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Everest Connections, LLC
Acceptable Use Policy
Introduction
-- As a provider of Internet access, web site hosting, email, voice services, television programming, and other-related services, Everest Connections, LLC, its subsidiaries, affiliates, or associated companies (“Everest”) or partners offers its customers and their customers and users, access to Everest’s voice, video and Internet connectivity networks. Everest reserves the right to take certain preventative or corrective actions up to and including termination of a customer’s access to Everest networks in order to protect our networks and provided services. To communicate what activities may not be acceptable, Everest has developed this Acceptable Use Policy (“AUP”) which supplements and expands each customer's respective Service
Agreement.
Everest may revise this AUP without notice at any time by posting a new version of this document on our corporate web site at http://www.everestkc.com. As a result, users should check this document frequently to ensure they are in compliance with the most recent version. In the event there is a conflict between any Service Agreement and the AUP, the terms of the AUP will govern. Use of Everest's networks or services after changes to the AUP are posted on Everest's web site will constitute acceptance of any new or additional terms of the AUP that result from those changes.
This AUP governs all services provided by Everest and its partners provided for customer use.
This AUP supersedes all prior AUP wherever distributed, published, or posted by Everest.
No Responsibility of Content
-- Everest cannot monitor, verify, warrant, or vouch for the accuracy and quality of the information that customers may acquire during the use of Everest’s networks, services and/or Internet connectivity. The user must exercise their best judgment in relying on information obtained during the use of Everest’s networks, services or from the Internet, and should be aware that some material is sexually explicit or otherwise offensive. Neither Everest nor any of Everest’s content providers monitor or censor the Internet or other content. Everest cannot accept any responsibility for injury to its customers that results from inaccurate, unsuitable, offensive, or illegal communications. Neither Everest nor any its content provider affiliates shall have any liability for any claims, losses, damages, suits or proceedings arising out of or otherwise related to access to
such content.
Everest’s customers are solely responsible for any information, which they publish on the web, other Internet services or distribute in any manner. Customer must ensure that the receipt of the content is appropriate and must take appropriate precautions to prevent minors from viewing inappropriate content. Everest reserves the right to refuse to post or to remove any information or materials, in whole or in part; that it, in its sole discretion, deems to be offensive, indecent, or otherwise inappropriate regardless of whether such material is lawful. Everest has no obligation but reserves the right to monitor transmissions made on the network or services unless required to do so by law, governmental authority, or when public safety is at stake.
Customers violate Everest’s AUP when they, their customers, affiliates, or subsidiaries engage in including but not limited to the following prohibited activities:
Spamming
-- Sending unsolicited bulk and/or unsolicited commercial messages or email or voice messages (known as "spamming") is prohibited. Using an Everest e-mail, voice system, or website address to collect responses from unsolicited commercial e-mail is prohibited. This includes but is not limited to, bulk mailing of unsolicited commercial advertising, informational announcements, charity requests, petitions for signatures and political or religious messages. Maintaining an open SMTP relay is prohibited. Using Everest’s networks or the Internet to collect email addresses from unsolicited email sent from accounts on other Internet resources or email services which violates the acceptable use policy of any other Internet Service Provider is prohibited. In addition, unsolicited email may not direct the recipient to any web site or other resource. When a complaint is received, Everest has the discretion to determine from all of the evidence whether the email
recipients were from an "opt-in" email list.
Phishing
-- Sending unsolicited bulk and/or commercial messages, email or voice messages, or creating, hosting or maintaining a web site, forum or other similar venue for the purpose of gathering confidential, sensitive or personal information without the knowledge of the owner of
such information (known as "phishing") is prohibited.
Intellectual Property Violations
-- Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities is prohibited. Engaging in activity that violates privacy, publicity, or other personal rights of others us prohibited. Everest is required by law to remove or block access to customer content upon receipt of a proper notice of copyright infringement. It is also Everest's policy to terminate the privileges of customers who commit repeat violations of copyright laws after receiving written notice from Everest to cease and
desist from such activity.
Distribution or Showing of Video or Music
-- Engaging in the recording, copying, distribution, showing or other dissemination of television programs, videos, musical recordings or related materials, whether for profit or not for profit, where such copying, distribution, showing or other dissemination is prohibited by the owners of the materials, including but not limited to network television programs and commercial artist video or music recordings is prohibited. Use of the Everest’ networks or the Internet for the purpose of allowing these activities, including but not limited to peer-to-peer networks, connections, or software designed for this
purpose is prohibited.
Newsgroups & Usenet Groups
-- Messages posted to newsgroups must comply with the written charters of FAQ's for those newsgroups. Advertisements, solicitations, or other commercial messages should be posted only in those newsgroups whose characters of FAQ's explicitly permit them. Posting or cross-posting the same or substantially similar messages to more than seven newsgroups is prohibited. Posting binary files to USENET groups not specifically named for such purposed, namely the *.binaries and
*.pictures hierarchies is prohibited.
A Numerical Metric
-- Posting substantively similar articles individually to multiple newsgroups (known as "excessive multi-posting" (EMP)) is prohibited. Everest considers "multi-posting" to 7 or more groups within a two-week sliding window to be excessive. Everest servers currently limit the number of allowable "cross-posts" to 7. The full version of the clarification and definition of what constitutes Spam is posted regularly to the newsgroup news.admin.net-abuse.misc. This article is posted once per week and is intended to describe the current consensus Spam thresholds and ensure that the definitions of the terms are available. Flames, hostile attacks, or invectives aimed at a group or an individual poster, are generally considered inappropriate Everest service groups. Flames in the non-service groups are not encouraged. You may not forge or remove header information. This includes attempts, whether successful or unsuccessful, to circumvent the approval process for posting to moderated groups or the issuance of news control messages. Everest may cancel such articles. You may not cancel messages other than your own. You may cancel posts forged in your name. Everest reserves the right not to accept postings from newsgroups where we have actual knowledge that the content of the newsgroup violates the
AUP.
Internet Relay Chat (IRC) Service
-- The Services may be used to participate in "chat" discussions. Everest will not monitor the contents of these discussions and is not
liable for the contents of any communications made via Internet chat.
The Service may not be used to send messages, which disrupt another user's equipment, including software, hardware, and user display.
These Services may not be used for the deliberate act of repeating text-generating actions in quick succession in order to prevent other service users from utilizing the chat service (known as “flooding”).
The use of IRC "Bots" is prohibited, as is the violation of any accepted policies on IRC servers. If Everest is banned from a server, the offending account will be terminated.
The Service may not be used to access any chat server in violation of the acceptable use policy of that server. The Services may not be used to manipulate any chat server in order to disconnect or harass other Internet users, or to gain unauthorized access to network resources.
Obscene Speech or Materials
-- Using Everest's networks to advertise, transmit, store, post, display, or otherwise make available child pornography or obscene speech or material is prohibited. Everest is required by law to notify law enforcement agencies when it becomes aware of the presence of child
pornography on or being transmitted through Everest's networks.
Defamatory or Abusive Language
-- Using Everest's networks as a means to transmit or post defamatory,
harassing, abusive, or threatening language is prohibited.
Forging of Headers
-- Adding, removing, or modifying identifying network header information (a.k.a. "spoofing") whether in whole or in part, to mask
the originator of the message is prohibited.
Caller ID, Caller Name Spoofing
-- Forging or misrepresenting a Caller ID or Caller Name whether in whole or in part, to mask the originator of the call or message is
prohibited.
Do Not Call Contacting
– Use of the Everest Networks to contact or transmit a message to any phone, voice network, or voice device where such contact or transmission is in violation of any state or national Do Not Call list
is prohibited.
Illegal or Unauthorized Access to Other Computers or Networks
-- Accessing illegally or without authorization computers, accounts, data, or networks belonging to another party, or attempting to penetrate security measures of another individual's system (often known as "hacking") is strictly prohibited. Any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity) is prohibited.
Threats of bodily harm or destruction of property are always prohibited.
Excessive Bandwidth or Disk Utilization
-- Everest reserves the right to set limits on bandwidth and disk utilization. Use in excess of those limits is not permitted. If excessive bandwidth or disk space utilization is determined to adversely affect Everest's ability to provide service, immediate action will be taken. The account owner will be notified as soon as
practicable.
Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities
-- Distributing information regarding the creation of or sending, including but not limited to. Internet viruses, worms, Trojan horses, pinging, flooding, mail-bombing, or denial of service attacks is prohibited. Activities that disrupt the use of or interfere with the ability of others to effectively use Everest’s networks or the
Internet is prohibited.
Facilitating a Violation of this AUP
-- Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this
AUP is prohibited.
Other Illegal Activities
-- Engaging in activities that are determined to be illegal, including but not limited to, advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, pirating software, exporting encryption software to points outside the United States that are prohibited by the United States
Government is prohibited.
Other Activities
-- Engaging in activities, whether lawful or unlawful, that Everest determines to be harmful to its customers, operations, reputation,
goodwill, or customer relations is prohibited.
Customer agrees unconditionally to not cause harm any provided equipment or third party equipment, software, or processes used in connection with Everest furnishing services. Customer shall not restrict, inhibit or otherwise interfere with the ability of any other person to use Everest’s networks or services.
Right to Privacy
-- The Internet is neither more nor less secure than other means of communication and can be intercepted and otherwise compromised. Everest cannot and will not take any responsibility for the security of
information transmitted over Everest's networks or the Internet.
Everest will not, as an ordinary practice, monitor the communications of its customers to ensure that they comply with Everest policy or applicable law. When Everest becomes aware of harmful activities, however, it may take any action to stop the harmful activity, including but not limited to, removing information, shutting down a web site, implementing screening software designed to block offending transmissions, denying access to Everest’s networks or to the Internet, or take any other action it deems appropriate.
Everest will not intentionally monitor private electronic mail messages sent or received by its customers unless required to do so by law, governmental authority, or when public safety is at stake. Everest may, however, monitor its service electronically to determine that its networks are operating satisfactorily. Also, Everest may disclose information, including but not limited to, information concerning a customer, a transmission made using our network, or a web site, in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, or governmental request. Everest assumes no obligation to inform the customer that customer information has been provided and in some cases may be prohibited by law from giving such notice. Everest may disclose customer information or information transmitted over its networks where necessary to protect Everest and others from harm, or where such disclosure is necessary to the proper operation of the system.
Use by Others
-- Everest expects that any of its customers who provide voice or data services to others will comply fully with all applicable laws concerning the privacy of on-line communications. A customer's failure to comply with those laws violates this AUP. Everest expects that customers who purchase Everest services on a wholesale basis will cooperate with Everest in any corrective or preventive action Everest deems necessary. Everest reserves the right to take action against a wholesale customer’s retail customers if the wholesale customer’s retail customers are engaging in activity that jeopardizes the network or is contrary to the policies set forth in this AUP. Failure to cooperate with any corrective or preventive measure is a
violation of this AUP.
Reselling Voice, Video, Internet access or other services provided by Everest without express written consent from Everest is prohibited.
Indemnification
-- In signing a Service Agreement, customers indemnify Everest for any violation of the Service Agreement, law, or Everest policy, which results in loss to Everest or the bringing of any claim against Everest
by any third-party.
UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, Everest SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR:
INTERRUPTIONS CAUSED BY: (1) FAILURE OR INCOMPATIBILITY OF EQUIPMENT OR SERVICE NOT PROVIDED BY EVEREST; (2) FAILURE OF COMMUNICATIONS, POWER OUTAGES, OR OTHER INTERRUPTION NOT WITHIN THE COMPLETE CONTROL OF EVEREST; AND (3) PERFORMANCE DEFICIENCIES CAUSED OR CREATED BY CUSTOMER'S OR ITS USERS' EQUIPMENT; AND ANY DAMAGE RESULTING FROM THE INSTALLATION OR OTHER FILE MODIFICATIONS TO OR LOSS OR DESTRUCTION OF THE COMPUTER, PERIPHERALS, SOFTWARE, FILES OR DATA; AND CHANGES IN OPERATION, PROCEDURES, OR SERVICES THAT REQUIRE FILE MODIFICATION OR ALTERATION OF CUSTOMER'S OR ITS USERS' EQUIPMENT THAT RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE; AND ANY CONTENT, INCLUDING A COMPUTER VIRUS, ACCESSED VIA EVEREST'S EQUIPMENT OR SERVICE; AND 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, OR PERSONAL INJURIES (INCLUDING DEATH) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, THE USE OF EVEREST'S SERVICE OR EQUIPMENT, OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION, OR ANY FAILURE OF PERFORMANCE OF EVEREST'S SERVICE OR EQUIPMENT; AND ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH ANY CLAIM THAT THE USE OF EVEREST'S EQUIPMENT OR SERVICE BY CUSTOMER OR A THIRD PARTY INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, INCLUDING COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER SUCH RIGHTS OF ANY THIRD PARTY. THE LIABILITY OF EVEREST TO CUSTOMER OR ANY THIRD PARTY 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 CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICE DURING THE PERIOD SUCH DAMAGES OCCUR.
Customer and User shall indemnify and hold harmless Everest from and against any loss, cost, claim, liability, damage, or expense (including reasonable attorneys' fees) to third parties, relating to or arising from the use of the Everest’s network, equipment or service by Customer, User, or any of their personnel, whether or not Customer 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 Customer or User has used, connected, or combined the Service with the products or services of others), negligence, or tortuous behavior.
Eavesdropping
-- The networks used are a shared resource amongst Everest customers. Accordingly, there is a risk that Customer could be subject to "eavesdropping". This means that other parties may be able to access, monitor and/or decode Customer's traffic. This risk of eavesdropping exists not only over Everest's network, but also on the Internet, public voice network and the other services to which access is provided by Everest as part of the provided services. Any information sent by Customer over the networks is sent at Customer's sole risk. Everest, its officers, directors, employees, agents, affiliates and subcontractors shall have no liability whatsoever for any losses, costs, claims, damages or expenses (including attorneys' fees) arising out such eavesdropping including, without limitation, damages resulting from others accessing Customer's computer or from any loss or
corruption of data.
FORCE MAJEURE
-- Neither Party shall be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its control and without its fault or negligence, including, but not limited to, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, nuclear accidents, strikes, extended power blackouts, natural disasters, severe weather conditions or other environmental disturbances, inability to secure transportation facilities, hardware or software products or services of other persons, including the type and condition of the equipment (personal computer, modem, etc.) of Customer and/or its Users, acts or omissions of transportation or common carriers and legal and/or regulatory constraints affecting either of the Parties hereto in performing their obligations hereunder ("Force Majeure"). If a Force Majeure condition occurs, the Party injured by the other Party's inability to perform may elect to: (a) terminate the Agreement if such Force Majeure condition results in a delay or failure to perform which continues for more than thirty (30) calendar days; or (b) suspend the Service for the duration of the delaying cause, buy or sell elsewhere the Service to be bought or sold hereunder and deduct from any commitment the services for which such commitments have been made elsewhere and resume performance under this Agreement once the delaying cause ceases. Unless written notice is given within thirty (30) calendar days after such injured Party is apprised of the Force Majeure condition, option (b) shall be deemed
selected.
Reporting Abuse to Everest
-- All complaints we receive will be investigated, and action will be taken when and where, in Everest's sole discretion, it is appropriate. Depending upon the severity of the abuse and the history of the account involved, we may take any one or more of the following actions with or without notice: Issue warnings written or verbal, suspend the account, terminate the account, bill for administrative costs and/or
reactivation charges.
Conclusion
-- Common sense and judgment are a necessary part of any system of rules, and this AUP is no exception. Of course, flagrant or repeated violations of the policy are viewed in a very different light than minor infractions. Everest considers network abuse an action that undermines the ability of the Everest to serve its customers. In addition, abuse may be a violation of state or federal law, or the laws of other countries. Protection of our customers and our resources, the ability to provide quality service to our customers, conformance with existing law, and the protection of our reputation as a service provider are all contributing factors to decisions on AUP violations. We hope this AUP is helpful in clarifying the obligations of Everest and Everest’s customers. Any inquiries, suggestions,
or complaints about this AUP should be sent to issues@Everestkc.net.
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