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Xubeier Media - The Bridge Between Online & Offline Marketing
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As a provider of Internet access, web site hosting, and other Internet-related services, Xubeier Media, ("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 issue, Company reserves the right to take certain preventative or corrective actions to protect the integrity of the traffic over its bandwidth. In order to protect these competing interests, Company has developed an Acceptable Use Policy ("AUP"), which supplements and explains certain terms of each Customer's respective service agreement and is intended as a guide to the Customer's rights and obligations when utilizing Company's services. This AUP will be revised from time to time and such revisions will be posted on the Internet on the Company's web site at http://xubeier.net/aup. A Customer's use of Company's services after revisions to the AUP are posted on the aforementioned web site will constitute the Customer's acceptance of any new or additional terms of the AUP.
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:
- 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
- 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.
- 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:
- 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.
- Subscriber will ensure that it does not forge or falsify its domain name or use a non-responsive IP address.
- 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.
- 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.
- 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.
- 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, mail bombing, 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, mail bombing, denial of service attacks, and piracy of software.
Export Control Violations - Exporting encryption software over the Internet or otherwise, to points outside the United States is prohibited and constitutes a violation of this AUP.
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, including 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 its 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 affect 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 it抯 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 [email protected].
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