This is an agreement between OmniTEK USA, a Nevada company, as well as its partners and affiliates on the one hand, and the user of Fluxnode.io’s products and services on the other hand. In this agreement, “You” and “Your” refer to you or any agent, employee, servant or person authorized to act on your behalf. “We”, “Us” and “Our” refer to OmniTEK USA as well as its subsidiaries and sister companies (collectively, “Fluxnode.io, also known as Fluxnode”). This agreement explains our obligations to you, and explains your obligations to us for various services offered by Fluxnode.io. When you use your account or permit someone else to use it, or when you purchase or otherwise acquire access to Fluxnode.io service(s) or products, or when you cancel your Fluxnode.io services (even if we were not notified of such authorization), this agreement applies.
You agree that Fluxnode.io may modify this agreement and the services it offers to you from time to time. You agree to be bound by any changes Fluxnode.io may reasonably make to this agreement when such changes are made. If you have purchased services or products from Fluxnode.io, the term of this agreement shall continue in full force and effect for as long as you take advantage of and use our products or services.
Eligibility, Information Accuracy, and Account Ownership
Legal Age. You attest that you are of legal age to enter into this agreement.
Accurate Information. You agree to maintain accurate information by providing updates to Fluxnode.io, as needed, for as long as you use our services. You agree you will notify Fluxnode.io within five (5) business days when any change of the information you provided as part of the application and/or registration process changes. Failure by you, for whatever reason, to respond within two (2) business days to any inquiries made by Fluxnode.io to determine the validity of information provided by you will constitute a material breach of this agreement. If you provide any information that is inaccurate, not current, false, misleading or incomplete, or if Fluxnode.io has reasonable grounds to suspect that your information is inaccurate, not current, false, misleading or incomplete, Fluxnode.io has the absolute right, in its sole discretion, to terminate services and close your account.
Account Use and Ownership. You agree to follow generally accepted rules of “Netiquette” when sending e-mail messages or posting to newsgroups. You are responsible for the security of your password. Fluxnode.io will not change passwords to any account without proof of identification, which is satisfactory to Fluxnode.io, which may include written authorization with signature. In the event of any partnership break-up, divorce or other legal problems that includes you, you understand that Fluxnode.io will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will Fluxnode.io be liable for any losses incurred by you during this time of determination of ownership, or otherwise. You agree to indemnify and hold harmless Fluxnode.io from any and all claims arising from such ownership disputes.
Fraud Prevention. Fluxnode.io reserves the right to screen all orders for potential fraud or abuse. Should an order become flagged by any automated system as fraud or abuse it shall be the customer’s responsibility to contact Fluxnode to resolve the issue. Fluxnode shall be in no way liable for orders which are delayed because of fraud/abuse prevention. Fluxnode reserves the exclusive right to deny an order or purchase at any time, including suspending or revoking a purchase or order after it has been delivered, should Fluxnode believe that the order is fraudulent or dangerous to its network.
Free Trial Credit
Trial Period. Free credit expires within 30 days of being issued. Any unused credit will be removed from the account after the trial period elapses. We reserve the right to remove free credit from a user’s account at our discretion, such as in situations where a user is abusing the service or resources have become temporarily unavailable. Trial offers may change at any time without warning or notice.
Non-exclusive License. If you have licensed software from Fluxnode.io, Fluxnode.io grants you a limited, non-exclusive, non-transferable and non-assignable license to use the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time. You agree to not alter or modify the software. You agree you are not authorized to combine the software with any other software program, create derivative works based upon the software, nor are you authorized to integrate any plug-in or enhancement which uses or relies upon the software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.
Fluxnode.io reserves all rights to the software. The software and any copies you are authorized to make are the intellectual property of Fluxnode.io. The source code and its organization are the exclusive property of Fluxnode.io and the software is protected by copyright law. Except as expressly provided for in this section, this agreement does not grant you any rights in the software and all rights are reserved by Fluxnode.io.
Any such software and services are provided to you “as is” without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.
Storage and Security. At all times, you shall bear full risk of loss and damage of your server and all of your server content. You are entirely responsible for maintaining the confidentiality of your password and account information. You acknowledge and agree that you are solely responsible for all acts, omissions and use under and charges incurred with your account or password or in connection with the server or any of the content displayed, linked, transmitted through or stored on the server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to your server content; (ii) maintain independent archival and backup copies of your server content; (iii) ensure the security, confidentiality and integrity of your server content transmitted through or stored on Fluxnode.io servers; and (iv) ensure the confidentiality of your password. Fluxnode.io ’s servers are not an archive and Fluxnode.io shall have no liability to you or any other person for loss, damage or destruction of any of your content. The services offered by Fluxnode.io are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be utilized as such without further compliance activity. Fluxnode.io shall have no liability to you or any other person for your use of Fluxnode.io products and/or services in violation of these terms.
Resource Allocation. It is acknowledged that any single account is entitled to utilize the server resources, within reason, up to what is allotted or by what is physically available. If resources become scarce, Fluxnode.io reserves the right to limit users of the affected machine to a lower limit to preserve the effectiveness of the service for all users. If a particular user is in extreme excess of what the average users of the machine have in use (actually used) of their resource allotments, that customer may be asked to remove content, cut resource usage, or relocate to a higher resource plan. This policy only applies to servers that are considered to be abusive in service, disk space or resource consumption and where it is evident that the Acceptable Usage Policy of resources among customers has been breached, particularly in regards to disk space, bandwidth or CPU processing power utilization.
Fluxnode may at its discretion choose to throttle or limit network throughput on its services in relation to the allotted resources purchased by the customer in order to ensure network stability for all customers. Fluxnode does not and cannot guarantee network speeds or latency at any point in time.
Disclosure of Information. Fluxnode.io may disclose any subscriber information or other details to law enforcement agencies, fraud prevention/tracking databases, financial institutions, or other organizations as it sees fit without further consent or notification to the subscriber upon lawful request from such agencies or as deemed necessary by us. Such agencies or organizations will receive the full cooperation of Fluxnode in the event a claim or investigation is required.
Unmanaged Services. You agree and accept that unless otherwise explicitly noted all services provided by Fluxnode.io are considered “unmanaged” and Fluxnode.io is under no obligation to assist the customer with operating system, software, or other configuration or maintenance tasks beyond ensuring that the customer’s basic services (IE: ‘server’) is accessible and running. Fluxnode.io may opt to provide one off or recurring maintenance services for additional fees at its discretion. It shall also be up to Fluxnode.io to determine what services it terms as managed and what is considered unmanaged. Should the actions of a customer using a managed service result in an issue which burdens Fluxnode.io’s staff in having to repair the issue, Fluxnode.io reserves the right to charge up to $150 USD per hour for technician’s time, in 15-minute increments. It shall be up to the managing team member of Fluxnode.io to determine when and why technician time fees apply in addition to any regular managed service fees.
Rules of Conduct
Abuse of Services. Fluxnode.io reserves the right to actively monitor its network using any methodology or technology available to it to ensure that its services are not being abused. Should abuse be detected, abuse being defined as services being used in any manner in violation of this agreement, our Acceptable Usage Policy, or in any action determined to be abusive in nature at our sole discretion, Fluxnode, may choose to limit, suspend, terminate, or otherwise modify a customer’s service. Detailed definitions of what constitutes abuse and associated procedures are found in our Acceptable Usage Policy.
Support Services and Customer Conduct. Fluxnode agrees to support your account as a customer to the best of its abilities within the terms outlined in the present agreement and expects customers to conduct themselves in an appropriate manner. Verbal or written abuse, including but not limited to (i) Swearing, cussing, use of profanity, aggressiveness or (ii) use of all capital letters in an effort to shout or intimidate any Fluxnode representative, agent, or employee will result in a warning and termination of the communication by the representative. It shall be up to the sole discretion of Fluxnode to determine abuse behavior. Failure to cease any abuse will result in immediate account termination without refund.
Legal Usage. All of Fluxnode’s web hosting and/or related electronic services can only be used for legal purposes under all applicable international, federal, provincial, and municipal laws. Violations of these or any other provisions of this agreement may result in termination of the services provided by Fluxnode.io, with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of Fluxnode.io based upon the severity of the violation. Fluxnode.io reserves the right to refuse service if any of the content within, or any links from, the Account Holder’s website is deemed illegal, misleading, or obscene, or is otherwise in breach of Fluxnode.io ’s then current Acceptable Use Policy, in the sole and absolute opinion of Fluxnode.io.
Safe Use. You agree not to harm Fluxnode.io, its reputation, computer systems, programming and/or other persons using Fluxnode.io’s services. Fluxnode reserves the right to select the server in which the Account Holder will be hosted. A failure by you to agree to and comply with the terms of this provision may result in the termination of the services provided to you without any refunds of the unused prepaid portion of service fees.
Third Party Content. Should you choose to sell or resell advertising or web space to a third party then you will be responsible for the contents of that advertising and the actions of that third party. Fluxnode.io has the absolute right to reject any advertising or any other third party content that is illegal, offensive or otherwise in breach of Fluxnode’s Acceptable Usage Policy. Such content may result in the suspension or in the immediate termination of your account.
Payments and Billing
Rates and Prices. You acknowledge that the nature of the service furnished and the rates and charges have been communicated to you. You are aware that Fluxnode.io reserves the right to change the rates and charges specified in “Other Fees”.
Payments. You agree to pay Fluxnode.io at the time you order. All fees are due immediately and are non-refundable, with the exceptions outlined in the section below, even if your services are suspended, terminated, or transferred prior to the end of the term of service. Fluxnode.io expressly reserves the right to modify pricing through email notification and/or notice on its website.
Refunds. Fluxnode offers free credit upon signup of all new accounts and therefor allows all customers the ability to test Fluxnode’s services to see if they are suitable. If for any reason the customer is not satisfied with the services provided by Fluxnode, there is no obligation to submit payment. For this reason, we do not offer refunds on Fluxnode services. Please be aware that any funds sent to your credit balance are non-refundable. Under special circumstances, for instance when an accidental payment has been submitted, Fluxnode made reverse transcation.
Refunds may be issued in alternative form (besides that of the original payment) at the discretion of Fluxnode due to technical or other factors without notice.
Billing. All of Fluxnode’s services are billed per minute for an indefinite period of time unless explicitly noted as a one-time fee, and will continue to be billed until the product or service is formally canceled. If for any reason Fluxnode.io is unable to charge your account for the full amount owed, or if Fluxnode.io is charged a penalty for any fee it previously charged to you, you agree that Fluxnode.io may pursue all available remedies in order to obtain payment.
If you pay by credit card and if for any reason Fluxnode.io is unable to charge your credit card with the full amount of the services provided, or if Fluxnode.io is charged back for any fee it previously charged to the credit card you provided, you agree that Fluxnode.io may pursue all available remedies in order to obtain payment. You agree that among the remedies Fluxnode.io may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice of any domain names or products and/or services registered or renewed on your behalf. Fluxnode.io reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular services, including additional costs that it may incur in providing the services and pass these costs along to you. Fluxnode is not responsible for cancelling recurring PayPal or other payment service subscriptions created by the customer. Should the customer fail to cancel a subscription it shall be non-refundable. Recurring payments made after account cancellation may be placed as service/account credit to be used for future Fluxnode services, at the sole discretion of Fluxnode.
Account Cancellation. Fluxnode.io will host an account for you corresponding with the purchased, leased or provided domain name(s) and for the period of time corresponding with the payment plan chosen by you. You agree that you will be responsible for notifying Fluxnode.io should you desire to terminate your use of Fluxnode.io’s services. Unless an explicit confirmation is sent by Fluxnode.io confirming the cancellation of the service, the account shall be considered ACTIVE. Any account will be liable to the pre-agreed monthly charges until Fluxnode.io confirms the cancellation request sent by you. Once an account cancellation request is received and we process the request as per the account holders consent, the agreement between you and Fluxnode.io is officially terminated. We reserve the right to remove the account from our servers at any time thereafter. Fluxnode.io will not host a server for any time period left once the cancellation request has been received and processed. It is your responsibility to make sure that you and your respective clients have access to all their files and relevant data before initiating the cancellation request. Fluxnode.io shall not be responsible for any loss of data once the account’s recurring billing subscription has been cancelled.
For your convenience and continuous subscription benefits as a customer, if a payment is not received on the scheduled billing date and you have not formally canceled the account, you authorize us to continue billing through any available billing method on file indefinitely, until we are notified by you or the credit card company that the account is no longer valid.
Domain Registration and Renewal. You are responsible for monitoring all domain transfers, renewal and other domain-related orders placed through Fluxnode. In the event that an error occurs, the account holder must notify Fluxnode.io immediately of the error. In no event shall Fluxnode.io.com be liable to the Account Holder for any damages resulting from or related to any failure or delay of domain registration, transfer or renewal.
Third Party Software Licensing. Fluxnode may, at its discretion, offer sale of third party software licensing to its customers. By purchasing this licensing, you acknowledge that you have read and agree to the licensing’s terms and conditions as outlined by the licensing provider (including agreements or terms set forth exclusively by the licensing provider) and hold harmless Fluxnode from any and all liability of the use, installation, or other actions of said software or licensing. Should your license become invalid due to cancellation, suspension, or misuse, the licensing provider may assess additional fines or fees to reactivate or reissue the license. Fluxnode reserves the exclusive right to pass these fees on to you and bill the account on file if such a fee or fine occurs and such items will be required to be paid in full before your licensing will be reactivated. Fluxnode is no way liable for the action of third party licensing providers nor is it under any obligation to provide support for the licensing once it has been verified active. By cancelling a software license purchased from Fluxnode you understand that the cancellation may become effective immediately and that you will no longer have access or rights to the software once the cancellation request has been received, nor will the licensing costs be prorated.
Other fees. Fluxnode may, at its entire discretion, bill you for the following concepts. In every case, Fluxnode is not obligated to notify you prior to generating the fee and billing your payment method on file:
Server reactivation fee of $15, applicable when a service that has been suspended for longer than 15 days is requested to be re-enabled by you.
Abuse reactivation fee of $25, applicable when a server triggers an abuse incident, as outlined in our Acceptable Usage Policy, for the second time or more.
Dispute or chargeback fee of $50, applicable when you initiate any kind of payment processor dispute (e.g. PayPal dispute) or credit card chargeback process. Fluxnode also reserves the right to suspend all associated services when such an incident occurs.
IP blacklist fee of $100, applicable when an IP that has been delegated to one of your services is blacklisted by SPAM or malware services.
Legal Liability and Indemnification
Limitation of Liability; Waiver and Release. The services offered by Fluxnode.io are being provided on an “as is” basis and Fluxnode.io expressly disclaims any and all warranties, whether express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, to the fullest extent permitted or authorized by law. Without limitation of the foregoing, Fluxnode.io expressly does not warrant that Fluxnode.io’s products and/or services will meet your requirements, function as intended, or that the use of the provided services will be uninterrupted or error free. In no event shall Fluxnode.io be liable for any or all direct, indirect, incidental, special, exemplary or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including, but not limited to, negligence or otherwise) arising in any way out of the use of the services, even if Fluxnode.io is aware of or has been advised of the possibility of such damages.
Indemnification. Accordingly, you for yourself and all of your heirs, personal representatives, predecessors, successors and assigns, hereby fully releases, remises, and forever discharges Fluxnode.io and all affiliates of Fluxnode.io, and all officers, agents, employees, and representatives of Fluxnode.io, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the products and services and your acquisition and use thereof, including, but not limited to, the provision of the Fluxnode.io products and/or services by Fluxnode.io and its agents and employees. Further, you agree to defend, indemnify and hold Fluxnode.io harmless from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by you, or any allegation that your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets. This indemnification is in addition to any indemnification required of you elsewhere. Should Fluxnode.io be notified of a pending law suit, or receive notice of the filing of a law suit, Fluxnode.io may seek a written confirmation from you concerning your obligation to defend and/or indemnify Fluxnode.io. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Fluxnode.io shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify Fluxnode.io of any such claim promptly in writing and to allow Fluxnode.io to control the proceedings. You agree to cooperate fully with Fluxnode.io during such proceedings.
Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Fluxnode.io, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Fluxnode.io may immediately terminate this agreement.
Notices. You agree that any notices required to be given under this agreement by us to you will be deemed to have been given if delivered in accordance with the account and/or domain name WHOIS information you have provided.
rDNS/PTR. Fluxnode reserves the right to review and decline, or otherwise refuse to set rDNS/PTR records at its discretion if it believes setting such records at a customer’s request would otherwise violate this agreement or cause harm to its network. Refusal by Fluxnode to set rDNS/PTR in no way shall constitute refund eligbility nor failure to deliver services.
Final Agreement. This agreement, together with all modifications and appended documents, constitute the complete and exclusive agreement between you and us, and supersede and govern all prior proposals, agreements, or other communications. 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 us.
No Agency Relationship. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
Waiver. The failure of us 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 us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
Enforceability. 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. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
Assignment. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this agreement, whether by attachment, levy, garnishment or otherwise, renders this agreement voidable at our option.
Headings. The section headings appearing in this agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
Acceptable Use Policy
Prohibited usage and behavior
It is strictly forbidden to:
Disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email or unreasonably large volumes of email on a daily basis. Fluxnode, at its sole discretion, may permit you, if you have a legitimate purpose and after written request, to send CAN SPAM-compliant mass mail after receiving our full authorization;
Disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious;
Disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person;
Create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
Export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions;
Interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization;
Disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program;
Engage in any other activity deemed by Fluxnode.io to be in conflict with the spirit or intent of this agreement or any Fluxnode.io policy;
Use your server as an “open relay” or similar purposes;
Run a public recursive DNS service on your server. Fluxnode.io is the sole arbiter as to what constitutes a violation of this provision.
Violations of system or network security are prohibited, and may result in criminal and civil liability. Examples include, but are not limited to the following: unauthorized access, use, probe, or scan of a systems security or authentication measures, data or traffic. Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks. Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.
Enforcement of prohibited usage
When a server is found in breach of the present agreement, the following enforcement procedures will be executed, depending on the type of prohibited activity detected on the server. If multiple infractions/violations are detected Fluxnode, may, at its discretion suspend services regardless of the outlined procedures below:
You agree to the following resource usage limitations and their respective enforcement procedures:
A server may not burst to over 95% of CPU usage for over 5 minutes without having its resource priority temporarily lowered, and it may not burst to over 95% of CPU usage for over 15 minutes without being restarted or suspended.
A server running sustained CPU usage of over 50% for 2 hours or longer may have its resource priorities temporarily lowered. If it exceeds the 4-hour mark at 50% or more, it may be restarted or suspended.
A server running 80 IOPS for 2 hours or longer may have its resource priorities temporarily lowered.
A server may write 100 MB/s for up to 5 minutes without having its resource priorities temporarily lowered, and up to 15 minutes without being restarted or suspended.