This Services Agreement (“Agreement”) between you and Flash Avenue. (“Flash Avenue”) sets forth the terms and conditions of your use of the services set forth herein (collectively, the “Services”). You acknowledge that you have read, understood, and agree to be bound by all terms and conditions of this Agreement, as well as any additional rules or policies that are or may be published by Flash Avenue from time to time.
This Agreement as well as any additional rules and policies, together with all modifications thereto, constitute the complete and exclusive agreement between you and Flash Avenue concerning your use of the Services, and supersede and govern all prior proposals, agreements, or other communications.
- Flash Avenue Promoter
- Flash Avenue
- Electronic Mail
- Changes to this Agreement or to Additional Rules or Policies
- Information and Its Use
- Ownership of Data
- Agents and Licenses
- System Performance Degradation
- Limitation of Liability
- Indemnification of Flash Avenue
- Representations and Warranties
- Suspension, Cancellation, Transfer or Modification
- Governing Law
.com, .net, and .org Domain Names
Although Flash Avenue may issue a temporary domain name for access to services it is your sole responsibility to register and maintain all .com, .net and .org domain names. These domain names will not become effective until submitted to the registry administrator for the .com, .net or .org gTLDs, as applicable, and the registry administrator puts into effect your service or renewal. Currently, the registry administrator for the .com, .net and .org TLDs is Network Solutions, Inc. or Register.com.
No Guarantee of Registration or Renewal
You acknowledge and agree that Flash Avenue may elect to accept or reject your application for service or renewal for any reason at its sole discretion. You also acknowledge and agree that Flash Avenue is not liable or responsible in any way for any errors, omissions or any other actions by any third parties arising out of or related to your application for services of, renewal of, or failure to provide services or renew a particular service. You additionally agree to indemnify, defend and hold harmless Flash Avenue and its directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, your application for renewal of, or failure to renew, a particular service.
User Name and Password
The first time you apply to use Flash Avenue’s services, you will be asked to select a User name and password. That User name and password are the means through which you access to certain of the Services. Please safeguard the User name and password you select from any unauthorized use. You acknowledge and agree that in no event will Flash Avenue be liable for the unauthorized use or misuse of your User name or password.
As consideration for Flash Avenue’s services, you agree to pay Flash Avenue the then-current fees set forth in the Flash Avenue price schedule for such services. All fees are non-refundable, in whole or in part, even if your services are suspended, cancelled or transferred prior to the end of your then current services term. Flash Avenue reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion.Your services application, renewal application, or transfer request will not be processed unless we receive actual payment of the service, renewal, or transfer fee, or reasonable assurance of payment of the service, renewal, or transfer fee from some other entity (such reasonable assurance as determined by Flash Avenue in its sole discretion).
In the event of a charge back by a credit card company (or similar action by another payment provider allowed by us) or other non-payment by you in connection with your payment of the service, renewal, or transfer fee, you acknowledge and agree that the services shall be transferred to Flash Avenue as the entity that has paid the services, renewal, or transfer fee for that service and that we reserve all rights regarding such services including, without limitation, the right to make the services available to other parties for purchase. We will reinstate any such service solely at our discretion, and subject to our receipt of the applicable service, renewal, or transfer fee and our then-current reinstatement fee, currently set at $200.
You will be notified at least ten (10) days prior to when a renewal fee is due. Should a renewal fee go unpaid within the time specified in a second notice or reminder regarding renewal, the service will be cancelled. Payment must be made by credit card or such other method as we may indicate in the service application or renewal form. We will renew the service for the term specified provided your credit card or other billing information is available and up to date, unless you instruct us otherwise within the time specified. If your billing information is not accurate and you wish to renew the service, we will contact you to update this information and charge you accordingly.
Flash Avenue Promoter forwards certain information submitted by you regarding certain Web sites to certain Internet search engine and directory sites.
By using Flash Avenue Promoter, you are agreeing to be bound by the rules and regulations set forth by the sites to which your submission(s) are forwarded from time to time for those respective sites only.
You acknowledge and agree that Flash Avenue cannot guarantee that your Flash Avenue Promoter submission will be listed in each of the search engine and directory sites to which that submission has been forwarded, as Flash Avenue is not affiliated with, nor does it control those sites. You further acknowledge and agree that Flash Avenue or search engine or directory sites may elect to accept or reject your submission(s) for any reason at their sole discretion, such rejection including, but not limited to, rejection due to a submission concerning a site which engages in or promotes illegal activity. You also acknowledge and agree that Flash Avenue is not liable or responsible in any way for any errors, omissions, delays, or any other actions by any search engine or directory site to which your submission is forwarded, including, but not limited to any errors arising out of or related to the forwarding of your submission, or the listing of or failure to list your submission. You additionally agree to indemnify, defend and hold harmless all applicable site administrators and their directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, your submission, or the listing or failure to list your submission.
As consideration for your use of the Flash Avenue Promoter service, you agree to pay Flash Avenue, prior to Flash Avenue’s forwarding of your submission(s) to any search engine or directory site, the then-current submission fees set forth in the Flash Avenue price schedule for the Flash Avenue service. All Flash Avenue Promoter fees are non-refundable, in whole or in part, even if your submissions are not accepted or are subsequently removed.
Your Flash Avenue Promoter submission will not be forwarded until we receive actual payment of the applicable fees, or reasonable assurance of payment of the fees from some other entity (such reasonable assurance as determined by Flash Avenue in its sole discretion).
Flash Avenue provides the ability to create and post Web sites (“User Web Sites”). You agree and acknowledge that Flash Avenue allows one Web site per domain name. You also agree and acknowledge that your use of the Flash Avenue service is entirely at your own risk, and that Flash Avenue makes no implied or express warranties about the reliability of the Flash Avenue service or Web sites created using the Flash Avenue service. You further agree and acknowledge that Flash Avenue is not responsible for any damage caused by loss of access to, or deletion or alteration of User Web Sites.
You agree and acknowledge that you are fully responsible for your actions and User Web Sites, including, but not limited to any opinions and views expressed in those Web sites. You further agree and acknowledge that Flash Avenue may remove or delete any User Web Sites or any portion thereof that Flash Avenue deems unacceptable for any reason, and may suspend or cancel without prior notice your access to and use of the Flash Avenue service for any violation of the terms and conditions in this Agreement, in Flash Avenue’ sole discretion, and without prior notice to you.
You agree to abide by all applicable local, state, national and international laws and regulations in connection with your use of the Flash Avenue service.
You agree that the following is a non-exclusive list of actions and User Web Sites that are not permitted:
- the uploading, posting or otherwise transmitting of any User Web Sites that are unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
- the impersonation any person or entity, including, but not limited to, a Flash Avenue official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- the forgery of any headers or other manipulation of identifiers in order to disguise the origin of any User Web Site transmitted through the Flash Avenue service or the development of restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page);
- the uploading, posting or other transmittal of any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- the uploading, posting or other transmittal any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- the uploading, posting or other transmittal of any unsolicited or unauthorized advertising, “junk mail,” “spam,” “chain letters,” or “pyramid schemes”;
- the uploading, posting or other transmittal of any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- intentionally or unintentionally violating any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
- “stalking” or otherwise harassing another;
- promoting or providing instructional information about illegal activities, promoting physical harm or injury against any group or individual, or promoting any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating “Crush” sites;
- exporting software or technical information in violation of U.S. export control laws;
- attempting to access the accounts of others, or attempting to penetrate security measures of Flash Avenue or other entities’ systems (“hacking”), whether or not the intrusion results in corruption or loss of data;
- sending of the same or substantially similar unsolicited electronic mail message, whether commercial or not, to a large number of recipients. This prohibition extends to the sending of unsolicited mass mailings from another service that in any way implicates the use of Flash Avenue’ service, Flash Avenue’s equipment or any Flash Avenue electronic mail address;
- installation of ‘auto-responders’, ‘cancel-bots’ or similar automated or manual routines that generate excessive amounts of net traffic, or disrupt net newsgroups or email use by others;
Flash Avenue electronic mail service provides you with the capability to send and receive electronic mail via the Internet.
Flash Avenue has set no fixed upper limit on the number of messages you may send or receive through its electronic mail service; however, the storage space associated with your electronic mail account is currently set at 5 megabytes. Notwithstanding the foregoing, Flash Avenue retains the right, at Flash Avenue’s sole discretion, to restrict the volume of messages transmitted or received by you in order to maintain the quality of our electronic mail services to other customers and to protect our computer systems. Flash Avenue will, in our sole discretion, determine whether or not your conduct is consistent with (i) this Agreement, (ii) any Flash Avenue operating rules or policies, or (iii) any rules or policies of Flash Avenue’s outsource contractor for email services, Critical Path, Inc. (“Contractor”), whose rules and policies can be found at the bottom of this document, and Flash Avenue or Contractor may terminate your electronic mail service if your conduct is found to be unlawful, inconsistent with, or in violation of, this Agreement or such rules or policies. By agreeing to the terms of this Agreement you acknowledge and agree that you are bound to Contractor’s rules and policies located at the bottom of this document, as may be modified and updated from time to time by Contractor or Flash Avenue.
You acknowledge that your use of Flash Avenue’s electronic mail services, including the initiation or delivery of any unsolicited electronic mail messages, will use or cause to be used Contractor’s equipment in the State of California and that violations of Contractor’s rules and policies found by clicking here, may subject you, as applicable, to criminal or civil liability, including without limitation under California Business & Professions Code Section 17538.45.
Flash Avenue electronic mail service is subject to scheduled (from 12:00 am pacific standard United States time to 3:00 am pacific standard United States time every Saturday) and unscheduled outages which will impact your ability to use the electronic mail service. We will use commercially reasonable efforts to restore the service after any unscheduled outages.
In order to receive Flash Avenue’s electronic mail service, we must host your domain name record. If you transfer your domain name record to a third party in conjunction with a live Web site or for any other reason or allow your service to expire, you will no longer be able to use Flash Avenue’s electronic mail service. We will not refund fees, if any, you have paid for the electronic mail service if you elect to transfer your domain name record to a third party.
Your right to use Flash Avenue’s electronic mail service is personal to you. You agree not to resell the electronic mail service, without the prior express written consent of Flash Avenue.
Flash Avenue will not monitor, edit or disclose the contents of your private communications with third parties unless required to do so by law or in the good faith belief that such action is necessary to: (1) conform to the law or comply with legal process served on Flash Avenue; (2) protect and defend the rights or property of Flash Avenue; or (3) act under exigent circumstances to protect the personal safety of our customers or the public.
You acknowledge and agree that Flash Avenue neither endorses the contents of any of your communications nor assumes responsibility for such content, including but not limited to any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising there from or any crime facilitated thereby.
You acknowledge and agree that certain technical processing of email messages and their content may be required to: (1) send and receive messages; (2) conform to connecting networks’ technical requirements; (3) conform to the limitations of electronic mail service; or (4) conform to other similar requirements.
You are solely responsible for the content of your transmissions through Flash Avenue’s electronic mail service. You agree to comply with all applicable local, state, national and international laws and regulations regarding email communications and use. You further agree: (1) to comply with U.S. law regarding the transmission of technical data exported from the United States through Flash Avenue’s electronic mail service; (2) not to use the electronic mail service for illegal purposes; and (3) not to interfere with or disrupt networks connected to Flash Avenue’s electronic mail service.
You also agree not to use electronic mail service for sending chain letters, or any other electronic mail message to promote (directly or indirectly) the sale or other distribution of goods or services to a recipient with whom you do not have an existing or previous business or personal relationship or for any use of distribution lists to any person who has not given specific permission to be included in such a process. You agree not to transmit through Flash Avenue’s electronic mail service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature.
You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, gives rise to civil liability or otherwise violates any applicable local, state, national or international law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited.
You agree not to interfere with another customer’s use and enjoyment of the electronic mail service or another entity’s use and enjoyment of similar services.
Contractor, or its successor, shall be an intended third party beneficiary of Flash Avenue’s electronic mail service customer’s obligations under this Agreement and thus shall be entitled to enforce those obligations against you as if a party to this Agreement.
Flash Avenue may, at its sole discretion, immediately terminate the electronic mail service if your conduct fails to conform with these terms and conditions with no obligation to refund fees paid. You agree that Flash Avenue shall under no circumstances be held liable on account of any action it takes, in good faith, to restrict transmission of material that it or any user of electronic mail service considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or other-wise objectionable, whether or not such material is constitutionally protected.
You acknowledge that the Internet, site hosting system and the practice of delivering and administering web sites are evolving, and therefore you agree that Flash Avenue may modify this Agreement, as well as any additional rules or policies that are or may be published by Flash Avenue, as necessary to comply with any agreements that Flash Avenue is currently bound by or will be bound by in the future, as well as to adjust to changing business circumstances. Your continued use of any services provided through Flash Avenue shall constitute your acceptance of this Agreement as well as additional rules or policies that are or may be published by Flash Avenue, each with the new modifications. If you do not agree to any of such changes, you may request that your services be cancelled. You acknowledge and agree that such cancellation will be your exclusive remedy and our sole liability if you do not wish to abide by any changes to this Agreement or any additional rules or policies that are or may be published by Flash Avenue.
You hereby acknowledge and agree that, in connection with your use of certain of Flash Avenue’s services, you are required to provide certain information and to update promptly this information as needed to keep it current, complete and accurate.
Except as set forth below, all other information which we may request from you in connection with delivery of services, the Flash Avenue service, and the Flash Avenue Promoter service is voluntary; however, not providing this information may prevent you from obtaining Services other than administration, and renewal services, the Flash Avenue service, or the Flash Avenue Promoter service.
The information you are obligated to provide and keep current in connection with your use of Flash Avenue services is the following:
- Your full name (or the name of the authorized person for contact purposes, if service is for an organization, corporation or association), postal address email address, voice telephone number, and fax number, if available (or if different, that of the domain name holder);
- The domain name being registered; and You acknowledge and agree that when you renew a service, the type of information you are required to provide may have changed. If you do not wish to provide the new required information, the service may not be renewed.
Additional Information Maintained
In addition to the information you provide, we maintain records relating to any service application received by Flash Avenue, as well as any service administered, or renewed by Flash Avenue. We also maintain records relating to other services that we provide to you. These records may include, but are not limited to:
- The original creation date, renewal, or request for service;
- Communications (electronic or paper form) constituting submissions, forwarding, modifications, or terminations of service and related correspondence between you and us;
- Records of your account, including dates and amounts of all payments and refunds;
- The IP addresses of the primary nameserver and any secondary nameservers for the domain name;
- The corresponding names of those nameservers;
- The name, postal address, email address, voice telephone number, and where available, fax number of the zone contact for a domain name;
- The expiration date of services; and
- Information regarding all other activity between you and us regarding your use of the services.
Obligations Relating to the Information You Provide
In the event that (i) in applying for the service you are providing information about a third party, or (ii) you request a service in your name to a third party, you hereby represent and warrant that you have (a) provided notice to that third party of the disclosure and use of that party’s information as set forth in this Agreement, and (b) that you have obtained that third party’s express consent to the disclosure and use of that party’s information as set forth in this Agreement.You acknowledge and agree that willfully providing inaccurate or unreliable information or willfully failing to update information promptly will constitute a material breach of this Agreement that will be sufficient basis for cancellation of your service. You further acknowledge and agree that your failure to respond for over fifteen (15) calendar days to inquiries by Flash Avenue concerning the accuracy of your information shall constitute a material breach of this Agreement and will be sufficient basis for cancellation of your service.
Disclosure and Use of Information
You acknowledge and agree that Flash Avenue may make available information you provide or that we otherwise maintain to such public or private third parties as applicable laws require or permit. You further acknowledge and agree that Flash Avenue may make publicly available, or directly available to third parties, some, or all, of the information you provide, for purposes of inspection or for targeted marketing and other purposes as required or permitted by applicable laws.You hereby consent to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of, information provided by you in connection with the registration of a domain name or use of any Services (including any updates to such information), whether during or after the term of your registration of a domain name or other Services. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of information provided by you by Flash Avenue.
We will not process data about any identified or identifiable natural person that we obtain from you in a way incompatible with the purposes and other limitations which we describe in this Agreement.
Flash Avenue will take reasonable precautions to protect the information it obtains from you from our loss, misuse, unauthorized access or disclosure or use, or alteration or destruction, of that information. Flash Avenue will have no liability to you or any third party to the extent such reasonable precautions are taken.
Communications with Flash Avenue are not private and may be published either in their entirety or in edited form at any time, at the sole discretion of Flash Avenue.
You acknowledge and agree that Flash Avenue owns all database, compilation, collective and similar rights, title and interests worldwide in our services and other proprietary information databases, and all information and derivative works generated from those databases. Additionally, you hereby grant to Flash Avenue a nonexclusive, worldwide, perpetual, irrevocable, fully paid-up right and license to use in our business, however it evolves, including the rights to copy, distribute, display, perform, transmit, prepare derivative works from or otherwise use without restriction (other than as set forth in Section 15(f) of this Agreement) the following information: (a) the original creation date of a service, (b) the expiration date of a service, (c) the name, postal address, email address, voice telephone number, and where available fax number of the contact for a service, (d) any remarks concerning a service that appear or should appear in a WHOIS or similar database, and (e) any other information we generate or obtain in connection with the provision of the Services. Flash Avenue does not have any ownership interest in your specific personal information or other information other than our rights in our services database, as set forth in this Section 11.
You agree that, if you are using the Services for someone else, you represent that you have the authority to nonetheless bind that person as a principal to all terms and conditions provided herein, including the Dispute Policy. You accept liability for harm caused by wrongful use of the Services. You agree that if you license the use of a service in your name to a third party, you nonetheless remain the service recipient of record, and remain responsible for all obligations under this Agreement, including but not limited to payment obligations, and providing (and updating, as necessary) both your own full contact information adequate to facilitate timely resolution of any problems that arise in connection with the service. As further required by ICANN, you shall accept liability for harm caused by wrongful use of the domain name, unless you promptly disclose the identity of the licensee to a party providing you with reasonable evidence of actionable harm.
Flash Avenue depends upon a computer system that is responsive to the demands of the service process, and that provides timely information to Flash Avenue’s customer service team. Occasionally, Flash Avenue’s computer system is subjected to exceptional volumes of incoming service requests, electronic mail messages, and/or database queries that result in significant degradation of Flash Avenue’s system processing and response time.
Regardless of the reason, in those instances when there is system performance degradation as the result of an extremely large volume of incoming electronic messages, Flash Avenue reserves the right, in its sole discretion, to filter or block electronic messages originating from the identified sources of the high volume traffic. Flash Avenue will selectively restore service after system performance returns to normal limits, provided that such restoration does not result in an adverse impact on the system. Flash Avenue further reserves the right to permanently filter or block repeated sources of high volumes of electronic traffic.
YOU AGREE THAT FLASH AVENUE WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY (a) SUSPENSION, LOSS, OR MODIFICATION OF YOUR SERVICE, (b) USE OF YOUR SERVICE, (c) INTERRUPTION OF BUSINESS, (d) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEB SITE(S) ACCESSED BY THE DOMAIN NAME REGISTERED IN YOUR NAME, (e) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, (f) EVENTS BEYOND FLASH AVENUE’S REASONABLE CONTROL, (g) THE PROCESSING OF YOUR SERVICE APPLICATION, OR (h) APPLICATION OF ANY RELEVANT DISPUTE POLICY OR ANY OTHER ICANN (OR SIMILAR GOVERNMENTAL OR SUCCESSOR ORGANIZATION) ADOPTED POLICIES. FLASH AVENUE ALSO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARD-LESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF FLASH AVENUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FLASH AVENUE’S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES, BUT IN NO EVENT GREATER THAN FIVE HUNDRED DOLLARS ($500.00) BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless Flash Avenue for any loss, damages or costs, including reasonable attorneys’ fees, resulting from any third party claim, action, or demand related to (i) your use of the Services, including, but not limited to, your application for service, renewal of any service, and (ii) your use of any service in your name. This indemnification is in addition to any indemnification required under the UDRP or any similar policy.
You represent that, to the best of your knowledge and belief, neither the service you have applied for nor the manner in which it is intended to be or is directly or indirectly used infringes the legal rights of a third party. You further represent and warrant that all information provided by you in connection with your use of the Services is accurate and current. THE SERVICES ARE PROVIDED TO YOU “AS IS.” WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. WITHOUT ANY LIMITATION TO THE FOREGOING, FLASH AVENUE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT THE SERVICES PROVIDED UNDER THIS AGREEMENT WILL IMMUNIZE YOU EITHER FROM CHALLENGES TO YOUR SERVICE, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF YOUR SERVICE.
You acknowledge and agree that Flash Avenue may suspend, cancel, transfer or modify your use of the Services at any time, for any reason, in Flash Avenue’s sole discretion. You also acknowledge and agree that Flash Avenue may suspend, cancel, transfer or modify your service if (a) you materially breach this Agreement (including any applicable additional rule or policy) and do not cure such breach within five (5) calendar days of notice by Flash Avenue, (b) you use the service provided to you to send unsolicited commercial advertisements in contradiction to either applicable laws or customary acceptable usage policies of the Internet, or (c) you use your services provided in connection with unlawful activity.
You further acknowledge and agree that your service is subject to suspension, cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to your service, including, but not limited to (i) the UDRP, (ii) any ICANN adopted policy, (iii) Flash Avenue (iv) or any other ccTLD registry administrator procedures.
You also agree that Flash Avenue shall have the right in its sole discretion to suspend, cancel, transfer or otherwise modify your service at such time as Flash Avenue receives (x) a properly authenticated notification from a court of competent jurisdiction, or (y) an arbitration award requiring the suspension, cancellation, transfer or modification of your service.
Finally, you agree that Flash Avenue shall have the right in its sole discretion to cancel your service within thirty (30) calendar days of the creation date of that registration.
Except as otherwise set forth in the UDRP or any similar ccTLD policy with respect to any dispute over your service, this Agreement, your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of Pennsylvania, as if the Agreement was a contract wholly entered into and wholly performed within the State of Pennsylvania.
Except as otherwise set forth in the UDRP or any similar ccTLD policy with respect to any dispute over your service, any action to enforce this Agreement or any matter relating to your use of the Flash Avenue site shall be brought exclusively in the United States District Court for the Southern District of Pennsylvania, or if there is no jurisdiction in such court, then in a state court in York County. Notwithstanding the foregoing, for the adjudication of disputes concerning or arising from use of domain names registered hereunder, you acknowledge and agree that you shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (a) of the domain name holder’s domicile, and (b) where Flash Avenue’s headquarters are located, currently Red Lion, PA.
You agree that, unless other instructions are posted on the Flash Avenue Web site, any notices required to be given under this Agreement will be deemed to have been given if delivered by email or fax, or sent by certified mail, return receipt requested, or by Federal Express or other recognized overnight delivery service to each of the parties in accordance with the most current contact information you have provided to us, and the contact information for Flash Avenue posted on the Flash Avenue Web site. All notices shall be effective upon receipt, except that email and fax notices shall be effective upon transmission.
You agree and acknowledge that any acceptance of your application for the Services and the performance thereof will occur at our offices in Red Lion, PA, the location of our principal place of business.
You acknowledge and agree that, to the extent necessary, it is your responsibility to: (1) provide all equipment, including a computer and modem, necessary for you to establish a connection to the Internet; and (2) provide for your own connection to the Internet and pay any telephone service fees associated with such connection.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
The failure of Flash Avenue to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by Flash Avenue of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. Flash Avenue will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of Flash Avenue as reflected in the original provision. Flash Avenue is authorized to use your company’s web sites, images and likenesses in any or all promotional materials. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of Flash Avenue.
Under California Civil Code Section 1789.3, California residents entitled to the following specific consumer rights information:
Pricing Information. Current rates for using the Services may be obtained by going to the pricing schedule on our Web site located at http://www.flashavenuedomains.com or any other Web site operated by Flash Avenue. Flash Avenue reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time.
Complaints. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
Without exception, Flash Avenue and Contractor decry the practice of mass-mailing unwanted email solicitations of any type, regardless of content, and we will do everything within our power to reduce the flood of this type of traffic across the Internet.
Please read and understand the policies in the Mass Mailing Policy.
To this and similar ends, we have instituted the following policies (please also see our Glossary definitions below):
- Any electronic mail customer who sends unsolicited advertisements or solicitations, commercial or otherwise, may have their account disabled and be disallowed further service.
- The electronic mail customer is responsible for ensuring that the services obtained from Flash Avenue and Contractor are used in an appropriate manner. Therefore, the electronic mail customer must take steps to manage the use of the services obtained in such a way that network abuse is minimized. The electronic mail customer must also make contact information publicly available, and must respond in a timely manner to any complaints.
- In extreme cases, Flash Avenue and Contractor operations personnel have the option to immediately disable any account in order to forestall further abuse or damage to email systems.
- Unsolicited advertisements or solicitations sent from other networks which reference email accounts hosted at Contractor shall be treated as if they originated from the account referenced, unless there is sufficient reason given for Contractor operations staff to believe that the message truly originated with some unrelated party.
- Likewise, postings made to the Usenet newsgroups or other online forums which reference email accounts hosted at Contractor, and are deemed to be inappropriate according to the local ethical standards of that forum, may be treated in the same manner as unsolicited bulk email above.
- As owner of the equipment and other resources utilized to provide services, Contractor has the legal right to block electronic communications from other entities on the Internet.
- Customers should be aware that such blocking or filtering may take place if deemed necessary by designated members of the Contractor operations staff (or a third party chosen by Contractor and made known to the Customer.) Whenever possible, the party being blocked shall be made aware of such action before it occurs.
- Services offered may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or of state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or any other statue.
- Flash Avenue and Contractor reserve the right to cooperate with law enforcement and other legal authorities in investigating claims of illegal activity.
- Flash Avenue and Contractor will not release any information regarding our customers (excepting that which is public knowledge, such as the WHOIS database) to any third party except upon presentation of a valid court order from a government or legal entity with proper jurisdiction. The customer agrees that Flash Avenue and Contractor’s judgment as to the validity of any such order shall be considered proper and final.
Right to Damages
- Flash Avenue and Contractor consider most instances of unsolicited bulk email to be a theft of services and reserves the right to prosecute originators of same in a court of law.
- Flash Avenue and Contractor reserve the right to collect damages (software, hardware, and man hours) if any harm is done to our network or equipment which requires repair or reconfiguration of any kind.
- If deemed appropriate by Flash Avenue and Contractor, the customer will be billed not less than $500 per individual complaint received by Flash Avenue and Contractor staff.
- In addition, Flash Avenue and Contractor reserve the right to collect punitive damages in recompense for any perceived loss of brand reputation.Nothing contained in this document shall be construed to limit action Flash Avenue or Contractor may take or remedies available to either of us in any way with respect to any of the described conduct. Flash Avenue and Contractor reserve the right to take any additional actions we may consider appropriate with respect to such conduct, including without limitation taking action to recover costs and expenses of identifying offenders and removing them from our network or systems, and levying cancellation charges to cover costs in the event of disconnection for the causes outlined in this Policy document. In addition, Flash Avenue and Contractor reserve at all times all rights and remedies available to us with respect to such conduct at law or in equity.Non-enforcement of any policy or rule herein does not constitute consent or waiver, and Flash Avenue and Contractor reserve the right to enforce such policy or rule at their sole discretion.
- “Customer” refers to the business entity which has contracted with Flash Avenue for email services.