1. INTRODUCTION
Rev. 26JULY05-1
This document (the
"Agreement") sets
forth the
principles,
guidelines and
requirements of the
Terms of Service of
Appalachian
Communications Inc.,
a Virginia
incorporated company
(the "Company")
doing business as
ACI governing the
use by the customer
("Customer") of
Company's services
and products
("Services and
Products"). These
Terms of Service
have been created to
promote the
integrity, security,
reliability and
privacy of Company's
facilities, network,
and Customer data
contained within.
The Company believes
it provides the best
services in the
industry, and
provides the
following policies
in the best
interests of the
Company and the
Company's clients.
The Company retains
the right to modify
these Terms of
Service at any time
and from time to
time and any such
modification shall
be automatically
effective as to all
customers when
adopted by Company
and published at
http://www.appycomm.net/terms.html
. Company
shall be the sole
and final arbiter as
the interpretation
of the following. By
utilizing the
Company's services
and products, the
Customer agrees to
be bound by the
terms herein
outlined.
Questions or
comments regarding
this document should
be forwarded to the
Company at the
following address:
law@appycomm.net
Facsimile:
(702)-968-0170
2. COMPLIANCE WITH THE LAW
Customer shall
not post, transmit,
re-transmit or store
material on or
through any of
Services or Products
which, in the sole
judgment of the
Company (i) is in
violation of any
local, state,
federal or
non-United States
law or regulation,
(ii) is threatening,
obscene, indecent,
defamatory or that
otherwise could
adversely affect any
individual, group or
entity
(collectively,
"Persons") or (iii)
violates the rights
of any person,
including rights
protected by
copyright, trade
secret, patent or
other intellectual
property or similar
laws or regulations
including, but not
limited to, the
installation or
distribution of
"pirated" or other
software products
that are not
appropriately
licensed for use by
Customer. The
Customer agrees to
indemnify and hold
harmless the Company
from any claims
resulting from the
use of the services
which damages the
Customer or any
other party.
Customer shall be
responsible for
determining what
laws or regulations
are applicable to
its use of the
Services and
Products.
3. PROHIBITED
USES OF SERVICES AND
PRODUCTS
In addition to
the other
requirements of
these Terms of
Service, Customer
may only use the
Services and
Products in a manner
that, in the
Company's sole
judgment, is
consistent with the
purposes of such
Services and
Products. If
Customer is unsure
of whether any
contemplated use or
action is permitted,
please contact the
Company as provided
above. By way of
example, and not
limitation, uses
described below of
the Services and
Products are
expressly
prohibited.
3.1. General
3.1.1.
Pornography and
pornographic related
merchandising are
prohibited under all
the Company's
services. This
includes sites that
include links to
pornographic content
elsewhere. Further
examples of
unacceptable content
or links include
pirated software,
"hacker" programs,
archives of "Warez
Sites", game rooms
or MUDs, IRC Bots,
Egg Drop programs,
any kind of illegal
software or
shareware. In
addition, sites
offering online
gambling, casino
functionality,
sportsbook betting
(including
offshore), and
internet lotteries
are prohibited.
3.1.2. Violations
of the rights of any
Person protected by
copyright, trade
secret, patent or
other intellectual
property or similar
laws or regulations,
including, but not
limited to, the
installation or
distribution of
"pirated" or other
software products
that are not
appropriately
licensed for use by
Customer.
3.1.3. Actions
that restrict or
inhibit any Person,
whether a customer
of Company or
otherwise, in its
use or enjoyment of
any of the Company's
Services or
Products.
3.2. System and
Network
3.2.1.
Introduction of
malicious programs
into the Company's
network or server
(e.g., viruses and
worms).
3.2.2. Effecting
security breaches or
disruptions of
Internet
communication.
Security breaches
include, but are not
limited to,
accessing data of
which Customer is
not an intended
recipient or logging
into a server or
account that
Customer is not
expressly authorized
to access. For
purposes of this
Section 3.2.2.,
"disruption"
includes, but is not
limited to, port
scans, flood pings,
packet spoofing and
forged routing
information.
3.2.3. Executing
any form of network
monitoring which
will intercept data
not intended for the
Customer's server.
3.2.4.
Circumventing user
authentication or
security of any
host, network or
account.
3.2.5.
Interfering with or
denying service to
any user other than
Customer's host (for
example, denial of
service attack).
3.2.6. Using any
program/script/command,
or sending messages
of any kind,
designed to
interfere with, or
to disable, a user's
terminal session,
via any means,
locally or via the
Internet.
3.2.7. Creating
an "active" full
time connection on a
Company-provided
account by using
artificial means
involving software,
programming or any
other method.
3.2.8. Any
attempt to
circumvent or alter
monitoring,
bandwidth tracking
or utilization
reporting, or other
actions which have
the effect of
complicating the
normal operational
procedures of the
Company, including
but not limited to
altering, removing
or in any way
modifying or
tampering with
Company created log
files.
3.2.9. Any action
which the Company
determines, in its
own judgment, will
reflect poorly on
the Company or
negatively impact
its operations.
3.2.10. Any
action which the
Company deems to be
an unacceptable use
of resources,
business practice or
otherwise
unacceptable to the
Company.
3.3. Billing
3.3.1. Furnishing
false or incorrect
data on the order
form, contract or
online application,
including fraudulent
use of credit card
numbers.
3.3.2. Attempting
to circumvent or
alter the processes
any billing
procedures or
procedures to
measure time,
bandwidth
utilization, or
other methods to
document "use" of
the Company's
Services and
Products.
3.4. Mail
3.4.1. Sending
unsolicited
commercial email
messages (UCE),
including the
sending of "junk
mail" or other
advertising material
to individuals who
did not specifically
request such
material, who were
not previous
customers of
Customer or with
whom Customer does
not have an existing
business
relationship ("email
spam").
3.4.2. Sending
UCE referencing an
email address for
any domain hosted by
the Company;
3.4.3. Sending
UCE referencing a
domain hosted by the
Company;
3.4.4. Sending
UCE referencing an
IP address hosted by
the Company;
3.4.5. Posting
advertisements on
IRC, ICQ, or any
other public chat
system containing an
email address hosted
by the Company, a
domain hosted by the
Company, an IP
address belonging to
the Company;
3.4.6. The
Company will be the
sole arbiter as to
what constitutes a
violation of these
provisions.
3.4.7.
Harassment, whether
through language,
frequency or size of
messages.
3.4.8.
Unauthorized use, or
forging, of mail
header information.
3.4.9.
Solicitations of
mail for any other
E-mail address other
than that of the
poster's account or
service with the
intent to harass or
to collect replies.
3.4.10. Creating
or forwarding "chain
letters" or other
"pyramid schemes" of
any type.
3.4.11. Use of
unsolicited email
originating from
within the Company's
network or networks
of other Internet
Service Providers on
behalf of, or to
advertise, any
service hosted by
the Company, or
connected via the
Company's network.
3.4.12.
Activities deemed to
be unsolicited
marketing efforts or
otherwise harassing
in any way.
3.4.13. Customer
will be charged a
minimum $300.00
service charge for
each instance of a
verifiable UCE that
is reported to the
Company and faces
immediate account
suspension and/or
termination, as well
as further
penalties.
3.4.14. Email
messages received by
our mail servers are
only guaranteed
retention for a
maximum of 90 days.
Emails older than 90
days are subject to
removal.
3.5. Customer
Support
3.5.1. The
Company promotes a
mutually-professional
relationship with
its customers.
Abusive,
threatening, obscene
or otherwise
harassing
communications with
agents of the
Company, via
telephone, email,
online chat or other
means will result in
immediate account
termination not
withstanding any
other terms of this
agreement. Violation
of this or any
section of this
Agreement will
result in refund
ineligibility.
4. BANDWIDTH &
UTILIZATION
In addition to
the other terms of
this agreement,
which apply to all
plans, bandwidth and
utilization, by its
nature, is subject
to a number of
differing and/or
additional terms.
4.1 The Company
provides the space
and unlimited
transfer in good
faith to our
Customers so that
they may create
their WebSites
without the fear of
running over their
Web traffic
allocation. While
most Customers will
use the space and
traffic for their
legitimate WebSite
needs, we recognize
that others may try
to take advantage of
our offer and use
the space and
traffic in ways for
which it is not
intended. In the
best interests of
our Customers and in
an effort to
maintain the
integrity of our
service, the
following common
sense rules will
apply:
4.1.1. Customer's
site must use and
store only the
information and data
that relates to the
WebSite, at the IP
address provided by
the Company.
4.1.2. Customer
may not resell or
give away Web space
under a domain name,
nor may Customer
build WebSites that
house "sub domain"
WebSites on behalf
of other companies,
groups or
individuals.
Customers who wish
to resell the
Company's Web space
should utilize the
Company's Reseller
Program;
4.1.3. Customer
may not use
Customer's WebSite
to store Web pages,
files or data for
other IP addresses
or domain names, nor
may Customer use its
WebSite as a
repository for file,
data or "Warez
group" download
transfers. The
Company reserves the
right to make this
determination, in
its sole and
absolute discretion;
4.1.4. The
Company's "unlimited
traffic" and
"storage" offer is
to provide the
Company's customers
with storage space
and bandwidth for
active Web pages and
cannot be used as a
"storage space" for
electronic files. An
example of sites
that fall under
"electronic storage"
are large archives
of images,
compressed files,
movies, or sound
files. The Company
permits up to 15
megabytes of archive
storage, e.g. avi or
wav files, images,
compressed files,
shareware, games,
programs, etc.. All
HTML pages MUST be
linked to files
(HTML, .jpg, .gif,
etc.) stored on
Company's server and
vice versa.
4.1.5. The
storage and
distribution of MP3
format files via the
Company network is
prohibited.
4.1.6. The
Company does not
permit sites where
20% or more of the
monthly traffic is
from file downloads,
or sites that use
more than 10% of
system resources, or
sites which in the
Company's view are
detrimental to the
enjoyment of the
Company services by
the Company's other
clients, or are in
the sole and final
judgment of the
Company, detrimental
to network or
business operations.
The Company may
take whatever steps
necessary to provide
its services, and to
provide for the
enjoyment of such
services by all of
the Company clients,
and to ensure that
certain clients do
not utilize services
to the detriment of
other clients.
Customers with
WebSites that do not
comply with these
simple rules, or who
seek to take
advantage of the
Company unlimited
storage or traffic
plan in any other
way, will, at the
discretion of the
Company , have their
sites canceled
and/or removed from
the servers and have
service charges
assessed at the
discretion of the
Company .The Company
will be the sole and
final arbiter as to
WebSites or usages
of resources that
constitute violation
or intent to violate
our policies. Those
Customers found in
violation of these
policies are subject
to a $300.00 service
charge for each
instance of
violation, exclusive
of charges for the
bandwidth and/or
other resources
utilized. WebSites
which the Company
must suspend or
cancel due to
violation of these
rules are not
eligible to receive
a refund for unused
service, and are
subject to charges
for bandwidth and
usage of resources
at twice the
standard rate for
such resources.
Acceptance of these
Terms of Services,
and/or use of
Company's services
constitutes an
acceptance of any
fines, penalties or
service charges
which might arise
out of violation of
these policies.
5. TERMS AND
TERMINATION
For the purposes
of Section 5 of this
agreement, the term
"Thirty Day
Guarantee Period"
shall be defined as
the period extending
from the date a
Customer signs up
his or her first
domain with the
Company through the
thirtieth (30) day
following the
initial signup of
the first domain
enrolled.
5.1. All
cancellations must
be received by the
Company a minimum of
five (5) days prior
to the next billing
date of the domain
being cancelled.
5.1.1. If the
Customer notifies
the Company less
than five (5) days
before the next
billing date of the
domain being
cancelled, the
charges incurred as
a result of that
renewal will not be
refunded.
5.1.2.
Cancellations
requested within the
Thirty Day Guarantee
Period are eligible
for a full refund,
less setup fees and
add-on-service fees
which are
non-refundable.
Cancellations
requested outside
the Thirty Day
Guarantee Period are
not eligible for a
refund in part or in
full.
5.1.3.
Cancellation
requests will only
be accepted via the
Company's toll-free
number
(800-446-7627). Any
other form of
cancellation request
is not acceptable.
Client will receive
an email evidencing
cancellation
immediately after
contacting Company's
representatives via
the toll-free
number.
5.2. Customer
will not receive a
refund for any other
reason, including
but not limited to:
late cancellation,
slow connection
caused by Customer's
ISP/network,
Customer's
ignorance, InterNIC
delays, account
termination for
violation of
policies
5.3. By
submitting a credit
card or ACH
information on the
order form, Customer
agrees to authorize
all recurring
charges to the
account and any
other balances
incurred due to
overages of limits,
additions of extras
to the account,
service charges
and/or any other
fees, and to be
bound to the terms
of this Agreement.
5.4. Customer
will not receive a
refund for any setup
fees or any fees
other than the
monthly recurring
hosting fees.
5.5. Customer
will be charged a
$35 domain
reactivation fee for
each site suspended
due to a
billing-related
issue.
5.6. Customer
shall pay the fees
and other charges
for Products and
Services ordered
from Company as
published on the
Plan Comparison
Chart at time of
order. Company
reserves the right
to change rates
without notice; any
changes in price
will take effect
upon renewal of the
existing hosting
account, immediately
for new purchases.
5.6.1. Customer
agrees that the
Company reserves the
right to change its
fees, features, and
discount offerings
and the Customer
agrees to be bound
by any changes of
fee, feature, and/or
discount.
5.7. The Company
reserves the right
to terminate this
agreement, and to
delete the WebSite
from its hardware,
immediately upon the
occurrence of any of
the following
events:
5.7.1. Non
payment of any
charges due from
Customer;
5.7.2. Breach of
any term or
condition of this
agreement by
Customer;
5.7.3.
Commencement of any
lawsuit or
proceeding against
Customer arising
from or relating to
its use of the
WebSite, whether or
not such suit names
the Company as a
party or seeks any
recovery from the
Company.
5.7.4. Payment
for any charges is
due at the time of
signup and renewal
respectively. All
payments must be in
U.S. Dollars.
Accounts which have
balances outstanding
shall be deemed to
be in default and
subject to
termination of
service. Customer
shall be responsible
for all costs of
collection,
including reasonable
attorney's fees and
court costs, in
event of a default
for nonpayment of
any amounts due the
Company.
6.
INDEMNIFICATION OF
PROVIDER/RELATIONSHIP
OF PARTIES
6.1. Customer
agrees to indemnify
and hold the Company
harmless from any
lawsuit, claim,
charge, or expense,
including reasonable
attorney fees and
costs of defense,
for any matter
arising from or
relating to
Customer's WebSite
provided hereunder.
6.2. Nothing
contained herein
shall be deemed to
create a
relationship between
the Company and
Customer in the
nature of a
partnership, joint
venture,
editor/publisher or
otherwise. Both
parties acknowledge
and agree that the
Company has no
interaction with the
data or substance of
Customer's WebSite,
except as necessary
to maintain the
WebSite.
7.
SECURITY/SOFTWARE
7.1. Customer
agrees to take all
steps reasonable,
necessary, and
prudent to protect
Customer's login ID
and password.
7.2. Customer
agrees not to
attempt to undermine
or cause harm to any
server, software,
system or customer
of the Company.
7.3. Customer
agrees to maintain
Customers' computing
equipment
responsibly,
including running
virus software.
7.4. Uploading a
virus to a Company
server will result
in account
termination, service
charges and/or
prosecution.
7.5. Customer
acknowledges that
the Company cannot
provide technical
support for any
software and/or
script that the
Customer installs,
other than variable
name changes.
Customer also
acknowledges that
the Company does not
supply technical
support for
Microsoft FrontPage,
other than initial
configuration. The
Company supplies
technical support
for Web hosting
issues only. The
Company shall be the
sole arbiter as to
what constitutes a
"Web host" issue.
8. VIOLATION
Any attempt to
undermine or cause
harm to the Company
server or another
customer's Web
presence is strictly
prohibited. Any
violation of the
above Terms of
Service will result
in grounds for
account termination,
with no refunds
given; the Company
reserves the right
to remove any
account without
prior notice.
Violation of these
Terms of Service may
result in legal
action, service
charges or a
combination thereof.
9.
CONFIDENTIALITY
Customer
acknowledges that by
reason of their
relationship, both
the Customer and the
Company may have
access to certain
products,
information and
materials relating
to the other part's
business, which may
include business
plans, customers,
software technology,
and marketing plans
that are
confidential and of
substantial value to
either party,
respectively, and
which value would be
impaired if such
information were
disclosed to third
parties.
Consequently, both
the Company and the
Customer agree that
it will not use in
any way for its own
account or for the
account of any third
part, nor disclose
to any third part,
any such information
revealed to it by
either part, as the
case may be.
The Customer and
the Company further
agrees that each
will take every
appropriate
precaution to
protect the
confidentiality of
such information. In
the vent of
termination of this
agreement, there
shall be no use or
disclosure by either
party of any such
confidential
information in its
possession, and all
confidential
documents shall be
returned to the
rightful owner, or
destroyed. The
provisions of this
section shall
survive the
termination of the
agreement for any
reason. Upon any
breach or threatened
breach of this
section, either
party shall be
entitled to
injunctive relief,
which relief will
not be contested by
the Customer or the
Company.
10. REFUSAL OF
SERVICE
10.1. The Company
reserves the right
to refuse or cancel
service in its sole
discretion with no
refunds.
10.2. If any of
these Terms of
Service are failed
to be followed it
will result in
grounds for
immediate account
deactivation.
11. DISCLAIMER
11.1. USE OF THE
COMPANY'S SERVICES
AND PRODUCTS IS AT
CUSTOMER'S SOLE
RISK. NEITHER THE
COMPANY NOR ITS
EMPLOYEES, AGENTS,
RESELLERS THIRD
PARTY INFORMATION
PROVIDERS, MERCHANTS
LICENSERS OR THE
LIKE, MAKE ANY
WARRANTIES,
INCLUDING ANY
IMPLIED WARRANTIES
OF MERCHANTABILITY
OR FITNESS FOR A
PARTICULAR PURPOSE,
THAT THE COMPANY'S
SERVICES AND
PRODUCTS WILL NOT BE
INTERRUPTED OR BE
ERROR FREE; NOR DO
THEY MAKE ANY
WARRANTY AS TO THE
RESULTS THAT MIGHT
BE OBTAINED FROM THE
USE OF THE COMPANY'S
SERVICES AND
PRODUCTS OR AS TO
THE ACCURACY, OR
RELIABILITY OF ANY
INFORMATION SERVICE
OR MERCHANDISE
CONTAINED OR
PROVIDED THROUGH THE
COMPANY'S SERVICE,
UNLESS OTHERWISE
EXPRESSLY STATED IN
THIS AGREEMENT. THIS
INCLUDES LOSS OF
DATA, WHETHER
RESULTING FROM
DELAYS, ON
DELIVERIES, WRONG
DELIVERY, AND ANY
AND ALL SERVICE
INTERRUPTIONS CAUSED
BY THE COMPANY AND
ITS EMPLOYEES OR
OTHER CAUSES.
11.2. THE SOLE
CUMULATIVE LIABILITY
OF THE COMPANY FOR
ALL CLAIMS MADE BY
THE CUSTOMER, OR ANY
OTHER PARTY,
REGARDLESS OF FORM,
INCLUDING ANY CAUSE
OF ACTION BASED ON
CONTRACT, TORT OR
STRICT LIABILITY,
SHALL NOT EXCEED THE
TOTAL AMOUNT OF ALL
FEES AND CHARGES
PAID TO THE COMPANY
BY THE CUSTOMER.
11.3. The Company
reserves the right
to revise or change
these Terms of
Service at any time.
11.4. This
Agreement shall be
governed in all
respects under the
laws of the
Commonwealth of
Virginia applicable
to contracts made,
accepted and
performed wholly in
Virginia, without
application to
principles of
conflict of laws,
and the Customer and
the Company agree
that the sole venue
and jurisdiction for
any disputes arising
from this Agreement
shall be the
appropriate federal
or state court
located in the
Commonwealth of
Virginia.
