As
a provider of Internet access, web site hosting, and other Internet-related
services, worldbandwidth Marketing Group, LLC (“Company”) offers its customers (“Customers”
also known as “Subscribers”), and their customers and users, the means to
acquire and disseminate a wealth of public, private, commercial, and
non-commercial information. Company respects that the Internet provides a forum
for free and open discussion and dissemination of information. However, when
there are competing interests at is
One
important aspect of the Internet is that no one party owns or controls it. This
fact accounts for much of the Internet's openness and value, but it also places
a high premium on the judgment and responsibility of those who use the
Internet, both in the information they acquire and in the information they
disseminate to others. When Subscribers obtain information through the
Internet, they must understand that Company cannot monitor, verify, warrant, or
vouch for the accuracy and quality of the information that Subscribers may
acquire. For this reason, the Subscriber must exercise his or her best judgment
in relying on information obtained from the Internet, and also should be aware
that some material posted to the Internet is may be deemed offensive to some
parties. Because Company cannot monitor or censor the Internet, and will not
attempt to do so, Company cannot accept any responsibility for injury to its Subscribers
or their customers or users that results from inaccurate, unsuitable,
offensive, or illegal Internet communications.
When
Subscribers disseminate information through the Internet, they also must keep
in mind that Company does not review, edit, censor, or take responsibility for
any information its Subscribers may create. When users place information on the
Internet, they have the same liability as other authors for copyright
infringement, defamation, and other harmful speech. Also, because the
information they create is carried over Company's network and may reach a large
number of people, including both Subscribers and non-Subscribers of Company, Subscribers'
postings to the Internet may affect other Subscribers and may harm Company's
goodwill, business reputation, and operations. For these reasons, Subscribers
violate the Acceptable Use Policy and their service agreement when they, their Customers,
Affiliates, or Subsidiaries fail to adhere to all of the following policies:
CAN-SPAM
Compliance – All Subscribers
must provide full compliance to the U.S. CAN-SPAM act that went into effect on
Jan. 1st 2004. CAN-SPAM
compliance is an absolute requirement of all Subscribers due to the legal
requirements as well as the indirect implications of the negative impact on
consumer attitudes toward Company, and also due to the fact that such CAN-SPAM
violations which can overload Company network and disrupt service to other Company
Subscribers. As such, Subscriber agrees
specifically to abide by the following:
a.
Subscriber hereby certifies that (i) each e-mail address
obtained by the undersigned, and to which any promotions or offers are being
sent, has been obtained through “Affirmative Consent” as defined in the
Can-Spam Act of 2003, and acts amendatory thereto (“Can-Spam Act”); (ii) the undersigned
does not and has not engaged in any conduct prohibited by the Can-Spam Act,
including without limitation e-mail harvesting, dictionary attacks or other
deceptive practices; and (iii) no e-mail sent by the undersigned violates any
laws or regulations, including without limitation, the Can-Spam Act
b.
Forging of Headers - Forging or misrepresenting message
headers, whether in whole or in part, to mask the originator of the message is
strictly prohibited. Also, maintaining an open SMTP relay is prohibited.
When a complaint is received, Company has the discretion to determine from all
of the evidence whether the email conforms to the CAN-SPAM act.
c.
In January 2005, the FCC released a list of Domain Names to which marketers may not send unsolicited e-mail
because the messages go to wireless devices, including cell phones and pagers.
These names were provided by wireless providers to protect their Customers. Subscriber hereby certifies that (i) they
will not send any e-mail messages to any of the domains on this FCC listing
following the January 21, 2005 enactment of this policy; the list is currently
available for download and updates at the following web site: http://www.fcc.gov/cgb/policy/DomainNameDownload.html;
and (ii) they will download weekly updates to their suppression files and/or
domain black lists from the FCC web site above or within www.fcc.gov.
Opt-In E-Mail Guidelines – As part of the compliance to this
AUP, the Subscriber must ensure that all lists to be hosted and individual
users to receive mail via the Company network are 100% opted-in and that each
user has given explicit permission to receive third party promotional offers. As part of compliance to these Opt-In
Guidelines, Subscriber warrants to adhere to the following:
a.
Subscriber will ensure that it does not falsify the subject
line of its e-mail message to mislead users about the contents of the specific
e-mail message.
b.
Subscriber will ensure that it does not forge or falsify its
domain name or use a non-responsive IP address.
c.
Subscriber, on behalf of its Advertisers or Agencies, will
ensure that it includes a valid option for the recipient of any e-mail offer to
unsubscribe from Subscriber e-mail. In
addition, Subscriber must ensure that all e-mails include proper contact
information of which Subscriber responds within 48 hours whereby recipient may
unsubscribe.
d.
Subscriber agrees that it has not and will not “harvest”
e-mail addresses with the intent to send unsolicited e-mail to recipient
without their knowledge or consent.
Harvest is defined as securing or stealing e-mail addresses through
anonymous collections methods such as via web spiders, chat rooms, or via other
public access sources or listings of public or business e-mail addresses.
e.
Subscriber will not send unsolicited e-mail to any e-mail
recipient without a prior business relationship by Subscriber, Agency, or
Advertiser. Such relationship may be
demonstrated by provision of previous correspondence, transaction activity, Customer
service activity, third-party permission usage (including date, IP address of
subscription, and e-mail address), or other offline permission which can be
demonstrated.
f.
Upon request in lieu of a SPAM complaint or accusation, Subscriber
will provide proof of “opt-in” information to Company within twenty-four (24)
hours of request. Responses must include
web site of registration, date/time stamp, and name registered. Failure to response to such Company requests
for “opt-in” information is considered a violation of this AUP and may result
in suspension or termination of Customers service without refund. In addition, the receipt of excessive
complaints (which can be defined as greater than 10 complaints in any twenty
four hour period) from Company’s providers is considered a violation of this
AUP and may result in suspension or termination of Customers service.
SPAMHAUS
Listings – Due to
the negative impact to Company network and its Subscribers caused by Spamhaus
listings due to the fault of Subscriber, Company has issued explicit guidelines
herein for the review process and potential damages due to Company for Spamhaus
listings caused by Subscriber. Upon
listing of Subscriber domain or IP space by www.spamhaus.org,
Company may suspend Subscriber service to research the cause of the listing and
subsequently may charge up to $500.00 per such listing if determined to be
caused by Subscriber usage and/or practices.
In addition, Company may at its own discretion terminate services to Subscriber
without refund for such Spamhaus listings caused by Subscriber usage and/or
practices.
Suppression
List – Company may
choose to provide a list of e-mail addresses that are not to be mailed for
either a specific Advertiser or for all Advertisers or for a specific network
“Upstream” provider. If Company provides
such list, Subscriber is responsible for following the directions not to mail
such e-mail addresses, domains, or host names under any circumstances within
forty-eight (48) hours of receipt of such suppression list. Subscriber will ensure that the contents of
all such received suppression lists are treated as confidential and as such,
will not be shared with any external companies or individuals.
Intellectual
Property Violations
- Engaging in any activity that infringes or misappropriates the intellectual
property rights of others, including copyrights, trademarks, service marks,
trade secrets, software piracy, and patents held by individuals, corporations,
or other entities. Also, engaging in activity that violates privacy, publicity,
or other personal rights of others. Company is required by law to remove or
block access to Customer content upon receipt of a proper notice of copyright
infringement. It is also Company's policy to terminate the privileges of Customers
who commit repeat violations of copyright laws.
Obscene
Speech or Materials
- Using Company's network to advertise, transmit, store, post, display, or otherwise
make available child pornography or obscene speech or material. Company is
required by law to notify law enforcement agencies when it becomes aware of the
presence of child pornography on or being transmitted through Company's
network.
Defamatory
or Abusive Language
- Using Company's network as a means to transmit or post defamatory, harassing,
abusive, or threatening language.
Illegal
or Unauthorized Access to Other Computers or Networks - Accessing illegally or without
authorization computers, accounts, or networks belonging to another party, or
attempting to penetrate security measures of another individual's system (often
known as "hacking"). Also, any activity that might be used as a
precursor to an attempted system penetration (i.e. port scan, stealth scan, or
other information gathering activity).
Distribution
of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities - Distributing information regarding
the creation of and sending Internet viruses, worms, Trojan horses, pinging,
flooding, mailbombing, or denial of service attacks. Also, activities that
disrupt the use of or interfere with the ability of others to effectively use
the network or any connected network, system, service, or equipment.
Facilitating
a Violation of this AUP - Advertising, transmitting, or otherwise making available any
software, program, product, or service that is designed to violate this AUP,
which includes the facilitation of the means to spam (including but not limited
to violations of the CAN-SPAM Act of 2003), initiation of pinging, flooding,
mailbombing, denial of service attacks, and piracy of software.
Export
Control Violations -
Exporting encryption software over the Internet or otherwise, to points outside
the
Usenet
Groups - Company
reserves the right not to accept postings from newsgroups where we have actual
knowledge that the content of the newsgroup violates the AUP.
Other
Illegal Activities -
Engaging in activities that are determined to be illegal, including
advertising, transmitting, or otherwise making available ponzi schemes, pyramid
schemes, fraudulently charging credit cards, and pirating software is
prohibited and constitutes a violation of this AUP.
Other
Activities -
Engaging in activities, whether lawful or unlawful, that Company determines to
be harmful to its Subscribers, operations, reputation, goodwill, or Customer
relations may constitute a violation of this AUP and as such, will be reviewed
with Subscriber and a request for immediate cessation of such activities may be
requested, at Company’s discretion. Such activities may include, but are not
limited to, sending of more than 3 e-mail campaigns to a unique user e-mail
address in any given 24 hour period. Subscriber
agrees by means of this AUP that the mailing of more than three campaigns is a
violation of this AUP and may result in suspension or cancellation of service
without refund.
Additional Terms
Indemnity – Subscriber agrees to defend, indemnify, and hold harmless Company and
its officers, directors, employees and agents against and from any loss, debt,
liability, damage, obligation, claim, demand, judgment, or settlement of any
nature or kind, known or unknown, liquidated or unliquidated, uncluding without
limitation all reasonable costs and expenses incurred (legal, accounting,
administrative, or otherwise) based upon any pending or threatened claim,
demand, action, proceeding or suit arising out of Subscriber’s, its’
employee’s, its agent’s, or it’s independent contractor’s negligent or
intentional or unintentional wrongful acts or omissions hereunder violation by Subscriber,
it’s employees, its agents, or independent contractors of any state, federal or
local statute, regulation or ordinance; breach of the representations by Subscriber,
its employees, its agents, or independent contractors; and/or any unauthorized
or illegal acts of Subscriber, its employees, its agents, or independent
contractors.
As
we have pointed out, the responsibility for avoiding the harmful activities
just described rests primarily with the Subscriber. Company will not, as an
ordinary practice, monitor the communications of its Subscribers to ensure that
they comply with Company policy or applicable law. When Company becomes aware
of harmful activities, however, it may take any action to stop the harmful
activity, including but not limited to, removing information, shutting down a
web site, implementing screening software designed to block offending
transmissions, denying access to the Internet, or take any other action it
deems appropriate.
Company
also is aware that many of its Subscribers are, themselves, providers of
Internet services, and that information reaching Company's facilities from
those Subscribers may have originated from a Customer of the Subscriber or from
another third-party. Company does not require its Subscribers who offer
Internet services to monitor or censor transmissions or web sites created by Customers
of its Subscribers. Company has the right to directly take action against a Customer
of a Subscriber. Also, Company may take action against the Company Subscriber
because of activities of a Customer of the Subscriber, even though the action
may effect other Customers of the Subscriber. Similarly, Company anticipates
that Subscribers who offer Internet services will cooperate with Company in any
corrective or preventive action that Company deems necessary. Failure to
cooperate with such corrective or preventive measures is a violation of Company
policy.
Company
also is concerned with the privacy of on-line communications and web sites. In
general, the Internet is neither more nor less secure than other means of
communication, including mail, facsimile, and voice telephone service, all of
which can be intercepted and otherwise compromised. As a matter of prudence,
however, Company urges its Subscribers to assume that all of their on-line
communications are insecure. Company cannot take any responsibility for the
security of information transmitted over Company's facilities.
Company
will not intentionally monitor private electronic mail messages sent or
received by its Subscribers unless required to do so by law, governmental
authority, or when public safety is at stake. Company may, however, monitor its
service electronically to determine that its facilities are operating
satisfactorily. Also, Company may disclose information, including but not
limited to, information concerning a Subscriber, a transmission made using our
network, or a web site, in order to comply with a court order, subpoena,
summons, discovery request, warrant, statute, regulation, or governmental
request. Company assumes no obligation to inform the Subscriber that Subscriber
information has been provided and in some cases may be prohibited by law from
giving such notice. Finally, Company may disclose Subscriber information or
information transmitted over its network where necessary to protect Company and
others from harm, or where such disclosure is necessary to the proper operation
of the system.
Company
expects that its Subscribers who provide Internet services to others will
comply fully with all applicable laws concerning the privacy of on-line
communications. A Subscriber's failure to comply with those laws will violate Company
policy. Further, all Subscribers forfeit any hosting payments made prior to
any AUP violation and in addition, no refunds will be granted following any
violation of the Company AUP under any circumstances. Finally, Company wishes to emphasize that in
signing the service order agreement, Subscribers indemnify Company for any losses
caused by Subscriber AUP violation or violation of the service agreement, law,
or Company policy by Subscriber that results in loss to Subscriber or any other
third party or the bringing of any claim against Company by Subscriber or any
third-party. This means that if Company is sued because of a Subscriber's
activity, the Subscriber will pay any damages awarded against Company, plus
costs and reasonable attorneys' fees.
We
hope this AUP is helpful in clarifying the obligations of Internet users,
including Company and its Subscribers, as responsible members of the Internet.
Any complaints about a Subscriber's violation of this AUP should be sent to abuse@vayan.com.