Xynext - Hosting - Terms and Conditions

Terms and Conditions

Last Update 01/01/99

XyNexT provider of ("The Service") is an on-line listing of personal and business World Wide Web pages. XyNexT maintains The Service as a service to the Internet community. The use of The Service is subject to the following terms and conditions.

XyNexT may modify this agreement on an as needed basis by placing an update of this posting, and your continued use of The Service following each updated posting shall be deemed to be your acceptance of any such modification. Furthermore, it is your responsibility to check the "Terms and Conditions" page of The Service regularly to determine whether this agreement has been modified. You are likewise required to keep abreast of updates to the information published on The Service's FAQ and Accepted Uses and Content Policy. If you do not agree with the Terms and Conditions of The Service or any modifications to this Agreement, You must immediately stop using The Service.

The entire content of The Service is Copyrighted, and all rights are reserved. You may save to disk or print out individual or small selections of information contained within The Service for your own use, provided that you do not collect multiple small selections for the purpose of replicating all or substantial portions of The Service. You to limited numbers of persons may display The Service provided that you do not charge for such a presentation.

Subscriber licensing agreement

By using the internet access or web hosting offered by XYNEXT, you are consenting to be bound by this agreement. If you do not agree to all the terms of this agreement, do not use the internet access offered by XYNEXT.

Grant. XYNEXT ("XYNEXT") hereby grants you a non-exclusive, non-transferable, limited license to access the Internet through XYNEXT's network:

Title. Title, ownership rights, and intellectual property rights in and to the Software and Documentation shall remain with XYNEXT and/or its suppliers. The Software is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content accessed through the Software or through XYNEXT's Internet Services is the property of the applicable content owner and may be protected by applicable copyright or other law. This License gives you no rights to such content.

You retain any rights you may have to data posted by you to the Internet.

No assignment. The benefits or rights conferred by this agreement are non-transferable and non-assignable. The connectivity provided is expressly limited to you. Resale or use of this connection by other person or persons is prohibited.

Billing for all accounts. XYNEXT will accept credit card, check, and cash payments for services. Accounts are billed in advance at the beginning of each accounts physical month. Credit cards will be charged on or around the 1st day of each accounts renewal for any accounts that are to be paid by credit card. You will be notified on or around the 5 day after the billing if your credit card was declined for any reason. XYNEXT will send a friendly reminder via email to all customers who have a balance due after 5 days. Payments are due on the date of renewal. All accounts with a balance after 15 days will be charged a $10 late fee and suspended. Accounts will be reactivated when payment is made in full. Any accounts with a 45-day balance will be closed and sent to collections.

You agree to pay XYNEXT all charges relating to use of your account(s) according to rates and prices published online at the time of use. You are responsible for charges from the application date until the account is closed and XYNEXT may apply the amount due to your credit card at any time. You are solely responsible for informing XYNEXT of all new customer contact and billing information including new expiration dates on your listed credit card, no remaining credit on the credit account, new credit card numbers, address and phone number changes. XYNEXT will however send an email reminder to you if your credit card expires in an ensuing month. You are solely responsible for notifying XYNEXT if you would like to cancel your account. Charges will continue to accrue until notice is given. You are responsible for payment through the end of the cancellation month. XYNEXT will charge an additional fee per invoice if you request invoices by U.S. mail.

CHARGES. Charges for XYNEXT's Internet Services shall be as stated in the Internet Service Application, or as otherwise agreed in writing by the parties, and shall be payable by you commencing no later than one business day after receipt of application by XYNEXT.

All pre-paid plans are non-refundable. All pre-paid price plans are treated as debit accounts; you are set up with a credit for indicated number of months. The fee paid assumes that you do not use hours beyond those supplied by your price plan and do not incur any additional service charges to your account. If you do incur any charges, this amount will be applied to your balance. When your balance reaches $0.00, the package is terminated, regardless of the length of time to reach that balance. All listed charges are exclusive of sales, use and other taxes, which are your responsibility.

Additional charges. XYNEXT will charge $25 for all returned checks. A service charge of $10.00 will be assessed on late payments. You are liable for any and all attorney fees, court costs, and collection agency fees or commissions if XYNEXT has to resort to these methods in order to collect debts owed to XYNEXT. You agree to pay XYNEXT its reasonable expenses, including attorney fees, incurred in enforcing its rights under this Agreement.

You are responsible for changing your dialer to one of our local access numbers when you are in our local access area. Extra email address accounts are for email use only. They may not be used to access the Internet. You agree to pay a fine of $500 for flagrant disregard of allowable use policies including sending unsolicited commercial email, Spam, or via discussion groups whose charter does not explicitly allow advertisements. It is at XYNEXT's sole discretion what constitutes such flagrant disregard of allowable use. Residential customers will receive an invoice via email monthly. If a residential customer wishes to be invoiced via U.S. postal service, XYNEXT will charge $5 per month for this service. Any changes in accounts may be subject to a change fee.

Related charges. You are responsible for any local or long distance phone charges accrued in connecting to XYNEXT. You are responsible for equipment, including computer hardware and software, used in connecting to XYNEXT.

Limited warranty. XYNEXT warrants that for a period of ninety (90) days from the date of acquisition, any provided Software, if operated as directed, will substantially achieve the functionality described in the Documentation. XYNEXT does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure and hereby disclaims any and all liability on account thereof. In addition, the security mechanism implemented by the Software has inherent limitations, and you must determine that the Software sufficiently meets your requirements. XYNEXT also warrants that the media containing the Software, if provided by XYNEXT, is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquired the Software. XYNEXT's sole liability for any breach of this warranty shall be, in XYNEXT's sole discretion: (i) to replace your defective media; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation. Repaired, corrected, or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software, or if longer, for thirty (30) days after the date (a) of shipment to you of the repaired or replaced Software, or (b) XYNEXT advised you how to operate the Software so as to achieve the functionality described in the Documentation. Only if you inform XYNEXT of your problem with the Software during the applicable warranty period and provide evidence of the date you acquired the Software will XYNEXT be obligated to honor this warranty. XYNEXT will use reasonable commercial efforts to repair, replace, advise or refund pursuant to the foregoing warranty within 30 days of being so notified.

This is a limited warranty and it is the only warranty or condition made by XYNEXT. XYNEXT makes no other express warranty or condition and there is no warranty or condition of non-infringement of third parties' rights. The duration of implied warranties or conditions, including without limitation, warranties or conditions of merchantability and of fitness for a particular purpose, is limited to the above warranty period; some states do not allow limitations on how long an implied warranty lasts, so limitations may not apply to you. No dealer, agent, or employee of XYNEXT is authorized to make any modifications, extensions, or additions to this warranty. No warranty is made by or on behalf of any supplier of XYNEXT. If you make any modifications to the Software during the warranty period; if the media is subjected to accident, abuse or improper use; or if you violate the terms of this Agreement, then this warranty shall be immediately terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Documentation.

This warranty gives you specific legal rights, and you may have other legalrights which vary from state to state or by jurisdiction.

Limitation of liability. XYNEXT exercises no control whatsoever over the content of the information accessed through XYNEXT's Internet Services. XYNEXT's Internet Services are provided on an "as-is, as-available" basis, without warranty of any kind, expressed or implied, including, but not limited to, the warranties of performance, merchantability and fitness for a particular purpose. XYNEXT and/or contributors shall have no liability whatsoever to you for any claim(s) relating in any way to (i) your inability or failure to perform research or related work or to work properly or completely, or (ii) any lost profits or consequential, exemplary, incidental, indirect or special damages relating in whole or in part to your rights hereunder or use of, or inability to use, XYNEXT's Internet Services. XYNEXT will not be responsible for any damage suffered by you, including, but not limited to, loss of data resulting from delays, non-deliveries, mis-deliveries, service interruptions, lack of domain registration, lack of domain management, failure to perform caused by its own negligence or your errors or omissions. Use of any information obtained via XYNEXT's Internet Services is at your sole risk. XYNEXT specifically disclaims any responsibility for the accuracy or quality of information obtained through XYNEXT's Internet Services.

Under no circumstances and under no legal theory, tort, contract, or otherwise, shall XYNEXT or its suppliers or resellers be liable to you or any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work- stoppage, computer failure or malfunction, or any and all other commercial damages or losses, or for any damages in excess of XYNEXT's list price for a license to the Software and Documentation, even if XYNEXT shall have been informed of the possibility of such damages, or for any claim by any other party. This limitation of liability shall not apply to liability for death or personal injury to the extent applicable law prohibits such limitation. Furthermore, some states do not allow the exclusion or limitation of incidental or consequential damages, so this limitation and exclusion may not apply to you.

Allowable use. XYNEXT's Internet Services may only be used for lawful purposes. Transmission of any material in violation of any federal or state statute or regulation is prohibited. This includes, but is not limited to, copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret. The posting of copyrighted software without proper authorization (commonly referred to as Warez) and/or the posting of software access codes (commonly referred to as Cracks) will be cause for account cancellation with forfeiture of prepaid fees. You agree to indemnify and hold harmless XYNEXT from any claims resulting from your use of XYNEXT service.

All Unix shell accounts provided by XYNEXT may only be used interactively while dialed in. They may not be used to run processes unattended or while not dialed in including, but not limited to, any IRC bot, cron job, or screen.

Commercial advertising is an accepted and welcome use of the Internet. However, there are appropriate and inappropriate places for Internet advertising. Unsolicited commercial advertisements are not allowed in email, and will result in account suspension or cancellation and fines as stated in Additional Charges.

Commercial advertisements are unwelcome in most Usenet discussion groups and on most email mailing lists. Inappropriate posting may result in account suspension or cancellation. See the newsgroup or mailing list's charter for whether advertising is allowed or not. "Spamming," or sending a message to many different off-topic newsgroups, is particularly unacceptable and will be treated as such. Sending a message, especially an advertisement, to more than five or six recipients, is by itself spamming unless the individuals have specifically requested to be added to a mailing list on that topic. Email is a person-to-person medium, not a broadcast medium.

You agree to abide by XYNEXT's policies concerning use of XYNEXT's Internet Services. Unsolicited advertisements via email, or via discussion groups whose charter does not explicitly allow advertisements, is specifically not an allowable use. XYNEXT reserves the right to suspend access to service for your account(s) upon an indication of disallowed use or credit problems including delinquent payments or rejection of credit card charges. Residential and Business dialup accounts are for individual use only. Simultaneous logins on one account are not allowed. Any account with simultaneous logins may be suspended and subject to a suspension fee as outlined in this Agreement. If an account is suspended twice, it will be closed permanently.

Unlimited access. Unlimited dial-up accounts have no hourly charges when the account holder is wholly and exclusively engaged in personal, interactive Internet access. Personal, interactive use is approximated by XYNEXT at 320 hours per month. Accounts may not be used for automated, unsupervised use of the Internet or simultaneous connections by multiple people. Accounts may not be kept connected with a keep-alive of any sort, such as setting an email program to check mail periodically unattended. XYNEXT may disconnect dial-up connections after extended periods of inactivity or unauthorized use.

Responsibility for account use. You are responsible for all use of your account(s) and confidentiality of password(s). XYNEXT will suspend or change access upon notification that your password has been stolen, lost or otherwise possibly compromised. XYNEXT is not responsible for your personal files residing online on XYNEXT-owned and controlled computers. You shall be responsible for independent backup of your data stored online. You shall be responsible for all access to and use of XYNEXT's Internet Services by your personnel or by means of your equipment, whether or not you have knowledge of or authorize such access or use.

If subscriber is less than 18 years of age, the application must be signed and these terms agreed to by a parent or legal guardian, who is responsible for all charges related to the use of subscriber's account(s).

Unauthorized use of account. XYNEXT will strongly react to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include "social engineering" (tricking other people into releasing their passwords), password cracking, security hole scanning, denial-of-service attacks (ping-flooding, sending packets with an illegal packet size, UDP flooding, half-open TCP connection flooding, etc.) and the like.

Harassment or abusive use of email and other Internet services is a rare but serious misuse of Internet resources. XYNEXT will handle incidents of harassment on a case-by-case basis, consulting with all parties involved. Any unauthorized use of accounts or computers by a XYNEXT customer, whether or not the attacked account or computer belongs to XYNEXT, will result in action against the attacker. Possible actions include warnings, account suspension or cancellation, and legal action, according to the seriousness of the attack.

Limitations on resource usage. XYNEXT reserves the right to impose limits on the total amount of disk space and other resources available for your use on XYNEXT-operated computers. Dial-up account users are subject to a limit of 5MB of disk space for all their disk usage, including incoming mail files and personal Web pages. XYNEXT reserves the right to remove files that exceed this limit. XYNEXT reserves the right to delete without notice personal files that have not been accessed for more than one month.

Email privacy. Electronic mail passes through multiple mail servers on the Internet as it passes from source to destination. One can never be guaranteed privacy from every possible mail server; therefore, someone seeking total privacy should use some encryption scheme to render their messages unreadable by eavesdroppers. With regards to XYNEXT's mail servers, XYNEXT places a high value on privacy, and will only examine users' mail when absolutely required, for example when troubleshooting email delivery problems or being presented with a search warrant for the information.

Illegal material. XYNEXT bears certain legal liabilities for the use of its computer network and equipment. As such XYNEXT must require that its customers do not use XYNEXT's network for illegal purposes. When presented with a search warrant, XYNEXT is obligated to release any information named therein, and will cooperate with the authorities in any criminal investigation of inappropriate Internet usage.

However, XYNEXT recognizes that the legal status of the Internet has not yet been resolved satisfactorily, either through legislation or court precedent. Therefore XYNEXT must make certain decisions regarding the illegality of various specific actions. Among the actions XYNEXT considers illegal and therefore not allowed on its network are: unauthorized distribution of copyrighted material; exploitation of minors; and unauthorized use of computer resources. XYNEXT believes that the First Amendment rights of free speech, freedom of the press, and freedom of association apply to the Internet to the same degree as they do to print media, and that any attempt to infringe upon those rights is void of legitimacy.

WEB SERVICE. XYNEXT includes Web service with residential service and hosts commercial web pages for a fee. In all cases, the Web pages reside on XYNEXT's computer equipment, giving XYNEXT some ethical responsibility for the content of such pages. XYNEXT will handle potentially inappropriate Web pages on a case-by-case basis. Examples of inappropriate information include downloadable virus code and obscenity.

Personal Web space may not be used for purposes that can be deemed as an attempt to sell a product or service. XYNEXT separately offers commercial Web hosting.

Domain name service is an additional service if that is desired. You are responsible to domain name registration authorities for any fees they may charge.

XYNEXT grants you a non-exclusive, nontransferable, limited license to store documents on a XYNEXT Internet World Wide Web server, and to use the server at burst bandwidth speeds up to XYNEXT's full capacity. Sustained average bandwidth usage, as measured by XYNEXT, over the course of any seven (7) days shall not exceed 64 kilobits per second (kbps). XYNEXT shall notify you if this limit is exceeded, after which you have two (2) weeks to lower the bandwidth usage or incur an additional charge of $100 per month per 64Kbps of sustained average bandwidth usage.

The term "Bandwidth" is defined as: The total additive amount of data downloaded from sites on XyNexT's servers that comprise a single billing group. For billing purposes, this is generally considered to be monthly.

The term "Unlimited Bandwidth" implies that the data transfer is not charged on a metered basis so long as it remains within reasonable expectations. XyNexT considers 10 Gigabytes a reasonable expectation for its servers. Accounts whose total Bandwidth is in excess of this expectation will be addressed on an individual basis. (see (Abuse of Unlimited Traffic")

Abuse of Unlimited Traffic:

XyNexT's customers are privileged to be offered unlimited traffic for their web sites. The intention of XyNexT is to provide a large space to serve web documents, not an offsite storage area for electronic files. All (90%) of your web pages (html) must be 'linked' with files (.GIF, .JPEG, etc.) stored on XyNexT's server. Web sites that are found to contain either/or no html documents, a large number of unlinked files are subject to warning, suspension or cancellation at the discretion of XyNexT management. Any customer who violates XyNexT's Policies in abusing site transfer will be notified and given 2 days to remedy the problem. If the problem is not resolved within the allotted 2 day period, the client will be billed for the overages.

To maintain the integrity of our service the following limitations apply:

Sites with Banners, graphics or cgi scripts running from their domain used on other domains. Sites with picture galleries (This is any site where 50% of the files transferred are graphics) Sites offering download files or archives. (This is any site where 50% or more of their monthly traffic is from file downloads)

Sites using more than 30% of system resources

For "Premier" and "Basic" accounts, traffic will go unmonitored until you reach 10gb per month. Thereafter, normal data transfer cost of $20.00/10GB/month will be billed to your account.

XyNexT will be the sole arbiter as to what constitutes a violation of this provision.

Term and termination. This Agreement shall become effective on the date the service application is entered into XYNEXT's system (no later than the end of one business day after receipt of application). XYNEXT, at its sole discretion, may terminate this Agreement immediately or suspend your access to the service upon any breach of this Agreement by you.

You are responsible for notifying XYNEXT of your wish to terminate your account, if so desired. Charges will continue to accrue until your notification to XYNEXT of account termination, or until your account is suspended due to late payment. After 60 days of nonpayment, XYNEXT will close your account; you will then be required to re-subscribe according to policies in effect at that time in order to continue service.

Licenses granted hereunder will terminate automatically if you fail to comply with the limitations described herein. On termination, you must destroy all copies of the Software and Documentation.

Export controls. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Yugoslavia, Iran, Syria or any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, if the licensed Software is identified as a not-for-export product (for example, on the box, media or on the installation process), then the following applies: except for export to Canada for use in Canada by Canadian citizens, the Software and any underlying technology may not be exported outside the United States or to any foreign entity or "foreign person" as defined by U.S. Government regulations, including without limitation, anyone who is not a citizen, national or lawful permanent resident of the United States. By downloading or using the Software, you are agreeing to the foregoing and you are warranting that you are not a "foreign person" or under the control of a foreign person.

Effect of agreement. This Agreement (which shall include the current and future Schedules hereto) represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. The acceptance of any purchase order placedby you is expressly made conditional on your assent to the terms set forth herein, and not those contained in your purchase order.

Modification of terms and charges. XYNEXT reserves the right to change rates or otherwise modify provisions of this Agreement by notifying you at least thirty (30) days before the effective date of the change, by written or online notice. Your use of XYNEXT's Internet Services after such notice shall constitute your acceptance of the modifications to this Agreement.

Force majeure. XYNEXT's performance hereunder is subject to interruption and delay due to causes beyond its reasonable control such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labor disputes, inability to obtain necessary supplies and the like.

Severability. 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 make it enforceable, and all other provisions are unaffected.

Notices. Except as otherwise provided herein, all notices hereunder shall be given in writing as follows:

XyNexT Internet Strategies
10224 136^th Ave NE
Kirkland, WA 98033

Governing law. This Agreement shall be governed by and construed under the laws of the state of Washington, except as governed by Federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly included.

WAIVER. Failure of any party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.

U.S. Government restricted rights. Use, duplication or disclosure of Software and Documentation by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or at 252.211-7015, and in similar clauses in the NASA FAR Supplement.