I. General Overview
It is MERCURY NETWORK's policy to offer open, uncensored access to the Internet. However, as with any user-oriented service, MERCURY NETWORK has certain guidelines and rules which must be enforced for the benefit of both MERCURY NETWORK SUBSCRIBERS and all other Internet users throughout the world. MERCURY NETWORK therefore requires SUBSCRIBERS to adhere to the guidelines and terms and conditions set forth herein.
II. Subscriber Consent To Terms Of Service
Please read these Terms of Service carefully before opening or continuing an account with MERCURY NETWORK. By using MERCURY NETWORK services, you agree to comply with these Terms of Service, and MERCURY NETWORK may terminate your subscription if you fail to comply with these terms and conditions. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU SHOULD IMMEDIATELY END YOUR USE OF MERCURY NETWORK SERVICES AND MERCURY NETWORK SOFTWARE AND NOTIFY MERCURY NETWORK CUSTOMER SERVICE SO THAT MERCURY NETWORK MAY INITIATE A CLOSURE OF YOUR ACCOUNT.
A. USE OF SERVICES
1. The SUBSCRIBER agrees to use MERCURY NETWORK's services for lawful purposes, in compliance with all applicable laws.
2. MERCURY NETWORK accounts are provided for use in conformance with these Terms and Conditions. MERCURY NETWORK reserves the right to investigate suspected violations of the Guidelines. When MERCURY NETWORK becomes aware of possible violations, MERCURY NETWORK may initiate investigation which may include gathering information from the SUBSCRIBER or SUBSCRIBERS involved and the complaining party, if any, and examination of material on MERCURY NETWORK's servers.
3. During an investigation, MERCURY NETWORK may suspend the account or accounts involved and/or remove the material involved from its servers. If MERCURY NETWORK believes a violation of these Guidelines has occurred, it may take responsive action at its sole discretion. Such action may include, but is not limited to, temporary or permanent removal of material from MERCURY NETWORK's servers, the cancellation of news group posts, warnings to the SUBSCRIBER or SUBSCRIBERS responsible, and the suspension or termination of the account or accounts responsible. MERCURY NETWORK, at its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of these Guidelines could also subject the SUBSCRIBER to criminal or civil liability.
B. USE OF MATERIALS
1. Materials in the public domain (e.g., images, text, and programs) may be downloaded or uploaded using MERCURY NETWORK services. SUBSCRIBERS may also re-distribute materials in the public domain. The SUBSCRIBER assumes all risks regarding the determination of whether material is in the public domain.
2. The SUBSCRIBER is prohibited from storing, distributing or transmitting any unlawful material through MERCURY NETWORK services. Examples of unlawful material include but are not limited to direct threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization. The SUBSCRIBER may not post, upload or otherwise distribute copyrighted material on MERCURY NETWORK's servers without the consent of the copyright holder. The storage, distribution, or transmission of unlawful materials could subject the SUBSCRIBER to criminal as well as civil liability, in addition to the actions outlined in Section II. A. above.
3. The SUBSCRIBER may not store or distribute certain other types of material on MERCURY NETWORK's servers. Examples of prohibited material include, but are not limited to programs containing viruses or trojans and tools to compromise the security of this or other sites.
1. MERCURY NETWORK accounts are for individual use only. SUBSCRIBERs may not share passwords or accounts with other individuals.
2. MERCURY NETWORK shall provide passwords to SUBSCRIBERS. In the event that the security of an SUBSCRIBER is compromised, MERCURY NETWORK shall provide the SUBSCRIBER with a new password.
3. MERCURY NETWORK staff may monitor the security of SUBSCRIBERS passwords at any time. A SUBSCRIBER with an insecure password may be directed to change the password to one which complies with the above rules. SUBSCRIBERS who repeatedly choose insecure passwords may be assigned a password by MERCURY NETWORK; continued failure to maintain password security may be grounds for account termination.
D. SYSTEM SECURITY
1. The SUBSCRIBER is prohibited from utilizing MERCURY NETWORK services to compromise the security or tamper with MERCURY NETWORK's system resources or accounts on any of MERCURY NETWORK's computers, routers, terminal servers, modems, or any other equipment at MERCURY NETWORK or at any other site. Use or distribution of tools designed for compromising security is prohibited. Examples of the tools include but are not limited to password guessing programs, cracking tools or network probing tools. Any attempt to access any of MERCURY NETWORK's corporate assets is strictly prohibited.
2. MERCURY NETWORK reserves the right to release the login names of SUBSCRIBERS involved in violation of system security to system administrators at other sites, in order to assist them in resolving security incidents. MERCURY NETWORK will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
E. SYSTEM RESOURCES
1. MERCURY NETWORK will allocate system resources to provide all SUBSCRIBERS with the best service possible. As part of resource allocation, MERCURY NETWORK may limit, restrict or prioritize access to system resources, including CPU time, memory, disk space, session length, and the number of sessions.
2. Additionally, MERCURY NETWORK may institute services and fees for SUBSCRIBERS who are interested in accessing system resources above and beyond acceptable usage.
3. MERCURY NETWORK may log instances of abuse of system resources, including but not limited to those outlined below, and take action as outlined in Section II. A. above.
4. System abuse is defined as any use of MERCURY NETWORK resources which disrupts the normal use of system or Internet services for others. Examples of system abuse include but are not limited to attempting to disrupt the sessions of other Internet users, consuming excessive amounts of time, memory, disk space, or bandwidth or otherwise affecting the performance of MERCURY NETWORK servers or networks.
5. SUBSCRIBERS may not run programs which provide network services from their accounts. Example of prohibited programs include but are not limited to mail, http, irc, ftp, and nntp servers.
6. SUBSCRIBERS may only make use of MERCURY NETWORK system resources while connected. The only exceptions to this policy are email servers, which process and route mail as it arrives, and web pages, which remain active even when logged off.
III. Acceptable Usage
Acceptable usage is hereby defined as the normal activities associated with the use of the Internet, including but not limited to usage of MERCURY NETWORK's systems and network facilities for accessing the World Wide Web, Internet Relay Chat, USENET Newsgroups, E-mail, and other Internet features. Depending on the account type, this may include file storage on MERCURY NETWORK's servers for SUBSCRIBERS own personal web page and file access area (FTP).
This policy is subject to any and all laws and regulations set forth by the Federal, State or any other governmental authority.
IV. Prohibited Activities
Activities specifically prohibited by MERCURY NETWORK administration include but are not limited to the following:
1) Background and/or server-type applications
Including but not limited to IRC bots, HTTP servers, MUDs, and any other process which were initiated by the user that continues execution on the system upon user logout.
2) Long-term storage of data
Long-term storage of data is referred to as the storage of files which are not used regularly in an account for an extended period of time. This specifically includes but is not limited to programs such as shareware programs which the user may download to their account for purposes of transferring to their home computer. Such programs should be removed at such time as they are successfully transferred to the users personal system.
3) Flooding or abuse of other users
Flooding is a fairly common occurrence on the Internet, and one which is dealt with strictly at MERCURY NETWORK. Flooding takes place in numerous ways, including but not limited to ICMP flooding, mail bombing (sending large amounts of e-mail repeatedly to a person for purposes of harassment), mass mailings to multiple addresses, MSG/CTCP flooding on IRC, as well as other, less common methods.
4) Attempts to compromise system and/or network security
Programs such as packet sniffers, password crack programs, and similar utilities found to be running from a user's account are prohibited. This also includes attempts to hack into non-MERCURY NETWORK systems.
5) Sharing of accounts
Sharing of a user's account with another party for purposes of avoiding payment for a second account is strictly prohibited.
6) Attempts to bypass resource usage limitations
In order to provide fair service to all MERCURY NETWORK users, MERCURY NETWORK has implemented certain resource limitations, the three most common being disk quotas on the servers, idle and session time-outs on dial-ups, and speed limits on broadband. Attempts to bypass disk usage quotas by any means may result in immediate loss of system privileges. Attempts to bypass the idle and session time-outs as well as speed limits are also prohibited. The current idle time-out limit is twenty minutes. The current session time-out limit is eight hours.
7) PPP/SLIP emulation software
Since PPP/SLIP is a product offered by MERCURY NETWORK, users desiring such access are required to sign up for that service rather than attempting to emulate it by software. Any such software will be removed from the user's account by MERCURY NETWORK immediately when found.
8) Conducting business through a personal account
The standard dial-up accounts and single-user broadband accounts provided by MERCURY NETWORK are designed for the home/casual user and not to provide the level of service required for conducting business. Therefore, conducting business with an individual account is prohibited. If a business account is desired, please contact MERCURY NETWORK sales department.
9) Excessive use of system resources
This includes, but is not limited to, the continued use of programs or commands which take a large amount of system resources, be that processor time, memory, network bandwidth, and/or drive space on the host system.
10) Excessive use of dial-up resources
Excessive dial-up use is defined as being logged in more than six times that of the average MERCURY NETWORK dial-up user. If, for example, MERCURY NETWORK's dial-up users are logged in an average of 50 hours in a given month, excessive use would be 300 hours that month. This primarily prohibits the continued usage of a dial-up port to simulate a dedicated connection. Dial-up accounts are designed to provide on-demand access for SUBSCRIBERS, not dedicated connections. If a dedicated connection is desired, the SUBSCRIBER needs to speak with MERCURY NETWORK's dedicated sales department.
11) Excessive use of broadband resources
Excessive broadband use is defined as transferring data more than six times that of the average MERCURY NETWORK broadband user. If, for example, MERCURY NETWORK's broadband users transfer an average of 1GB of data in a given month, excessive use would be 6GB that month. This primarily prohibits the usage of a broadband connection to simulate a dedicated connection. Broadband accounts are designed to provide on-demand access for SUBSCRIBERS, not dedicated connections. If a dedicated connection is desired, the SUBSCRIBER needs to speak with MERCURY NETWORK's dedicated sales department.
12) E-mail abuse
E-mail abuse typically comes in one of three forms, the transfer of a message to unsolicited individuals, the sending of harassing and/or threatening messages to other users, and the forging of e-mail addresses so as to make the e-mail appear to be from another user.
13) USENET news abuse
Similar to e-mail abuse, includes forging of addresses, harassment/threats, the posting of the same message to multiple newsgroups (spamming), as well as the posting of information in groups where it is not relevant and unwanted.
14) Pyramid/money-making schemes
Such activities as the transfer of information or solicitation of persons via the Internet in an attempt to extort money or other valuables or the use of pyramid/chain letters are all prohibited.
15) Pirated software
Pirated software is defined as the illegal exchange of software for purpose of avoiding the purchase of said software by the individuals involved. This includes most commercial applications such as Adobe Photoshop, Microsoft Office, etc. Such activities are prohibited by Federal law and are thus not allowed in any form on MERCURY NETWORK. Such prohibition also includes the unauthorized copying of copyrighted material including, but not limited to digitization and distribution of photographs from magazines, books, or other copyrighted sources and copyrighted software. The exportation of software or technical information in violation of U.S. export control laws is strictly prohibited.
16) High-traffic web sites
Individual accounts on MERCURY NETWORK machines are intended to provide access to individuals only. As most individual pages are fairly low-traffic for the most part, the performance for everybody on the systems is optimal. However, some individuals occasionally choose to put content on their pages which draws a large number of hits to their pages and thus degrade performance for other users' pages. Due to this, MERCURY NETWORK has had to implement certain limitations on the amount of traffic an individual user's home page can receive. Typically a page can safely transfer 20-25 MB per day without causing excessive load on the host system. Sites generating more than this must be moved to our Web Hosting service, where we are better able to deal with the extra traffic.
V. Penalties for Abuse
A. All prohibited activities are subject to immediate termination of a user's account and any and all criminal and civil penalties available under the law. The penalties imposed on a user for abuse will vary based on the level of the offense. Typically the user will receive a warning on the first offense. However, if the offense is severe enough, MERCURY NETWORK reserves the right to disable the account immediately. Accounts which have been disabled by administration for abuse will not be re-opened for a user. It is vital for MERCURY NETWORK to provide a quality service for all users, and MERCURY NETWORK will not tolerate users who through their actions hinder us in that endeavor. It is also important for MERCURY NETWORK to have a non-intrusive presence to the rest of the Internet, and thus prohibit activities which adversely affect users on other service providers and their associated networks. To this end, MERCURY NETWORK reserves the right to modify and/or disable user service at any such time abuse occurs.
B. MERCURY NETWORK may charge an hourly fee for excessive dial-up usage as defined in section IV. 10 above. SUBSCRIBER agrees that such fees are reasonable and to make timely payment of such fees.
C. MERCURY NETWORK may charge an hourly fee for excessive data transfer as defined in section IV. 11 above. SUBSCRIBER agrees that such fees are reasonable and to make timely payment of such fees.
D. MERCURY NETWORK will not reimburse users whose service was suspended or disabled due to any of the reasons listed above.
E. All MERCURY NETWORK users agree to indemnify and hold MERCURY NETWORK, its officers, directors, shareholders, employees, agents, subsidiaries, and affiliates harmless from any and all claims and expenses related to the user's violation of this Agreement, including any abusive or unlawful behavior on the part of the User or the User's dependents, or the infringement of any intellectual property or privacy right of any person or entity.
VI. Additional Policies
A. Due to the explosive growth of the Internet and the constant addition of new services and thus the new possibilities of abuse, MERCURY NETWORK reserves the right to add and enforce new policies.
B. While MERCURY NETWORK strives to provide local access to our SUBSCRIBERS, MERCURY NETWORK cannot guarantee such service. It is the user's responsibility to verify with the telephone carrier whether the calls made via the SUBSCRIBER's modem to access the Internet are local or not. MERCURY NETWORK makes no warranties as to whether MERCURY NETWORK can provide users with local Internet access numbers. Users are responsible for paying their own dial-up telephone charges for accessing the Internet as well as for contacting MERCURY NETWORK's Sales and/or Technical Support lines. MERCURY NETWORK WILL NOT REIMBURSE USERS FOR ANY LONG DISTANCE CHARGES.
VII. Limitation of Liability
MERCURY NETWORK's liability under any circumstances is limited to the current month's service charge.
MERCURY NETWORK IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO MERCURY NETWORK OR ANY INFORMATION OR SOFTARE THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL MERCURY NETWORK BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE MERCURY NETWORK. NOR SHALL MERCURY NETWORK BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND MERCURY NETWORK'S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO MERCURY NETWORK RECORDS, PROGRAMS, OR SERVICES. IN NO EVENT SHALL MERCURY NETWORK'S TOTAL LIABLITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED THE AGGREGATE DOLLAR AMOUNT PAID UNDER THE AGREEMENT.
IX. Billing Policies
1. SUBSCRIBER acknowledges, agrees and assumes full responsibility for making full and timely payments for each MERCURY NETWORK account. Timely payment includes maintaining SUBSCRIBER billing information given to MERCURY NETWORK for each account which the SUBSCRIBER must keep current. SUBSCRIBERS who choose to make payment with credit cards must provide MERCURY NETWORK with their credit card number, expiration date, name as it appears on their card, and their credit card statement mailing address. It is the SUBSCRIBER's responsibility to timely notify MERCURY NETWORK of any changes in its credit card account. SUBSCRIBERS who choose to make payment by electronic check must provide MERCURY NETWORK with the name of the financial institution holding the account, the routing number of that financial instituion, their checking account number, and the name that appears on their account. It is the SUBSCRIBER's responsibility to timely notify MERCURY NETWORK of any changes in its checking account.
2. MERCURY NETWORK reserves the right to cancel any SUBSCRIBER account without notice due to non-payment. In the event that SUBSCRIBER fails to timely make full payment of each invoice, MERCURY NETWORK reserves the right to charge interest, late fees and/or reactivation charges on the delinquent SUBSCRIBER's account, and to pass any collection costs on to SUBSCRIBER.
3. In the event of cancellation by SUBSCRIBER, SUBSCRIBER must contact MERCURY NETWORK in one of the following manners: 1) via mail with proof of receipt properly addressed to: MERCURY NETWORK, Attn: Customer Service, P O Box 117, Midland, MI 48640-0117, or 2) via telephone to a MERCURY NETWORK customer service representative at 989-837-3790, followed by written confirmation by SUBSCRIBER with proof of receipt, properly addressed to and received by MERCURY NETWORK within ten (10) days from the date of telephone cancellation. Notification of cancellation MUST be accompanied by the SUBSCRIBER's MERCURY NETWORK login name and password in order for a cancellation to be effectuated.
4. NON-USAGE OF AN ACCOUNT IS NOT CANCELLATION. SUBSCRIBERS are responsible for full payment on all accounts whether or not the account is ever utilized. All original unopened software must be returned to MERCURY NETWORK in order for SUBSCRIBER to be entitled to any refund. In the event that SUBSCRIBER fails to return the original unopened software to MERCURY NETWORK, SUBSCRIBER will be billed for a minimum of one month's service.
5. In the event of cancellation, SUBSCRIBER will be responsible for all charges up to and including the current month's monthly charge.
6. Any billing discrepancies shall be presented to MERCURY NETWORK in reasonable detail, in writing, within fourteen (14) days of the date of the charge. Such notification shall not relieve SUBSCRIBER of the obligation to make all payments including the amounts disputed by the due date. MERCURY NETWORK shall not be obligated to consider any SUBSCRIBER notice of billing discrepancies which are received by MERCURY NETWORK more than fourteen (14) days following the date of the invoice in question. If a SUBSCRIBER fails to dispute any charge after fourteen (14) days from the date of the charge, SUBSCRIBER waives its rights to thereafter make any such dispute and all such charges will be deemed valid.
7. In the event that a SUBSCRIBER pre-pays for their Internet account, any discounts given by MERCURY NETWORK for such payment plans are calculated that the SUBSCRIBER is paying full rate for the beginning months of service and getting additional months at the end of the service term at part or no cost. In the event that a SUBSCRIBER cancels their service within the pre-paid period, such SUBSCRIBER will pay an early cancellation fee and is no longer entitled to any discounts.
8. SUBSCRIBER acknowledges, agrees and assumes full responsibility to verify that the telephone number that they call to access the Internet is a telephone number which is local to their area. MERCURY NETWORK is NOT responsible in any way for any telephone charges incurred by any SUBSCRIBER when accessing the Internet or when contacting MERCURY NETWORK for any reason. In the event that the SUBSCRIBER's local telephone number to access the Internet is out of service, SUBSCRIBER assumes full responsibility for all long distance charges incurred by SUBSCRIBER if SUBSCRIBER chooses to call a long distance telephone number to access the Internet, even if directed to do so by MERCURY NETWORK's customer support.
9. MERCURY NETWORK makes no Warranties as to the availability or right to use of any Login Name, E-mail Address, or Web Page Address. Login Names, E-mail Addresses, and Web Page Addresses are NOT confirmed at the time of sign-up of any SUBSCRIBER. MERCURY NETWORK will not refund any charges for reprinting of stationary or any other losses incurred.
10. MERCURY NETWORK MAKES NO WARRANTIES EXPRESS OR IMPLIED AS TO THE ACCURACY OF BILLING, OR THE QUALITY OF SERVICES PROVIDED OR TO THE WARRANTY OF MERCHANTIBILITY OR TO FITNESS FOR A PARTICULAR PURPOSE.
11. SUBSCRIBER agrees that at the end of the term of the account initially agreed to by SUBSCRIBER or any term thereafter, MERCURY NETWORK may, at its sole discretion, automatically renew such account for an additional term. SUBSCRIBER further agrees that upon renewal of such account, MERCURY NETWORK may continue to charge SUBSCRIBER's credit card, checking account, or seek other form of payment from SUBSCRIBER, for which SUBSCRIBER shall be responsible for. In the event that SUBSCRIBER does not wish MERCURY NETWORK to automatically renew such account, it is SUBSCRIBER's sole responsibility to notify MERCURY NETWORK of such intent prior to the expiration of such term.
12. All policies stated herein are subject to change at MERCURY NETWORK's sole discretion. SUBSCRIBER shall be responsible for adhering to any new policies implemented by MERCURY NETWORK.