Terms and Conditions - Digex Inc. and ARTISTdirect
ARTIST DIRECT TERMS AND CONDITIONS
The following terms and conditions (these "Terms") govern the provision by
DIGEX, Inc. ("Company") of the services and/or products (referred collectively
herein as "Services and Products") described on the Server Order Form and
Contract attached hereto ("Order Form") and defined in Company's product
support listing, to the customer ("Customer") identified on the Order Form. The
Order Form, these Terms and the attachments hereto, which are identified on the
Order Form, executed with respect to the Services and Products are referred to
herein, collectively, as this "Agreement."
1. OBLIGATIONS OF COMPANY. Company shall install within ten business days
after execution by Company of the Order Form, unless otherwise specified
in the Order Form, and maintain the Services and Products which are
designated in the Order Form (as such may be supplemented pursuant to
Section 5, below). Company will use its best efforts to assure that
Customer's Internet server will be available 24 hours a day, seven days a
week. If the Customer's Internet server is unavailable for more than a
total of 4 hours in any week, other than as a result of the maintenance
activities described in Section 4, below, fees for that week will be
waived and the applicable monthly invoice will be adjusted accordingly.
For the purposes of this Agreement, a week shall be considered to run from
Sunday to Saturday. Customer's Internet server shall be deemed to be not
available for purposes of this Section 1 if Company's standard hardware,
software, or operating system is functioning in a manner that prevents
http, ftp, or mail access to the Internet server ("Unavailability"). For
purposes of this Section 1, Unavailability shall not be deemed to occur
hereunder as a result of Customer action or inaction, including, but not
limited to, Customer utilization of Customer owned, non-standard, or
unsupported hardware and/or software installed by the Customer or Company
at the Customer's request.
2. OBLIGATIONS OF THE CUSTOMER. Customer shall comply with all of the terms
of this Agreement, including, but not limited to, the Acceptable Use
Policy attached hereto as Attachment A (the "Use Policy"), as the Use
Policy may be modified from time to time. Upon notice from Company,
Customer promptly shall eliminate any hazard, interference or service
obstruction that any hardware or software used by the Customer, whether
or not provided by Company ("Customer Materials"), is causing, or is
likely to cause. If Customer requests Company to assist it in removing
any hazards, interference or service obstruction that Customer Materials
are causing or are likely to cause, Company may, but is not required to,
assist in such removal. The charges for Company's services in connection
with such assistance shall be at rates determined by Company at the time
such services are requested and payment with respect thereto shall be
made in accordance with Section 3, below. In the event that the primary
function(s) of Customer's web site is impaired during non-business hours
or holidays, and Company has been unable to successfully locate and/or
contact an authorized representative of Customer, Company make take
reasonable steps to restore the functionality of Customer's web site
without prior Customer approval. ANY NECESSARY WORK THAT IS PERFORMED BY
COMPANY TO RESTORE FUNCTIONALITY THAT WAS IMPAIRED BY CUSTOMER DESIGN
FLAWS OR ERRORS ARE BILLABLE TO CUSTOMER. CUSTOMER UNDERSTANDS THAT
CUSTOMER SHALL PAY TO COMPANY A BILLABLE RATE FOR TIME AND MATERIALS, AS
INDICATED ON THE ORDER FORM UNDER TIME AND EXPENSE ORDER. THESE CHARGES
ARE IN EXCESS OF THE MONTHLY RECURRING CHARGE.
3. PAYMENT.
3.1 Generally. Charges for the Services and Products (including the
charges described in the balance of this Section 3.1, the
"Charges") are set forth on the Order Form. Charges shall commence
to accrue on the date that Company provides access codes to
Customer ("Operational Date"). All payments for Charges shall be
made in U.S. Dollars. Customer may pre-pay the Charges for the
entire term of this Agreement or may pay the Charges on a monthly
basis. Charges shall be invoiced to Customer in advance at the
beginning of the month. Any additional charges, including, but not
limited to, any early cancellation charges, accrued interest, late
fees and any usage-based charge, including, but not limited to,
charges for network access to the Internet, shall be invoiced in
arrears and shall appear on the monthly invoices for Services and
Products or separate invoices. In all cases, payments for Charges
are due upon receipt by Customer of the invoices for such Charges.
In addition to any other remedies that may be available to Company
under this Agreement (including, but not limited to, in connection
with the termination of this Agreement pursuant to Section 6 below)
or applicable law, Charges that are not paid in full thirty (30)
days after receipt by Customer of the invoice therefore (a "Payment
Default") will be subject to interest charges of the lesser of one
and one-half percent (1.5%) per month or portion thereof and the
highest amount permitted by law, which interest shall accrue daily.
Customer shall be liable for all amounts owed to Company pursuant
to this Agreement, irrespective of the termination of this
Agreement. Customer also shall pay to Company all expenses incurred
by Company in exercising any of its rights under this Agreement or
applicable law with respect to the collection of a Payment Default,
including, but not limited to, reasonable attorneys' fees and the
fees of any collection agency retained by Company.
3.2 Taxes. Customer shall be liable for, and shall reimburse Company
and indemnify and hold Company harmless from all local, state,
federal and non-United States taxes or similar assessments or
charges (including any interest and penalties imposed thereon)
other than taxes based on the net income of Company, arising out
of, or relating to this Agreement or the sale of the Services and
Products hereunder.
3.3 Pass Through Items and Other Expenses. Company will have the right
at any time during any term of this Agreement to pass through and
invoice to Customer any new or increased fees, assessments, taxes
or other charges imposed on or required to be collected by Company
by any governmental agency or any new or increased charges by any
carrier that affect Company's costs in providing Services and
Products to Customer. Customer also will be responsible for paying
any sales, license and use taxes, fees, or assessments levied by
any local, state or federal government or governmental agency with
respect to the provision of Services and Products under this
Agreement. Customer will pay and be solely responsible for all
taxes, fees and charges levied directly upon it.
4. MAINTENANCE. Company designates time periods ("Scheduled Maintenance
Windows") during which it may limit or suspend the availability of the
hardware and/or software involved in providing its Services and Products
(an "Outage") to perform necessary maintenance or upgrades. Scheduled
Maintenance Windows currently are each Tuesday and Friday between the
hours of 4 am and 8 am and the third Saturday of each month between the
hours of 4 am and 12 noon, Eastern Standard Time and Pacific Standard
Time. If planned maintenance has the possibility of making the server or
servers, as the case may be, utilized by Customer inaccessible to the
Internet during a Scheduled Maintenance Window Company will provide not
less than twenty-four (24) hours prior electronic mail or other notice to
Customer of the Scheduled Maintenance
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Window during which the Outage is planned. In addition, Company reserves
the right to perform any required maintenance work outside of the Scheduled
Maintenance Window with prior WRITTEN notice to Customer.
5. ADDITIONAL PRODUCTS OR SERVICES. With Company's concurrence, Customer may
orally request service or products ("Additional Item") then offered by
Company in addition to the Services and Products (an "Oral Request"). An
Oral Request may only be made by the individual(s) listed as the authorized
customer upgrade contact on the Order Form. Customer will have five (5)
business days after making the Oral Request to cancel the Additional Item
in writing. As soon as practicable after receiving the Oral Request,
Company will begin the installation process with respect to the Additional
Item. Customer will be charged Company's then current list price for the
Additional Item. If Customer cancels the Oral Request, Customer shall pay
all applicable charges of Company with respect to the installation of the
Additional Item. An Additional Item shall be subject to this Agreement.
6. TERM AND TERMINATION. The initial term of this Agreement shall commence on
the Operational Date and upon expiration shall automatically renew for
successive ninety (90) day terms at the Charges in effect at the
commencement of such terms (which Charges shall have been communicated to
Customer in writing forty-five (45) days prior to the end of the preceding
term) or until written notice of non-renewal by either party is delivered
to the other party at least thirty (30) days prior to the end of the then
current term.
6.1 Termination by Company. In addition to any other rights it may have
under this Agreement or applicable law, Company may, at its option,
immediately terminate this Agreement, upon (i) a Payment Default which
breach is not cured by Customer within ten (10) business days of
Customer's receipt of written notice of such breach, (ii) Customer's
failure to comply with any other obligation of Customer under this
Agreement which breach is not cured by Customer within ten (10)
business days of Customer's receipt of written notice of such breach
(iii) Customer's failure to comply with any of the terms of the Use
Policy which breach is not cured by Customer within two (2) business
days of Customer's receipt of written notice of such breach, (iv)
Customer ceasing to do business in the normal course, becoming or
being declared insolvent or bankrupt, being the subject of any
proceeding relating to liquidation or insolvency which is not
dismissed within 90 calendar days or making an assignment for the
benefit of its creditors or (v) any attempt by Customer to derive any
source code from the Services or Products.
6.2 Termination by Customer. Customer may terminate this Agreement with
respect to all, and not less than all of the Services and Products in
the event of (a) a material breach by Company of its obligations under
this Agreement which breach is not cured within ten (10) business days
after written notice thereof is received by Company, or (b) otherwise
in the first sixty (60) days of the initial term hereof (collectively,
a "Permissible Termination"). In the event of a Permissible
Termination, Customer shall pay (i) installation Charges, (ii) a
pro-rated Charge based on the number of days Company provided Services
and Products prior to the date of termination of this Agreement by
Customer under this Section 6.2, and (iii) if the Services and
Products include software for which Company does not then provide
general customer support, Customer shall pay to Company an amount
equal to Company's cost of such software for the entire term. If
Customer terminates this Agreement other than in a Permissible
Termination, Customer shall pay to Company an amount equal to all
unpaid Charges for the remainder of the then current term of this
Agreement.
6.3 Rights and Obligations on Termination. Upon termination of this
Agreement, Company and Customer shall have no obligations to each
other except as provided in this Agreement. Upon termination of this
Agreement, Customer shall (i) pay all amounts due and owing to
Company, (ii) remove from Company's premises all property owned by
Customer and (iii) return to Company all software, access keys and any
other property provided to Customer by Company under this Agreement.
Customer may retrieve any Customer-provided property or materials upon
reasonable prior written notice to Company. Any property of Customer
not removed from Company's premises within a short, reasonable time
after such termination shall become the property of Company, which
may, among other things, dispose of such property without the payment
of any compensation to Customer. The rights and obligations of both
parties, which by their nature would continue beyond the termination
of this Agreement (including, without limitation, those relating to
confidentiality, payment of Charges, limitations of liability and
indemnification), shall survive such termination.
7. PROPERTY RIGHTS. Company hereby grants Customer a non-exclusive,
non-transferable license to use the Services and Products provided
hereunder during the term of this Agreement. All rights with respect to the
Services and Products, including, but not limited to, intellectual property
or similar rights with respect therefore belong exclusively to Company,
whether or not they are embedded in any Service or Product. Notwithstanding
the foregoing, Customer shall not be obligated to make any royalty or other
payments with respect to the Services and Products other than as provided
in this Agreement.
8. PROPRIETARY RIGHTS INDEMNIFICATION.
8.1 By Customer. Customer agrees to indemnify and hold harmless Company,
all individuals or entities controlling, controlled by or under common
control with Company (each, a "Company Affiliate"), and the officers,
directors, attorneys and employees of Company and each Company
Affiliate (a "Section 8 Indemnified Party") against any losses,
claims, damages, liabilities, penalties, actions, proceedings or
judgments (collectively, "Losses") to which a Section 8 Indemnified
Party may become subject related to or arising out of any infringement
or misappropriation or alleged infringement or misappropriation of any
United States copyright, trade secret or other proprietary right
related to any hardware or software utilized by Customer in connection
with any of the Services or Products and will reimburse a Section 8
Indemnified Party for all legal and other expenses, including
reasonable attorneys' fees incurred by such Section 8 Indemnified
Party in connection with investigating, defending or settling any Loss
whether or not in connection with pending or threatened litigation in
which such Indemnified Party is a party.
8.2 By Company. Company agrees to indemnify and hold harmless the Customer
against any Losses to which the Customer may become subject related to
or arising out of infringement or misappropriation of any United
States copyright, trade secret or other proprietary right related to
the equipment and software provided by the Company to the Customer,
and will reimburse the Customer for all legal and other expenses,
including reasonable attorney's fees incurred in connection with
investigating, defending, or settling any such loss, claim,
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damage, liability, action or proceeding whether or not in connection
with pending or threatened litigation in which the Customer is a
party. This indemnification does not relate to the Customer's content
or matters that arise from Customer's content or conduct. The
provisions of this Agreement relating to indemnification shall survive
termination of Customer's account. If any such Products and Services,
or any part thereof, is an infringement or a misappropriation, then
Company will, at no additional charge to the Customer, use
commercially reasonable efforts to either: (i) procure for Customer
the right to continue using such Products and Services or part
thereof; or (ii) replace such Products and Services with
non-infringing Products and Services; or (iii) modify the same so as
to make it non-infringing; or (iv) the Agreement as to the infringing
Products and Services will terminate, and Company shall refund to
Customer any and all of the unused portion of the fees paid for such
Products and Services.
9. INDEMNIFICATION. In addition to other indemnification provided herein,
Customer agrees to indemnify and hold harmless Company, each Company
Affiliate and the officers, directors, employees and agents of Company and
each Company Affiliate (each an "Indemnified Party") against any losses,
claims, damages, liabilities, penalties, actions, proceedings or judgments
(collectively, "Losses") to which an Indemnified Party may become subject
and which Losses arise out of, or relate to this Agreement or Customer's
use of the Services and Products, and will reimburse an Indemnified Party
for all legal and other expenses, including reasonable attorneys' fees
incurred by such Indemnified Party in connection with investigating,
defending or settling any Loss whether or not in connection with pending
or threatened litigation in which such Indemnified Party is a party.
10. LIMITATION ON COMPANY LIABILITY. The parties acknowledge that the
limitations set forth in this Section 10 are integral to the amount of
fees levied in connection with this Agreement, and that, were Company to
assume any further liability other than as set forth herein, such fees
would of necessity be set substantially higher. Company does not monitor or
exercise control over the content of the information transmitted through
its facilities. Use of the Services and Products or any information that
may be obtained therefrom is at Customer's own risk. Company shall have no
responsibility or liability for the accuracy or quality of information
obtained through its Services and Products. Company shall not be deemed to
be in default of any provision of this Agreement or be liable for any
delay, failure of performance or interruption of the provision of Services
and Products to Customer resulting, directly or indirectly, from any (i)
weather conditions, natural disasters or other acts of God, (ii) action of
any governmental or military authority, (iii) failure caused by
telecommunication or other Internet provider, or (iv) other force or
occurrence beyond its control. The exclusive remedy against Company for
any damages whatsoever to Customer arising out of or related to this
Agreement shall be the refund of the fees paid by Customer to Company with
respect to the then current term of this Agreement. NEITHER PARTY SHALL BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR
FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE
COMPANY'S SERVICES AND PRODUCTS BY CUSTOMER OR ANY THIRD PARTIES EVEN IF
COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. COMPANY SHALL NOT BE
LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES,
MISDELIVERIES OR SERVICE INTERRUPTIONS. COMPANY PROVIDES THE SERVICES AND
PRODUCTS AS IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
COMPANY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND
SUITABILITY OF THE SERVICES AND PRODUCTS AND COMPANY SHALL HAVE NO
LIABILITY THEREFORE. The limitations of liability provided in Section 10
of this Agreement shall inure to the benefit of Company and all Company
Affiliates and to all of the respective officers, directors, attorneys,
employees and agents of Company and such other entities ("Limited
Liability Parties"). The limitations of liability afforded Company in this
Agreement shall apply whether (i) the action in which recovery is sought
is based in contract, tort (including, but not limited to, negligence or
strict liability), statute or otherwise or (ii) a Limited Liability Party
is alleged to be liable jointly with one or more parties or otherwise.
11. OTHER CUSTOMER ASSURANCES. During any time period when Customer is
provided access to any facilities, hardware or other property owned or
leased by, or otherwise under the control of Company (collectively
"Company Property") pursuant to this Agreement, Customer shall (i)
maintain insurance, with Company as a named payee, covering any damage or
destruction to Company Property (collectively "Damage") and (ii) reimburse
Company for all expenses incurred by Company in replacing or repairing, as
the case may be, any Damage caused by Customer.
11.1 Limited Company Liability. Neither Company nor any of its officers,
directors, employees, and agents shall be liable for any damage or
destruction of equipment or other materials belonging to, leased by,
or otherwise under the control of Customer, whether or not any such
equipment or materials are at any time located in facilities owned or
operated by Company, except where such damage or destruction is a
direct result of the gross negligence, recklessness or willful
misconduct of Company or any of its officers, directors, employees,
and agents.
12. CONFIDENTIALITY.
12.1 CONFIDENTIALITY. The parties recognize that they will have access to
confidential proprietary information and/or trade secrets of the
other party. Customer specifically acknowledges that the Services and
Products constitute valuable trade secrets of Company. Accordingly,
the parties agree that (i) the provisions of this Agreement, (ii) any
information whatsoever with respect to the Services and Products,
(iii) the course of dealing between Company and Customer hereunder
and (iv) all other non-public information relating to the foregoing,
including but not limited to user information submitted through
Customer's web forms, and the number of such web forms submitted
(collectively, the "Confidential Information") shall be treated by
parties on a confidential basis and shall not be reproduced, reduced
to writing, or disclosed to any employees of the parties (except on a
need to know basis and then only if the employee is subject to an
obligation of confidentiality) or any other person or entity without
the prior written consent of the disclosing party. Upon termination
of this Agreement, any documentation or data reflecting any
Confidential Information shall be promptly returned to the disclosing
party. Disclosure of information pursuant to applicable statutes or
regulations (collectively, "Laws") shall be excepted from this
provision; provided, however, that prior to any disclosure pursuant
to any Laws, the recipient will assert the confidential nature of the
Confidential Information and will cooperate fully with the disclosing
party, at disclosing party's expense, in protecting against such
disclosure.
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including, but not limited to, obtaining a protective order or
similar order narrowing the scope of such disclosure of the
Confidential Information. In the event such protection is not
obtained, the recipient shall disclose the Confidential
Information only to the extent necessary to comply with the
Laws.
12.2 Tampering. The parties agree that they will not attempt to copy
or in any way, alter, re-engineer or otherwise tamper with any
of the Confidential Information.
12.3 Injunctive Relief. The parties acknowledge that violation of the
provisions of Sections 12.1 or 12.2, above, could cause
irreparable harm to the disclosing party not adequately
compensable by monetary damages. In addition to other relief, it
is agreed that injunctive relief shall be available to the
disclosing party in the event of such violations without
necessity of posting bond to prevent any actual or threatened
violations of such sections.
13. TRANSFER AND ASSIGNMENT. Neither party may sell, assign or transfer any
of its rights or obligations under this Agreement without the prior
written consent of the other party.
14. USE OF CUSTOMER'S OR COMPANY'S NAME. Company shall be permitted to use
Customer's name in connection with proposals to prospective customers
and otherwise in print or electronic form for marketing or other
purposes, including, but not limited to, use in connection with (i)
compliance with applicable laws or regulations; and (ii) the protection
of any rights relating to Company or its business. Customer may use the
name "DIGEX" in connection with the Services and Products or otherwise
only with Company's prior written consent.
15. NO THIRD PARTY BENEFICIARIES. Except as otherwise specifically provided
herein, this Agreement inures to the benefit of Company and Customer
only and no third party shall enjoy the benefits of this Agreement or
shall have any rights hereunder.
16. NOTICES. Unless otherwise specified herein, any notices or other
communications required or permitted hereunder shall be sufficiently
given if in writing and delivered personally or sent by facsimile
transmission, internationally, recognized overnight courier, registered
or certified mail (postage prepaid with return receipt requested), to
the address or facsimile number of Customer as set forth in the Order
Form or Company as set forth below. Such notices or other
communications shall be deemed received (i) on the date delivered, if
delivered personally, (ii) on the date that return confirmation is
received, if sent by facsimile, (iii) on the business day (or, if
international, on the second business day) after being sent by an
internationally recognized overnight air courier or (iv) five days
after being sent, if sent by first class registered mail, return
receipt requested.
DIGEX, Inc., One DIGEX Plaza, Beltsville, Maryland, 20705, Attention: Vice
President, Client Services, Facsimile Number: (301) 847-5056
17. SURVIVAL OF CLAIMS Any claims arising out of or related to this
Agreement must be brought no later than one year after it has accrued.
18. INDEPENDENT CONTRACTOR STATUS. Nothing in this Agreement or in the
course of dealing between Company and Customer pursuant hereto shall be
deemed to create between Company and Customer (including their
respective directors, officers, employees and agents) a partnership,
joint venture, association, employment relationship or any other
relationship other than that of independent contractors with respect to
each other.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to
choice of law provisions that would cause the application of the law of
another jurisdiction.
20. DISPUTE RESOLUTION.
20.1 [INTENTIONALLY LEFT BLANK -- DELETION]
20.2 Arbitration. If a dispute or difference of any kind whatsoever
(a "Dispute") shall arise between Company and Customer in
connection with, relating to or arising out of this Agreement,
including the interpretation, performance, non-performance, or
termination hereof, the parties shall attempt to settle such
Dispute by an arbitral tribunal (the "Tribunal") under the
Arbitration Rules of the American Arbitration Association (the
"Arbitration Rules"). Each party shall appoint an arbitrator
within thirty (30) days after the expiration of the
aforementioned thirty-day period, which arbitrators shall then
jointly appoint a third arbitrator within thirty (30) days after
the appointment of the second arbitrator, to act as president of
the Tribunal. Arbitrators not so appointed shall be appointed
pursuant to the Arbitration Rules. The costs of the arbitration
shall be borne by the parties as determined by the Tribunal The
award rendered in any arbitration commenced hereunder shall be
final and conclusive and judgment thereon may be entered in any
court having jurisdiction for its enforcement. Neither party
shall (i) appeal to any court from the decision of the Tribunal
or (ii) have any right to commence or maintain any suit or legal
proceeding concerning a Dispute until such Dispute has been
determined in accordance with the arbitration procedure provided
for herein, and then only for enforcement of the award rendered
in such arbitration. All mediation and arbitration proceedings
pursuant to this Agreement shall take place in Prince George's
County, Maryland.
21. HEADINGS. The section and subsection headings have been used in this
Agreement as a matter of convenience only and shall not be used in the
interpretation of any provisions of this Agreement.
22. NON-WAIVER, WAIVER AND AMENDMENT. Failure by either Company or
Customer to enforce any of the provisions of this Agreement or any
rights with respect hereto or the failure to exercise any option
provided hereunder shall in no way be considered to be waiver of such
provisions, rights or options, or to in any way affect the validity of
this Agreement. No waiver of any rights under this Agreement, nor any
modification or amendment of this Agreement shall be effective or
enforceable unless in writing and signed by both parties, except by
Section 5, above.
23. SEVERABILITY. If one or more of the provisions contained in this
Agreement are found to be invalid, illegal or unenforceable in any
respect, the
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validity, legality and enforceability of the remaining provisions shall not
be affected.
24. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the
parties and supersedes all oral negotiations and prior writings with
respect thereto. When used in this Agreement, the terms "hereof," "herein"
and "hereunder" refer to this Agreement in its entirety, including any
attachments to this Agreement and not to any particular provisions of this
Agreement, unless otherwise indicated.
25. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
USE OF COMPANY SERVICES AND PRODUCTS CONSTITUTES ACCEPTANCE
OF THESE TERMS AND CONDITIONS
AGREED BY CUSTOMER: ARTIST DIRECT AGREED BY COMPANY: DIGEX, INC.
BY: BY:
------------------------------------ ------------------------------------
NAME: NAME:
---------------------------------- ----------------------------------
TITLE: TITLE:
--------------------------------- ---------------------------------
DATE: DATE:
---------------------------------- ----------------------------------
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ATTACHMENT A - ACCEPTABLE USE POLICY
Sections 3.6, 3.7 and 3.8 apply only to Web Site Management Group.
1. INTRODUCTION.
This document sets forth the principles, guidelines and requirements of
the Acceptable Use Policy of Intermedia Communications Inc. and its direct and
indirect wholly-owned subsidiaries, including, but to limited to, Digex,
Incorporated and Shared Technologies Fairchild Telecom, Inc. (collectively and
individually, the "Company") governing the use by the customer ("Customer") of
the Company's services and products ("Services and Products"). The Acceptable
Use Policy has been created to promote the integrity, security, reliability and
privacy of Company's Web Site Management Facility, network, and Customer data
contained within. Company retains the right to modify the Acceptable Use Policy
at any time and any such modification shall be automatically effective as to
all customers when adopted by the Company.
Questions or comments regarding the Acceptable Use Policy should be
forwarded to the Company via:
E-mail: abuse@digex.net
Telephone: 301-847-6200, 1-800-=581-8711
2. COMPLIANCE WITH LAW.
Customer shall not post, transmit, re-transmit or store material on or
through any of Services or Products which, in the sole judgment of the Company
(i) is in violation of any local, state, federal, or non-United States law or
regulation, (ii) threatening, obscene, indecent, defamatory or that otherwise
could adversely affect any individual, group or entity (collectively,
"Persons") or (iii) violates the rights of any person, including rights
protected by copyright, trade secret, patent or other intellectual property or
similar laws or regulations including, but not limited to, the installation or
distribution of "pirated" or other software products that are not appropriately
licensed for use by Customer. Customer shall be responsible for determining
what laws or regulations are applicable to its use of the Services and Products.
3. PROHIBITED USES OF SERVICES AND PRODUCTS.
In addition to the other requirements of this Acceptable Use Policy, the
Customer may only use the Services and Products in a manner that, in the
Company's sole judgment, is consistent with the purposes of such Services and
Products. If the Customer is unsure of whether any contemplated use or action
is permitted, please contact the Company as provided above. By way of example,
and not limitation, uses described below of the Services and Products are
expressly prohibited.
3.1 General.
3.1.1. Resale of Services and Products, without the prior written
consent of the Company.
3.1.2. Deceptive on-line marketing practices.
3.1.3. Violations of the rights of any Person protected by
copyright, trade secret, patent or other intellectual
property or similar laws or regulations, including, but not
limited to, the installation or distribution of "pirated"
or other software products that are not appropriately
licensed for use by Customer.
3.1.4. Actions that restrict or inhibit any Person, whether a
customer of the Company or otherwise, in its use or
enjoyment of any of the Company's Services or Products.
3.2. System and Network.
3.2.1. Introduction of malicious programs into the network or
server (e.g., viruses and worms).
3.2.2. Effecting security breaches or disruptions of Internet
communication. Security breaches include, but are not
limited to, accessing data of which the Customer is not an
intended recipient or logging into a server or account that
the Customer is not expressly authorized to access. For
purposes of this Section 3.2.2., "disruption" includes, but
is not limited to, port scans, flood pings, packet spoofing
and forged routing information.
3.2.3. Executing any form of network monitoring which will
intercept data not intended for the Customer's server.
3.2.4. Circumventing user authentication or security of any host,
network or account.
3.2.5. Interfering with or denying service to any user other than
the Customer's host (for example, denial of service attack).
3.2.6. Using any program/script/command, or sending messages of
any kind, designed to interfere with
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or to disable, a user's terminal session, via any means, locally
or via the Internet.
3.2.7. Creating an "active" full time connection on a Company-provided
dial-up account for Internet access by using artificial means
involving software, programming or any other method.
3.2.8. Utilizing a Company-provided dial-up account for purposes for
Internet access other than facilitating connectivity to the
Services and Products provided by the Company. This includes
copying or creating files utilizing more than 5MB of disk space
on the dial-up account servers.
3.2.9. Failing to comply with the Company's procedure relating to the
activities of customers on the Company's premises.
3.3. Billing.
3.3.1. Furnishing false or incorrect data on the order from, contract or
online application, including fraudulent use of credit card
numbers.
3.3.2. Attempting to circumvent or alter the processes or procedures to
measure time, bandwidth utilization, or other methods to document
"use" of the Company's Services and Products.
3.4. Mail.
3.4.1. Sending unsolicited mail messages, including the sending of "junk
mail" or other advertising material to individuals who did not
specifically request such material, who were not previous
customers of the Customer or with whom the Customer does not have
an existing business relationship ("E-mail spam").
3.4.2. Harassment, whether through language, frequency or size of
messages.
3.4.3. Unauthorized use, or forging, of mail header information.
3.4.4. Solicitations of mail for any other E-mail address other than
that of the poster's account or service with the intent to harass
or to collect replies.
3.4.5. Creating or forwarding "chain letters" or other "pyramid schemes"
of any type.
3.4.6. Use of unsolicited E-mail originating from within the Company's
network or networks of other Internet Service Providers on behalf
of, or to advertise, any service hosted by the Company, or
connected via the Company's network.
3.5. Usenet Newsgroups.
3.5.1. Posting the same or similar messages to large numbers of Usenet
newsgroup ("Newsgroup spams").
3.5.2. Posting chain letters of any type.
3.5.3. Posting encoded binary files to newsgroups not specifically named
for that purpose.
3.5.4. Cancellation or superseding of posts other than your own.
3.5.5. Forging of header information.
3.5.6. Solicitations of mail for any other E-mail address other than
that of the poster's account or service, with intent to harass or
to collect replies.
3.5.7. Use of unsolicited E-mail originating from within the Company's
network or networks of other Internet Service Providers on behalf
of, or to advertise, any service hosted by the Company, or
connected via the Company's network.
Please note that the following only apply if the Customer uses the relevant
platform and has purchased web site hosting services and/or products.
3.6. Roles Regarding UNIX Managed Server.
3.6.1. Customer may not create/update/delete accounts created and
maintained by the Company. Specifically, the Company account may
not be altered in any manner nor may any account with a UID of
less than 1000 be altered.
3.6.2. Customer may not change the participating or mount points of any
drive.
3.6.3. Customer may not create/update/delete any file in the/usr
directory tree.
3.6.4. Customer may not install Microsoft(C) FrontPage Extensions unless
updated on the/usr directory tree.
3.6.5. Customer may not create .rhosts or/etc/.host.equiv files.
3.6.6. Customer may not implement any procedure or process that would
allow one to login as root
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without using the root password. Customer may not create
suid scripts or programs.
3.6.7. Customer may not alter the system kernel.
3.6.8. Customer may not alter the /sys or /etc/system directory
trees or any files contained therein.
3.6.9. Customer may not apply operating system and application
patches to software not installed and solely maintained
by the Customer, unless notification is given to the
Company.
3.6.10. Customer may not change the root shell.
3.6.11. Customer may not alter the contents of /.k5login.
3.6.12. Customer may not alter /etc/fstab or /etc/vfstab.
3.6.13. Customer may not share or export file systems. This
includes modifying /etc/exportfs, /etc/dfs/sharetab, and
/etc/netgroup.
3.6.14. Customer may not modify the decode or root alias in the
/etc/aliases file.
3.6.15. Customer may not change the "identify" of the system.
This includes modifying /etc/hosts, /etc/hostname.*,
/etc/defaultrouter, /etc/networks and /etc/ethers.
3.6.16. Customer may not modify the system in any manner that
restricts or alters access to the system by the
Company's employees.
3.6.17. Customer may acquire root privileges after successful
login of a valid non-root userid and using su to gain
access as root.
3.6.18. Customer may create/update/delete all aspects of
Customer created user accounts. This may include
modifying home directory permissions, user passwords,
etc.
3.6.19. Customer may use FTP to create/update/delete files and
directories.
3.6.20. Customer may add to, but may not modify, existing data
in the following configuration files: /etc/aliases,
/etc/group, /etc/rc.local, /etc/sendmail.cf file and
root crontab.
3.6.21. Customer may install software on the server provided the
installation meets all of the criteria detailed above,
and the Company is notified of such installation.
3.7. Roles Regarding Windows NT Managed Server.
3.7.1. Customer may not create/update/delete accounts created
and maintained by the Company. Specifically, Company
account may not be altered in any manner.
3.7.2. Customer may not install software that does not
execute as a service.
3.7.3. Customer may not install software that does not have a
remote administration capability.
3.7.4. Customer may not install applications that do not run
within a logon account different from that of the
installing user.
3.7.5. Customer may not install applications which must be
restarted when one user logs off and another user logs
on.
3.7.6. Customer may not install applications that do not
execute when an individual is not logged on to the
server.
3.7.7. Customer may not modify the network and system settings
of the server.
3.7.8. Customer may not apply operating system and application
patches to software not installed and solely maintained
by the Customer, unless notification is given to the
Company.
3.7.9. Customer may use FTP to create/update/delete files and
directories.
3.7.10. Customer may create/update/delete all aspects of
Customer created user accounts. This includes modifying
home directory permissions, user passwords, etc.
3.7.11. Customer may start and stop all Windows NT 4.0
Services, including the WWW and FTP services.
3.7.12. Customer may install software on the server provided
the installation meets all of the criteria detailed
above, and the Company is notified of such installation.
3.8. Abuse of bandwidth during a Web Site Management Beta Period will
result in termination of applicable network discounts and
commencement of billing based upon normal network recurring
charges.
4. ENFORCEMENT.
Company may immediately suspend and/or terminate the Customer's service
for violation of any provision of the Acceptable Use Policy upon verbal or
written notice, which notice may be provided by voicemail or E-mail. However,
the Company attempts to work with the Customer to cure violations of the
Acceptable Use Policy and to ensure that there is no re-occurrence of violations
prior to suspension and/or termination.
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GLOSSARY
- ACCEPTABLE USE POLICY: Guidelines for services and products for Web
Hosting and Internet Connectivity.
- ADDRESS/IP SPOOFING: Inserting forged routing information into network
packet(s) such that the origin of the packet is misreported, which causes
return packets to be misrouted.
- BINARY FILES: A file containing bits or bytes that do not necessarily
represent printable text. The term binary file usually denotes any file
that is not a text file, such as executable machine language code. Special
software is required to print a binary file or view it on the screen.
- BULK E-MAIL: Any group of messages sent via E-mail, with substantially
identical content, to a large number of addresses at once. Many ISPs
specify a threshold for bulk E-mail (e.g., 25 or more recipients within a
24-hour period). Taken by itself, bulk E-mail is not necessarily abuse of
the electronic mail system. For example, there are legitimate mailing
lists, some with hundreds or thousands of willing recipients.
- COMMERCIAL E-MAIL: Any E-mail message sent for the purposes of distributing
information about a for-profit institution, soliciting purchase of products
or services, or soliciting any transfer of funds. It also includes
commercial activities by not-for-profit institutions.
- CRACKS: Distribution of registration codes for software in violation of the
software license, or distribution of any software intended to defeat copy
protection.
- DECEPTIVE ON-LINE MARKETING PRACTICES: Marketing practices that present a
false image of the advertised product (or of the advertiser). One example
of a deceptive on-line marketing practice would be an E-mail that purports
to originate from the recipient's ISP or from a well-known company. Other
examples include fraud, multi-level marketing, or any commercial or
non-commercial activity that is conducted for the purpose of confusing,
misleading or misinforming the E-mail and/or Internet users.
- ELECTRONIC MAIL (E-MAIL) SPAM: Unsolicited E-mail from which a recipient
cannot unsubscribe, or unsolicited E-mail to a recipient who does not have
a previous business or other relationship with the sender.
- FORGED ROUTING INFORMATION: Routing information which is misleading or
incorrect or which would tend to disguise the origin of the routed
material. Usually refers to information that is not generated by any
routing device (such as a mail server), but is inserted by a party using
software which is designed to produce false routing information (headers in
the case of E-mail).
- FTP: File Transfer Protocol. A standard way of transferring files from one
computer to another on the Internet and on other TCP/IP networks. FTP is
also the name of any of various computer programs that implement the file
transfer protocol. Customers can also retrieve files by FTP using a web
browser.
- MMF: Make Money Fast Schemes: Messages that "guarantee immediate,
incredible profits!," including such schemes as chain letters.
- MAILBOMB: Delivery of enough E-mail to an electronic mailbox to overload
the mailbox or potentially overload the system that the mailbox is hosted
on.
- NEWSGROUP SPAMS: A public forum or discussion area on a computer network.
All users of the network can post messages, and every user can read all
messages distributed worldwide by the Usenet system, covering thousands of
topics.
- PACKET SPOOFING: Emitting a network packet with a source address you do not
have permission from the owner
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to use.
o PING FLOOD: Intentionally flooding a system's pipeline with ICMP
EchoRequests. This can reduce the bandwidth available for legitimate use
and, if severe enough, can bring a pipe down.
o PIRATED: Any copywritten material, commercial or noncommercial, that is
used, transmitted and/or stored without authorization.
o PYRAMID SCHEMES. A get-rich scheme in which you receive a message
containing a list of names. Recipients are expected to send money to the
first person on the list, cross the first name off, add their name at the
bottom and distribute copies of the message.
o SMURF/FRAGGLE: http://users.quadrunner.com/chuegen/smurf.txt
The "smurf" attack, named after its exploit program, is one of the
most recent types of network-level attacks against hosts. A perpetrator
sends a large amount of ICMP echo (ping) traffic at IP broadcast
addresses, all of which have a spoofed source address of a victim. If the
routing device delivering traffic to those broadcast addresses performs
the IP broadcast to layer-2 broadcast function, most hosts on that IP
network will take the ICMP echo request and reply to it with an echo reply
each, multiplying the traffic by the number of hosts responding. On a
multi-access broadcast network, there could potentially be hundreds of
machines to reply to each packet.
The "smurf" attack's cousin is called "fraggle," which uses UDP echo
packets in the same fashion as the ICMP echo packets. A "fraggle" is a
simple re-write of "smurf."
o SYSTEM KERNEL: The central part of an operating system. In most operating
systems, only the kernel can access hardware directly. (Also spelled
"kernal.")
o UNSOLICITED E-MAIL: Unsolicited E-mail is any E-mail message received
where the recipient did not specifically ask to receive it. Taken by
itself, unsolicited E-mail does not constitute abuse, and not all
unsolicited E-mail is undesired E-mail. For example, receiving
"unsolicited" E-mail from a long-lost friend or relative is certainly not
abuse.
o Unsolicited Bulk E-Mail (UBE): E-mail with substantially identical
content sent to many recipients who did not ask to receive it.
o Unsolicited Commercial E-mail (UCE): E-mail containing commercial
information that has been sent to a recipient who did not ask to
receive it.
o WORMS: An automated computer program that probes, breaks into, interferes
with or disrupts service for one or more computers, networks or services.
Similar to a virus, Trojan horse or other disabled device.
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