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These terms and conditions (the “Agreement”) in the absence of a signed Master Service Agreement between echoMountain LLC and a customer, governs the purchase, use and provision of all services, including dedicated hosting services, shared hosting services, custom hosting services and professional services, (collectively, the "Services") and describes the terms and conditions that apply to the use and provision of the Services.
If you do not agree to the terms of this Agreement, do not use the Services. If you do not agree to the terms of any modification, do not continue to use the Services and notify Provider of your termination of this Agreement in the manner described in Section 1.2 below, provided, however that you will remain liable for the charges for the Services to the extent described in Section 1 below.
Provider will, pursuant to the terms and conditions of this Agreement, provide the Services as described on each Sales Order or provided Services in the abscense of a Sales Order. To the extent required to perform the Services, Provider shall be solely responsible for establishing and maintaining the integration of the Services with the System, Provider’s network, the internet and other necessary communication networks or infrastructures. Provider shall provide all necessary digital transmission connections and links, all electrical and physical requirements. Provider shall provide the Services using standards, equipment and software that are consistent with industry standards and best practices. The “System” shall mean individually each, and collectively all, the servers, equipment, hardware, security protocols, fire walls, internet connections, software, communications support structure, and related materials and facilities, and to otherwise make the “System” accessible on demand by Users over the internet, provided, however that the “System” shall not include, and Provider shall not be responsible for the provision of, connectivity, systems, equipment, hardware or software needed for Users to access the Customer Content, except as described in an attached Sales Order.
1. Term and Payment for Services
1.1 Commencement Date and Term
1.2 Termination Policy
(a) Notwithstanding anything to the contrary in this Agreement or in any Sales Order, Customer may terminate an individual Sales Order hereunder without having to make a Termination Payment (as defined below) if Provider materially breaches a provision of this Agreement or such Schedule related to the provision of the Services (provided, that no failure in availability or uptime under an individual Sales Order shall be considered a material breach except to the extent that such Sales Order provides Customer with a termination right triggered by such failure in availability or uptime) under the applicable Sales Order and fails to cure such breach within thirty (30) days after Customer provides Provider with written notice of such breach (such termination, a “Sales Order Termination for Cause”). Customer may also terminate any individual Sales Order hereunder without having to make a Termination Payment (as defined below) if such Sales Order provides for the provision of Services rendered unable to be received by Customer as a result of Customer’s Sales Order Termination for Cause of another Sales Order.
(b) Customer may terminate this Agreement or any individual Sales Order hereunder for convenience or for no reason by (i) providing ninety (90) days written notice to Provider of Customer’s intent to terminate the Agreement or any individual Sales Order and (ii) paying all non-recurring and monthly recurring charges remaining on the Initial Term or Renewal Term applicable to the Services being terminated (the “Termination Payment”). The parties agree that such Termination Payment is an agreed-upon amount intended to represent liquidated damages to Provider resulting from such termination, and is not a fee, fine, charge or penalty. No such termination shall be effective, and Customer shall continue to incur fees for the Services, whether delivered or not, until Customer has paid Provider the applicable Termination Payment, except to the extent that Customer’s prepayments for then-undelivered Services exceed the Termination Payment. Provider shall be entitled to retain an amount equal to the Termination Payment from any payments due Customer for any reason, including refunds for prepayments, as described in this Section. Customer shall not be relieved of its obligation to pay for any Services undeliverable as a result or Customer’s termination of other Sales Orders until Customer has terminated the Sales Orders for such undeliverable Services in accordance with the terms of this Section, including paying any applicable Termination Payment. Notwithstanding the foregoing, if you terminate this Agreement other than as explicitly authorized under this Section 1.2 or the SLA, including if you notify Provider of your intent to terminate the Agreement or any Services without paying the Termination Payment, if applicable, you will be liable to Provider and owe to Provider the fees for Services that would have been due to Provider had no termination occurred, until the end of the then-current Initial Term or Renewal Term.
Except as provided in this Section 1.2 or otherwise in this Agreement, Provider may not terminate this Agreement or any applicable Sales Order. Provider may exercise all such termination rights in whole or in part.
Except as described in this Section 1.2 and the SLA, Customer may terminate an applicable Sales Order to this Agreement only as is described in the specific Sales Order. If Customer terminates a Sales Order to this Agreement, Customer shall remain liable under all other Sales Orders except to the extent that such Sales Orders are terminated in accordance with their terms or the terms of this Agreement.
In the event that no Sales Order between the parties is in effect and no Services are being provided under this Agreement, the parties may choose to agree to terminate this Agreement without any liability of either party hereunder.
1.3 Liability and Obligations on Termination
2. Use of Services
2.1 Applicable Policies and Guidelines
2.2 Material and Product Requirements
2.3 Domain Names
3. Intellectual Property Rights
3.1 Your License Grant to Provider
3.2 Your Warranties and Representations to Provider
.3 Customer and Provider Materials and Intellectual Property
(a) All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Customer pursuant to this Agreement or purchased by Provider by Customer and paid for by Customer, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto shall remain the sole and exclusive property of Customer (the “Customer IP”).
(b) All materials, including but not limited to the Customer Content, any computer software (in object code and source code form), data or information developed or provided by Provider or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Provider to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto shall remain the sole and exclusive property of Provider, its Users or its suppliers. Provider shall also maintain and control ownership of all Internet protocol ("IP") numbers and addresses that may be assigned to you by Provider. Provider reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
(c) With respect to any Provider logos and/or hypertext link logos provided for use with the Services, Customer is granted a non-assignable, non-exclusive, royalty free license solely to use the logos and/or link logo as a hypertext link icon to allow users to link from Customer’s web page to the Provider web pages, based on the following terms and conditions:
3.4 Proprietary or Confidential Information
3.5 Customer Data
4.1 Investigation of Violations
4.3 Disclosure Rights
5. Disclaimed Warranties
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR ANY INDIVIDUAL SALES ORDER, ALL SERVICES PERFORMED HEREUNDER ARE PERFORMED "AS IS" AND NEITHER PARTY MAKES, AND EACH HEREBY DISCLAIMS AND WAIVES ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
6. Limitation and Exclusion of Liability
Should the Agreement expire or be terminated for any reason, Provider will not be liable to Customer because of such expiration or termination for compensation, reimbursement, or damages on account of loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from such termination or expiration, except that Provider shall be liable to Customer, subject to the other limitations described in this Agreement, for direct damages to Customer resulting from Provider’s breaches of its obligations under this Agreement or any individual Sales Order.
6.1.1 Exceptions to the Limitation of Liability
6.2 Errors and Interruptions of Service
Provider shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control.
Provider hereby releases and holds harmless, and agrees to indemnify you and your affiliates against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by you arising out of or relating to (a) Provider’s violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) Provider’s improper or illegal use of the Services; or (c) Provider’s violation, alleged violation, or misappropriation of any trademark, copyright or trade secrets or non-proprietary right of a third party (including, without limitation, defamation, libel, violation of privacy or publicity).
8. Miscellaneous Provisions
8.1 Entire Agreement
8.5 Compliance With Laws
Each party shall at all times comply with all applicable laws and regulations and shall indemnify and save the other party harmless from the failure to so comply. The parties agree that neither shall have to perform any obligations set forth in this Agreement if such performance would violate any present or future law, regulation or policy of any applicable government.
Neither party may assign this Agreement or any right or obligation hereunder by operation of law or otherwise, without the other party’s prior written consent, provided that Provider may assign this Agreement in connection with a merger, acquisition, sale, divestiture or other business reorganization. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
8.7 No Waiver
A party’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of that party’s right to subsequently enforce such provision or any other provisions hereunder or there under. Neither party may waive any right hereunder except expressly and in writing. Any other purported waiver of any such right shall be without any effect.
Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
All provisions of this Agreement relating to warranties, intellectual property rights, limitation and exclusion of liability, indemnification obligations and payment obligations shall survive the termination or expiration hereof and thereof.
Any notices or demands in connection with any schedule shall be give in writing by regular or certified mail at the address indicated in the Schedule, or to any address specified by Provider.
In the event of any dispute, claim, question, or disagreement arising from or relating to this agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules.
In the event of litigation or arbitration of any dispute arising hereunder, except as is otherwise provided in this Agreement, each party shall bear its own costs, including attorney’s fees.
Burstable bandwidth utilization is billed in 0.01 Mbps (or 10 Kbps) increments at the 95th percentile. Traffic samples will be collected on your connection to the internet 24x7x365. echoMountain polls data every 5 minutes. Every 5 minutes, our polling system checks to see how much data has passed since the previous measurement, then assigns two data rate values (called samples – one Send and one Receive) to each 5-minute span. At the end of every month, all send samples are ranked by data rate, and likewise for Receive. There are 8,640 samples in a 30 day month for each of these two categories. The number of samples in the month determines which two samples have been ranked at the 95th percentile position. The data rate values of the two samples are compared and the higher one serves as the month’s basis for your usage-based billing.
Real-time bandwidth charts are provided for each customer using Router Traffic Grapher (RTG), a tool to monitor the traffic load on network links. RTG generates HTML pages which provide a live visual representation of your traffic. A sample report
Real Time Traffic Report for Customer 16241
Period: [08/01/2005 00:00 to 08/31/2005 23:59]
RateIn RateOut MaxIn MaxOut 95% In 95% Out
Connection Mbps Mbps Mbps Mbps Mbps Mbps
at-1/2/0.104 core1.abc 0.01 0.01 0.01 0.01 0.01 0.01
at-1/2/0.109 core1.xyz 0.11 0.16 0.43 0.50 0.33 0.45
This client would be billed for 0.45 Mbps at the 95th percentile, since it is the maximum for all inbound and outbound traffic, the resulting service charges for burstable bandwidth would be 0.45 Mbps for the month of August 2005.
Your Services may include a committed amount of burstable bandwidth. If you use any bandwidth in excess of the committed amount of megabits per second (Mbps), Provider may, in its sole discretion, assess you with additional charges as a result of this excess usage which charges are set forth on the Sales Order. Provider will provide near-real-time reporting services to Customer upon request in order for Customer to monitors its usage of the Services and any usage in excess of the amounts provided, provided, however, that Customer will be responsible for all additional usage charges as incurred.
Provider will have no obligation under this Agreement to correct any bugs, defects or errors in any Customer Content. Provider agrees to provide reasonable technical support (collectively “Professional Services” to Customer in the form of telephone consulting and "e-mail" to Customer during Provider's normal business hours (which are at least 8:00 a.m. to 6:00 p.m. CST) and at Provider's standard pricing. Provider will have Service personnel available 24 hours per day, 7 days per week, 365 days per year to respond to and promptly remedy Service disruptions.
Interruption of Service
Network Access SLA
“Network Access” means Provider owned and operated Internet Protocol (IP) routing infrastructure consisting solely of Provider measurement devices at selected points of presence (“Selected POPs”) at selected Internet peering points.
“Data Center Services” consists solely of the services within the “Data Center” service class as denoted in the sales order or subsequent change orders and paid by Customer for the affected Service and excludes all other fees which might be charged to Customer, including, by way of example and not limitation, set-up fees, fees for local loop, space rental fees, charges for additional services such as professional services, incremental bandwidth usage, electricity, extra IP addresses, RAM, hard drives beyond that which is available without additional charge under Provider’s standard rates, hourly support charges, and other types of optional additional services.
“Latency” means the average time required for round-trip packet transfers between selected POPs during a calendar month, as measured by Provider.
“Network Outage” means an instance in which no traffic can pass in or out of Selected POPs for more than 15 consecutive minutes.
“Packet Loss” means the average percentage of IP packets transmitted between Selected POPs during a calendar month that are not successfully delivered, as measured by Provider.
Provider Network Availability commitments are based upon goals in three key areas:
i. Free of Network Outages 100% of the time
Subject to the Credits Section below, upon Customer’s request, Provider will issue a credit to Customer for Network Outages in an amount equal to one day’s worth of the Data Center Services paid by Customer, multiplied by each hour (or portion thereof rounded to the next hour) of the cumulative duration of such Network Outages during a particular month and not to exceed 50% of the Data Center Services paid by Customer.
Subject to the Credits Section below, upon Customer’s request, if Latency on the Network for a calendar month exceeds 85 milliseconds, then Provider will issue a credit to Customer equal to two days’ worth of the Fully Managed Hosting Fee paid by Customer for such month.
Subject to the Credits Section below, upon Customer’s request, if Packet Loss on the Network exceeds 1% during a calendar month, then Provider will issue a credit to Customer equal to two day’s worth of the Fully Managed Hosting Fee paid by Customer for such month.
Measurement will be based on Service Level Reports which display the latency and packet delivery between Provider’s network and the border network. Network statistics are collected every 5 minutes.
Customer shall have the right to terminate this Sales Order, subject to the restrictions described herein, if the Fully Managed IT Services are not available at least 96% of the time during any 7 day period and 98% of the time during any 30 day period or if the Fully Managed IT Services are not available for three or more hours on more than one day during any 30 day period."
Customer shall not receive any credits and no termination rights shall be triggered under these Network Access SLAs in connection with any failure or deficiency of the Network caused by or associated with:
Service Level Agreements
Provider endeavors to have your server and equipment accessible over the network 100% of the time (“Server Availability”) as measured by ICMP packet delivery for Data Center Services excluding scheduled maintenance. Scheduled maintenance typically occurs once per month and may result in down time of approximately one hour and generally occur on the weekends or between the hours of 12 midnight and 6 am CST. Customers will be notified by email as early as possible before the scheduled maintenance.
In addition, for World Class Data Center Services, Customer may be entitled to additional credits as calculated below and as measured 24-hours a day in a calendar month, with the maximum credit not to exceed fifty (50%) of the World Class Data Center Services for the affected month.
World Class Data Center Services -- Minutes of continuous service downtime Credit:
90 minutes: 15%
In order for you to receive a credit on your account, you must request such credit within one (1) month after you experienced a covered problem. You must request credit by sending an electronic mail message to firstname.lastname@example.org. For security, the body of this message must contain your account information (Master Service Agreement Number, Sales Order Number), the dates and times of the unavailability of your Web site, and such other Customer identification requested by Provider. Credits will be applied within thirty (30) days of your credit request. The termination rights and SLA-based credits described herein shall be Customer’s sole and exclusive remedy with respect to failures in availability or uptime.
Credits shall not be provided to you and termination rights shall not be triggered in the event that you have no Customer Content availability resulting from (i) scheduled maintenance, (ii) your actions or (iii) circumstances beyond Provider’s reasonable control.
Traffic Reporting and Analysis
I. INTRODUCTION AND COVERAGE
This Acceptable Use Policy (the “Policy”) sets forth guidelines for acceptable use of the echoMountain System (the “Service”). This Policy applies to all aspects of the Service, including e-mail, USENET postings, chatting, and browsing. All users of the echoMountain System (“Users”) are required to comply with this Policy. By using the echoMountain System, each User acknowledges that such User has read, understood and agrees to abide by this Policy. Users must also comply with all terms and conditions of applicable agreements, and with any additional policies that may be applicable to a specific service offered by echoMountain. This Policy is incorporated into any such additional agreements.
As used in this Acceptable Use Policy, the terms shall have the respective meanings set forth below:
“echoMountain” includes, without limitation, echoMountain, LLC and their affiliates and subcontractors.
“echoMountain Services ” includes, without limitation the echoMountain Services and all systems, services, and products that utilize, or are utilized in connection with, the echoMountain Services.
C. Conformance With Policies of Other Backbone Carriers
In situations where data communications are carried across networks of other Backbone Carriers, Users of the echoMountain System must also conform to the applicable acceptable use policies of such other Backbone Carriers.
echoMountain reserves the right to modify this Acceptable Use Policy at any time without prior notice.
All Users are required to comply with this Acceptable Use Policy, as well as all applicable laws and regulations. In the event any user is, or is reasonably believed by echoMountain to be, in violation of this Acceptable Use Policy, echoMountain reserves the right, but assumes no obligation, to: (i) suspend or terminate any or all of the affected services; (ii) remove or delete the offending content from the echoMountain network or echoMountain Services; (iii) block any violating activity; (iv) monitor any use, activity, traffic, content, or email communications through use of the Services. In addition, echoMountain may take any other appropriate action, legal or otherwise, against a User for violations of the Policy, which may include termination of the Service. echoMountain does not make any promise, nor does it have any obligation, to monitor or police activity occurring via the Service and will have no liability to any party, including any User, for any violation of the Policies. echoMountain shall not be responsible for any failure or delay on its part in taking any such action.
Without limiting anything elsewhere in this Acceptable Use Policy, Users shall not use, or permit other parties to use, the echoMountain Services to store, transmit or otherwise process information or other material that is, or in a manner that is: (i) defamatory, offensive, abusive, indecent, obscene, pornographic or menacing, (ii) in violation of the laws (including U.S. export laws concerning the transmission of technical data and other regulated materials) or the intellectual property rights or other rights of any person, (iii) interferes with other users of the echoMountain network or other networks, or (iv) to the extent applicable, violates the Acceptable Use Policy as set forth herein. Each User shall defend, indemnify and hold echoMountain, its employees, contractors and agents harmless from and against any claims arising out of any breach of the foregoing.
echoMountain provides an unfiltered connection to the Internet. No data, documents, materials, or information that enters the echoMountain System is reviewed before being transmitted to users. Accordingly, echoMountain neither controls nor accepts responsibility for the content of any communications that are transmitted or made available to users, regardless of whether they originated from users of the echoMountain System. In addition, echoMountain expressly disclaims any responsibility for the accuracy or quality of information provided by third parties that may be obtained through the use of the echoMountain System.
Each User is responsible for complying with this Acceptable Use Policy, and for providing reasonable assistance to echoMountain in investigating and resolving issues, problems, and/or complaints arising out of the services provided to such User.
Users are responsible for configuring their own systems. echoMountain shall not be liable for any damage caused by such system configurations regardless of whether such configurations have been authorized or requested by echoMountain.
C. Reporting Violations
Users are responsible for immediately reporting to echoMountain (via e-mail or phone) any network issue which could materially compromise the stability, service or security of any use by echoMountain or its customers of the echoMountain System.
D. Consequences of Non-Compliance
Users who violate this Acceptable Use Policy may incur criminal or civil liability. echoMountain may refer alleged violators to civil or criminal authorities for prosecution, and will cooperate fully with applicable government authorities in connection with the criminal or civil investigations of alleged violations. echoMountain reserves the right to disclose customer information to the extent authorized by federal surveillance statutes.
III. PROHIBITED USE
The examples of prohibited use set forth below and throughout this Acceptable Use Policy are non-exclusive, and are provided as guidelines to customers and other users of the echoMountain System.
A. Illegal Use
Users agree to use the Service only for lawful purposes. Use of the Service for transmission, distribution, retrieval, or storage of any information, data, or other material in violation of any applicable law or regulation (including, where applicable any tariff or treaty) is prohibited. This includes, without limitation, the use or transmission of any data or material protected by copyright, trademark, trade secret, patent, or other intellectual property right without proper authorization and the transmission of any material that constitutes an illegal threat, violates export control laws, or is obscene, defamatory, or otherwise unlawful. In those instances involving child pornography, echoMountain complies with all applicable Federal or State laws including providing notice to the National Center for the Missing and Exploited Children or other designated agencies.
The following activities are also prohibited:
The following general actions are considered “abuse” and are strictly prohibited:
Violations of system or network security are prohibited, and may result in criminal and civil liability.
It is strictly prohibited to attempt to circumvent the authentication procedures or security of any host, network, network component, or account (i.e. "cracking") to access data, accounts, or servers which the user is not expressly permitted or authorized to access. This prohibition applies whether or not the attempted intrusion is successful, and includes unauthorized probes or scans performed with the intent to gather information on possible security weaknesses or exploitable configurations.
Users of the echoMountain System are responsible for educating themselves and configuring their systems with at least basic security. Should systems at a user’s site be violated, the user is responsible for reporting the violation and then fixing the exploited system. For instance, should a site be abused to distribute unlicensed software due to a poorly configured FTP (File Transfer Protocol) Server, the user is responsible for re-configuring the system to stop the abuse.
Users are prohibited from interfering or attempting to interfere with service to any other user, host, or network on the Internet (“denial of service attacks”). Examples of such prohibited activity include without limitation (a) sending massive quantities of data (i.e. "flooding" with ICMP, SMTP, or any other type of traffic that exceeds accepted norms of size and/or frequency) with the intent of filling circuits, overloading systems, and/or crashing hosts, (b) attempting to attack or disable any user, host, or site, or (c) using, distributing, or propagating any type of program, script, or command designed to interfere with the use, functionality, or connectivity of any Internet user, host, system, or site (for example, by propagating messages, via e-mail, Usenet posting, or otherwise, that contain computer worms, viruses, control characters or Trojan horses). Users may not use the Service to monitor any data, information, or communications on any network or system without authorization. Users may not attempt to gain unauthorized access to the user accounts or passwords of other users.
Users are prohibited from intentionally or negligently injecting false data into the Internet, for instance in the form of bad routing information (including but not limited to the announcing of networks owned by someone else or reserved by the Internet Assigned Numbers Authority) or incorrect DNS information.
Users are prohibited from engaging in improper use or distribution of electronic mail (“e-mail”) over the Internet. Without limitation of the foregoing, it is strictly prohibited to engage in any of the following activities:
Bulk e-mail may be sent only to recipients who have expressly requested receipt of such e-mail. Users that send solicited bulk e-mail are required to maintain records of all bulk e-mail subscription requests, and to provide echoMountain with such records upon request of echoMountain, to enable echoMountain to investigate complaints from third parties. The sender of any solicited bulk e-mail shall, upon the request of a recipient, immediately remove such recipient from all applicable mailing lists and refrain from further transmissions of e-mail to such recipient.
Use of any auto-responder messages, mailing lists, or any other programs or scripts run by a user to handle or re-distribute e-mail is the sole responsibility of the user, and shall be operated in a reasonable manner. This responsibility includes, but is not limited to, maintaining up-to-date mailing lists to minimize mail bouncing and to facilitate the processing of removal requests, configuring auto-responders so that they do not create mail loops, and the prompt handling of any complaints regarding UBE re-distributed through a mailing list onsite.
All Usenet guidelines and restrictions are incorporated herein by reference, and users of the echoMountain System agree to adhere to such guidelines unconditionally.
Without limitation of the foregoing, it is strictly prohibited to engage in any of the following activities:
The legitimacy of a given post or cancellation is determined by the official newsgroup or mailing-list moderator. Therefore, echoMountain defers to their judgment on these issues. If no such official entity exists, it is at echoMountain’s discretion to determine whether any post or cancellation is compliant with this Acceptable Use Policy and Internet community standards for that newsgroup.
F. World Wide Web
echoMountain strictly prohibits users from engaging in any of the following web-related activities:
Because the Internet is an inherently open and insecure means of communication, any data or information a User transmits over the Internet may be susceptible to interception and alteration. echoMountain makes no guarantee regarding, and assume no liability for, the security and integrity of any data or information a User transmits via the Service or over the Internet, including any data or information transmitted via any server designated as “secure”.
V. COMPLAINTS AND CONTACT INFORMATION
Any complaints regarding prohibited use or other abuse of the echoMountain System, including violations of this Acceptable Use Policy, should be sent via e-mail to echoMountain. Please include all applicable information that will assist echoMountain in investigating the complaint, including all applicable header lines of forwarded messages.
Sites experiencing live attacks from echoMountain customers should call echoMountain to submit a complaint as quickly as possible. Describe the urgency of the situation should you need immediate attention.
VI. ADDITIONAL USER RESPONSIBILITIES
Users must comply with the following obligations:
VII. DIGITAL MILLENNIUM COPYRIGHT ACT
Users acknowledge that pursuant to the Digital Millennium Copyright Act, echoMountain has (a) adopted a policy providing for termination of subscribers and account holders who are repeat offenders, (b) designated an agent to receive notification of claimed infringement from the copyright owner, (c) posted the name, address, phone number and email address of the designated agent on echoMountain’s web site, and (d) registered the designated agent with the Copyright Office. Users acknowledge and agree that in no event shall echoMountain be liable for any damages, whether in contract or tort, including, but not limited to, direct, consequential (including without limitation loss of profits), cost of substitute goods, special, exemplary, incidental and indirect damages, arising out of compliance or reasonable attempts to (i) comply with the United States Copyright Act or (ii) satisfy requirements to qualify for the safe harbors designated in the Digital Millennium Copyright Act.
VIII. LIMITATION OF LIABILITY
ECHOMOUNTAIN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF USE, ETC., EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ECHOMOUNTAIN SHALL NOT BE LIABLE FOR ANY DIRECT OR ACTUAL DAMAGES, EXCEPT TO THE EXTENT SPECIFIED IN A WRITTEN OR ELECTRONIC AGREEMENT ENTERED INTO BETWEEN ECHOMOUNTAIN AND ITS CUSTOMER.
This document defines the difference between non-billable standard technical support services and our On Demand Professional Services. echoMountain provides 24x7x365 technical support regarding the services we provide our Customer. A distinction will be made between issues that are the responsibility of the Customer and those that are the responsibility of the Provider.
The following types of requests shall be provided to Customer at no additional charge and are limited to labor and no additional charge does not apply to any hardware additions or replacements which may not be covered by manufacturer warranty or service agreement.
The following types of requests, while not all inclusive, shall incur an On Demand Professional Services charge.
It shall be the determination of providers technical support team as to whether an issues and requests are On Demand Professional Services or standard technical support. Provider shall provide case management of all requests along with an analysis of the determination of whether or not services performed are professional services or not.
The cost for On Demand Professional Services vary based on the time the service is required. On Demand Professional Services are billed in quarterly hour increments. On Demand Professional Services may be pre-purchased on a block basis for a discount, or on a monthly recurring basis. A Sales Order must be completed before Pre-Purchased Blocks of Hours or Monthly Recurring Basis Hours may be used.
The following schedule sets forth the rates for On Demand Professional Services:
*Hourly On Demand Professional Services are billed in quarterly hour increments.