Acceptable Use Policy (AUP)

ELEMENT9 ACCEPTABLE USE POLICY (AUP)


Background
Element9 Communications LLC (“Element9”) Acceptable Use Policy (AUP) is designed to provide a clear understanding of the rules, regulations and restrictions regarding the use of Element9's services. From time to time Element9 may impose reasonable rules and regulations regarding the use of its services. The AUPs are not exhaustive and Element9 reserves the right to modify the AUPs at any time, effective upon either the posting of the modified AUPs to www.element9.net or notification of the modified AUPs.


By registering for and using the services, and thereby accepting the terms and conditions of the Terms of Service Agreement or its equivalent, you agree to abide by the AUPs as modified from time to time. Any violation of the AUPs may result in the suspension or termination of your account or such other action as Element9 deems appropriate. An unlisted activity may also be a violation of the AUPs if it is illegal, irresponsible, or disruptive use of the Internet. No credits will be issued for any interruption in service resulting from policy violations.


VIOLATION OF ANY AUP IS STRICTLY PROHIBITED AND MAY RESULT IN THE IMMEDIATE TERMINATION OR SUSPENSION OF THE SERVICES YOU RECEIVE FROM ELEMENT9. YOU SHALL REMAIN SOLELY LIABLE AND RESPONSIBLE FOR YOUR USE OF THE SERVICES AND ANY AND ALL CONTENT THAT YOU DISPLAY, UPLOAD, DOWNLOAD OR TRANSMIT THROUGH THE USE OF THE SERVICES. "CONTENT" INCLUDES, WITHOUT LIMITATION, YOUR E-MAIL, WEB PAGES, PERSONAL HOME PAGES, AND DOMAIN NAMES. IT IS ELEMENT9'S POLICY TO TERMINATE REPEAT INFRINGERS. ELEMENT9 RESERVES THE RIGHT TO REFUSE SERVICE TO ANYONE AT ANY TIME FOR ANY REASON.
Customer Security Responsibilities The customer is solely responsible for any breaches of security affecting accounts under customer control (including the servers those accounts reside on). If a customer's account is involved in an attack on another server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such event, the customer is responsible for the cost to rectify any damage done to the customer's account, the server it resides on, and any other requirement affected by the security breach. The labor used to rectify any such damage is categorized as emergency security breach recovery and is currently charged at $195 USD per hour. Enquiries regarding security matters may be directed to abuse@element9.net

System And Network Security Violations of system or network security are prohibited, and may result in criminal and civil liability. Element9 may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following: Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.

Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network. Interference with service to any user, host or network including, without limitation, mailbombing, 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. High-risk services, which are services which tend to attract denial of service attacks, are strictly prohibited. This includes, but is not limited to, IRC related services and selling the use of shell accounts. Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Element9. Such labor is categorized as emergency security breach recovery and is currently charged at $195 USD per hour required. Enquiries regarding security matters may be directed to abuse@element9.net. Element9 is concerned with the privacy of online 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, Element9 urges its customers to assume that all of their online communications are insecure. Element9 cannot take responsibility for the security of information transmitted over Element9's facilities.

Password Protection
The customer is responsible for protecting customer's password and for any authorized or unauthorized use made of customer's password. The customer will not use or permit anyone to use Element9's service to guess passwords or to access other systems or networks without authorization. Element9 will fully cooperate with law enforcement authorities in the detection and prosecution of illegal activity.

Contact Information
Customers are responsible for maintaining their contact information either in the ticketing system or via email, such that the email address is always reachable even in the event of their Element9 servers being shut down.

Internet Etiquette
The customer is expected to be familiar with and to practice good Internet etiquette (Netiquette). The customer will comply with the rules appropriate to any network to which Element9 may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, libelous, tortuous, indecently depicts anyone under the age of 18 or is likely to result in retaliation against Element9 by offended users. Element9 reserves the right to refuse or terminate service at any time for violation of this section. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group.

Copyright Infringement - Software Piracy Policy
The Element9 network may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, material used to circumvent protection schema, or other intellectual property rights. Making unauthorized copies of software is a violation of the law, no matter how many copies you are making. If you copy, distribute or install the software in ways that the license does not allow, you are violating federal copyright law. If caught with pirated software, you or your company may be liable under both civil and criminal law, and you may be fined up to $250,000 and/or receive up to 5 years in jail. In compliance with the Digital Millenium Copyright Act (the "DMCA"), please send DMCA notifications of claimed copyright infringements to abuse@element9.net. Element9 will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.

Network Responsibility: Customers have a responsibility to use the Element9 network responsibly. This includes respecting the other customers of Element9. Element9 reserves the right to suspend and or cancel service with any Customer who uses the Element9 network in such a way that adversely affects other Element9 customers. This includes but is not limited to:
Attacking or attempting to gain unauthorized access to servers and services that belong to Element9 or its customers (i.e. computer hacking), and/or
Participating in behavior which result in reprisals that adversely effect the Element9 network or other customers' access to the Element9 network.
Element9 will react strongly to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include, but are not limited to, "Internet Scanning" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, etc. Any unauthorized use of accounts or computers by a Element9 customer, whether or not the attacked account or computer belongs to Element9, will result in severe action taken against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack. Any attempt to undermine or cause harm to a server, or customer, of Element9 is strictly prohibited.
Violations of this policy may be reported directly to the FBI's Infrastructure Protection & Computer Intrusion Squad at http://www.fbi.gov/programs/ipcis/ipcis.htm. Element9 will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.

Lawful Purpose
All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or AUP is prohibited. This includes, but is not limited to:
copyrighted material or
material used to circumvent protection schema or
material protected by trade secret and other statute or
dissemination of harmful or fradulent content.
Using any Element9 service or product for the purpose of participating in any activity dealing with subject matters that are prohibited under applicable law is prohibited.

Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of Element9 services or products is prohibited. Using the Element9 network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be legally distributed, even without the act of distribution, is prohibited.

Servers hosted within Element9 network are open to the public. You are solely responsible for your usage of the Element9 network and servers and any statement you make on servers hosted within the Element9 network may be deemed "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.

Child Pornography on the Internet
Our policy on child pornography is zero tolerance. Element9 will cooperate fully with any criminal investigation into a Customer's violation of the Child Protection Act of 1984 concerning child pornography. Customers are ultimately responsible for the actions of their clients over the Element9 network, and will be liable for illegal material posted by their clients.
According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.
Violations of the Child Protection Act may be reported to the U.S. Customs Agency at 1-800-BEALERT

Adult Content on the Internet
Element9 will provide notification and will inform any customers in writing of improper materials on our servers. However, Element9 reserves the right to disconnect any customers immediately.

Commercial Advertisements with E-mail
Element9 takes a zero tolerance approach to the sending of Unsolicited Commercial E-mail (UCE) or SPAM over our network. Very simply, this means that customers of Element9 may not use or permit others to use our network to transact in UCE. Customers of Element9 may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service.
Sending a message, especially an advertisement, to more than five recipients, is by itself spamming unless the individuals have specifically requested to be added to a mailing list on that topic. This includes both commercial advertisements and informational messages sent to recipients via electronic mail (email) as well as off-topic messages posted in Usenet discussion groups where the recipient has not requested or invited the message. Mailing lists must be true opt-in mailing lists. Before sending any email to a listed user, a confirmation email, with a tracking number, must be sent to the new subscriber, to which they must respond with a confirmation that they wish to be added to the list. You must keep these confirmations on file, so that in the case that a spam complaint is made against you, you have proof that the user did indeed opt-in. In addition, you must provide at least one easy way to opt out; see the MAPS guidelines (http://mail-abuse.org/rbl/manage.html) for details. Opt-out requests must be honored immediately.

E-mail is a person-to-person medium, not a broadcast medium.
Customers of Element9 are strictly prohibited from using or permitting others to use UCE or SPAM over our network. As our Customers are ultimately responsible for the actions of their clients over the Element9 network, it is advisable that Customers develop a similar, or stricter, policy for their clients.
Violation of Element9's SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, Element9 will initiate an immediate investigation (within 48 hours of notification). During the investigation, Element9 may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, Element9 may, at its sole discretion, restrict, suspend or terminate customer's account. Further, Element9 reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Element9 will notify law enforcement officials if the violation is believed to be a criminal offense.
Violation of Element9's SPAM policy may be reported to abuse@element9.net.

IP Address Overlap
Element9 administers the network on which customer accounts and servers reside. The customer cannot use IP addresses which were not assigned to them by Element9 staff. Any server found using IPs which were not officially assigned will be suspended from network access until such time as the IP addresses overlap can be corrected.

IRC
Element9 does not allow the use of IRC on the Element9 network. This includes, but is not limited to, the use of IRC clients, server software, bots or anything related to IRC. Violators' servers will be suspended.

UPDATED 4/18/2005: Banned Software Packages
Element9, for purposes of establishing the highest standards of security on our servers, does not allow any of the following software packages on any company server:

  • phpbb (any version)
Any server found with any of the software packages above (in part, or in full, whether installed, archived, or in source code form) will have their account suspended immediately.

Billing
The customer understands that the customer is responsible for paying for any network resources that are used to connect the customer's server to the Internet. The customer may request that the customer's server be disconnected from the Internet, but the customer will still be responsible for paying for any network resources used up to the point of suspension or cancellation.

Suspension
Element9 reserves the right to suspend network access to any customer if, in the judgment of the Element9 network administrators, the customer's server is the source or target of the violation of any of the other terms of the AUPs or for any other reason which Element9 chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacting regarding the activity. The customer will not be credited for the time the customer's machines were suspended. The Customer will be credited on a prorated basis based on the monthly fees the Customer pays for the servers that are suspended for the time the Customer's machines were suspended.
Cancellation Element9 reserves the right to cancel service at any time. If inappropriate activity is detected, all accounts of the customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacting regarding the activity. All fees paid in advance of cancellation are non-refundable if Element9 institutes its right of cancellation. Any violation of policies which results in extra costs will be billed to the customer (i.e. transfer, space etc.).

Indemnification
Element9 wishes to emphasize that in accepting the Terms of Services Agreement or its equivalent, customer indemnifies Element9 for any violation of the Terms of Sevice or its equivalent, law or AUP that results in loss to Element9 or the bringing of any claim against Element9 by any third-party. This means that if Element9 is sued because of a customer's or a customer of a customer's activity, the customer will pay any damages awarded against Element9, plus costs and reasonable attorney's fees.

Disclaimer of Responsibility
Element9 is under no duty to look at each customer's or user's activities to determine if a violation of the AUPs has occured, nor do we assume any responsibility through our AUPs to monitor or police Internet-related activities. Element9 disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person's or party's violation of this policy.
All Sub-Networks, resellers and managed servers of Element9 must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate Cancellation.
INDIRECT OR ATTEMPTED VIOLATIONS OF THE AUPs AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON YOUR BEHALF, SHALL BE CONSIDERED VIOLATIONS OF THESE AUPs BY YOU.


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