Terms, Conditions and Acceptable Use Policy.
Aphinity Communications, Inc. (herein referred to as "Aphinity") provides Internet World Wide Web page hosting and e-mail services. Aphinity has certain legal and ethical responsibilities regarding the use of its computer network and equipment involved in these services.
Aphinity's general policy is to act as a neutral provider of access to the global Internet. Aphinity has specific ethical concerns regarding the use of its computers detailed below. Aphinity reserves the right to suspend or cancel a customer's access to any or all services provided by Aphinity should Aphinity deem that the account has been inappropriately used, even for events that are not specifically outlined in this document.
Specific Acceptable Use Policies
Unauthorized use of other people's accounts or computers
Aphinity will strongly react to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include "social engineering" (tricking other people into releasing their passwords), password cracking, security hole scanning etc.
Any unauthorized use of accounts or computers by a Aphinity customer, whether or not the attacked account or computer belongs to Aphinity, will result in action against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, according to the seriousness of the attack.
Commercial Advertisements Within E-mail and Spamware
Unsolicited commercial advertisements are not allowed in e-mail, and will likely result in account suspension or cancellation.
Commercial advertisements are unwelcome in most Usenet discussion groups and on most e-mail mailing lists. Inappropriate posting may result in account suspension or cancellation. See the newsgroup or mailing list's charter for whether advertising is allowed or not. "Spamming," or sending a message to many different off-topic newsgroups, is particularly unethical and will be treated as such. Using "instant message software" such as ICQ, AIM, Yahoo Messenger or anything similar to send spam messages are treated identically to email spam and will result in similar action taken against the sender.
Sending a message, especially an advertisement, to more than five or six recipients, is by itself spamming unless the individuals have specifically requested to be added to a mailing list on that topic. E-mail is a person-to-person medium, not a broadcast medium.
Upon your first Spam offense your account will be terminated and a maintenance fee of $100 will be billed to your payment method used upon sign up. This is due to the enormous amount of time it takes to serve spamming victims. If customer paid by credit card, they agree to pay this fee as part of the AUP.
Sites that provide software or services to acquire e-mail addresses by any means other than confirmed opt-in methods, e.g., harvesting addresses from web pages, newsgroup articles, and online directories, or mining addresses using "dictionary attacks" or automated processes for the purpose of deriving e-mail addresses without the knowledge and consent of the owners of those e-mail addresses will be terminated without issuing a refund.
Adult Oriented Websites
We do not allow adult oriented websites on our servers due to the fact that they are resource intensive. We do not feel is it fair to our other customers to allow sites that inhibit their performance. We reserve the right to terminate any adult sites that are found on our servers without issuing a refund.
Use of Disk Space
Your disk space is for your own use only. You may not resell or give away disk space to any third party. Please set your mail software to delete your mail from the server. This will speed up your mail retrieval and will help you avoid excess disk space charges. Mailboxes can quickly grow and consume your disk space allowance if you do not delete your mail from the server. The combined disk space used by databases, email and website files should not go above 50 Mb or your account will be charged at the usual excess disk space rates.
File backups and restore
Although Aphinity does back up data daily, it is the users responsibility to back up all files. Aphinity's automatic back up system is designed to restore entire file systems in the event of complete disk loss. It is not, however, designed to restore individual user's files. At no time will we be liable for lost data, and if asked to restore files for an individual customer outside of a complete file system failure, we may charge up to $150/hr for the service. Customers who use CGI scripts to maintain file-based databases should take precautions to ensure that data is not lost in the event of a shortage of disk space (including over quota errors), reboots or killed processes. At no time shall Aphinity be liable in the event a customer CGI application fails to take proper precautions and truncates user data, even in the event of a reboot or shortage of diskspace.
Acceptable Resource Usage
Aphinity makes every reasonable attempt to provide an environment suitable for use by its customers for the purpose of an on-line presence, including sufficient bandwidth and CPU resources. Bandwidth and CPU resources are on an open and "first come first serve" basis whereby bandwidth and CPU resources are allocated in order of who requests them first. In this environment, it is possible for a user to consume more than their share of CPU resources and/or bandwidth and therefore impede the performance of the network and servers as a whole, adversely limiting the resources available to other users. Aphinity closely monitors the performance of its systems and network. If at any time Aphinity deems that a user is imposing an unreasonable load on a server or the network (such as an inordinate number of CGI processes), Aphinity may, at its sole discretion, take any action it deems necessary to correct the problem and free up resources for other users, including but not limited to killing processes or shutting down service for an offending user without notice. Processes should not exceed 2% CPU utilization sustained, and peak at no more than 6% for less than 10 seconds. The number of processes run per day should not exceed 2880, which is one process every 30 seconds. Cronjobs should be limited to running no more than once per hour. Emails sent through our servers should not exceed 1440 per day.
Some specific examples of processes that are not allowed are FFA links scripts and sites, webproxies, BNC, IRC and chat scripts, bots, anonymous emailers, daemons of any kind, spiders or web crawling robots, portal sites (Yahoo like sites), network monitoring/probing scripts and denial of service (DoS) attack scripts.
Lawful Purpose
Aphinity reserves the right to refuse service to anyone. Customers may only use Aphinity's server for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, material protected by trade secrets, child pornography, hacking/warez and satanic materials. Aphinity expressly forbids anyone from using Aphinity's servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way the above, or any other material which we deem to be objectionable. The designation of any materials as such described above is left entirely to the discretion of Aphinity's management.
Aphinity's services are intended for the end user only. Customers cannot sublease, subhost, or give away control of any portion of Aphinity's resources. Doing so could result in immediate account cancellation. Aphinity offers a reseller's program.
Your password is considered private and is not to be given out to any third party outside your organization.
Payment Policies
All hosting accounts are set up on a pre-pay basis. All pricing is guaranteed for the term of pre-payment. Aphinity reserves the right to change prices at any time. Payment is due each anniversary month or period following the date the account was established. Credit card orders that are on a 'month-to-month', 'quarterly' and 'yearly' basis will be charged automatically to the card number on file. If for any reason the card does not clear with the bank on three attempts, the account is subject to suspension. Any account not brought current within a week of e-mail notice or exceeding this time frame in any way is subject to suspension. The customer is responsible for all money owed on the account from the time it was established to the time that the customer notifies Aphinity in writing for a request for termination of services. Checks returned unpaid (NSF) will be assessed a $39 charge. If you are a check paying customer, invoices will be sent to you via e-mail. Invoices are payable immediately upon receipt, however, we allow up to 30 days for payment to arrive. In the event we do not receive payment for an invoice within 30 days of the date of the invoice, we may apply late fees, deactivate your service for non-payment, or both. In the event that your account is deactivated for non-payment, a $25 reactivation fee will be applied upon reactivation of your account. The standard late fee is $5, or 10% of the overdue amount, which ever is greater. All payment is in U.S. currency.
Cancellation
Customers can cancel service any time. If the customers account comes with our 30 day money-back guarantee, we will refund the full purchase amount plus any setup fees. Due to security concerns, all account cancellations must be done in writing via US mail or fax with a valid signature of the primary contact of the account, account name, reason for cancellation, and last 4 digits of credit card on file. If payment was made by check or bank transfer, the zip/postal code of the primary contact.
Aphinity reserves the right to cancel service at any time without notice for any reason that Aphinity deems appropriate. All monthly service fees paid in advance of cancellation will be pro-rated and refunded by Aphinity if Aphinity institutes its right of cancellation. If cancellation is caused by the customer's violation of these policies, then no refund is due. If customer initiates cancellation and this cancellation is placed after the first 30 days of the initial billing period, then no refund is due.
Indemnification
Customer agrees that it shall defend, indemnify, save and hold Aphinity harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against Aphinity, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless Aphinity against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Aphinity's server; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to customer from Aphinity's server.
Disclaimer
Aphinity will not be responsible for any damages your business may suffer for any reason, including negligence on our part. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Aphinity and its employees. Aphinity makes no warranties of any kind, expressed or implied about the services we provide. Aphinity specifically disclaims all warranties of merchantability and fitness for a particular purpose.
SEVERABILITY.
You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, that term or provision will be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect.
NON-AGENCY.
Nothing contained in this Agreement or the Dispute Policy shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
NON-WAIVER.
Our failure to require performance by the Registrant of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
NOTICES.
Any notice, direction or other communication given under this Agreement shall be in writing and given by sending it via e-mail or via regular mail. In the case of e-mail, valid notice shall only have been deemed to have been given when an electronic confirmation of delivery has been obtained by the sender, in the case of notice to us or to the RSP to support@aphinity.com or, in the case of notice to you, at the e-mail address provided by you in your WHOIS record or as updated from time to time. Mail shall be sent to Aphinity Communications, 8827 Newton Drive, Overland Park, KS. 66212 and to you at the mailing address provided in your Affiliate application or as updated from time to time. Any e-mail communication shall be deemed to have been validly and effectively given on the date of such communication, if such date is a business day and such delivery was made prior to 4:00 p.m. (CST time) and otherwise on the next business day. Any communication sent via regular mail shall be deemed to have been validly and effectively given 5 business days after the date of mailing.
ENTIRETY.
You agree that this Agreement, the rules and policies published us and the Dispute Policy are the complete and exclusive agreement between you and us regarding our Services. This Agreement and the Dispute Policy supersede all prior agreements and understandings, whether established by custom, practice, policy or precedent.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF KANSAS AND THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA APPLICABLE THEREIN WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN JOHNSON COUNTY KANSAS AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.
INFANCY.
You attest that you are of legal age to enter into this Agreement.
ACCEPTANCE OF AGREEMENT.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE NETWORK AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Aphinity reserves the right to revise its policies at any time.