Acceptable Use Policy
The intent of the Acceptable Use Policy (AUP) is to provide a clear understanding of A V RADIONET expectations for subscribers. Any violation(s) of these guidelines may result in the suspension or cancellation of service.
Policy and Legal Infringements:
As an Internet Service Provider, A V RADIONET (AVR) will not censor any content of information passing through its network unless the information is deemed illegal. AVR will cooperate will legal authorities in the investigation of any suspected criminal or civil order of infringements. Activities to avoid include the following:
- Fraud: Involves a knowing misrepresentation or misleading statement, writing or activity made with the intent that the person receiving it will act upon it.
- Child Pornography: Federal child exploitation statutes define child pornography as visual depictions of "sexual intercourse" and/or "sexually explicit conduct", whether between persons or lascivious exhibition of the genitals or pubic area of any persons. Such visual depictions are illegal to possess, produce, receive, transport or distribute by any means, including computer.
- Infringement of Copyright, Patent, Trademark, Trade Secret, or Intellectual Property Right: Distribution and/or posting of copyrighted or the aforementioned infringements will not be tolerated.
- Hacking: AVR will not tolerate any subscriber attempting to access the accounts of others; penetrate security measures of other systems, whether or not the intrusion results in corruption or loss of data.
- Unauthorized Computer/Network Trespass: Unauthorized entry and/or use of another company and/or individual’s computer system will result in immediate termination.
- Illegal Export: Exporting software or technical information that is in violation of U.S. export control laws is prohibited.
- E-mail Spamming: Transmitting of unsolicited Email to multiple recipients will not be tolerated. Such an offense negatively impacts mail system performance.
- Usenet Spamming: Posting of messages to newsgroups that is irrelevant or blanket posting of messages to multiple newsgroups will not be tolerated.
- Distribution of Viruses: Intentional distributions of software that attempts to and/or cause damage, harassment, or annoyance to persons, data, and/or computer systems are prohibited. Such an offense may result in terminating the account immediately.
- Email/News Bombing: Malicious intent to impede another persons use of electronic mail services or news media will result in immediate termination.
- Email/Message Forging: Forging any message header, in part or whole, of any electronic transmission, originating or passing through AVR services is in violation of the Internet Access Agreement.
- Ponzi Schemes/Chain Letters/Pyramid Schemes: Posting of such scams may result in legal inquiries, suspension and/or termination of services.
- Inappropriate Use of Software: Use of software or any device that would facilitate a continued connection, i.e. pinging, while using AVR services could result in suspension of service.
- Third Party Accountability: AVR subscribers will be held responsible and accountable for any activity by third parties, using their account, that violates guidelines created within the Acceptable Use Policy.
This list is representative of prohibited activities and is not all inclusive of future violations.
Liability and Effect Date: AVR has no practical ability to monitor all conduct, communications, or content which might violate this policy prior to its transmission on AVR network. Therefore, AVR does not assume liability to subscribers for violation of aforementioned infringements. Also, AVR reserves the right to make change to this policy without prior notification to subscribers. As of January 1, 2002 this policy serves as an external policy for AVR.
A V RADIONET
Being an Internet Service Provider, AVR Networks (AVR) will not censor any content of information passing through its network. Censor is defined as, "an official who examines or monitors materials for objectionable content in order to suppress or delete anything considered objectionable."
AVR along with any parties from whom AVR obtains network services, exercises no control whatsoever over the content of the information passing through AVR network. Use of any information obtained via the AVR network is at Subscriber’s and its Users’ own risk or the risk of the affiliates. AVR specifically denies any responsibility for the accuracy or quality of information obtained through its service.
Therefore, AVR stands by the Access Agreement and the rights and privileges established within the First Amendment of the Constitution of the United States. The amendment states, "Congress shall make no law prohibiting the free exercise or abridging the freedom of press."
As of January 1,2002 this policy can be changed without notice and serves as an external policy for AVR.
A V RADIONET
AVR will not tolerate any Spamming over our network.
Spamming is defined as, "…flooding the Internet with copies of the same message, in an attempt to force the message on people who would not otherwise choose to receive it. Most ‘Spamming’ is commercial advertising, often for dubious products, get-rich-quick schemes, or quasi-legal services. ‘Spamming’ costs the sender very little to send – most of the costs are paid for by the recipient or the carriers rather than the sender."
"There are two principal types of ‘Spamming’, and they have different effects on Internet users. Usenet ‘Spamming’ is a single message sent to 5 or more Usenet newsgroups. Usenet ‘Spamming’ is aimed at ‘lurkers’; people who read newsgroups but rarely or never post and give their address away. Usenet ‘Spamming’ robs users of the utility of the newsgroups by overwhelming them with the barrage of advertising or other irrelevant posts. Furthermore, Usenet ‘Spamming’ subverts the ability of the system administrators and owners to manage the topics they accept on their systems."
"Email ‘Spamming’ targets individual users with direct mail messages. Scanning Usenet postings, stealing Internet mailing lists, or searching the Web for addresses often creates email ‘Spamming’ lists. Email ‘Spamming’ typically cost users money out-of-pocket to receive. Many people - anyone with measured phone service – read or receive their mail while the meter is running creating additional costs. Also, it costs ISPs and online services to transmit ‘Spammed’ information, and these costs are transmitted directly to subscribers."
In regards to the aforementioned violations concerning ‘Spamming’, AVR established and maintains zero tolerance for all ‘Spamming’ infractions. Each ‘Spamming’ infraction will be handled through our security channels; this may incur potential legal action and/or termination of service.
As of January 1,2002 this policy can be changed without notice and serves as an external policy for AVR.
Internet Access Agreement
By calling to access the Internet, Subscriber, and/or any person using Subscriber’s login identification name, or login identification names ordered by Subscriber, is deemed to have accepted the terms and conditions contained in this Internet Access Agreement (the "Agreement") and shall be bound thereby.
- "Subscriber" as used herein, means an individual, a corporation, or a legal entity who incurs usage charges for the Service for its own use or who incurs usage charges on behalf of a third party, i.e., a User.
- "User," as used herein, means a Subscriber who uses Service or an individual, a corporation, or a legal entity whose Service usage charges are incurred by a third party, i.e., Subscriber.
- Service: A V RADIONET (AVR) will provide Subscriber and its Users analog or digital access to the Internet, depending on the rate plan selected (the "Service"), subject to conditions generally beyond the control of AVR, including the type and condition of the equipment (personal computer, modem, etc.) of Subscriber and/or its Users. Service may be temporarily unavailable or limited because of capacity limitations and may be temporarily interrupted or curtailed due to equipment modifications, upgrades, relocations, repairs, and similar activities necessary for the proper operation of Service.
- Acceptable Usage of Dial-Up Accounts:
Subscriber and its Users agree to use dial-up accounts solely on an active "dial-up" basis, meaning only as needed and in no way on a standby or inactive basis in order to maintain a connection. Without limitation of the foregoing, Subscriber and its Users shall abide by the following provisions regarding usage:
- A dial-up account may be used for World Wide Web browsing, reading or posting to Usenet newsgroups, sending, receiving and reading electronic mail and transferring files via the file transfer protocol.
- A dial-up account shall not be used to host a dedicated server site on the Internet.
- A dial-up account shall not be accessed simultaneously by multiple user using the same user ID.
- A dial-up account has only one mailbox for incoming electronic mail unless additional mailboxes have been purchased.
- Automated processes may not be used such as checking e-mail or pinging the host to maintain a constant connection.
- Inactivity Disconnect Policy: AVR reserves the right to disconnect a dial-up account after 20 minutes of inactivity, as detected by AVR through electronic means. This time is approximate and subject to change without notice in AVR's sole discretion. Electronic or mechanical means to avoid an inactivity disconnect are strictly prohibited. Electronic or mechanical means include, but are not limited to, "pinging" the mail server, employing electronic or software autodialer features to maintain an active connection or repeatedly checking for e-mail by auto login to the mail server. AVR reserves the right to electronically audit connections to enforce the above requirements.
- Access: Service access will be provided via a local telephone number where available. AVR is not responsible for any toll or other charges in the event Service access is not provided via a local telephone number, for instance, if Service access is provide via a toll call.
- Price: Subscriber shall pay to AVR the charges associated with the rate plan selected, including applicable taxes, 800 access charges, etc. If Service access is not provided via a local telephone number, Subscriber may also be responsible for toll or other charges. AVR reserves the right to modify the charges upon the completion of said terms of Agreement.
- Payment: Subscriber shall be invoiced according the rate plan selected. Payment will be deemed made when received by AVR. Month to Month Subscriber will not be invoiced, the charge will be automatically deducted each month from the credit card account which Subscriber provided AVR at time of sign up.
- Term and Termination: This Agreement becomes effective upon registration of Subscriber’s login identification name and shall remain in effect for the period indicated in writing or email or until terminated as provided herein. Termination notices must be made in writing either by USPS, email or fax. Subscribers who cancel new accounts within 7 days of creation will receive a full refund. In the event Subscriber terminates the Service hereunder, then without limitation to any other remedy AVR may have, Subscriber will pay to AVR upon discontinuance of the Service a termination charge equal to the applicable monthly rate for the month in which termination notice was given.
- Credit: There shall be no credits, reductions, or setoff against the charges for Service for downtime or interruption of Service unless such Service interruption exceed 24 hours in duration. AVR shall provide Subscriber with a credit equal to 1/30 of the recurring monthly charge for Service for each twenty-four hour period from the time of notice of interruption until Service restoration, provided Subscriber notifies AVR of the Service interruptions. No adjustments shall be made by accumulating periods of non-continuous interruption. A credit allowance will not be given for mistakes, omissions, interruptions, delays, errors, defects or curtailments in the Service caused by the negligence or willful act of Subscriber or others, or mistakes, omissions, interruptions, delays, errors, or defects caused by failure of equipment or of Service as described in Section 2.
- Limitation of Liability: AVR SHALL NOT BE LIABLE FOR INTERRUPTION CAUSED BY FAILURE OF EQUIPMENT OR SERVERS NOT PROVIDED BY AVR, FAILURE OF COMMUNICATIONS, POWER OUTAGES, OR OTHER INTERRUPTION NOT WITHIN THE COMPLETE CONTROL OF AVR, NOR SHALL AVR BE LIABLE FOR PERFORMANCE DEFICIENCIES CAUSED OR CREATED BY SUBSCRIBER’S OR ITS USERS’ EQUIPMENT. SUBSCRIBER AND USER HEREBY RELEASE AVR FROM LIABILITY ARISING FROM ANY CONTENT ACCESSED VIA THE SERVICE. AVR’S PERFORMANCE UNDER THIS AGREEMENT SHALL BE EXCUSED IN CASE OF LABOR DIFFICULTIES, GOVERNMENTAL ORDERS, CIVIL COMMOTIONS, ACTS OF GOD, OR OTHER CONDITIONS OR CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL. AVR SHALL NOT BE LIABLE IF CHANGES IN OPERATION OR ALTERATION OF SUBSCRIBER’S OR ITS USERS’ EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. IN NO EVENT SHALL AVR BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF USE, ETC. THE LIABILITY OF AVR FOR ACTUAL PROVEN DAMAGES FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OF OR DISRUPTION OF SERVICE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO AN AMOUNT EQUIVALENT TO CHARGES PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE SERVICE DURING THE PERIOD SUCH DAMAGE OCCURS. AVR MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, CONCERNING THE SERVICE, AND EXPRESSLY DISCLAIMS WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, THE WARRANTY OF MERCHANTABILITY AND ANY OTHER WARRANTY IMPLIED BY LAW.
- Indemnity: Subscriber and User shall indemnify and hold harmless AVR from and against any loss, cost, claim, liability, damage, or expense (including reasonable attorney’s fees) to third parties, relating to the use of the Service by Subscriber, User, or any of their personnel, whether or not Subscriber or User has knowledge of or has authorized such access or use, including, without limitation, claims for libel, slander, invasion of privacy, infringement of copyright, patent infringement (where Subscriber or User has used, connected, or combined the Service with the products or services of others) negligence, or tortious behavior. Subscriber agrees to indemnify AVR along with any parties from whom AVR obtains network services, and to hold them harmless from any claims resulting from the use of the Service by Subscriber or its Users that damage another party or that violate the law.
- Subscriber Responsibility: Subscriber shall ensure that its Users shall comply with the terms and conditions of this Agreement. Any access to other networks connected to AVR’s network must comply with the rules of the other networks.
- Use of Service:
Subscriber and its Users agree to abide by and comply with the following terms and conditions:
- Misuse of Service: Subscriber and its Users shall not use the Service to make foul or profane expressions, to impersonate another person with fraudulent or malicious intent, to contact another person as to annoy, abuse, threaten, or harass such other person, or for any purpose in violation of law, or in such a manner as to interfere unreasonably with the use of the Service by any AVR’s customers. Subscriber and its Users shall not distribute chain letters or "junk" mail (any unsolicited mail of a business or commercial nature) or engage in "Ponzi" or "pyramid" schemes. The Service and underlying network may only be used for lawful purposes. Transmission of any material in violation of any U.S. or state regulation is prohibited. This includes, but is not limited to: copyrighted material, material which is threatening or obscene, or material protected by trade secret. In addition, AVR generally reserves the right in its sole discretion to either temporarily discontinue, or permanently terminate furnishing the Service upon notice to Customer in the event Customer uploads any information that is libelous, defamatory or that violates or infringes any right of privacy of any Persons; uploads any messages, data, images or programs that are indecent, obscene or pornographic; use the facilities and capabilities of AVR to conduct or solicit the performance of any illegal activity or to conduct any other activity that infringes the rights of AVR or any third party; or upload any information, messages, data, images or programs that is discriminatory or otherwise offensive as determined by AVR in its sole discretion.
Interference with the Right of Third Parties:
In the event that AVR receives notice from a third party, or in the event that AVR reasonably believes, that Subscriber’s or any User’s use of the Service, either alone or in connection with products or services of others, constitutes to either (1) defamation, invasion of privacy, or unfair competition, or (2) misuse, misappropriation or infringement of any patent, copyright, trademark, trade secret or other proprietary of intellectual property right of such third party, the AVR shall have the right, in its sole and exclusive option and discretion, without prior notification to Subscriber or to User(s), and without limiting any other rights or remedies AVR might have or incurring any obligation or liability to Subscriber or to User(s), to temporarily discontinue or permanently terminate, in whole or in part, furnishing of Services to Subscriber or to User(s).
- Usenet policy and Posting Restriction:
Usenet comprises a system of bulletin boards called newsgroups. Usenet access is provided to dial-up customers of AVR. Subscriber and its User shall not post to newsgroups until they have familiarized themselves with the subjects and established guidelines and restrictions are hereby incorporated herein by reference and Subscriber and its Users unconditionally agree to adhere to them. These guidelines and restrictions include, but are not limited to, the following:
- Only post articles that are relevant to the newsgroup. Inappropriate or irrelevant postings are not appreciated by participants of newsgroups nor are they allowed under Usenet protocols.
- Most newsgroups do not allow commercial postings. Users should verify this restriction before making any such posting.
- Blanket postings to all or large numbers of newsgroups simultaneously with disregard to the newsgroups’ subject are forbidden.
- Chain letters are not allowed to be posted.
- Unauthorized creation of a newsgroup is prohibited
- Harm to Equipment, Software and Processes: Subscribers agree unconditionally to not cause harm to AVR or third party equipment, software, or processes used in connection with furnishing the Service. In addition to constituting a default under this Agreement, any breach of this provision may result in civil and/or criminal penalties pursuant to applicable local, state and federal laws.
- Content, Accuracy of Information: AVR, along with any parties from whom AVR obtains network services, exercises no control whatsoever over the content of the information passing through AVR’s network. AVR makes no warranties of any kind, whether express or implied, for the content of the information passing through its network. Use of any information obtained via the AVR network is at Subscriber’s and its Users’ own risk or the risk of their affiliates. AVR specifically denies any responsibility for the accuracy or quality of information obtained through its Service.
- Offensive and/or Harmful Information:
The Internet hosts some material deemed unfit for viewing and reading by minors under the age of 18. Some sites contain information both in text and graphical formats that Subscriber and/or Users may consider obscene and/or harmful. Subscriber and/or Users agree to not hold AVR responsible for sites and postings that could be considered obscene, lewd, offensive, and/or harmful. Subscribers are responsible for their own monitoring and viewing habits and their Users, including minors. AVR does not block, filter or screen postings or sites on the Internet in whole or in part.
- Default: Upon a default by Subscriber AVR may, in its sole discretion, without prior notification and without limiting its remedies or incurring any liability to Subscriber, either temporarily discontinue or permanently terminate the furnishing of Service to Subscriber in whole or in part.
"Default" means any failure by Subscriber to comply with any term of this Agreement, including without limitation, failure to make timely payment of any amount due AVR or failure to comply with the restrictions on use of Service set forth in Section 13. Where Subscriber’s equipment is used with Service provided by AVR in violation of any of the provisions herein, AVR will notify Subscriber and take such action as necessary for the protection of the Service for use by its other customers. Subscriber shall discontinue such use of equipment or correct the violation immediately and shall confirm in writing to AVR within five days of such use has ceased or that the violation has been corrected, and if Subscriber fails to do so, AVR will disconnect Subscriber’s Service, without any credit allowance, until such time as Subscriber complies with the provisions hereof. AVR reserves the right to charge a reconnect fee for any discontinued Service that is subsequently reconnected.
- Equipment: Unless specifically noted by written agreement, all equipment supplied by AV Radionet is the property of AV Radionet. Upon termination of the service the subscriber is responsible for returning or arranging for the removal of AV Radionet's equipment within 10 business days. Failure to return the equipment in the same working order it was received will result in a repair or replacement charge based on the retail price of the equipment.
- Resolution of Disputes:
- The parties desire to resolve disputes arising out of this Agreement without litigation. Accordingly, except for action seeking a temporary restraining order or injunction related to the purposes of this Agreement, or suit to compel compliance with this dispute resolution process, the parties agree to use the following alternative dispute resolution procedure as their sole remedy with respect to any controversy or claim arising out of or relating to this Agreement or its breach.
- At the written request of a party, each party will appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve any dispute arising under this Agreement. The parties intend that these negotiations be conducted by non-lawyer, business representatives. The location, format, frequency, duration, and conclusion of these discussion shall be left to the discretion of the representatives. Upon agreement, the representatives may utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. Discussion and correspondence among the representatives for purposes of these negotiations shall be treated as confidential information developed for purposes of settlement, exempt from discovery and production, which shall not be admissible in the arbitration described below or in any lawsuit without the concurrence of all parties. Documents identified in or provided with such communications that are not prepared for purposes of the negotiations are not so exempted and may, if otherwise admissible, be admitted in evidence in the arbitration or lawsuit.
- If the negotiations do not resolve the dispute within 60 days of the initial written request, the dispute shall be submitted to binding arbitration by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. A party may demand such arbitration in accordance with the procedures set out in those rules. Discovery shall be controlled by the arbitrator and shall be permitted to the extent set out in this section. Each party may submit in writing to a party, and that party shall so respond, to a maximum of any combination of 35 (none of which may have subparts) of the following: interrogatories, demands to produce documents and requests for admission. Each party is also entitled to take the oral deposition of one individual of another party. Additional discovery may be permitted upon mutual agreement of the parties. The arbitration hearing shall be commenced within 60 days of the demand for arbitration. The arbitration shall be held in Palmdale, California. The arbitrator shall control the scheduling so as to process the matter expeditiously. The parties may submit written briefs. The arbitrator shall rule on the dispute by issuing a written opinion within 30 days after the close of hearings. The time specified in this section may be extended upon mutual agreement of the parties or by the arbitrator upon showing of good cause. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
- Each party shall bear its own costs of these procedures. A party seeking discovery shall reimburse the responding party the costs of production of documents (to include search time and reproduction costs). The parties shall equally split the fees of the arbitration and the arbitrator.
This Agreement shall be governed by, construed under, and enforced in accordance with, the laws of the state of California. In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. If any provision of this Agreement shall be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. This Agreement embodies the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, and all contemporaneous oral agreements and understanding relating to the subject matter hereof. AVR may amend the terms and conditions of this Agreement by giving Subscriber 30 days’ prior on-line notice. This Agreement is subject to modification by any authorized regulatory agency. AVR may assign this Agreement without limitation, but Subscriber may not assign this Agreement without AVR’s prior written consent. This Agreement shall be binding on the parties hereto and their respective personal and legal representatives, successors, and permitted assigns.