Acceptable Use Policy

This agreement sets forth the Standard Terms and Conditions th at apply to subscriber use of Netmagic Internet Communications. Subscriber henceforth agrees to comply with all provisions and policies set forth in this agreement. This policy replaces and overrides any previous Acceptable Use Policies off ered by Netmagic, Inc. In the event of any conflict between any provision(s) in this agreement and any provision(s) of a Service Level Agreement (SLA) that has been executed between the subscriber and Netmagic, the SLA provision(s) shall ta ke precedence.

User Agreement:

Netmagic strives to protect network resources and preserve the privacy and security of our customers while recognizing our position in the Internet community as a whole. By becoming a subscriber to Netmagic you agree to this Acceptable Use Policy. You agree to indemnify and hold harmless Netmagic from any claims resulting from your conduct and/or use of the service which damages you o r another party. If you are dissatisfied with your service or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the service by canceling your account by contacting Netmagic at 408-377-5811, option 2. Accounts left active will be billed accordingly.

Accounts connected to Netmagic via a dedicated circuit including, but not limited to, ISDN, D SL, T1 or T3, and accounts with dedicated or colocated servers of any type, require thirty (30) days written notice of cancellation, to be delivered to Netmagic via certified mail, with a return receipt. Cancellations via e-mail or fax are not acceptable and will not be accepted as a valid form of cancellation.
Netmagic will make all possible efforts to maintain our network and deliver the best quality service, and does not take responsibility for Act s Of God or other circumstances outside of our direct control (local telephone exchange company issues, backbone provider issues, Denial of Service attacks, or customer hardware/software issues).

Netmagic service is provided on an "as is" ; and "as available" basis. Netmagic does not warrant that the service will be error-free or that any information, software, or other material accessible via the internet will be free of viruses, worms, trojan horses, or other har mful components. Netmagic does not guarantee the quality and reliability of networks outside of our direct control. Netmagic is not responsible for the performance of any services provided by organizations outside of Netmagic, including the quality of a subscriber's phone lines, the speed of Internet connections not owned or operated by Netmagic, and the operation or reliability of any Internet server or computer not owned or operated by Netmagic. This provision will sur vive termination of service with Netmagic.

Netmagic is not responsible for long distance and/or toll charges or any other charges incurred when using our dial-up numbers. It is the sole responsibility of the subscriber to check with their local telephone exchange company to ensure that calling any of our access numbers is a local call.

Netmagic makes no expressed or implied warranties or endorsements including, but not limited to, warranties of title, non-infringement or implied warranties of merchantability or fitness for a particular purpose regarding any merchandise, information, or service provided through Netmagic or on the internet generally. No advice or info rmation given by Netmagic, its employees, affiliates or contractors shall create a warranty. This provision will survive termination of service with Netmagic.

Under no circumstances shall Netmagic, its employees, affilia tes or contractors be liable for any direct, indirect, incidental, special, punitive, or consequential damages that result in any way from any:

• Use of your account or the service or your inability to use the service Ac cess of the internet or any part thereof;
• Your reliance on or use of information, services, or merchandise provided on or through the service or that result from mistakes, omissions, interruptions, deletion of files, er rors, defects, delays in operation or transmission, or any failure of performance. Netmagic's failure to enforce strict performance of any provision of this Policy shall not be construed as a waiver;
• Conduct that viola tes the law, regulations, or the accepted norms of the Internet community, whether or not expressly mentioned in this policy, is prohibited. Netmagic reserves the right at all times to prohibit activities that damage our commercial re putation and goodwill or that of our customers and users.

This provision will survive termination of service with Netmagic.

Account Limitations:

Standard Netma gic dialup accounts are limited to one PPP login per account at any given time.
Netmagic advertises unlimited use dial-up accounts. "Unlimited use" does not imply a connection that is kept open 24-hours a day. Unlimited Use is defined as the amount of time the average individual can be active online in a given day. Currently, this is considered to be an average of 12 hours per day. Sustained usage above this time could result in additional hourly charges. As a subscriber to Netmagic you acknowledge that your service is intended for periodic, active use of email, newsgroups, file transfers, online chat, online games, and browsing the World Wide Web. You also agree not to use y our service in a non-active or standby basis in order to maintain a connection. Netmagic retains the right to terminate any connection following an extended period of inactivity. Accounts are available for such a connection on a different b illing plan.

Lawful Use:

Netmagic service is provided for use in strict accordance with all federal, state and local laws, ordinances and regulations. Use of Netmagic service to assist any other person or entity to violate any federal, state or local laws, ordinances or regulations is prohibited. Such activities include but are not limited to: transmittal of any material that violates any applicable local, state o r federal law (such as copyrighted material), intentionally spreading computer viruses, gaining or attempting to gain unauthorized access to any network, conducting or participating in illegal gambling.

Netmagic service is not to be used in any manner that infringes upon the rights of any third party, including but not limited to intellectual property rights or publicity rights (e.g., the unauthorized reproduction, distribution or misappropriation of copyr ighted material, such as downloading software, music and video files or audio sounds and video images). Netmagic service is not to be used to invade the privacy of any third parties, for example gathering electronic mail addresses, password s, or other personal contact information without their express consent.

Monitoring of Content:

Netmagic does not routinely monitor service to examine content transmitted throug h it or stored by users on it. However if Netmagic is made aware of content that in Netmagic's sole discretion violates this Acceptable Use Policy, local, state, or federal laws, Netmagic has the right, but not the obligation, to monitor tr affic, and/or to edit, remove, or deny access to such content. Netmagic also may elect to block incoming content that it believes, in its discretion, constitutes an unsolicited electronic mail message (SPAM), chain letter, virus, trojan hor se, or other content that threatens Netmagic service or equipment.

When necessary to properly operate Netmagic service, to protect Netmagic's rights or the rights of third parties, or as may be required by law, reg ulation, government agency or court order, Netmagic may electronically monitor Netmagic services. Netmagic may disclose content or records concerning your account as required satisfying any law, regulation, government request or court order .

Subscribers agree to make reasonable efforts to respond to any request by a government agency, copyright holder or its agents, or industry association regarding alleged violations of federal, state, or local laws, or any requests by Netmagic or its personnel regarding violation of this Acceptable Use Policy. Subscriber's failure to respond to such a request may result in suspension or termination of service, if Netmagic determines, in its sole disc retion, that the subscriber's alleged actions violates this Acceptable Use Policy.

Netmagic offers 5MB of free personal web space hosting for dial-up accounts. Personal web space is not to be used in a commercial manner or to advertise or promote any goods, services, business or political/religious organizations. Use of personal web space for such material is subject to an additional $5.00 monthly fee, which also increases your maximum web space to 5 0MB. Upon discovery of violations of this policy, the subscriber will be contacted via email. Charges will not be rated back to the activation of the web space, though will be recursive from that point on unless the material is removed or m odified. To activate personal web space, you must email your request to support@netmagic.net.

Denial-of-Service attacks, pinging, flooding, attempts to breach authentication or s ecurity measures, or any unauthorized attempts to gain access to any other account, host, or network, including, but not limited to, the use of port scanners is strictly prohibited, and will result in immediate termination of service withou t notice.

Spam:

Unsolicited commercial email (UCE) is defined by Netmagic as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc…) sent for purposes of d istributing commercial information of any kind. This includes general advertising and solicitations including the buying or selling of products or services, or any transfer of funds or any other type of UCE sent to a recipient who has not s pecifically agreed to receive such communication(s) from you.

Unsolicited bulk e-mail (UBE) is defined by Netmagic as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc…) to multiple recipi ents who have not specifically agreed to receive such communication(s) from you.

Use of the Netmagic network, servers or services to transmit any UCE or UBE is expressly prohibited, as is hosting web sites or services on a server which are advertised in any UCE/UBE. Netmagic also prohibits the sending of any fraudulent, malicious, harassing, false or misleading electronic communications, including, without limitation, chain letters, pyramid schemes, o r e-mails with forged headers. Posting off-topic advertisements to Usenet or other discussion groups, ICQ, Instant Messenger, etc., is also expressly prohibited. Additionally, Netmagic customers are expressly prohibited from ending any UCE/ UBE from our network or any email from another network that in any way references a document, image, or web site that resides on the Netmagic network or in one of our data centers.

Violations of this type may result in t he termination of the offending Netmagic account. Our customers are ultimately responsible for any violations of the AUP by their clients, and any violation of the AUP by a client of a Netmagic customer shall be deemed a violation of the AU P by such Netmagic customer.

Customers whose actions directly or indirectly result in Netmagic IP space being listed in any of the various abuse databases may be subject to having the offending domain(s), server(s), or user(s) immediately removed from our network. In addition, if Netmagic in its sole discretion determines that a customer is in violation of our AUP, Netmagic may, at its sole discretion, restrict, suspend or terminate a customer's accou nt. Netmagic will, in most cases, attempt to contact the customer prior to suspension or termination of a server or servers, but cannot guarantee prior notification. Any server suspended or terminated for AUP violations will be reconnected only after the customer agrees to cease all activities that violate the Netmagic AUP and pays all applicable reconnect fees and related charges. Any server suspended a second time for AUP violations WILL be immediately and permanently removed from our network.

Customers that Netmagic determines in its sole discretion to be in violation of the Netmagic AUP may be subject to additional fees or fines including, without limitation, any applicable reconnec t fees.

Violation of Netmagic's UCE/UBE policy may be reported to abuse@netmagic.net.

Customers seeking to send any opt-in or permission-based email marketing should read Opt-in/Permission-Base d Email to see our guidelines for sending this type of communication.

Opt-in/Permission-based e-mail:

While Netmagic prohibits the use of its systems or network to send unsolicit ed email (UCE/UBE) as described above, customers may send permission-based email marketing, subject to the guidelines provided herein. Permission-based marketing is defined as electronic marketing that an end user specifically agrees to rec eive. This is also referred to as opt-in electronic marketing. All recipient information for such marketing conducted by Netmagic customers must be documented and catalogued by the customer. This information is to include date, time, origin ating IP and the location from which the email address or other recipient information was obtained. Additionally, a customer must at a minimum comply with the following guidelines, and any additional guidelines established by Netmagic from time to time in its sole discretion, to engage in permission-based email marketing without violating the AUP:

1. All commercial or bulk email originating from a Netmagic customer on the Netmagic network must have a working unsu bscribe link. The customer must honor all requests to unsubscribe within 24 hours. Additionally, there must be text in the email stating that while all requests to unsubscribe are honored, it may take up to 24 hours to process.
2. All commercial or bulk email originating from a Netmagic customer on the Netmagic network must clearly list the email address to which the email was originally sent (the intended recipient's email address) in the body of the me ssage OR in the 'TO:' line of the email.
3. All Netmagic customers sending commercial or bulk email must have a working abuse@domain.com address from EVERY domain associated with the email campaign. Additionally, the abuse@ address must be prominently posted on the front page of the associated web site. Customers must answer all messages sent to the abuse@ address.
4. All Netmagic customers sending commercial or bulk email must register the abuse@ ad dress for every domain associated with commercial email they send at abuse.net.
5. All Netmagic customers sending commercial or bulk email must have a Privacy Policy/AUP posted for each domain associated with the email campaign.
6. All commercial or bulk email sent must include information about where the email address was obtained in the body of the email. For example: "You opted-in to receive this email promotion from our web site."
7. All Netmagic customers sending commercial or bulk email must answer all complainants' requests for details regarding where the complainant opted-in to receive electronic marketing within 24 hours. This information must include the da te, time, originating IP and the location from which the email address or other recipient information was obtained. Instructions on how to get this information must be stated clearly in the body of the email. For example, a statement similar to the following must be present in the body of the email: "If you would like to learn more about how we received your email address, please contact us at abuse@domain.com."
   All requests for opt-in information mus t be responded to within 24 hours.
8. All Netmagic customers sending commercial or bulk email must be able to track and identify anonymous complainants. There are several software packages that can help accomplish this.
   If a Netmagic customer is using an affiliate program to send commercial or bulk email through the Netmagic network and the affiliate program becomes subject to repeated abuse by users, the customer must discontinue use of the affili ate program or be subject to immediate suspension or cancellation.
9. All customers of Netmagic are required to have up-to-date and valid contact information on file with their registrar for any domain hosted on the Netmagic networ k. Any domain found to have outdated or false information in the registry entry for the domain is subject to suspension or cancellation if the erroneous information is not corrected within 24 hours of notice sent to the customer by Ne tmagic.

Disclaimer:

Netmagic reserves the right to test portions of any customer's email list in response to complaints and request opt-in information from a random samp le of that list at any time.

Netmagic reserves the right to determine in its sole discretion the validity of any customer's email list. Any list Netmagic determines in its sole discretion to be in violation of this AUP m ust be removed immediately or the customer will be subject to immediate suspension or termination. Repeated violations will result in permanent suspension.

Netmagic reserves the right to test and otherwise monitor c ustomer's compliance with the above guidelines and requirements at any time during the customer's term of service at Netmagic.

If Netmagic determines in its sole discretion that the customer is not in strict compliance w ith the guidelines for permission-based e-mail marketing, then Netmagic may immediately suspend or terminate the customer's service.

Technical Support:

Netmagic offers free techn ical support to assist customers with the setup and configuration of Netmagic Internet dialup accounts. Phone based technical support is to be used when a customer requires assistance with problems involving an Internet connection, as well as with problems concerning the sending and receiving of Internet E-Mail, or other problems with connectivity including FTP services, dedicated access.

Netmagic does not offer support for setting up or writing WWW pages, nor does it offer assistance or training on how to use any operating system, including (but not exclusive to) Windows, MacOS, or Unix. Netmagic does not offer support or training for the use of any program other than those used speci fically for e-mail or FTP services.

Credit Card Billing:

Netmagic subscribers who elect to have their monthly service(s) billed automatically to their credit card are billed for the f ull monthly service on startup. All automatically-billed customers whose expiration dates fall within the current month are charged for a full month of service, regardless of expiration date.

Cancellation:

Netmagic subscribers may cancel their account at any time and for any reason. Cancellations requested after the regular billing date will be billed for the whole month of service. Refunds for accounts closed due to a direct violation of Netmagic's Acceptable Use Policy will only be granted at the discretion of Netmagic.

Returned Checks:

At any time a check for payment for services is returned due to insufficient fu nds, an E-mail will be sent to the account in question indicating that the account holder will be given five (5) days to clear the problem through the Netmagic Accounting Department. It is the sole responsibility of the subscriber to check their e-mail. Exceptions will not be made if the subscriber fails to check their e-mail on the Netmagic server, or if the subscriber has not provided Netmagic with a different, valid e-mail address. There will also be a $25.00 service charg e in addition to the amount specified on the returned check which will be payable if the account holder requests the account re-opened.

The e-mail addresses of subscribers are not for sale or commercial distribution . They are not available to third parties without the express prior consent of the subscriber. Netmagic will not share or disclose your personal information except: (A) when required by law or legal process, (B) in emergencies where someone 's safety is at risk, (C) when in our sole discretion believe it reasonably necessary to protect Netmagic's rights or property or (D) when a member is violating Netmagic's Acceptable Use Policy and disclosure is required.

Using facilities to engage in activities that violate the Terms of Service of any other network access provider is prohibited. For example, sending unsolicited e-mail (SPAM) through our facilities to the subscribers of any Internet o nline service provider that disallows SPAM is prohibited.

This policy does not apply to third party web sites, newsgroups and other public forums linked directly to Netmagic's site or its customers. Netmagic is not respo nsible for the privacy practices, content or use of private information obtained by any third parties. We strongly urge our customers to use caution when deciding to disclose private information to third party sites or public forums. Be sur e to review the privacy policy of any third party site before disclosing any private information and contact them directly if you have any questions.

Violation of this Acceptable Use Policy by a customer may result in temporary suspension or permanent termination of service, at the sole discretion of Netmagic.

Law & Forum:

All contracts & transactions between Netmagic and the subsc riber and/or user shall be governed by and constructed in accordance with the laws of California and the parties hereto shall submit to the jurisdiction of the California courts. In addition, any controversy or claim, whether occurring unde r contract or common law, will be settled by arbitration/mediation in the county of Santa Clara in the state of California, by an arbitrator/mediator in accordance with the procedure set forth in the commercial rules of the American Arbitra tion Association.

Netmagic reserves the right to add, delete, or modify any provision of this Acceptable Use Policy at any time without notice.Questions regarding acceptable use of Netmagic should be sent to support@netmagic.net.