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TERMS OF SERVICE (TOS)
Updated
This Kireno.com Terms of Service
(this "Agreement") and the Kireno.com Acceptable Use Policy ("AUP")
govern your purchase and use of all Kireno.com services
(collectively, the "Services"), as described in the Order Form(s)
submitted by you and accepted by Kireno.com (�Service Order�).
Acceptance of any terms or conditions different from those contained
herein by Kireno.com will not be deemed by provision of service, but
only by electronic or written signature of an officer of Kireno.com.
You must register and accept the terms of this Agreement and the AUP
in order to use the Services. BY CLICKING ON THE "I ACCEPT"
BUTTON BELOW, AND/OR REGISTERING FOR AND USING THE SERVICES, YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE AUP, AND AGREE
TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS
ALL POLICIES AND GUIDELINES OF THE AUP, WHICH ARE INCORPORATED
HEREIN BY REFERENCE. Kireno.com may modify any of the terms
and conditions contained in this Agreement and the AUP, at any time,
in its sole discretion. Any modifications are effective upon posting
of the revisions on the Kireno.com web site (the "Site"). Your
continued use of the Services following Kireno.com posting of any
modifications constitutes your acceptance of the modifications. If
you do not agree to the terms of any modification, do not continue
to use the services and immediately notify Kireno.com of your
termination of this Agreement in the manner described in the section
below.
Kireno.com agrees to furnish services to the Subscriber, subject to
the following TOS (Terms of Service).
The Use of Kireno.com service constitutes acceptance and agreement
to Kireno.com AUP as well as Kireno.com TOS (Terms of Service).
Term and Payment for Services
Term: This Agreement will be for an initial �Term�of 1
month from the date the Services are first provided by Kireno.com.
This Agreement will be automatically renewed (the "Renewal Term") at
the end of the Initial Term or any Renewal Term for a period of
thirty (30) days unless you provide Kireno.com with written notice
of termination at least seven days (7) before the
end of the Initial Term or Renewal Term (also referred to
interchangeably and collectively as �Term�), whichever is then
applicable. To provide your notice of termination, you must submit a
ticket to the Billing department via
http://Kireno.com/support.html and fill out the corresponding
cancellation form to initiate the cancellation of your service.
Pricing and duration of Terms may be modified only if in writing
(such as a Service Order) signed by Kireno.com.
Termination
This Agreement may be terminated: (i) by you or Kireno.com during
any Renewal Term, without cause, by giving the other party no less
than seven (7) days prior written notice, or
a greater number of days prior notice if specified in a Service
Order accepted by Kireno.com; (ii) by Kireno.com in the event of
nonpayment by you as provided in the section below or (iii) by
Kireno.com, at any time, without notice, if, in Kireno.com sole
judgment, you are in violation of any terms or conditions of the AUP.
If you terminate this Agreement, or if Kireno.com terminates this
Agreement for your breach, before the end of the Initial Term or the
Renewal Term, whichever is then applicable, you will be required to
pay immediately and without setoff or delay all charges, fees and
costs accrued before the termination date, all monthly recurring
fees for each month remaining in the Term and any other amounts
including, but not limited to, bandwidth overage charges that you
owe to Kireno.com under this Agreement.
Charges
You will immediately pay, upon receiving an electronic
invoice from Kireno.com, all charges for your use of the Services at
the then current Kireno.com prices for that category of service or
any special offer applicable to your account as determined by
Kireno.com. You are responsible for paying all federal, state, and
local sales, use, value added, excise duty and any other taxes
assessed with respect to the Services, other than taxes based on
Kireno.com net income. If you are a resident of Arizona, your purchase
of dedicated hosting services is subject to the Arizona sales tax rate
of 8.1%. All setup fees are subject to an 8.1% tax. If you default
on any of your obligations under this Agreement and Kireno.com must
engage a collections effort to collect past due sums associated with
your use of Services, you are responsible for all costs of
collection of all amounts owed under this Agreement, including
reasonable attorney�s fees of Kireno.com.
Your server comes with a set bandwidth allotment, which is detailed
in your service order. This
represents the amount of bandwidth that you are allowed to use for
each calendar month. If you exceed this allotment for any reason in
any calendar month, even if you have cancelled service with Kireno.com during the month, you will be charged overage bandwidth
at a rate of $1.00 per gigabyte. Bandwidth billing is done in
arrears, and you will receive your bill for overage bandwidth during
the first week of the following month that the overage occurred.
It is your responsibility to monitor your bandwidth usage and to pay
for all overages. If you are a reseller, it is your responsibility
to monitor the bandwidth usage of your client(s) as you are solely
responsible for any and all overages incurred by them.
Payment and Fees
You will pay all charges for the first month of service in
advance on the first day of the Initial Term. You will pay all
subsequent charges for Services in their entirety in advance on the
anniversary day of each successive month. You must pay for the
Services by credit card. You authorize Kireno.com to
charge your credit or debit card to pay for any charges that may
apply to your account. You have a specific obligation to immediately
notify Kireno.com of any changes to your card account (including
applicable account number or cancellation or expiration of the
account, your billing address, or any information that may prohibit
Kireno.com from properly charging your account). Failure to
immediately and fully pay your fees for Services and applicable
taxes when invoiced by Kireno.com shall be a material breach of this
Agreement, justifying Kireno.com to suspend its performance and
terminate this Agreement. If Kireno.com terminates this Agreement
for your material breach, you will be required to pay immediately
all fees and costs accrued before the termination date, all monthly
recurring fees for each month remaining in the term and any other
amounts you owe to Kireno.com under this Agreement including, but
not limited to, bandwidth overage charges. You are responsible for
any costs that Kireno.com incurs in enforcing collection, including
reasonable attorneys' fees, court costs and collection agency fees.
Service will be
immediately interrupted on any account that is unpaid. Service
interrupted for non-payment is subject to a $25 suspension charge.
Accounts not paid by the due date are subject to a $5 late fee that
accrues daily until paid in full. Accounts that are not collectable
by Kireno.com may be turned over to an outside collection agency for
collection. If your account is turned over for collection, you agree
to pay the company an additional �Collection� fee of not less than
$50 nor more than $150. If you desire to cancel the account, please
follow the correct procedure to do this at
http://Kireno.com/support.html
Refund and Disputes
Kireno.com requires a 7-day
cancellation notice; however, any services paid for beyond that are
subject to receiving a refund. Additionally, any special offers that
incorporated a money back gaurantee will be honored in accordance
with the service order. Refunds will not be distributed for one-time
purchases and/or service fees that Kireno.com cannot reasonably
resell. All overcharges or
billing disputes must be reported within 60 days of the time that
the dispute occurred.
Failure to Pay
The Company may temporarily deny
service or terminate this Agreement upon the failure of Subscriber
to pay charges when due. Such termination or denial will not, in any
way, relieve the Subscriber of responsibility for the payment of all
accrued charges, plus reasonable interest and all collection fees,
including legal expenses.
Use of Services
Services. The AUP is posted on the
site at (or such other location as Kireno.com may specify) and may
be updated from time to time. BY USING THE SERVICES, YOU AGREE TO BE
BOUND BY THE TERMS OF THE AUP AND ANY MODIFICATIONS TO THE TERMS.
Kireno.com MAY TERMINATE YOUR ACCOUNT WITHOUT NOTICE FOR ANY
VIOLATION OF THE AUP OR THIS AGREEMENT.
Security: You are solely responsible for any security breaches
affecting servers or accounts under your control. If your server is
responsible for or involved in an attack on or unauthorized access
into another server or system, Kireno.com will shut it down
immediately. You will pay any charges resulting from the cost to
correct security breaches affecting Kireno.com or any of its other
customers.
System and Network Security
Users are prohibited from violating
or attempting to violate the security of the Kireno.com proprietary
network. Violations of system or network security may result in
civil or criminal liability. Kireno.com will investigate occurrences
which may involve, and cooperate with law enforcement authorities in
prosecuting Users who are involved in such violations. These
violations include, without limitation:
- Accessing data not intended for
such user or logging into a server or account, which such user
is not authorized to access.
- Attempting to probe, scan or
test the vulnerability of a system or network or to breach
security or authentication measures without proper
authorization.
- Attempting to interfere with
service to any user, host or network, including without
limitation, via means of overloading, flooding, mail bombing or
crashing.
- Forging any TCP/IP packet header
or any part of the header information in any e-mail or newsgroup
posting.
- Taking any action in order to
obtain services which such user is not entitled.
Notification of Violations or
Infractions
Kireno.com is under no duty to look at each client�s or user�s
activities to determine if a violation of the AUP has occurred, nor
do we assume any responsibility through our AUP to monitor or police
Internet related activities.
Violations of the AUP will
result in the following:
A warning notification sent via email, Kireno.com trouble ticket
with 24 hours notice for resolution:
24 hours is the standard notification; situations involving law
enforcement, phishing scams, fraud, password harvesting, network
interference, Denial or Disruption of service, IRC related misuse,
or other malicious activity can reduce the notification time frame.
- First Violation: Any
user, which Kireno.com determines to have violated any element
of our AUP (Acceptable use Policy), shall receive an e-mail,
warning them of the violation. The service may be subject at
Kireno.com discretion to a temporary suspension pending a
client�s agreement in writing to refrain from any further
violations.
- Second Violation: Any
client that Kireno.com determines to have committed a second
violation of nay element or portion of the AUP shall be subject
to immediate suspension or termination of service without
further notice.
- We reserve the right to drop the
section of IP space involved in any SPAM or Denial-of-Service
(Dos) complaints if it is clear that the offending activity is
causing great harm to parties on the Internet. In particular, if
open relays are on your network or a customer�s network, or if
denial-of-service attacks are originating from your network. In
certain rare cases, we may have to take this action prior to
attempting to contact you.
Disclosure to Law Enforcement
The AUP specifically prohibits the use of our service for illegal
activities. Therefore, Subscriber agrees that the Company may
disclose any and all Subscriber information, including assigned IP
addresses, account history, account use, etc. to any law enforcement
agency who makes a written request without further consent or
notification to the Subscriber. In addition Kireno.com shall have
the right to terminate all service set forth in this Agreement if
requested to do so as a result of any action of any law enforcement
or government agency.
Support Services and
Boundaries
Unless a separate service contract is purchased, we limit our technical support to our area of expertise. The
following are our guidelines when providing support:
- Kireno.com provides support
related to your server. Kireno.com does not provide support for
application specific issues, such as any programming, HTML,
third party applications or any other such issue.
- Kireno.com does not provide
technical support for YOUR clients.
We encourage you to check our
knowledge base and FAQs at
http://Kireno.com/support.
Reseller Policy
Resellers are completely and entirely responsible for the conduct of
their customers and by agreeing with this AUP, Resellers agree that
their customers will adhere to the AUP. Resellers have an obligation
under this Agreement to make their current and prospective customers
aware of the AUP and the consequences of violation of same.
Intellectual Property Rights
Your Warranties and Representations to Kireno.com: You
warrant, represent, and covenant to Kireno.com that: (a) you are at
least 18 years of age if an individual; (b) you possess the legal
right and ability to enter into this Agreement; (c) you will use the
Services only for lawful purposes and in accordance with this
Agreement and all applicable policies and guidelines, including the
AUP; and (d) your content does not and will not infringe or violate
any right of any third party (including any intellectual property
rights) or violate any applicable law, regulation or ordinance.
Intellectual Property Policy
Kireno.com respects the intellectual property rights of others and
expects its users to do the same. Kireno.comnology reserves the
right, at its discretion, to delete material that infringes the
copyrights, trademarks, or other intellectual property rights of
others. Kireno.comnology also reserves the right to disable and/or
terminate the accounts of users who infringe the copyrights,
trademarks or other intellectual property rights of others. If you
believe that your work has been copied in a way that constitutes
copyright infringement, please provide Kireno.com with the following
information:
1. A description of the copyrighted work property that you claim has
been infringed;
2. A description of the material that you claim infringes your
copyright, and information sufficient to allow us to locate the
material;
3. Your address, telephone number, and e-mail address;
4. A statement by you that you have a good faith belief that the
disputed use is not authorized by the copyright or intellectual
property owner, its agent, or the law;
5. A statement by you, made under penalty of perjury, that the
information provided is accurate and that you are the copyright
owner or authorized to act on the copyright owner's behalf;
6. An electronic or physical signature of a person authorized to act
on behalf of the owner of the copyright.
IP Addresses
Kireno.com will maintain and control ownership of all Internet
Protocol ("IP") numbers and addresses that Kireno.com may assign to
you. Kireno.com may, in its sole discretion, change or remove any
and all IP numbers and addresses at any time.
Third Party Products
Kireno.com may provide you with access to other third party
software and/or services ("Third Party Products") through reseller
relationships that Kireno.com has established with certain
commercial vendors, including without limitation, Microsoft
Corporation ("Third Party Vendors"). Unless otherwise notified,
Customer understands that product support for Third Party Products
is provided by Kireno.com and not by the Third Party Vendor. Neither
Kireno.com nor any Third Party Vendor makes any representations or
warranties, expressed or implied, regarding any Third Party
Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF
THIRD PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY
PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY
OF ANY KIND FROM Kireno.com OR ANY THIRD PARTY VENDOR, INCLUDING
WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS
OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR
NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, NEITHER Kireno.com NOR ANY THIRD PARTY
VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT,
INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE
ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY
LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD
PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD
PARTY VENDORS AND Kireno.com WITH RESPECT TO ANY IMPROPER USE OF
SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH
THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.
You shall not (i) remove, modify or
obscure any copyright, trademark or other proprietary rights notices
that appear on any Third Party Product or that appear during use of
any Third Party Product; or (ii) reverse engineer, decompile, or
disassemble any Third Party Product, except and only to the extent
that such activity is expressly permitted by applicable law
notwithstanding this limitation.
Enforcement Actions
Kireno.com reserves the right to suspend or terminate the Service
immediately or take any other corrective action it deems appropriate
in its sole discretion if, in the sole judgment of Kireno.com, your
server is the source or target of any violation of the AUP or for
any other reason which Kireno.com reasonably chooses. If
inappropriate activity is detected, all of your accounts in question
will be deactivated until a thorough investigation is completed.
Prior notification to you of disconnection is not assured. In some
cases, law enforcement will be contacted regarding the activity.
These rights of action, however, do not obligate Kireno.com to
monitor or exert editorial control over the information made
available for distribution via the Services. If Kireno.com takes
corrective action because of a possible violation, Kireno.com will
not refund you any fees that you paid in advance of the corrective
action.
Disclosure Rights
The AUP specifically prohibits the use of our service for illegal
activities. Therefore, you agree that Kireno.com may disclose any
and all of your information including assigned IP numbers, account
history, account use, etc. to any law enforcement agent who makes a
written request without further consent or notification to you. In
addition, Kireno.com shall have the right to terminate all service
set forth in this Agreement.
Disclaimed Warranties
Kireno.com exercises no control over, and accepts no responsibility
for, the content of the information passing through Kireno.com host
computers, network hubs and points of presence, or the Internet. USE
OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS
AT YOUR OWN RISK. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE
PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF
PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR
COMMUNICATION SYSTEMS. Kireno.com DOES NOT MAKE AND DISCLAIMS, AND
YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES,
ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE
OF PERFORMANCE OR USAGE IN TRADE. Kireno.com DOES NOT WARRANT THAT
THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY
SECURE.
Limitation and
Exclusion of Liability
Limitations
IN NO EVENT WILL Kireno.com OR ITS
SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR
ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE
AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT,
FRAUDULENT MEANS OR DEVICES. NEITHER Kireno.com NOR ITS SUPPLIERS
WILL HAVE LIABILITY WITH RESPECT TO Kireno.com' OBLIGATIONS UNDER
THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF Kireno.com HAS BEEN ADVISED
OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF Kireno.com AND
ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS
LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO Kireno.com UNDER THIS
AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE
ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF
ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND
OTHER TORTS. THE FEES FOR THE SERVICES SET BY Kireno.com UNDER THIS
AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS
ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE Kireno.com AND ITS
SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN
EXCESS OF THE LIMITATION STATED IN THIS SECTION.
Interruption of Service
Kireno.com and its suppliers are not liable for any temporary delay,
outages or interruptions of the Services. Further, Kireno.com is not
liable for any delay or failure to perform its obligations under
this Agreement, where the delay or failure results from any �act of
God� or other cause beyond its reasonable control (including any
mechanical, electronic, communications or third-party supplier
failure).
Indemnification
In agreeing to the Kireno.com AUP and this Agreement, you
agree to indemnify, defend and hold harmless Kireno.com, its
employees, officers, directors, partners, representatives and
affiliates, for any violation by you or your customers of the AUP or
this Agreement that results either in (a) any cost, expense, damage
or loss to Kireno.com, or (b) the bringing of any claim against
Kireno.com by any third-party, and all costs, expenses, damages, and
losses associated therewith. For example, if Kireno.com is sued
because of your or your customer's activity related to the Services,
you will pay any damages awarded against Kireno.com, its employees,
directors, partners, representatives and affiliates, in addition to
all costs and attorney's fees.
MISCELLANEOUS PROVISIONS
Kireno.com and you agree that, except as otherwise
expressly provided in this Agreement, the Order Form(s) or the terms
and conditions of use of any third party software products, there
shall be no third party beneficiaries to this Agreement, including
but not limited to the insurance providers for either party or your
customers. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (EXCEPT
THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY
EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE
UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.
EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS
AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN TEXAS, AND EACH
PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES
ALL OBJECTIONS THERETO. In the event any provision of this Agreement
is held by a tribunal of competent jurisdiction to be contrary to
the law, the remaining provisions of this Agreement will remain in
full force and effect. The waiver of any breach or default of this
Agreement will not constitute a waiver of any subsequent breach or
default, and will not act to amend or negate the rights of the
waiving party. You may not sell, assign or transfer its rights or
delegate its duties under this Agreement either in whole or in part
without the prior written consent of Kireno.com, and any attempted
assignment or delegation without such consent will be void.
Kireno.com may assign this Agreement in whole or part. Kireno.com
also may delegate the performance of certain Services to third
parties. All notices, demands, requests or other communications
required or permitted under this Agreement shall be deemed given
when delivered personally, sent by facsimile upon confirmation, sent
and received by return receipt email, or upon receipt of delivery of
overnight mail. You and Kireno.com are independent contractors and
this Agreement will not establish any relationship of partnership,
joint venture, employment, franchise or agency between you and
Kireno.com. This Agreement, including all documents incorporated
herein by reference, constitutes the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces any and all prior or
contemporaneous discussions, negotiations, understandings and
agreements, written and oral, regarding such subject matter.
Survival
All provisions of this Agreement relating to your warranties,
intellectual property rights, limitation and exclusion of liability,
your indemnification obligations and payment obligations will
survive the termination or expiration of the Agreement.
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