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Acceptable
Use Policy of Digis
(part of customer service agreement)
10/17/2007
THIS ACCEPTABLE USE POLICY (“AUP” OR “POLICY”)
IS A MATERIAL PART OF ANY AGREEMENT WITH DIGIS FOR PROVISION OF
ITS SERVICES TO ITS CUSTOMERS. PLEASE READ AND FOLLOW THIS POLICY
CAREFULLY. THIS POLICY MAY BE REVISED FROM TIME TO TIME BY DIGIS,
OR AS OTHERWISE SET FORTH BELOW.
Digis and its affiliates (collectively “Digis”) have
established this AUP for subscribers (“you”) of Digis’s
Internet access service, email, web hosting, voice-over-IP telephone
service, or other Internet related services (“Service”)
by designating standards for acceptable and unacceptable uses of
the Service. This AUP forms part of the agreement between Digis
and you and is incorporated by reference into Digis’ Terms
and Conditions (the “Digis Internet Access Policies Agreement ”)
found at http://www.digis.net/support. All
subscribers of the Service (anyone who uses or accesses the Service)
must comply with, and shall be bound by the terms of, this AUP. Digis
supports the free flow of information and ideas over the Internet.
Your access to the Service is conditioned on legal and appropriate
use of the Service. Your use of the Service and any activities
conducted online through the Service shall not violate any applicable
law or regulation or the rights of Digis, or any third party.
Prohibited Activities. For the benefit
of all of Digis’ subscribers, as a condition of the Service,
Digis prohibits the following activities:
1. Unlawful or Improper Use of the Service. You
may not use the Service in a manner prohibited by any applicable
laws or regulations. Without limiting the foregoing, you may not
use the Service for any unlawful or abusive purpose, in any way
that could damage, disable, overburden, or impair any Digis property,
or in any way that directly or indirectly interferes with or disrupts
our network or adversely affects another’s use or enjoyment
of any Service, including other Digis subscribers. You may not
use or attempt to use the Service in any manner such as to avoid
incurring charges for or otherwise being required to pay for such
usage. You may not circumvent or attempt to circumvent user authentication
or security of any host, network, network element, or account (also
known as “cracking” or “hacking”). This
includes, but is not limited to, accessing data not intended for
you, logging into a server or account that you are not expressly
authorized to access, or probing the security of other networks.
You may not interfere or attempt to interfere with any services
to any user, host, or network (“denial of service attacks”).
This includes, but is not limited to, “flooding” of
networks, deliberate attempts to overload a service, and attempts
to “crash” a host. You may not use any kind of program/script/command,
or send messages of any kind, designed to interfere with (or which
does interfere with) any server or a user’s session, by any
means, locally or via the Internet. The Service is intended for
periodic, active use. You may not use the Services on a standby
or inactive basis in order to maintain a connection. Pinging is
prohibited.
2. Excess Utilization of Network Resources. The
excessive use or abuse of Digis ’s network resources by
one subscriber may have a negative impact on all other subscribers.
Accordingly, you may not use the Service or take any action,
directly or indirectly, that will result in excessive consumption
or utilization of the system or network resources, or which may
weaken network performance, as determined in Digis’ sole
discretion. Such prohibited actions include, but are not limited
to: using the Service to host a web server site which attracts
excessive traffic at your location, continuously uploading or
downloading streaming video or audio, usenet hosting, or continuous
FTP uploading or downloading. In the event that you violate
the terms of this provision Digis may, without limitation, restrict
your access to Digis’ network, increase the fees associated
with your Service, including upgrading you to a higher class
of Service, or immediately suspend or terminate your Service.
In the event of termination of your Service, all applicable termination
charges will apply.
3. Intellectual Property Infringement. You
may not use the Service to store, transmit or receive any material
that infringes on any patent, trademark, trade secret, copyright,
or other proprietary or intellectual right of any party, including,
but not limited to, the unauthorized copying of copyrighted material,
the digitization and distribution of photographs from magazines,
books, or other copyrighted sources, or the unauthorized transmittal
of copyrighted software. Digis is registered under the Digital
Millennium Copyright Act of 1998 (DMCA). Under the DMCA, copyright
owners have the right to notify Digis if they believe a Digis customer
has infringed the copyright owner’s work(s). If Digis receives
a notice from a copyright owner alleging a Customer has committed
copyright infringement, Digis will notify the Customer of the
alleged infringement. If Digis receives more than one notice
alleging copyright infringement on the Customer’s part,
Customer may be deemed a “repeat copyright infringer.” Digis
reserves the right to terminate the accounts and access to the
Service of repeat copyright infringers. You are also prohibited
from using the service to interfere with any technical measures
employed by Digis that ARE used to ensure compliance with this
policy.
4. Objectionable Material. You may
not use the Service to store, post, transmit, or disseminate
material or information that is unlawful, harmful, threatening,
abusive, harassing, libelous or defamatory, hateful, obscene,
indecent, or otherwise objectionable or which encourages or participates
in conduct that would constitute a criminal offense, gives rise
to a civil liability, or otherwise violates any local, state,
national, or international law, order, rule, or regulation.
5. Junk E-mail. You may not use the
Service to transmit or facilitate any unsolicited or unauthorized
advertising, telemarketing, promotional materials, “junk
mail”, unsolicited bulk e-mail, unsolicited duplicative
e-mail, unsolicited commercial e-mail, fax broadcasting, or fax
blasting (collectively, “Spam”). An e-mail may be “unsolicited” for
purposes of this AUP if (1) the recipients’ e-mail addresses
were not obtained through a personal or customer relationship
between recipient and sender, (2) recipients did not affirmatively
consent to receive communications from the sender, or (3) recipients
have opted out of receiving communications from sender when given
the opportunity to do so.
6. Fraudulent Activity. You may not
use the Service to make fraudulent offers to sell or buy products,
items, or services or to advance any type of financial scam such
as “pyramid schemes”, “Ponzi schemes”,
or “chain letters.” You may not use techniques to
hide or obscure the source of any e-mail or other communication.
7. Impersonation. You may not use the
Service to impersonate any person or entity, or falsely state
or otherwise misrepresent your affiliation with any person or
entity, or to create a false identity for the purpose of misleading
others. Without limiting the foregoing, you may not use invalid
or forged headers, invalid or non-existent domain names or other
means of deceptive addressing. Further, you may not alter, obscure
or forge the MAC or IP addresses of the network’s equipment
or systems used by Digis to provide the Service.
8. Software Viruses. You may not use
the Service to upload files or transmit any material that contains
viruses, worms, Trojan Horses time bombs, cancelbots, corrupted
files, or other code that manifests contaminating or destructive
properties. Also, activities that disrupt the use of or interfere
with the ability of others to effectively use the Node or any
connected network, system, service, or equipment are not permitted.
9. Collecting Information. You may
not use the Service to store or collect, or attempt to store
or collect, personal information about third parties without
their prior knowledge and consent.
10. Newsgroups. You should use your
best judgment when posting to any newsgroup. Many groups have
charters, published guidelines, FAQS, or “community standards” describing
what is and is not considered appropriate. You must abide by
such guidelines. You may not post or list articles which are
off-topic according to the description of the group or send unsolicited
mass e-mailings to ten or more people if such e-mail could reasonably
be expected to provoke complaints from its recipients. Without
limiting any other rights or remedies that Digis may have
under this AUP, the Terms and Conditions or applicable law, Digis may
cancel any postings that violate this AUP as determined by Digis in
its sole discretion.
11. Use of Your Account by Others. You
may not, through action or inaction, allow others to use the
Service for illegal or improper activities or for any purpose
or in any manner prohibited by this AUP. You may not permit your
network, through action or inaction, to be configured in such
a way that gives a third party the capability to use the Service
in an illegal or improper manner or for any purpose or in any
manner prohibited by this AUP.
12. Reselling. You may not directly
or indirectly reproduce, duplicate, copy, sell, provision, resell,
rent, lend, pledge, transfer, distribute or exploit any portion
of the Service without Digis ’s prior written consent.
13. Spamming and Invasion
of Privacy. You may not
send unsolicited bulk and/or commercial messages over the Internet
using the Service or using the Service for activities that invade
another person’s privacy. Further, you may not engage
in “spamming,” e-mail “blasting,” or
other similar activities. Digis considers any unsolicited
commercial mail to be Spam, regardless of the amount of mail
sent, unless the recipient has specifically requested the information.
An e-mail may be “unsolicited” for purposes of this
AUP if (1) the recipients’ e-mail addresses were not obtained
through a personal or customer relationship between recipient
and sender, (2) recipients did not affirmatively consent to receive
communications from the sender, or (3) recipients have opted
out of receiving communications from sender when given the opportunity
to do so.
14. Obscene or Indecent
Speech or Materials. You may not use Digis’s
service to advertise, solicit, transmit, store, post, display,
or otherwise make available obscene or indecent images or other
materials. Digis will notify and fully cooperate with law
enforcement if it becomes aware of any use of the Service in
any connection with child pornography or the solicitation of
sex with minors.
15. Defamatory or Abusive
Language. You may not use the Service to
transmit, post, upload, or otherwise making available defamatory,
harassing, abusive, or threatening material or language that
encourages bodily harm, destruction of property or harasses another.
16. Forging of Headers. You
may not forge or misrepresent message headers, whether in whole
or in part, to mask the originator of the message.
17. Hacking. You
may not access illegally, or without authorization, computers,
accounts, equipment or networks belonging to another party, or
attempting to penetrate security measures of another system.
This includes any activity that may be used as a precursor to
an attempted system penetration, including, but not limited to,
port scans, stealth scans, or other information gathering activity.
18. Facilitating a Violation
of this Policy. You may not advertise, transmit,
or otherwise make available any software product, product, or
service that is designed to violate this Agreement, which includes
the facilitation of the means to spam, initiation of pinging,
flooding, mailbombing, denial of service attacks, and piracy
of software.
19. Export Control Violations. You
may not use the service to transfer of technology,
software, or other materials in violation of applicable export
laws and regulations, including but not limited to the U.S. Export
Administration Regulations and Executive Orders.
20. Other Illegal Activities. You
may not use the service in violation of applicable law and regulation,
including, but not limited to, advertising, transmitting, or
otherwise making available ponzi schemes, pyramid schemes, fraudulently
charging credit cards, pirating software, or making fraudulent
offers to sell or buy products, items, or services.
Security Precautions. You are solely responsible
for implementing sufficient procedures and checkpoints to satisfy
your particular requirements for accuracy of data input and output,
and for maintaining a means external to the Service for the reconstruction
of any lost data.
Illegal and Fraudulent Activity. You acknowledge
and agree that Digis may cooperate fully with investigations
of possible illegal activity or violations of systems or network
security at other sites, including cooperating with law enforcement
authorities in the investigation of suspected criminal violations.
Subscribers who violate systems or network security may incur criminal
and/or civil liability. Digis may immediately suspend or
terminate Your Service if Digis suspects abuse or fraudulent
use of the Service, interference with our network, or violation
of the AUP or Terms and Conditions, and may notify the appropriate
authorities if it reasonably believes that such abuse or fraudulent
use is in violation of applicable law. You must cooperate with
Digis in any fraud investigation and use any fraud prevention
measures that Digis prescribes. Your failure to provide reasonable
cooperation may result in your liability for all fraudulent usage.
Applying for a User ID under false pretenses is punishable by
denial of access or revocation of access, after the fact. Sharing
your User ID or password with any other person is absolutely prohibited.
In the result that you do share your User ID or password with another
person, you will be solely responsible for the actions of that
other person. Deletion, examination, copying, or modification of
files and/or data belonging to other users without their prior
consent is prohibited. Continued impedance of other users through
mass consumption of system resources, after receipt of a request
to cease such activity, is prohibited. Any unauthorized, deliberate
action which damages or disrupts a computing system, alters its’ normal
performance, or causes a malfunction, is a violation regardless
of system location or time duration.
Violations of AUP. In the event that you
violate this AUP, Digis may, without limitation, restrict
your access to Digis ’s network, increase the fees associated
with your Service, including upgrading you to a higher class of
Service, or immediately suspend or terminate your Service. In the
event of termination of your Service, all applicable termination
charges will apply. Except as expressly provided herein, the rights
and remedies of Digis are cumulative and not exclusive of
any rights or remedies that Digis may otherwise have at law
or in equity. Waiver of any violation of this AUP by Digis shall
not act as a waiver of any subsequent violation, nor shall it be
deemed to be a waiver of the underlying obligation or term. No
failure or delay by Digis in exercising any right or remedy
hereunder will operate as a waiver thereof, nor will any single
or partial exercise of any right or remedy preclude any other or
further exercise thereof or the exercise of any other right or
remedy. You should read this AUP in conjunction with our Terms
and Conditions and our other Policies which are set forth on our
website. Digis has the right but not the obligation to monitor
or restrict any uses of the Service that Digis believes in
its sole discretion violates this AUP, any part of the Terms and
Conditions, or applicable law. You are solely responsible for all
content that you transmit or receive utilizing the Service, and
are responsible for abuse of your account by others.
In addition, violations of this AUP may result in a demand for
immediate removal of offending material, immediate temporary or
permanent filtering, blocked access, suspension or termination
of service (in whole or in part), or other action appropriate to
the violation, as determined by Digis, in its sole discretion.
We reserve the right to take any such action without notice at
any time, as determined by us in our sole discretion. Digis may
involve, and will cooperate with, law enforcement if criminal activity
or threatened criminal activity is suspected. Violators may also
be subject to civil or criminal liability under applicable law.
Refunds or credits are not issued in connection with actions taken
for violations or alleged violations of this AUP. You will be liable
to us for any damages incurred by us or amounts that are required
to be paid by us that arise out of or are related to your violation
of this AUP, including, without limitation, damages paid to third
parties, cost of repairs or replacements, reasonable attorney’s
fees or other costs or damages incurred by us.
Privacy; Monitoring the Service, Policy Management. Digis is
under no obligation to monitor the Service, but Digis may
do so from time to time in its discretion. Without limiting any
other right of Digis under this AUP or the Terms and Conditions,
Digis may disclose any information regarding you or your
use of the Service for any reason and at its sole discretion in
order to satisfy applicable laws, regulations, orders, or governmental
requests, or in order to operate and deliver the Service in an
efficient manner, or to otherwise protect Digis ’s property
or legal interests and those of its subscribers. To protect its
customers and its network Digis may, without limitation,
block and allow traffic types as we see fit at any time.
Reporting Violations. Digis requests
that any person who becomes aware of a violation of this AUP report
the information to Digis at info@digis.net. If
available, please provide the IP address used to commit the alleged
violation and the date and time of the alleged violation. Digis may
take any appropriate action as it deems fit in its sole discretion,
including, but not limited to, one or more of the following actions
in response to a report: issue a warning; suspend the subscriber’s
newsgroup posting privileges; suspend the subscriber’s account;
terminate the subscriber’s account; bill the subscriber for
administrative costs and/or reactivation charges; bring appropriate
legal action to enjoin violations and/or to collect damages, if
any, caused by violations; or take no action.
Notices and Procedure for Making Claims of Copyright
Infringement. Pursuant to Title 17, United States
Code, Section 512(c)(2) (as amended), notifications of claimed
copyright infringement should be sent to Digis’s Designated
Agent.
Revisions; Reservation of Rights. Digis
reserves all rights including the right to revise, amend, or modify
this AUP or any other Policy at any time, and any such revisions
will be effective ten (10) days after posting on Digis ’s
website. You agree that your continued use of the Service after
the effective date of any such revision, amendment or modification
will constitute your acceptance thereof and you shall thereafter
be bound by the terms of this AUP, as revised, modified or amended.
IT IS YOUR RESPONSIBILITY TO CHECK DIGIS ’S WEBSITE REGULARLY,
AS ALL OR ANY PART OF THIS AUP MAY CHANGE WITHOUT NOTICE.
Interpretation. The terms and provisions
of this AUP are intended as guidelines and are not meant to be
exhaustive. Generally, conduct that violates law, regulation,
or the accepted norms and ethics of the Internet community or
the community at large, whether or not expressly mentioned in
this AUP, is prohibited. We reserve the right at all times, with
or without notice, to prohibit activities that damage our commercial
reputation and goodwill or that affect the quality of our services
or our ability to provide services.
Notice of Violations of the AUP. Digis requests
that anyone who believes that there is a violation of the AUP direct
the information to:
Digis
220 N. 1300 West
Pleasant Grove, UT 84062
Monitoring Use. Digis has
no obligation to monitor anyone’s use of the Service or retain
the content of any user session. However, Digis reserves
the right at all times and without notice to delete any content
and to monitor, review, retain and/or disclose any content or other
information in Digis’s possession, however obtained, about
or related to you, your use of the Service or otherwise as Digis deems
necessary or useful to satisfy any applicable law, regulation,
legal process, or governmental request.
Acceptable Uses of Other Services. When
using the Service you are subject to all the rules specified by
the services and Web sites you visit. If another party reports
that you have violated their rules, you agree that Digis may
take appropriate action just as if you had violated this Agreement.
Notice of Possible Breach. You must promptly
notify Digis if you become aware of a potential breach
of security, such as the unauthorized disclosure or use of your
Digis user name or password.
No Consequential Damages. UNDER
NO CIRCUMSTANCES WILL SUBURAN, OR ITS AFFILIATE, THEIR SUPPLIERS
OR LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, AND AFFILIATES BE LIABLE FOR CONSEQUENTIAL, INDIRECT,
SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER
FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CUSTOMER, ITS
APPOINTEES OR ITS OR THEIR CUSTOMERS (INCLUDING, BUT NOT LIMITED
TO, UNAUTHORIZED ACCESS, DAMAGE, OR THEFT OF YOUR SYSTEM OR DATA,
CLAIMS FOR LOSS OF GOODWILL, CLAIMS FOR LOSS OF DATA, USE OF
OR RELIANCE ON THE SERVICE, STOPPAGE OF OTHER WORK OR IMPAIRMENT
OF OTHER ASSETS, OR DAMAGE CAUSED TO EQUIPMENT OR PROGRAMS FROM
ANY VIRUS OR OTHER HARMFUL APPLICATION), ARISING OUT OF BREACH
OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
IN NO EVENT WILL THE AGGREGATE LIABILITY THAT Public IP Network
OR ITS owners MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED $100.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS
SECTION WILL NOT APPLY ONLY IF AND TO THE EXTENT THAT THE LAW
OR A COURT OF COMPETENT JURISDICTION REQUIRES LIABILITY UNDER
APPLICABLE LAW BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS
AND DISCLAIMERS.
Indemnity. You agree to indemnify
and hold harmless Public IP Network, its owners, and its and
their suppliers and licensors, officers, directors, employees,
agents and affiliates from any claim, liability, loss, damage,
cost, or expense (including without limitation reasonable attorney’s
fees) arising out of or related to your use of the Service, any
materials downloaded or uploaded through the Service, any actions
taken by you in connection with your use of the Service, any
violation of any third party’s rights or an violation of
law or regulation, or any breach of this agreement. This Section
will not be construed to limit or exclude any other claims or
remedies that Public IP Network may assert under this Agreement
or by law.
Arbitration. You agree to submit
any and all controversies or claims arising out of or relating
to this Agreement or the existence, validity, breach or termination
thereof, whether during or after its term, to an arbitrator.
The arbitrator may, at either party’s request, grant injunctive
relief. The arbitral award will be the exclusive remedy of the
parties for all claims, counterclaims, issues or accountings
presented or plead to the arbitrator. Judgment upon the arbitral
award may be entered in any court that has jurisdiction thereof.
Any additional costs, fees or expenses incurred in enforcing
the arbitral award will be charged against the party that resists
its enforcement. Nothing in this Section will prevent the parties
from seeking interim injunctive relief against one another.
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