Site Use

READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES DESCRIBED BELOW. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE THESE SERVICES. YOUR CLICKING ON THE BUTTON MARKED "CREATE" AND YOUR CONTINUED USE OF THE SERVICES INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS AND CONDITIONS.

This Internet Services Agreement (the "Agreement") is between you and Blue Overture (a division of Poofy Sheep), a sole proprietorship. Use of the Services signifies your agreement to the terms and conditions of use set forth in this Agreement.

1. Grant of Rights

Blue Overture (a division of Poofy Sheep, hereinafter referred to as "Blue Overture" or the "Company") grants you a non-exclusive, non-transferable, limited right to access, use and display the Internet access services provided by Blue Overture, including, without limitation, Web site hosting, newsgroups, bulletin board services, and any other services which Blue Overture may offer (collectively, the "Service") on any machine(s) of which you are the primary user. A Service account may not be transferred to another party or entity without prior written approval from Blue Overture, and any such transfer of a Service account is subject to any limits established by Blue Overture.

2. Content

You recognize that you are solely responsible for the content of any information you make available by means of the Service, including, without limitation, by posting on a Web site or in e-mail, or in a bulletin board service. Blue Overture has the right to monitor the content which you or other users make by means of the Service, but shall have no obligation to do so. You agree that if Blue Overture in its sole discretion deems any content made available by you to be unlawful, fraudulent, unacceptable, offensive, obscene or otherwise objectionable, Blue Overture has the right, but not the obligation, to remove or deny access to such content. You expressly agree that Blue Overture shall not be liable to you for any action Blue Overture takes to remove or restrict access to such material, nor for any action taken to re-strict access to material posted in violation of any law, regulation or rights of a third party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. Blue Overture has the right to take all reasonable actions to remove or restrict access to any such material, including restriction, suspension or termination of your access privileges and/or deletion of the objectionable material.

3. Proprietary Materials

Material accessible to you through the Blue Overture Service may be the subject of intellectual property rights, including, without limitation, patents, copyrights, trademarks and trade secrets. Except as expressly permitted by the owner of such rights, you may not reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, any such material.

4. Prohibited Uses

  1. You expressly agree not to use the Blue Overture Service in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation. You acknowledge that prohibited conduct includes, but is not limited to, use of the Service to invade the privacy of third parties, impersonation of Blue Overture personnel or other parties or entities, transmitting abusive, profane, libelous, slanderous, threatening or otherwise harassing material via e-mail, USENET, chat services bulletin boards or your personal Web page(s). You also agree not to use the Service to (i) solicit other members to patronize services; (ii) violate the security of the Service; or (iii) attempt to utilize another user's account name or persona without authorization from that user.
  2. You agree not to use the Service or any Blue Overture electronic mail address in connection with the sending of the same or substantially similar unsolicited electronic mail message, whether commercial or not, to a large number of recipients. You agree not to send unsolicited mass mailings from another service which in any way implicates the use of the Blue Overture Service, Blue Overture equipment or any Blue Overture electronic mail address. For purposes of this provision, merely making one's e-mail address accessible to the public shall not constitute a request or invitation to receive messages. For each violation by you of this provision, you agree to pay Blue Overture damages to compensate for the lost goodwill such a violation causes, but, where warranted, such as in the case of an accidental transmission, Blue Overture may waive all or part of any applicable charge. Payment by you under this provision shall not prevent Blue Overture from seeking to obtain other legal remedies against you, including other damages or an injunction.

5. System Resources

  1. You acknowledge that you may not use the Service to operate server programs, including, but not limited to, mail servers, IRC servers, ftp servers or Web servers. You further agree not to use any technology, method or device to maintain a constant connection with the Service.

6. Charges and Payment

  1. You are responsible for all charges associated with connecting to the Service, including, without limitation, all telephone access lines, telephone and computer equipment necessary to access the Service.
  2. You are responsible for all activities and charges resulting from use of the Blue Overture Service. You agree to pay all monthly membership fees, connect time charges, surcharges, applicable taxes and other charges you incur regarding the Service.
  3. In the event of a breach of security, you will remain liable for any unauthorized use of your account with the Service until you notify Blue Overture by emailing Blue Overture Customer Service at privacy@blueoverture.com.
  4. Blue Overture reserves the right to increase fees, surcharges, monthly membership fees or to institute new fees at any time upon thirty (30) days prior notice. Blue Overture may reduce these fees at any time without notice to you. In the event that your account is terminated or canceled, online time credited to your account is not convertible to cash or other form of credit. If Blue Overture does not receive the full amount of your Service account balance within thirty (30) days of the invoice date or billing date, the lesser of an additional 10% or the highest percentage allowed by law, of the outstanding balance will be added to your bill as a late charge each month and shall be due and payable. You shall also be liable for all attorney and collection fees arising from Blue Overture’s efforts to collect any unpaid balance of your account(s).

7. User Information

  1. You certify to Blue Overture that you are not a minor, i.e., that you are at least eighteen (18) years of age; provided, however, that a minor's parent or legal guardian may authorize a minor to use his/her account(s) under supervision of the parent or guardian.
  2. For purposes of identification, billing and marketing, you agree to provide Blue Overture with accurate, complete, and updated information required by the registration to the Service (Registration Data), including your legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). You agree to notify Blue Overture within seven (7) days of any changes in your Registration Data. Failure to comply with this provision may result in immediate suspension or termination of your right to use the Service.
  3. You are solely responsible for maintaining the confidentiality of your passwords, and agree that Blue Overture will have no obligations with regard thereto.
  4. Blue Overture reserves the right to reveal any Registration Data or other information in its possession regarding users of the Services in cooperation with a request or investigation by any governmental body or governmental agency.

8. No Expectation of Privacy

You acknowledge that transmissions made by means of the Service are not confidential and that your communications may be read or intercepted by others. You acknowledge that by transmitting materials by means of the Service, no confidential, fiduciary, contractually implied or other relationship is created between you and Blue Overture.

9. Warranty and Indemnification

You represent and warrant to Blue Overture that you will not transmit by means of the Service any materials of any kind which (i) violate, plagiarize, or infringe on the intellectual property or contractual rights of any third party; (ii) are exported in violation of any law, rule, or regulation governing exports from the United States; (iii) contain libelous, defamatory, obscene, pornographic, abusive or otherwise unlawful material; (iv) contain software viruses or any other malicious code designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You further represent and warrant to Blue Overture that your use of the Service will at all times comply with all applicable laws, rules, and regulations. You hereby agree to indemnify, defend and hold harmless Blue Overture and its employees, licensors, independent contractors, providers, subsidiaries and affiliates (collectively, the "Affiliates"), from and against any and all liability and costs incurred by the Affiliates in connection with any claim arising out of any breach by you of the foregoing representations, warranties and covenants, including, without limitation, attorneys' fees and costs. You shall cooperate as fully as reasonably required in the defense of any claim. Blue Overture reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Blue Overture.

10. DISCLAIMER OF WARRANTY

THE SERVICE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) IS PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, BLUE OVERTURE MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE SERVICES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, BLUE OVERTURE’S NEGLIGENCE.

11. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL BLUE OVERTURE BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, EVEN IF BLUE OVERTURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL BLUE OVERTURE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED $10.00 DOLLARS.

12. Termination

In addition to any other rights of the parties set forth herein, either you or Blue Overture may terminate this Agreement at any time upon notice. Blue Overture also reserves the right to restrict, suspend or terminate the Services in whole or in part, without notice, with respect to any breach or threatened breach of Sections 3 or 4, or based on a breach of any of your warranties set forth in Section 9, or if you fail to pay any invoice within forty-five (45) days of the date such invoice is sent. If Blue Overture terminates your membership pursuant to this Section 12, Blue Overture reserves the fight to deny access to the Service in whole or in part, including, without limitation, removing your Web site from the Blue Overture server, and to refuse to provide the service to you following such termination.

13. Modifications to Agreement

Blue Overture has the right to modify this Agreement. Any modification is effective immediately upon either a posting on the Blue Overture Home Page (http://www.blueoverture.com), or upon notice by electronic mail, or U.S. mail. Your continued use of the Blue Overture Service following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Blue Overture in providing the Services, including, without limitation, (i) any change in the content of the Services, or (ii) any change in the amount or type of Service Fees, is to terminate Membership by delivering notice to Blue Overture. Such notice will be effective upon receipt by Blue Overture.

14. General

This Agreement constitutes the entire agreement between you and Blue Overture with respect to the Blue Overture Service and supersedes all prior agreements between you and Blue Overture. Failure by Blue Overture to enforce any provision of this agreement shall not be construed as a waiver of any provision or right. Interpretation and enforcement of this agreement shall be governed by the laws of the state of Kansas (excluding its choice of law rules). You consent to personal jurisdiction in the federal and state courts of Johnson County, Kansas for any action arising out of or relating to your use of the Blue Overture Service. The federal and state courts of Johnson County, Kansas shall have exclusive jurisdiction over all such actions. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including, but not limited to, its costs, both taxable and non-taxable, and reasonable attorney's fees. In the event that any portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect.