Flamingo Internet Navigators Terms and Conditions for Web Hosting and other Internet Services

1 March 2000

PLEASE READ THESE TERMS, CONDITIONS AND ACCEPTABLE USE GUIDELINES CAREFULLY BEFORE OPENING OR CONTINUING AN ACCOUNT WITH Flamingo Internet Navigators (hereafter referred to as FINI). These Terms, Conditions and Acceptable Use Guidelines represent the complete Agreement and understanding between FINI and you, the FINI account holder, and supersede any other written or oral agreement pertaining to your FINI services. By using FINI services, you agree to be bound by and to comply with this Agreement, just as if you had signed it. Violation of any provision of this Agreement is grounds for immediate termination of your FINI account.

IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD IMMEDIATELY END YOUR USE OF FINI SERVICES AND NOTIFY FINI SO THAT FINI MAY INITIATE CLOSURE OF YOUR ACCOUNT.

FINI may be contacted by email at support@fini.net or by regular mail at:

Flamingo Internet Navigators
705 Plymouth Circle
Newport News, VA 23602

FINI reserves the right to modify the Terms, Conditions and Acceptable Use Guidelines, and/or modify the prices of its services, as well as discontinue or change the services offered. A notification will be made by email when modifications are made, however, it will be the responsibility of the account holder to keep informed about these changes. Your continued use of FINI's services following such notification will be deemed acceptance of the modification.

1.00 Provision of Services

1.01 This Agreement defines the terms, conditions, and acceptable use for all types of accounts offered by FINI. FINI "services" are defined as the use of computing, telecommunications, software, and information services provided by FINI. These services also include the provision of access to computing, telecommunications, software and information services provided by others via the global Internet.

1.02 FINI will provide services on its computing systems to you in exchange for recurring payment of subscription fees and full compliance with this agreement.

1.03 FINI reserves the right to discontinue any and all services to you at any time, without prior notice or liability, for any conduct which FINI, in its sole discretion, believes violates these Terms, Conditions and Acceptable Use Guidelines, or is otherwise harmful to FINI's interests or the interests of other account holders.

1.04 You may use FINI's services for lawful purposes, in compliance with all applicable laws including copyright and trademark law. Unlawful activities include storing, distributing or transmitting any unlawful material through FINI services, attempting to compromise the security of any Internet account or site, or making direct threats of physical harm.

1.05 To comply with applicable laws and lawful government requests, to operate its systems properly, or to protect itself or its account holders, FINI reserves the right to access and disclose any information. This may include disclosing the usernames of accounts and other information. FINI will fully cooperate with law enforcement authorities in investigating suspected lawbreakers, and reserves the right to report to law enforcement any suspected illegal activity it becomes aware of.

1.06 When FINI becomes aware of possible violations of this Agreement, FINI may, in its sole discretion, choose to initiate an investigation. This investigation may include gathering information from account holders and examining material on FINI's servers. During investigations, FINI may suspend accounts involved in a violation and/or remove the material involved from its servers. If FINI believes, in its sole discretion, that a violation of this Agreement has occurred, it may temporarily or permanently remove material from FINI servers, warn the account holder(s) involved, suspend or terminate the account(s) responsible, and take other responsive action. FINI, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of this Agreement could also subject you to criminal or civil liability.

1.07 You are responsible for obtaining the Internet access required to connect to FINI services, including computer hardware, software and Internet access provider services. FINI does not provide Internet access services, hardware or software. You are responsible for ensuring that such equipment or service is compatible with FINI's requirements. These requirements include conformance to the appropriate Internet Request for Comments (RFC's). RFC's can be obtained from <a class=link href="ftp://ftp.chicks.net/pub/rfc/std/">ftp://ftp.chicks.net/pub/rfc/std/ as well as other public archives such as http://www.ietf.org/.

1.08 Any use of FINI scripts or software or third-party scripts or software distributed by FINI is governed by the End-user License Agreement that accompanies such scripts or software. Use of such software indicates your acceptance of the terms therein.

1.09 Certain services performed by FINI may require passing personal information about FINI account holders to third parties. Such services include, but are not limited to, obtaining secure server certificates, applying for credit card merchant accounts, and registering information with the InterNIC, ARIN, or other registries for those account holders who wish to own their own Internet domain name. FINI can not be held responsible for the lack of privacy that these third party entities may offer.

1.09b OpenSRS: When requesting FINI to transfer or register your domain you are also obligated to comply with TUCOWS, Inc.'s

Registration Agreement.

1.10 FINI reserves the right to obtain, lease and utilize the products and services of third party vendors in order to maintain services to account holders. Examples of services may include, but are not limited to, Internet connections, Internet servers, or any other product or service that FINI deems necessary to maintain services to its account holders.

1.11 Tariffs: Services will be provided under FINI Tariffs, subject to the rates, terms and conditions in such tariffs as well as the contract tariffs ("CT"), if applicable, (collectively "Applicable Tariffs"), as those Applicable Tariffs may be modified from time to time. In the event of any inconsistency between the terms of this form (including its addenda, if any) and the FINI Tariffs, the terms of the FINI Tariffs shall prevail. In the event of any inconsistency between the terms of the CT, if applicable, and the FINI Tariffs, the terms of the CT, shall prevail. Except for changes to the Applicable Tariffs, no change, modification or waiver of any of the terms of this Agreement shall be binding unless reduced to writing and signed by an authorized representative of both parties and to the extent required by law, filed with the FCC. If FINI voluntarily or involuntarily as a result of government action cancels, in whole or in part, any Tariff(s) referenced herein, then effective on such cancellation, service will be provided thereafter in accordance with FINI Tariff(s) which remain in effect as amended from time to time and which will be provided to Customer on request.

1.12 Agency Authorization. The customer authorizes FINI to act as agent for Customer as necessary, pursuant to the Letter of Authorization, to provide the Service, including but not limited to, ordering telecommunications and other services or facilities and increasing, adding to, terminating, decreasing, removing or rearranging such service or facilities on Customer's behalf.

1.13 Facilities. The furnishing of service under this Agreement is subject to the availability on a continuing basis of all necessary facilities and is limited to the capacity of FINI's facilities, and/or that of FINI's underlying carriers. Without the specific consent of FINI, Customer shall have no right of access to the facilities or any other real or personal property of FINI and shall refrain from any contact whatsoever with said facilities and/or other FINI property.

1.14. Equipment & Location. If facilities and / or equipment are a part of the Customer's services provided under this Agreement, the Customer will not allow unreasonably or cause any facility or equipment of FINI or FINI providers to be rearranged, moved, modified, damaged, repaired, or relocated without FINI's consent. Customer shall be responsible for ensuring that the equipment, wiring, space, and associated facilities, conduit and rights-of-way are protected against fire, theft, vandalism, or other casualty and that the use thereof complies with applicable laws, rules, regulations, and contractual obligations. Customer will not create or allow any liens or other encumbrances to be placed on any such facilities or equipment of FINI or FINI Providers. If Customer relocates or changes the place of the Service provided under any Service Order, Customer will pay all additional installation and related charges associated with such relocation. All FINI equipment or FINI provider equipment shall be returned to FINI upon termination of this Agreement.

2.00 Payment of fees

2.01 Current recurring and setup fees for FINI services can be found on the Web on the FINI web site found at http://www.fini.net FINI will publish an online notice of fee increases at least 30 days before such increases take effect.

2.02 FINI services are offered on a prepay basis. Payment for a minimum of one quarter of services must be received prior to the quarter's start date. Accounts that do not abide to the payment terms set forth herein are subject to suspension and/or account termination. You acknowledge responsibility that, even if your account is terminated, you will be held liable for any balance owed on the account.

2.03 Acceptable means of payment include Cash, Personal Check, Cashier's Check, and Corporate Account Checks. Payment for a FINI account or service by fraudulent means will result in immediate and permanent termination of the account, and possible criminal penalties.

2.04 FINI reserves the right to charge a setup fee to reinstate suspended or terminated accounts.

2.05 There is a $25.00 service charge for each returned check.

2.06 If you believe FINI has billed you incorrectly, you must contact FINI no later than 30 days after the date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to FINI's Billing Department (billing@fini.net), and should include all available information about the suspected error.

2.07 Usage charges, if applicable, will be billed in arrears, and rounded up to the next whole cent. In the event FINI is unable to record usage for any part of a billing period, FINI shall be entitled to make a reasonable estimate of Customer's usage of services for that billing period. Customer will pay all invoices within ten (10) days after the invoice date and shall send its payments to the address specified on the invoice. FINI may, in addition, to any other remedies available to it, impose a late payment charge of one and one-half percent (1.5%) per month on any invoice not paid within such 10-day period. Failure of Customer to receive any invoice in no way relieves Customer of the obligation to pay for any rendered services.

3.00 Cancellation and Termination

3.01 To cancel your account, you must contact FINI support via email or postal mail. Cancellation requests must include the account's login name, and your name, address and phone number and other identifying information as they appear in FINI's billing records. If the information provided to FINI for an account does not match the account's records, cancellation may be delayed or prevented. Accounts cannot be canceled over the phone.

3.02 All cancellation requests must be received by 1:00 PM Eastern Standard Time on a regular business day to be processed the same day. Otherwise, your request may not be processed until the following business day.

3.03 All FINI accounts must be paid in full before a cancellation will be considered complete. Unused time will not be pro-rated.

3.04 If a FINI account is canceled, suspended or terminated, FINI may maintain the account for 30 days. You may contact FINI within that time to inquire about reopening a suspended account, or forwarding mail or files to another address. FINI reserves the right to refuse to forward the mail and/or files of any account terminated for violation of any provision of the Terms, Conditions and Acceptable Use Guidelines. If you do not contact FINI within 30 days, your account and associated files will be deleted from FINI's servers, and FINI will not be able to reopen it or restore files. FINI is not responsible for maintaining material that it deletes from its servers as a result of a determination that the material violates any provision of the Terms, Conditions and Acceptable Use Guidelines.

3.05 Term & Renewal. Upon expiration of the Initial Term of all or any part of the Service, this Agreement and the affected Service and all the terms and conditions hereof shall continue on a month-to-month basis unless renewed for a different term or terminated by either party upon thirty (30) days prior written notice or until otherwise terminated pursuant to the provisions of these Terms and Conditions.

3.07. Service Charges. Customer shall pay to FINI all Monthly Recurring Charges, Usage Charges and Installation Charges set forth on the front of this Agreement, and any addenda, and all non-recurring charges related to the Service plus all applicable excise, sales use or other taxes, fees, or allocations or charges applicable to the Service. Such fees, tax charges, etc. will be separately stated in FINI Invoices. Service Charges shall be due and payable commencing on the earlier of the Request for Service date specified on the quote or the date on which Customer first utilizes the Service. Service Charges for local access or other service or facilities arranged for or ordered by FINI on Customer's behalf shall become due on the Request for Service date.

3.08. Termination. FINI may terminate this Agreement, or any Service Order, in whole or in part, or suspend the Service at any time upon: (a) Any failure of Customer to pay any undisputed amounts due hereunder - after the Customer has received notice from FINI, to be provided in writing; (b) Any breach by Customer of any material provision of this Agreement or any Service Order, (c) Any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or similar event with respect to Customer; or (d) Any governmental prohibition or required alteration of the Service provided hereunder or any violation of applicable law, rule or regulation. No such termination shall relieve Customer of its obligations under this Agreement, or any Service Order, including without limitation, the obligation to make payments for the Service provided prior to termination. The rights and obligations of the parties shall survive any such termination or other cancellation or expiration of this Agreement or any Service Order:

3.08.1 InterLATA Private Line & Frame Relay Service. In the event Customer cancels or terminates the Private Line or Frame Relay Service under this Agreement or any Service Order prior to the end of the Initial Term or any subsequent Renewal Term, Customer agrees to pay FINI a termination charge (as liquidated damages and not as a penalty) as follows: (1) All non-recurring charges specified in this Agreement or any Service Order, plus (2) All disconnection, early cancellation or termination charges reasonably incurred by FINI on Customer's behalf, plus (3) The monthly recurring charge indicated in the Agreement times the number of months remaining in the term.

3.08.2 IntraLATA Private Line Services. For services terminated prior to the end of the term, FINI will calculate the closest term satisfied by customer and revalue service rates according to the appropriate monthly rate for the term satisfied. Customer also agrees to pay all disconnection, early cancellation or termination charges reasonably incurred by FINI on the Customer's behalf.

3.08.3 Voice and ISDN Services. For voice services or ISDN usage services terminated prior to the end of the term, Customer agrees to pay (as liquidated damages and not as a penalty), all prior usage re-rated at the rates of the next nearest term completed. All termination charges shall be due and payable within thirty (30) days of the effective date of termination.

4.00 "As Is" Services; Limitation of Liability, Indemnification

4.01 "As Is" Services. You acknowledge that FINI services are provided "as is". FINI, its employees, agents, suppliers, vendors and distributors make no warranty of any kind, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or information available on its systems, or residing on or passing through its interconnecting networks, or that FINI services will be uninterrupted or error free. FINI expressly excludes any implied warranty of merchantability or fitness for a particular purpose to the fullest extent possible by law.

4.02 Limitation of Liability. Neither party shall be liable to the other for any loss, damage, liability, claim or expense arising out of or in relation to this Agreement or your use of or inability to use FINI services, other than for payment of fees due under Section 3 and for indemnification under section 4.0, however caused, whether grounded in contract, tort (including negligence) or theory of strict liability. Use of information obtained from or through FINI is at your own risk. Under no circumstances will FINI be liable to you or any other person for any loss or damage caused by reliance on data or information available from or on FINI's services and systems.

You agree to waive and hold FINI harmless from any claims relating to any action taken by FINI as part of its investigation of a suspected violation of this Agreement or as a result of its conclusion that a violation of this Agreement has occurred. This means you cannot sue or recover any damages whatsoever from FINI's decision to remove material from its servers, warn you, suspend or terminate your account, or take any other action during the investigation of a suspected violation or as a result of FINI's conclusion that a violation has occurred. This waiver applies to all violations described in the Terms, Conditions and Acceptable Use Guidelines.

IN NO EVENT SHALL FINI BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR THE ACCOUNT HOLDER'S USE OF OR INABILITY TO USE FINI's SERVICES. FINI's ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE AT FINI's OPTION, EITHER RETURN OF THE SERVICE FEES PREPAID OR REPLACEMENT OF SERVICES. In any case, FINI's entire liability under or arising out of this Agreement shall be limited to the amount you paid for the service in the twelve (12) months prior to the act or injury that gave rise to the liability. However, some jurisdictions may not allow a limitation on liability for negligence that causes death or personal injury, and FINI limits its liability in such jurisdictions only to the degree allowed by the applicable laws.

4.03 Indemnification: Each party agrees to indemnify, defend and save the other, its successors and assigns harmless from any suits, liabilities, claims or demands (including costs, expenses, and attorney's fees on account thereof) that may be made by (1) anyone, for injuries, including death to persons or damage to property (including theft), resulting from the indemnifying parties acts or omissions or those of persons furnished by such party, or by (2) persons furnished by indemnifying party or any subcontractor under Worker's Compensation or similar acts. Each party shall maintain adequate insurance to cover such obligations noted above, and shall provide the other party evidence of such insurance upon request, (3) any copyright violation or claim of infringement of any patent, trademark, copyright, trade secret or other proprietary interest based on the possession, use or sale or any material products and/or product(s) & service(s), information, programs, or equipment furnished to the other party under this Agreement or in contemplation of this Agreement.

4.04 Force Majeure: If the performance of the respective obligations of FINI or Customer under this Agreement shall be prevented or interfered with by reason of a Force Majeure, then that party shall not be liable to the other for its failure to perform such obligations and such failure shall not constitute a breach of this Agreement. "Force Majeure" as used herein shall include without limitation: fire, flood, earthquake, other acts of God, explosion, strike or other labor dispute, riot or civil disturbance, war (whether declared or undeclared) or armed conflict, failure of common carrier or "carrier's carrier," interruption of power, municipal ordinance including any state or federal law, governmental order or regulation or order of any court of competent jurisdiction, or any other similar thing or occurrence not within the control of the party.

5.00 Acceptable Use Guidelines

5.01 Use of Services

5.01.1 The account holder agrees to use FINI's services only for lawful purposes, in compliance with all applicable laws, and in accordance with all provisions set forth in the Terms, Conditions and Acceptable Use Guidelines. Violation of any provision of this Agreement is grounds for immediate termination of your FINI account.

5.01.2 The account holder of record is responsible for all use of the account, with or without the knowledge of consent of the account holder.

5.02 Use of Material

5.02.1 Materials in the public domain (e.g., images, text and programs) may be downloaded or uploaded using FINI services. Account holders may also redistribute materials in the public domain. The account holder assumes all risk regarding the determination of whether the material is in the public domain.

5.02.2 The account holder is prohibited from storing, distributing or transmitting any unlawful material through FINI services. Examples of unlawful material include but are not limited to direct threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization. The account holder may not post, upload or otherwise distribute copyrighted material on FINI's servers without the consent of the copyright holder. The storage, distribution, or transmission of unlawful materials could subject the account holder to criminal as well as civil liability, in addition to account termination.

5.02.3 The account holder may not store or distribute certain other types of material on FINI's servers. Examples of prohibited material include, but are not limited to, material judged, at FINI's sole discretion, as threatening, obscene, pornographic, profane, or material protected by trade secrets. This also includes links or any connection to such materials.

5.03 Passwords

5.03.1 Each FINI account user is responsible for the security of his or her password(s). Secure passwords are between 6 and 8 characters long, contain letters of mixed case and non-letter characters, and cannot be found in whole or in part, in normal or reverse order, in any dictionary of words or names in any language. The account holder is responsible for changing his or her password(s) regularly.

5.03.2 FINI staff may monitor the security of account holder's password(s) at any time. An account with an insecure password may be directed to change the password to one which complies with the above rules. Account holders who repeatedly choose insecure passwords may be assigned a password by FINI; continued failure to maintain password security may be grounds for account termination.

5.04 System Security

5.04.1 The account holder is prohibited from utilizing FINI services to compromise the security or tamper with system resources or accounts on computers at FINI or any other site. Use or distribution of tools designed for compromising security is prohibited. Examples of these tools include but are not limited to password guessing programs, cracking tools or network probing tools.

5.04.2 FINI reserves the right to release the usernames of account holders involved in violations of system security to system administrators at other sites, in order to assist them in resolving security incidents. FINI will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.

5.05 System Resources

5.05.1 FINI will allocate system resources to provide all account holders with the best service possible. As a part of resource allocation, FINI may limit, restrict or prioritize access to system resources, including CPU time, memory, disk space, session length, and number of sessions.

Additionally, FINI may institute services and fees for account holders who are interested in accessing system resources above and beyond acceptable usage.

5.05.2 System abuse is defined as any use FINI resources which disrupts the normal use of the system or Internet services for others. Examples of system abuse include, but are not limited to, attempting to disrupt the sessions of other Internet users, consuming excessive amounts of CPU time, memory or disk space, or otherwise affecting the performance of FINI servers.

5.06 Web Page Publishing Guidelines

5.06.1 The account holder is solely responsible for the content of Web pages owned by the account.

5.06.2 FINI will investigate complaints regarding inappropriate material on Web pages hosted on FINI servers and may, in its sole discretion, require that the material be removed or take action as outlined in 5.01.1 above. Criteria for determining whether a page is appropriate include, but are not limited to, the system resources consumed by the page and applicable laws.

5.06.3 Your account may be subject to additional fees depending on the total web transfers or "hits" to your account. The exact details of this rule depend on the type of account and are set forth in the account service features list located on the FINI web site at http://www.fini.net

5.07 Email Use

5.07.1 FINI will investigate complaints regarding email and may, in its sole discretion, take action based on the rules below. If an email message is found to violate one of the policies below, or to contain unlawful material, as described in 5.02.2 and 5.02.3 above, FINI may take action as outlined in 5.01.1 above.

5.07.2 FINI account holders may not send email to any user who does not wish to receive it. FINI recognizes that email is an informal medium; however, account holders must refrain from sending further email to a user after receiving a request to stop.

5.07.3 Unsolicited advertising mailings, whether commercial or informational, are strictly prohibited. FINI account holders may send advertising material only to addresses which have specifically requested it. FINI will not forward mail of accounts terminated for bulk mailing or unsolicited advertising. More information can be found at http://spam.abuse.net, but while that site provides good information it should not be construed as necessarily the policy of FINI.

5.07.4 FINI account holders may not send, propagate, or reply to mail bombs. Mail bombing is defined as either emailing copies of a single message to many users, or sending large or multiple files or messages to a single user with malicious intent.

5.07.5 FINI account holders may not alter the headers of email messages to conceal their email address or to prevent others from responding to messages. Altering email headers may result in criminal prosecution as well as account termination.

5.07.6 Violations of the FINI policies outlined in this document can sometimes result in massive numbers of email responses. If a FINI account holder receives so much email that FINI resources are affected, FINI staff may shut down the account holder's mailbox. Any email sent after the mailbox is shut down will be lost and FINI will not be responsible for recovering it.

5.08 FTP Use

5.08.1 There is currently no limit per day for account FTP uploads to servers. FTP downloads are included in the bandwidth and hit counts for the account holder's web site.

6.00 Miscellaneous

6.01 This agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, excluding its conflict of laws principles, and the parties' consent to exclusive prosecution as well as account termination.

5.07.6 Violations of the FINI policies outlined in this document can sometimes result in massive numbers of email responses. If a FINI account holder receives so much email that FINI resources are affected, FINI staff may shut down the account holder's mailbox. Any email sent after the mailbox is shut down will be lost and FINI will not be responsible for recovering it.

5.08 FTP Use

5.08.1 There is currently no limit per day for account FTP uploads to servers. FTP downloads are included in the bandwidth and hit counts for the account holder's web site.

6.00 Miscellaneous

6.01 This agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, excluding its conflict of laws principles, and the parties' consent to exclusive personal jurisdiction of and venue in court of competent jurisdiction located in Williamsburg, Virginia.

6.02 Section 4 and your obligation to pay amounts due under this Agreement will survive termination of this Agreement.

6.03 If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to effect the original intentions of the parties, and the remainder of this Agreement shall remain in full force and effect.

6.04 Regular business days are Monday through Friday excluding holidays. Holidays as defined by FINI are New Year's Day, Independence Day, Labor Day, Memorial Day, Thanksgiving and the day after Thanksgiving, Christmas Eve, Christmas, and New Year's Eve.

6.05 Ownership of Work Product. All original works of authorship, fixed in any tangible medium of expression, including any computer accessible medium, heretofore or hereafter created by FINI for Customer shall remain the property of FINI and may not be shared with any external party by Customer except upon such terms as may be agreed upon between the parties in writing.

6.06 Assignment Rights. This Agreement shall not be assigned or transferred by Customer to another party without the written consent of FINI, which shall not be withheld unreasonably; however, FINI may assign this Agreement to an affiliate.

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