Subscriber's or Subscriber's Sub-Users' use or inability to use the service (whether from Service Faults or otherwise) that Pragma provides to, or is to provide to, Subscriber, Any destruction, damage, taking, unavailability or other loss of Subscriber's or any Subscriber's Sub-User's system, server or data, The cost to procure any substitute service, Any unauthorized access or use of Subscriber's account or Any third-party conduct or other matter relating to the service. Pragma AND ITS MANAGERS, MEMBERS, EMPLOYEES, AFFILIATES, ATTORNEYS, AGENTS, CONTRACTORS AND LICENSORS HEREWITH EXPRESSLY DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO REQUEST OR ADVICE FROM SUBSCRIBER TO Pragma, IN ANY FORM OF MEDIA, SHALL CREATE ANY WARRANTY. SUBSCRIBER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER'S NETWORK AND SYSTEM AND FOR ANY LOSSES THAT RESULT FROM SUBSCRIBER'S USE OF, OR INABILITY TO USE, THE SERVICE THAT Pragma PROVIDES, OR IS TO PROVIDE, TO SUBSCRIBER;Facility Access: Visits to Pragma's facility must be scheduled at least twenty-four (24) hours prior to the visit. Should Subscriber need emergency access to Subscriber's server computer, Subscriber must contact Pragma technical support and request access at least fifteen (15) minutes prior to the emergency visit. Subscriber shall pay any/all related charges (such as for a security pass, property pass, time and assistance provided by Pragma, etc.). and Subscriber shall submit a photo ID for Pragma's records prior to Subscriber's initial visit to Pragma's facility. Guided tours for prospective clients (non-subscribers) are permitted, at the sole discretion of Pragma, only during regular business hours, Monday-Friday, and should be scheduled at least twenty-four (24) hours in advance; IP Address Allocation / Ownership: If Pragma assigns Subscriber an Internet Protocol ("IP") address and/or number(s) for Subscriber's use, the right to use that IP address/number shall belong solely to Pragma, and Subscriber shall have no right to use that IP address/number except as permitted by Pragma in its sole discretion in connection with the services provided by Pragma to Subscriber during the term of this TOS Agreement. Pragma shall maintain and control ownership of all IP addresses and numbers that may be assigned to Subscriber by Pragma, and Pragma reserves the right to change or remove any and all such IP addresses/numbers, in its sole and absolute discretion. Pragma's allocation of IP addresses/numbers is limited by the policies, as they exist from time to time, of the American Registry for Internet Numbers ("ARIN"), including policies providing that the use of IP addresses or numbers for IP-based virtual hosts are not acceptable as justification for new IP addresses or numbers. Pursuant to ARIN's policies, as they exist from time to time, Subscriber must use name-based hosting whenever possible. Pragma will periodically review IP address usage, and if Pragma finds that Subscriber and/or Subscriber's Sub-Users are using IP addresses or numbers where name-based hosting could be used, Pragma will revoke authorization for the use of those IP addresses/numbers. All IP addresses/numbers that are allocated to Subscriber must be utilized within forty-eight (48) hours of allocation, otherwise Pragma may retract said unused IP address or number without prior notification to Subscriber. Services usage must be reasonable. Customer may not put excessive burdens on our servers or other resources provided by Pragma. Customer may be asked to pay additional fee(s) going forward for excessive bandwidth, power consumption or technical service usages to avoid disruption or termination of services. 15. Unauthorized Use of Account: Subscriber shall not reveal Subscriber's account information to anyone, Subscriber shall protect and maintain the confidentiality and security of Subscriber's account, Subscriber shall not use anyone else's account, and Subscriber shall immediately notify Pragma of any unauthorized use of Subscriber's account or any other breach of security. Subscriber is solely responsible and accountable for, and Pragma shall not be responsible or accountable for, any/all activities that occur on or through Subscriber's account, including any and all acts or omissions by, or attributable to, any third party, using the service that Pragma provides to Subscriber. 16. Disclosure of Subscriber's Information to Law Enforcement and to Third Parties: Subscriber herewith acknowledges and agrees that the Pragma may disclose any and all Subscriber information, including, but not limited to, Subscriber contact information, assigned IP addresses/numbers, account history, account use, etc., to any law enforcement agent who requests it, without further consent or notification to Subscriber. In addition, as may be allowed by ARIN policies from time to time, Pragma will provide any third party with Subscriber contact information (including the name, telephone number, email address and other contact information of Subscriber). Pragma shall apply the terms of this section to any/all of Subscriber's Sub-Users, and Subscriber shall notify all of Subscriber's Sub-Users of these terms, 17. SPAM / Unsolicited Commercial Email (UCE) / Unsolicited Bulk Email (UBE): DO NOT SPAM FROM YOUR ACCOUNT. Subscriber may not use or permit others to use the service that Pragma provides to Subscriber to transmit (including by email, uploading, posting or other transmission), originate, pass through or otherwise transact any SPAM, UCE and/or UBE. Violations of this policy carry, as well as possible suspension or cancellation of service, additional penalties and/or remedies, including, but not limited to: Pragma reserves the right to drop the section of any IP space involved in any SPAM/ UCE/ UBE or Denial of Service (DOS) complaints if Pragma determines, in its sole discretion, that the offending activity is causing, or may cause, harm to other parties on the Internet (particularly if open relays are on Subscriber's network or on a Subscriber's Sub-User's network, or if DOS attacks are originating from Subscriber's network); Subscriber will pay "Research Fees" of $175.00 per hour to compensate Pragma for employee time spent investigating Subscriber's violation. Pragma reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated violation; First violations of Pragma's SPAM/ UCE/ UBE policy will result in an "Administrative Fee" of $250.00; a second violation will result in an "Administrative Fee" of $500.00, and immediate cancellation of Subscriber's service; and Pragma may notify law enforcement officials if the violation is believed to be a criminal offense; Pragma's remedies are cumulative and they may be exercised concurrently or separately at any time. Lack of action by Pragma with respect to any remedy shall not serve as a waiver of that or any other remedy at any time; IMPORTANT NOTICE: A Subscriber hosting websites or services on Subscriber's server computer supporting spammers or resulting in any of Pragma's IP space to be listed in any of the various Spam Databases or black hole lists will have its service immediately disconnected. Such suspended service will not be reconnected until such time that Subscriber agrees to remove ANY and ALL traces of the offending material immediately upon reconnection, and agrees to allow Pragma access to its server computer(s) to confirm that all material has been COMPLETELY removed. Because Subscriber is ultimately responsible for the actions and omissions of Subscriber's Sub-Users, it is advisable that Subscriber develop a similar policy for its Sub-Users. 18. Compliance with Pragma'S AUP: Pragma's AUP is an integral part of this TOS Agreement, and Subscriber agrees to comply with Pragma's AUP, and to take reasonable steps to ensure that Subscriber's Sub-Users comply with Pragma's AUP at all times. Pragma's AUP applies to Subscriber and to each/all of Subscriber's Sub-Users and to each/all server computer, network, device and/or system under Subscriber's control or assigned to Subscriber related to the service Pragma provides to Subscriber. Subscriber is, and will be held, responsible and accountable for any and all activity and/or omission by, or attributable to, any third party directly or indirectly using or benefiting from Pragma's services that violates any of the terms of Pragma's AUP; Pragma reserves the right to investigate actual, suspected or alleged violations of Pragma's AUP, which includes the right to access data, information, contents and records on, or associated with, any server computer(s) of, or assigned to, Subscriber. Pragma shall not be in default of this TOS Agreement if Pragma's investigation causes Subscriber to incur downtime or requires the sequestering of all or a portion of the Subscriber's server computers; Pragma may involve, and cooperate with, law enforcement authorities in investigating and/or prosecuting Subscriber and/or Subscriber's Sub-Users who are involved in any violation of Pragma's AUP. Subscriber shall assist Pragma to comply with all laws, ordinances, regulations and rules related to the service Pragma provides to Subscriber. Subscriber shall cooperate and comply with any/all civil or criminal investigations regarding activity through, and data, information, contents and records on, or associated with, any server computer(s) of, or assigned to, Subscriber, including, without limitation, discovery orders, subpoenas, freeze orders, search warrants, information requests, wire taps, electronic intercepts and surveillance, preservation requests, and any other order from a court or government entity (each an "Investigation"). Without limiting any other right of Pragma, Pragma reserves the right to comply with any Investigation without notice to Subscriber; Without limiting Pragma's right to, at any time for any reason, cancel this TOS Agreement and permanently disconnect the service that Pragma provides to Subscriber, Pragma may also, in its sole discretion, take any one or more of the following remedies for a violation of Pragma's AUP: Disable access to Subscriber's content that violates Pragma's AUP; Remove DNS records from Subscriber's server computer(s); Block email or any other network services; Effect IP address null routing; Take direct action against Subscriber's Sub-Users; Charge Subscriber for remedial actions, and recover any and all expenses from Subscriber in connection with any violation of Pragma's AUP attributable to Subscriber. Pragma's remedies are cumulative and they may be exercised concurrently or separately at any time. Lack of action by Pragma with respect to any remedy shall not serve as a waiver of that or any other remedy at any time; 19. IRC: We allow IRC services on our network. 20. Pragma's Remedies Cumulative / No Waiver: Pragma's remedies under this TOS Agreement are cumulative, and they may be exercised concurrently or separately at any time. Lack of action by Pragma with respect to any remedy shall not serve as a waiver of that or any other remedy at any time 21. Pragma's Trademarks: All trademarks, service marks, logos, product names and service names of Pragma comprise the trademarks of Pragma, and Subscriber shall not, and shall not allow any third party to, display or use in any manner said trademarks without Pragma's prior written permission.
Subscriber acknowledges and agrees that the provision of services to Subscriber by Pragma Servers.com ("Pragma"), and Subscriber's acceptance and use of Pragma's services, constitute Subscriber's acceptance of and agreement to the terms and conditions of this document -- Pragma's Acceptable Use Policy ("Pragma's AUP") -- and that Pragma's AUP is an integral part of, and is incorporated by reference into, the Terms Of Service ("TOS") Agreement by and between Pragma and Subscriber. Pragma may amend Pragma's AUP from time to time by posting it at http://www.PragmaServers.com/aup.php/, and Subscriber's use of Pragma's services after Pragma posts any such changes on its website shall constitute Subscriber's acceptance of any/all such amendments. VIOLATIONS: Doing, causing or allowing (whether by act or omission) any of the following, and/or any direct or indirect aiding or abetting of any person or entity to do, cause or allow (whether by act or omission) any of the following, is considered a violation of Pragma's AUP and of the TOS Agreement between Pragma and Subscriber: 1. Illegal Activities: Using Pragma's services for illegal purposes or in support of illegal activities, including, but not limited to, transmitting (by email, uploading, posting or otherwise) or distributing, downloading, copying, caching, hosting or storing data, information or content which, in Pragma's sole determination, constitutes a violation of any relevant law, regulation, ordinance or court order. Subscriber shall be responsible for determining what laws, regulations, ordinances and court orders are applicable to its use of Pragma's services; 2. Threats: Using Pragma's services to transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any material that threatens or encourages bodily harm, destruction of property or any other type of harm; 3. Harassment: Using Pragma's services to transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any material that harasses or stalks another; 4. Harmful: Using Pragma's services to transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any material that is harmful, abusive, defamatory or libelous; 5. Violation of Duty: Using Pragma's services to transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any material in violation of any duty under any law (including court order), contract or any fiduciary relationship; 6. Forgery or Impersonation: Adding, removing, modifying or forging any message header, network header, TCP/IP packet header or any part of any header or information in any transmission (including any email, upload, posting or other transmission), originating or passing through Pragma's services, in an effort to deceive or mislead another; impersonating or attempting to impersonate any person or entity in any transmission (including any email, upload, posting or other transmission) originating or passing through Pragma's services; misleading or attempting to mislead any person or entity by use of incorrect identifying information. The use of anonymous re-mailers or nicknames does not constitute a violation hereunder. Subscriber must maintain a policy requiring proper "From" and/or "Reply To" headers on all email and usenet postings. 7.Fraud/Fraudulent Activity: Using Pragma's services in furtherance of or involving any fraudulent activity or fraudulent purpose, or to make any fraudulent offers to sell or buy products, items or services, or to advance any type of financial scam including, but not limited to, pyramid schemes, chain letters or any other financial scam; using Pragma's services to effect a misrepresentation or misleading statement, writing or activity; 8. SPAM / Unsolicited Commercial Email (UCE) / Unsolicited Bulk Email (UBE): Using Pragma's services to: transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any spam, UCE or UBE; operate mailing lists, listservs or mailing services that target an audience that has not voluntarily signed up for email information using a double opt-in process or that has not made their email addresses available to Subscriber for distribution of information; effect spamming via third-party proxy, aggregation of proxy lists or installation of proxy mailing software; accept and process third-party messages for sending without user identification and authentication; host, or permit hosting of, web pages, sites or information advertised within SPAM, UCE or UBE from another network (such as spamvertising); violate the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act), establishing requirements for sending certain types of commercial mail. IMPORTANT NOTICE: A Subscriber hosting websites or services on Subscriber's server supporting spammers or resulting in any of Pragma's IP space to be listed in any of the various Spam Databases or black hole lists will have its service immediately disconnected. Subscribers who operate mailing lists, listservs or mailing services must a) maintain complete and accurate records of all consents and opt-ins, including the actual emails and their headers, b) provide such records to Pragma upon request, and c) allow any party on the list to remove itself automatically and permanently. If Subscriber cannot provide proof of such consents and opt-ins, Pragma will consider the mass mailing to be unsolicited. Subscribers must maintain proper security on their servers to prevent them from being used as SPAM amplifiers by third parties; 9. Interference: (Several of the sites called this "threatening the integrity of the network" or "threatening the integrity of another network")Interfering with, disrupting or adversely affecting, or attempting to interfere with, disrupt or adversely affect, the ability to use Pragma's services, the Internet or any other services or equipment (this includes denial of service attacks against another network, host or individual user); using Pragma's services to interfere with, disrupt or adversely affect, or to attempt to interfere with, disrupt or adversely affect, the service of any subscriber, subscriber's sub-users, host, network or system, including, without limitation, via means of overloading, flooding, email bombing, news bombing, crashing or any similar activity; using Pragma's services to impede another person's use of electronic mail services or news; using any program, or sending messages of any kind, designed to interfere with or disable a user's session; 10. Usenet SPAMing: Using Pragma's services for the purpose of transmitting (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any material, messages or commercial advertisements that violate the regulations, FAQ's, charters, policies or other rules of any newsgroup or mailing list. Usenet posts and content must conform to standards established by the Internet community and the applicable newsgroup rules; commercial messages deemed appropriate under the rules of a newsgroup or mailing list, or that are solicited by the recipients, are permitted; 11. Unauthorized Access ( Cracking/Hacking): Accessing, corrupting or taking, or attempting to access, corrupt or take, any data, information or the accounts of others; logging into a server or account, or entering or using or attempting to enter or use another person's or entity's computer system which Subscriber/ Subscriber's Sub-User is not authorized to access, enter or use; penetrating or attempting to penetrate Pragma's security measures or another person's or entity's computer software or hardware, electronic communications system, or telecommunications system or security; and any similar activity prohibited by federal or state law; 12. Infringement on Intellectual Property Rights: Using Pragma's services to transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any information, data, content, material or work that infringes any copyright, trademark, service mark, patent, trade secret any or other intellectual property right(s) of any person or entity; 13. Collection of Personal Data: Using Pragma's services to collect, or to attempt to collect, personal information about third parties without the third party's(ies') knowledge or consent; 14.Unfriendly Activity: Subscriber's/ Subscriber's Sub-User's (as defined in the TOS Agreement) allowance of others to use its/their network, or permitting its/their network to be configured in such a way that affords a third party the capability to use its/their network, in an illegal, inappropriate or unfriendly manner; causing or initiating security breaches or disruptions of network communication or connectivity; executing any form of activity that intercepts data not intended for Subscriber's/ Subscriber's Sub-User's server(s); evading or circumventing user authentication or security of any host, network or account; engaging in any conduct designed to avoid restrictions or access limits to specific services, hosts or networks; probing, scanning or testing, or attempting to probe, scan or test, the vulnerability of a system or network without proper authorization; breaching or attempting to breach security or authentication measures without proper authorization; taking any action in order to obtain, or attempting to obtain, services to which such Subscriber/ Subscriber's Sub-User is not entitled; 15. Distribution of Unwanted Software: Using Pragma's services to effect the intentional distribution of software or computer code, files or programs that causes, or attempts to cause, damage, harassment or annoyance to persons, entities, data and/or computer systems; 16. Inappropriate Use of Software: Using Pragma services to employ software or any device that would facilitate a continued connection (such as pinging) or would negatively affect a person's or entity's ability to engage in real time exchanges; 17. IRC Networks: Running IRC on Pragma's standard network. IRC is allowed only on Pragma's separate IRC network.; 18. IP Addresses: Using IP addresses that were not assigned to it by Pragma; 19. Support to Terrorists: Using Pragma services to provide support or resources (including concealing or disguising the nature, location, source, or ownership of support or resources) to any organization designated by the U.S. government as a terrorist organization pursuant Section 219 of the Immigration and Nationality Act; 20. Gambling: Using Pragma services for or to promote gambling that is or may be prohibited or restricted by any state or federal gambling laws or regulations; 21. Harm to Minors / Child Pornography: Harm to Minors / Child Pornography: Using Pragma services to harm minors in any way or transmitting (by email, uploading, posting or otherwise), distributing, downloading, copying, caching, hosting or storing on a server any child pornography as defined by U.S. law. Adult content is allowed; and 22. Violation of Security: Violating or attempting to violate the security of Pragma's systems. It is Subscriber's obligation to maintain and enforce these provisions against all of Subscriber's Sub-users, to maintain its own abuse/postmaster email addresses for reporting abuses and to promptly and appropriately respond to all emails sent to these addresses. Please consult an attorney if you are uncertain of the legal status of your any of your activities. Pragma will comply with all orders and obligations of any court or government agency. Pragma expressly disclaims any liability for the data and content residing on its network and for the actions and inactions of its Subscribers, including Subscriber's Sub-Users