Gafana Enterprises Inc

GAFANA ENTERPRISES INCORPORATED

TERMS OF SERVICE
Last Revised: 1/14/05

PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY BEFORE USING THE GAFANA SERVICES.
Gafana Enterprises, Inc. ("Company," "we," or "us") provides online services, including, without limitation, personal email, (collectively, the "Services") subject to your compliance with the terms and conditions set forth in this Terms of Service Agreement (the "Agreement"). This Agreement governs the relationship between Company and you, the user ("you") with respect to your use of the Services and your access to the web site located at www.gafana.com (the "Site"). It is important that you read carefully and understand the terms and conditions of this Agreement.

If you are under the age of 13, you may not use the Services .

BY CLICKING THE "Complete Signup" BUTTON LOCATED ON THE REGISTRATION PAGE OR BY PAYING FOR THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT WITHOUT MODIFICATION. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL BE DENIED REGISTRATION TO USE THE SERVICES.

WE RESERVE THE RIGHT AT ANY TIME TO:

- Change the terms and conditions of this Agreement;

- Change the Services, including eliminating or discontinuing any Services; or

- Change any fees or charges for use of the Services.
Any changes we make will be effective automatically immediately after posting such changes on the Site. Your continued use of the Services following such changes will be deemed acceptance of such changes. Be sure to review this Agreement periodically to ensure familiarity with the most current version. You can determine when this Agreement was last revised by checking the "Last revised" legend at the top of the Agreement.

1. Services. Gafana provides a fee-based email services to its users. Other new features may be added in the future; unless expressly stated otherwise, any new or enhanced features will be subject to the then-current version of this Agreement.
1.1 Customer Support. Customer support via email and web-based trouble ticket system is the only support currently available.

2. Code of Conduct. While using the Services, you agree not to:

- Engage in spamming or flooding;

- Forge or modify email message headers;

- Transmit or post (a) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party's intellectual property or other rights; (b) any material, non-public information about companies without the authorization to do so; (c) any trade secret of any third party; or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other commercial communication (except as otherwise expressly permitted by us);

- Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of a destructive nature;

- Use the Services, Third Party Content or User Content (as defined below) for any unlawful purpose;

- Remove any copyright, trademark or other proprietary rights notices contained on the Site or in Third Party Content;

- Impersonate any person, including, but not limited to, any Company agent or representative; falsely state or otherwise misrepresent your affiliation with any person or entity; or express or imply that any statements you make are endorsed by us, without our prior written consent;

- Use another person's Services account without authorization;

- Link to any page of or content on the Site other than the URL located at http://www.gafana.com;

- Restrict or inhibit anyone else from using the Services or accessing the Site, including, without limitation, by means of "hacking" or defacing the Services or any portion of the Site;

- Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Services or the Site;

- Reproduce, sell, or resell use of or access to the Services, or any portion thereof;

- "Frame" or "mirror" any part of the Site without our prior written authorization;

- Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, "data mine" or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents;

- Harvest or collect information about users of the Services or the Site without their express consent; or

- Interfere with or disrupt the operation or the security of the Services, or the servers or networks that host the Services and/or make them available, or disobey any requirements, procedures, policies or regulations of such servers or networks. While using the Services, you agree to comply with all applicable laws, rules and regulations. You agree to respond in a timely manner to any complaints. Nothing contained in this Agreement shall limit in any way the actions or remedies available to Company with respect to any prohibited activity or conduct.

3. Registration

3.1 All Members
Use of the Services requires you to be or become a registered member. When you register to become a member, you agree to (a) provide accurate, current and complete information about yourself as prompted by our registration form (including your current email address), and (b) maintain and update your information (including your email address) to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we reserve the right to terminate this Agreement and your use of the Services. By registering to become a member, you represent and warrant that either (i) you are at least 18 years of age or older, or (ii) you are at least 13 years of age or older, AND you have obtained consent from your parent or legal guardian to register with us, access the Site and use the Services. If you are younger than 13 years of age, you may not register or use the Services. As part of the registration process, you will be asked to select a username and password. We may refuse to grant you a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. You will be responsible for the confidentiality and use of your username and password, and agree not to transfer or resell your use of or access to the Services to any third party. If you have reason to believe that your account with us is no longer secure, you must immediately notifyus of the problem by email to support@gafana.com. You are entirely responsible for maintaining the confidentiality of your USERNAME and password and for any and all activities (INCLUDING PURCHASES, AS APPLICABLE) that ARE CONDUCTED through your account.

3.2 Fee-based Members
If you are registering for fee-based services, then as part of the registration process and use of the Services, you will be asked to pay a subscription fee and submit certain information to Company or a third party service provider, including, without limitation, payment information. You understand that any such information will be treated by Company in the manner described in our Privacy Policy. You agree that all information that you provide to Company or such third party provider will be accurate, current and complete. You agree to pay all charges incurred by you or any users of your account at the price(s) in effect when such charges are incurred. You will also be responsible for paying any applicable taxes.

ALL REGISTRATION FEES ARE NON-REFUNDABLE.
We reserve the right, without prior notification, to refuse your registration. Verification of information may be required prior to Company's acceptance of any payment. The price of any Service is subject to change on seven (7) days notice by posting any such change on the Site. Current rates are available on the site or may be obtained by emailing our 24/7 Support Department at support@gafana.com.

4. Content Provided by You. You are solely responsible for all information, data, text, graphics, images, audio and video clips, software and links that you transmit or post using the Services (collectively, "User Content"). Company will not be liable for any use or disclosure of any User Content. We have no obligation to monitor your use of the Site or Services, or any User Content or other materials that you store or transmit using the Services. You acknowledge and agree that we have the right (but not the obligation), subject to applicable law, (a) to monitor your use of the Site and the Services and the materials you or any third party transmit, store, or receive; (b) to alter or remove any such materials; (c) to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Services properly; (d) to protect ourselves, our sponsors and other users; and (e) to comply with legal obligations or governmental requests.

5. Termination. This Agreement shall remain effective until terminated in accordance with its terms. We may terminate this Agreement at any time and for any reason. You may also terminate this Agreement upon notice to us at any time. Upon termination of this Agreement, your email account will be deactivated and your right to use the Services shall immediately cease; you will have no right to access any email messages stored in connection with the Services, and any such messages will be forfeited. In no event will you be entitled to any refund or reimbursement of any registration fee(s) that you may have paid, regardless of the reason for any such termination.

6. Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials stored by Company infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it be blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Company to locate the material on the Site; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed by Company against you, the DMCA permits you to send Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Site should be sent to support@gafana.com, or to Customer Support, c/o Gafana Enterprises, Inc. PO Box 6091, Moreno Valley, CA 92554. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA. You understand that we will terminate the membership and deny access to members and users who repeatedly store or transmit copyright infringing material. You agree that if Company knows or becomes aware of materials which infringe copyrighted works, then Company may remove or disable access to this material as required by the DMCA. You also agree that Company may replace or enable access to such material as required by the DMCA.

7. Ownership and Restrictions on Use. The Services are provided by Company in conjunction with others pursuant to contractual arrangements, and the Services, the Site and Third Party Content (and any intellectual property and other rights relating thereto) are and will remain the property of Company and its licensors and suppliers. The Services, the Site, Third Party Content and the selection, compilation, collection, arrangement and assembly thereof are protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. You may not copy, reproduce, republish, upload, post, transmit or distribute Third Party Content or other content or information available on or through the Services or Site in any way without our prior written permission. The Third Party Content may be used solely to the extent necessary for your authorized use of the Site, as provided in this Agreement or as expressly authorized in writing by Company or its licensors or suppliers. Modification of the Third Party Content or use of the Third Party Content for any other purpose is a violation of the copyright and other proprietary rights of Company and its licensors and suppliers, and is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Services, the Site or the Third Party Content. The trademarks, logos, and service marks displayed on the Site and used in connection with the Services (collectively the "Trademarks") are the registered and unregistered trademarks and service marks of Company, Company's licensors and suppliers, and others. The Trademarks owned by Company, whether registered or unregistered, may not be used in connection with any product or service that is not Company's, in any manner that is likely to cause confusion with customers, or in any manner that disparages Company. Nothing contained on the Site or obtained through the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of Company, Company's licensors or suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Company will aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.

8. Links. The Site and the Third Party Content may contain links to other Internet web sites which may or may not be owned or operated by Company. Company has not reviewed all of the linked web sites, and Company has no control over such sites. Unless otherwise explicitly stated, Company is not responsible for the content of such web sites, any updates or changes to such sites, or the privacy or other practices of such sites, and the fact that Company offers such links does not indicate any approval or endorsement of any material contained on any linked site. Company is providing these links to you only as a convenience. Accordingly, we strongly encourage you to become familiar with the terms of use and practices of any linked site. Further, it is up to you to take precautions to ensure that whatever links you select or software you download is free of items such as viruses, worms, trojan horses, defects, date bombs, time bombs and other items of a destructive nature.

9. Parental Control Protections. Pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at the web sites of the Electronic Frontier Foundation (http://www.eff.org/pub/Censorship/Ratings_filters_labelling/) and America Links Up (http://www.netparents.org/parentstips/browsers.html). We do not endorse or accept any responsibility for such type of protections.

10. Jurisdictional Issues. The Services are solely directed to individuals residing in the United States. We make no representation that the Services or any content on the Site are appropriate or available for use in other locations. Those who choose to access the Services from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable. Use of the Services is further subject to United States export controls. The Services may not be used (a) in (or by a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (b) by anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. We reserve the right to limit the availability of the Services to any person, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any Services that we provide.

11. Disclaimers. THE SERVICES, THE SITE AND ANY PRODUCT OR SOFTWARE OBTAINED USING THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Applicable law may not allow the exclusion of implied warranties, so the above exclusions may not apply to you. COMPANY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SERVICES OR THE SITE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES, THE SITE OR THE SERVER(S) ON WHICH THEY ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SERVICES AND THE SITE, AND ALL CHARGES RELATED THERETO. NO OPINION, ADVICE OR STATEMENT OF COMPANY OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE THROUGH THE SERVICES, ON THE SITE OR OTHERWISE, SHALL CREATE ANY WARRANTY. COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICES WILL CORRECTLY FILTER UNSOLICITED EMAIL MESSAGES. YOUR USE OF THE SERVICES, THE SITE AND ANY CONTENT PROVIDED THROUGH THE SERVICES IS ENTIRELY AT YOUR OWN RISK, AND YOU ASSUME ALL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND YOUR RELIANCE THEREON. A possibility exists that the Services, Third Party Content or content provided by others could include inaccuracies or errors, or information or materials that violate this Agreement (specifically, the Code of Conduct above). Additionally, a possibility exists that unauthorized alterations could be made by third parties to the Services, Third Party Content or other content. For copyright infringement claims, see the section on "Claims of Copyright Infringement," above.

12. Limitation of Liability. NEITHER COMPANY NOR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES, THE SITE, CONTENT CONTAINED ON THE SITE OR TRANSMITTED THROUGH THE SERVICES, ANY LINKED SITE OR ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES, THE SITE, CONTENT CONTAINED ON THE SITE, ANY LINKED SITE OR ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICES IS TO STOP USING SUCH SERVICES, SITE, CONTENT, LINKED SITE, PRODUCT OR SERVICE, AS APPLICABLE. THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO COMPANY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO USE THE SERVICES. Any cause of action brought by or on behalf of you with respect to this Agreement or the Services must be commenced within one (1) year after the claim or cause of action arose.

13. Indemnification. You agree to indemnify, defend and hold Company, our affiliates, licensors, suppliers, advertisers and sponsors, and our and their directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees) and other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement, including any violation of the Code of Conduct, above; (b) any allegation that any User Content or other materials you submit to us, store using the Services, or transmit using the Services infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (c) your activities in connection with the Services.

14. Questions. The Services are provided by Gafana Enterprises, Inc.. If you have any questions, comments or complaints regarding this Agreement or the Services, feel free to contact us at support@gafana.com.

15. Notice for California Users. Under California Civil Code Section 1789.3, California users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

16. Miscellaneous. This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County of Riverside, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between us with respect to such subject matter. This Agreement is not assignable, transferable or sublicenseable by you except with Company's prior written consent. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.

BY CLICKING ON THE "Complete Signup" BUTTON LOCATED ON THE REGISTRATION PAGE, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, (3) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOU AND, BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS OF YOU.