Under no circumstances shall we be liable or
responsible for any long distance charges resulting from the use of our service.
Under no circumstances shall we be liable for any charges whatsoever
resulting from the use of our service. User agrees to notify us if User
moves or otherwise changes his or her mailing address or phone number, and to
provide your truthful name, postal address and telephone number the User
supplies to us. In the event that any portion of this Agreement is held to
be unenforceable, the unenforceable portion shall be construed in accordance
with applicable law as nearly as possible to reflect the original intentions of
the parties and the remainder of the provisions shall remain in full force and
effect. Our failure to insist upon or enforce strict performance of any
provisions of this Agreement shall not be construed as a waiver of any provision
or right. Neither the course of conduct between parties nor trade practice shall
act to modify any provision of this Agreement. All correspondence and contents
of that correspondence between Us and You, be it by newsletter, phone, email or
any other method, is considered private and confidential and may not be
disclosed by You to any third party for any reason whatsoever. We may modify
this Agreement from time to time by updating this page on our website, and
User's continued use of the Service shall be deemed to be User's acceptance of
any such modification. It is User's responsibility to check this online area
regularly to determine whether this Agreement has been modified. If User does
not agree to any modification of this Agreement, User must immediately stop
using the Service and cancel Service. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas without regard to
its conflict of law provisions. Any cause of action User may have with respect
to the Service must be commenced within one year after the claim or cause of
action arises or such claim or cause of action is barred. We shall not be liable
or deemed to be in default for any delay or failure in performance under this
Agreement or interruption of service resulting directly or indirectly from acts
of God, civil or military authority, acts of public enemy, war, riots, civil
disturbances, insurrections, accidents, dire, explosions, earthquakes, floods,
the elements, strikes, labor disputes, shortages of suitable parts, materials,
labor or transportation or any cause beyond our reasonable control. Venue for
litigation of any dispute, controversy, or claim arising out of, in connection
with, or in relation to this Agreement, or the breach thereof, naming us as the
defendant, shall be proper only in a venue determined solely by us. In any
action between us and User to enforce any of the terms of this Agreement, We
shall be entitled to recover expenses, including reasonable attorney's fees.
This Agreement constitutes the entire agreement between User and us with respect
to the Service.
