Nakea General Terms and Conditions of Service
Thank you for selecting the services offered by Nakea, Inc., its affiliates, successors and assigns (referred to as “Nakea”, “we”, “us”, or “our”). Nakea offers you (the “User”) a wide variety of online products and services including but not limited to website building, marketing and management tools; other Nakea software services, websites or any of their licensees services or software; and any and all updates and new releases ( the “Service”). Please review these General Terms and Conditions of Service (the “Agreement”) thoroughly. This Agreement is a legal agreement between you and Nakea. By using the Service in any way you are agreeing to comply with these terms and conditions, which we may update without notice and encourage you to visit DOMAIN for the most up-to-date version.
You must be at least 18 years old and competent to enter into a legal contract to use the Service. Unless we expressly note otherwise, these terms and conditions incorporate and supersede any other terms associated with the Service.
1. Agreement. This Agreement describes the terms and conditions governing your use of the Services. It includes by reference:
1.2. Nakea’s Acceptable Use Policy available on the website www.nakea.net or provided to you in writing for the Services;
1.3. Nakea’s Service Level Agreement available on the website www.nakea.net or provided to you in writing for the Services;
1.4. Additional terms and conditions for the Services that you have selected, including from third parties; and,
1.5. Any terms provided separately to you for the Services, including for example, web or email product program terms, ordering, activation, pricing, payment terms, if applicable, for the services.
2. Your Rights to Use the Services and Restrictions
2.1. The Services, which includes all materials of the services, all software and documentation, both electronic or printed media, (as well as the organization and layout of the Service) are protected by copyright, trade secret, patent pending material, and other proprietary intellectual property. You are only granted the temporary right to use the Services, and Nakea reserves all rights of ownership in the Services not granted to you in writing here. As long as you fully provide valid personal information about the User in the signup process, meet any applicable payment obligations, and comply with this Agreement, then Nakea grants to you a personal, limited, nonexclusive, nontransferable temporary right to use the Services that only for the purposes described by Nakea on the website for the Services.
2.2. You agree not to use the Services in a manner that violates any applicable law, regulation or this Agreement. For example, unless authorized by Nakea in writing, you agree you will not:
2.2.1. Provide access to or give any part of the Services to any third party.
2.2.2. Provide access to or give any part of the Services to any third party.
2.2.3. Reproduce, duplicate, copy, deconstruct, sell, trade or resell the Services.
2.2.4. Attempt to access any other Nakea systems that are not part of these Services.
2.2.5. Excessively overload the Nakea systems used to provide the Services.
2.3. You agree that you will not store, copy, modify, rent, lease, loan, sell, distribute, transfer, transmit, display, reverse engineer, reverse assemble, or otherwise attempt to discover any programming code or any source code used in or with the Services. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Services (which includes its software and documentation), create derivative works based on or in any manner commercially exploit the Services, in whole or in part.
2.4. You agree that violations by you, any other person or entity, of these copyrights, trade secrets, patents, other intellectual property protections, or the terms of this Agreement will (a) be prosecuted to the fullest extent of the law in the federal and state courts located in King County and Washington State and (b )terminate your right to use the Services at the sole discretion of Nakea .
3. Limitations on Use.
3.1. You hereby acknowledge that Nakea may, from time to time, establish general practices and limits concerning the use of the Services, including without limitation, (a) the maximum number of days that email messages, guest book entries, blog posts, discussion board postings or other content posted on your website will be retained by Nakea, (b) maximum limits on bandwidth usage that will be allotted to you, (c) maximum limits on storage space, (d) the maximum number of websites per member account, (e) maximum number of photographs or other data according to the type of member account, (f) maximum limits on the number of pages within each member website, and (g) maximum time limitations for the retention of Content following a Trial Period or account cancellation. Nakea further reserves the right to delete at any time without prior notice duplicate images uploaded for printing. Any of the foregoing limits will be consistent with the Services (including any upgrades) for which you have registered. You agree that Nakea has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Services. You further acknowledge and agree that Nakea reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. Nakea reserves the right to charge you for any third party fees associated with your use of the Service, including but not limited to domain registration fees, bandwidth usage fees, and disk storage usage fees.
4. Materials and Products.
4.1. Nakea and its Partners provide Services on an "as is" basis.
4.2. Nakea shall make no effort to validate any information provided by the User for use with Services for content, correctness or usability.
4.3. Use of the Service requires a certain level of knowledge in the use of the Internet and World Wide Web. You are required to have the necessary knowledge to use the Internet and the World Wide Web.
4.4. It is not the responsibility or requirement of Nakea to provide free support to you in the use and operation of the Service.
4.5. Only services and features clearly indicated as "free" or "no charge" are free or without charge. All other applications, features, functionality and support provided by Nakea and its partners are provided for a fee and the User is liable for such fees.
4.6. The User may not rent or lease or provide the Services (including any software or documentation used by or with the service) to third parties.
4.7. The User may not decompile, disassemble, reverse engineer, copy, create a derivative work, or display the Software code in human readable form, or otherwise use the Services (which include its software and documentation) except as explicitly provided for in this Agreement.
4.8. The User may not store, publish, or give the Services (including software and documentation) to others, or otherwise enable its use by others.
4.9. Use of Independent Third Party Vendors.
4.9.1. Domain Names.
22.214.171.124. Independent Third Party Domain Name Vendors ("DNVs") who are ICANN accredited registrars, provide domain name registration services. You hereby authorize Nakea, if requested, to transfer in or acquire your selected domain name from DNVs. In order to receive a domain name, you must agree and remain agreeable through the use of the domain name, to the DNVs' terms of service which the DNVs may change at any time in their sole discretion. You understand that you are creating a separate contractual relationship between you and the DNVs, and that you, and not Nakea, are responsible for all liability, and obligations in connection with that relationship.
126.96.36.199. If, after registering one or more domain names that are included with any Service, because of a your incorrect registration of a domain name or otherwise, you choose to delete a previously registered domain name and subsequently register one or more additional different domain names, you will be charged the resulting domain name registration fees.
188.8.131.52. You will be listed as the registrant and administrative contact in connection with your domain name; however, Nakea may temporarily list itself as the registrant and administrative contact in the event that it changes to a different DNV until the DNV’s change is completed. You hereby authorize Nakea or its affiliates, to list itself as the billing contact, technical contact and name servers in connection with your domain name and to take any actions Nakea deems appropriate in those capacities. However, upon termination of the Service, Nakea will immediately cease acting in those capacities including switching registrars. After such time Nakea will be responsible to forward any notices, emails or other correspondence to you or to take any other actions in connection with your domain name. Additionally, in the event that your account is suspended, terminated or canceled by Nakea for lack of payment or any other reason, Nakea shall not renew any domain names that may become due for renewal during the suspension of the account. You will be solely responsible for all ongoing fees, as well as removing Nakea as the billing, technical contact and name servers in connection with your domain name
4.9.2. Email Service Vendor. Some Services may have email services provided by an independent Third Party Email Services Vendor ("ESV"). We are not responsible for the actions or inaction of the then current ESV or the unavailability or malfunction of their network or services. Nakea is not a party to, and shall not be involved in or responsible for, transactions, agreements, and/or disputes between you and the ESV ("ESV Dispute"). In the event of a ESV Dispute, you hereby release Nakea and its suppliers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connected with such disputes. By using email services, you agree to the terms and conditions set forth by Nakea’s current ESV including but not limited to their Acceptable Use Policy and Mass Mailing Policy.
5. Payment and Fees. For Services offered on a subscription or payment basis the following terms apply unless Nakea notifies you otherwise in writing. This Agreement also includes by reference program ordering and payment terms provided to you at the time of purchase for selected Services.
5.1. You agree to a one (1) month contract agreement with Nakea (the “Contract Term”).
5.2. At the end of the Contract Term, the contract will automatically renew at the current rates indefinitely until explicitly cancelled by User (“Cancellation”). You must notify Nakea of your desire for a Cancellation via website management interface or via email to our billing address: email@example.com. Any Cancellation request issued via the User’s website management interface must be done at least one (1) day prior to the end of the Contract Term. Any Cancellation request not issued via the website management interface must be done three (3) days prior to the end of the Contract Term to allow for adequate processing time. Additional Cancellation or renewal terms may be provided to you on the website for the Services
5.3. Payments will be billed to you in US Dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the website for the Services
5.4. You must pay with one of the following:
5.4.1. A valid credit card acceptable to Nakea;
5.4.2. A valid debit card acceptable to Nakea;
5.4.3. Sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or
5.4.4. By another payment option Nakea provides to you in writing.
5.5. If your payment and registration information is: (a) not accurate, (b) not current, (c) incomplete, (d) outdated and you do not notify us promptly when such a change has occurred, (e) no longer valid, or (f) refused for any reason whatsoever (“Past Due”) we may Suspend or Terminate your account and refuse any use of the Services at our sole discretion and without any notice whatsoever.
6. Trial Period. If you registered for an obligation-free trial use to evaluate the Services ("Trial Period"), you must decide to purchase and/or activate the Services within the Trial Period in order to retain any Content (defined in Section 8) that you have authored, designed, posted or uploaded during the Trial Period. No credit card information is collected to initiate a Trial Period and thus payment information and instructions must be explicitly provided in the billing area of the website management interface. If you do not purchase the Services by the end of the Trial Period, your Content will no longer be available to you, and Nakea will not be responsible for any of it. To be very clear, after using the Services during the trial period, if you decide not to purchase the full version of the Services, you will not be able to access or retrieve any of the data you added/created during the trial.
7. Refund Policy and Chargebacks.
7.1. Nakea will not, under any circumstances, issue cash, cash-equivalent, or credit refunds for early contract cancellation. If you have a question about charges made to your account, please contact us immediately. If the charges were made in our error, we will immediately credit your account or credit card account for the appropriate amount.
7.2. Nakea has a zero tolerance policy for chargebacks. Any User who disputes a credit card payment that is found to be valid will be permanently blacklisted and barred from use of the Service. Any past due fees and costs will be sent to collections. If our collection efforts fail, unpaid debts will be reported to all available credit reporting agencies
8. Content. You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content") uploaded, posted or stored through your use of the Services. You grant Nakea a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide you with the Services. You are encouraged to archive your Content regularly and frequently. You are responsible for any Content that may be lost or unrecoverable through your use of the Services.. Nakea is not responsible for the Content or data you submit on the website.
8.1. You agree not to use the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:
8.1.1. Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing , offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or "flaming" others, or criminal or civil liability under any local, state, federal or foreign law;
8.1.2. Content or data that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent's consent in the case of a minor);
8.1.3. Except as otherwise permitted by Nakea in writing, advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
8.1.4. Virus, Trojan horse, worm or other disruptive or harmful software or data; and
8.1.5. Any information, software or Content which is not legally yours and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright owner or intellectual property rights owner.
8.2. You agree that Nakea may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant Nakea a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to Nakea in any way.
8.3. You warrant and represent that you own or otherwise control the rights to the Content and grant Nakea a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third parties, and publicly display the Content on and through the Service and in promotional or advertising materials (only for the limited purpose of promoting the Services), and (ii) sublicense to third parties such Content to the extent necessary for the creation and maintenance of, in part or in whole, such Services and materials
8.4. Nakea may, but has no obligation to, monitor any Content on the Services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect Nakea or its customers, or operate the Services as we deem necessary. Nakea, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement
9. Miscellaneous. You acknowledge and agree that:
9.1. Upon termination, suspension and/or cancellation of your account for any reason, Nakea reserves the right to (a) collect all charges, fees, commitments and obligations incurred or accrued by you; (b) delete any of your Content, listings, messages or other information in connection with your Services; (c) prohibit your access to your Services, including without limitation by deactivating your password; and (d) refuse your future access to the Service. In no event shall Nakea be required to refund, redeem, or pay amounts to you upon termination of Service or return any of your Content.
9.2.1. Nakea shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from or by the User or through the Services.
9.2.2. The User takes full responsibility for all taxes and fees of any nature associated with Services used or products purchased.
9.3. Age and Nature of User
9.3.1. The User certifies that he or she is a person at least eighteen (18) years of age.
9.3.2. That the Services may not be used by any automated device or automated computational machine.
9.3.3. The Service may only be used or accessed through an electronic device under the manual control of User at all times.
9.4. We may tell you about other Nakea and Nakea partners’ services. You may be offered other services, features, products, applications, online communities, or promotions provided by Nakea. If you decide to use any of these Nakea Services, additional terms and conditions and separate fees may apply. You acknowledge that in accessing some of these services you may upload or enter data from your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You grant Nakea permission to use information about your business and experience to help us to provide the Services to you, including updating and maintaining your data, addressing errors or service interruptions, and enhancing the types of data and services Nakea may provide to you in the future. You grant Nakea permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally. We may use this data to improve our Services and to compare business practices with other company standards. We may use your data to create, market or promote new Nakea offerings to you and others. Nakea will never sell your data.
9.5. Nakea may be required by law to send you communications about the Services or Third Party Products. You agree that Nakea may send these communications to you via email.
9.6. You will track your passwords and accept updates. You are responsible for securely managing your password(s) for access to the Services. If you become aware of any unauthorized access to your Services account, theft or loss of your password, you agree to contact Nakea as soon as possible. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Services. You agree to receive these updates automatically as part of the Services.
10. Disclaimer of Warranties.
10.1.Your use of the Services, software, and Content is entirely at your own risk. Except as described in this Agreement, the Services are provided "as is." To the maximum extent permitted by applicable law, Nakea, its affiliates, and its third party service or data providers, licensors, distributors or suppliers (collectively referred to as, "Suppliers") disclaim all warranties, express or implied, including any warranty that the Services are fit for a particular purpose, title, merchantability, data loss, non-interference with or non-infringement of any intellectual property rights, or the accuracy, reliability, quality or content in or linked to the Services. Nakea and its affiliates and Suppliers do not warrant that the Services are secure, free from bugs, viruses, interruption, errors, theft or destruction. If the exclusions for implied warranties do not apply to you, any implied warranties are limited to 60 days from the date of purchase or delivery of the services, whichever is sooner.
10.2.Nakea and its affiliates and Suppliers disclaim any representations or warranties that your use of the Services will satisfy or ensure compliance with any legal obligations or laws or regulations. This disclaimer applies to but is not limited to the Health Insurance Portability and Accountability act of 1996 ("HIPAA"), the Gramm-Leach-Bliley act of 1999, the Sarbanes-Oxley act of 2002, or other federal or state statutes or regulations. You are solely responsible for ensuring that your use of the Services is in accordance with applicable law.
11. Limitation of Liability and Indemnity. To the maximum extent permitted by applicable law, the entire liability of Nakea, and its affiliates and Suppliers for all matters or claims relating to this Agreement shall be limited to the amount you paid for the services during the twelve (12) months prior to such claim. Subject to applicable law, Nakea and its affiliates and Suppliers are not liable for any of the following: (a) indirect, special, incidental, punitive or consequential damages; (b) damages relating to failures of telecommunications, the internet, electronic communications, corruption, security, loss or theft of data, viruses, spyware, loss of business, revenue, profits or investment, or use of software or hardware that does not meet Nakea systems requirements. The above limitations apply even if Nakea and its affiliates and Suppliers have been advised of the possibility of such damages. This Agreement sets forth the entire liability of Nakea, its affiliates and Suppliers, and your exclusive remedy with respect to the services and its use.
You agree to indemnify and hold Nakea and its affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Services or breach of this Agreement (collectively referred to as "Claims"). Nakea reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Nakea in the defense of any Claims.
12. Changes to this Agreement or the Services. We may change this Agreement from time to time, and the changes will be effective when posted on our website for the Services or when we notify you by other means. Please review the Agreement periodically on this website for changes. We have the right to change any of the terms of this Agreement upon reasonable notice to you. We may also change or discontinue the Services, in whole or in part, including but not limited to, the Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the Services after Nakea posts or otherwise notifies you of any changes, indicates your agreement to the changes.
13. Termination. Nakea may immediately and without notice Terminate this Agreement or Suspend the Services provided to you, if you fail to comply with these terms or if you no longer agree to receive electronic communications (see Section9.5). Upon Termination you must immediately stop using the Services and any outstanding payments will become due. Any termination of this Agreement shall not affect Nakea’s rights to any payments due to it. Nakea may Terminate a free account at any time. Other rights and requirements regarding Termination or Cancellation of the Services may apply based on the specific ordering terms for the Services provided to you. Sections 10 through 15 will survive and remain in effect even if the Agreement is terminated, cancelled or rescinded.
14. Export Restrictions. You acknowledge that the Services, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export the Services, or any part of the Services, in violation of these laws and regulations, directly or indirectly. You also agree not to provide access to any part of the Services to anyone who you have reason to know may use the Services in the development of nuclear, chemical, or biological weapons.
15. Governing Law and Jurisdiction. Washington state law governs this Agreement without regard to its conflicts of laws provisions. To resolve any legal dispute arising from this Agreement, you and Nakea agree to the exclusive jurisdiction of state courts in King County, Washington U.S.A. or federal court for the Western District of Washington. Nakea does not represent that information on the website for the Services is appropriate or available for use in all countries. Nakea prohibits accessing materials from countries or states where contents are illegal. You are accessing this website on your own initiative and you are responsible for compliance with all applicable laws.
16. General. This Agreement is the entire agreement between you and Nakea and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as provided in this Agreement in Section 12 above. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You cannot assign or transfer ownership of this Agreement to anyone without the prior written approval of Nakea. However, Nakea may assign or transfer it without your consent to (a) an affiliate, (b) another company through a sale of assets by Nakea or (c) a successor by merger. Any assignment in violation of this Section shall be void.