Ubersmith Inc., (“Ubersmith” or “We”) strive to provide our customers with the highest quality Services available, while adhering to State and Federal Laws. “Users” means any user or Customer of all Ubersmith provided telecom services (“Service” and/or “Services”) that are provided by Ubersmith pursuant to any applicable customer Agreement, including, without limitation, any applicable terms of service, Master Service Agreement or Service Orders.

This Acceptable Use Policy (“AUP”) covers all its Services and is designed to help improve the use of the Services by preventing unacceptable use. All users of the Services must comply with this AUP.

Use of the Services constitutes acceptance of the AUP. Users are solely responsible for all acts and omissions that occur while accepting the Services, and users agree not to violate the AUP or engage in any unacceptable or illegal activities while utilizing any of the Services.

Ubersmith reserves the right to revise, modify and amend this AUP at any time and in any manner. Notice of any revision, modification or amendment of the AUP will be posted on our website.

Ubersmith may act against users for violating these policies, including removing any content that violates the AUP and/or terminating abusive, harassing, defamatory, vulgar, obscene, pornographic, indecent, invasive of privacy or publicity rights, inflammatory or otherwise harmful or offensive to third parties. We reserve the right to terminate service to any user without notice upon violation of any part of the AUP.

The Services may be used only for lawful, proper and appropriate purposes.

Illegal purposes include but are not limited to using any Service to violate any law, rule, or regulation; or engaging in threatening, abusive, harassing, defamatory, libelous, deceptive or fraudulent behavior.

VIOLATIONS OF THE AUP

1. Inappropriate Content. Users may not upload, download, post, email, distribute, publish or otherwise transmit (collectively “Transmit”) any message, data, information, image, text, song, movie or other material (collectively “Content”) that is unlawful, libelous, slanderous, threatening, abusive, harassing, defamatory, vulgar, obscene, pornographic, indecent, invasive of privacy or publicity rights, inflammatory or otherwise harmful or offensive to third parties.
   
   
2. Network Security / Integrity. Using our Services for any activity which adversely affects the ability of other people or systems to use Services. This includes Denial of Service (DoS) attacks, Virus Uploading and distribution, and Hacking (intentional unauthorized access into a service or system without express authorization). Users are responsible for ensuring the security of their personal or business network to minimize network abuse. Users are responsible for the configuring and securing of their Service to avoid disruption of network or end user Services. Users may not, through action or inaction, use their network for illegal or inappropriate actions or configure their network in a way that permits third parties to do the same. Examples of unsecured services are, but not limited to, Open SMTP relays, incorrect configuration of Proxy services, and Hosting Server Relays.
   
   
3. Resale, Sharing, Distribution. Users may not resell, share, or otherwise distribute the Services or any portion thereof to any third party without our written consent.
   
   
4. Illegal Use. Users may not transmit Content in a way that intentionally or unintentionally violates any applicable, known or unknown local, state, national or international law.
   
   
5. Unauthorized Access. Users may not use the Services to access, or attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of the Service Provider’s or other entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
   
   
6. Collection of Personal Data. Users may not use the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
   
   
7. Infringement of Intellectual Property Rights. The Provider does not permit users to Transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party as specified by the Digital Millennium Copyright Act (DMCA) of 1998, or any other applicable As governed by the DMCA Act of 1998 Section 512, the user will be removed from the Provider’s network for repeated infringement of copyrighted materials.

Remedies:

1. Ubersmith reserves the right, at its sole discretion, to determine if a Service is being used for any of the foregoing purposes or activities.
   
   
2. Violation of this AUP may result in civil or criminal liability, and Ubersmith in its sole discretion, in addition to any remedy that it may have at law or in equity, may immediately terminate permission for the User to use the Services, or any portion of the Services, and may charge User any applicable rates and cancellation or termination fees.
   
   
3. Ubersmith will not be liable for any damages of any nature suffered by any Customer or User, or any third party resulting in whole or in part from Ubersmith’s exercise of its rights under this AUP.
   
   
4. Any violations or attempted violations of this AUP by any User (or any third party on behalf of any User) will constitute a violation of this AUP by the User and a material breach of any applicable customer Agreement, including, without limitation, any applicable terms of service and/or supplements to any applicable Agreement(s).
   
   
5. Ubersmith’s failure to enforce this AUP in every instance in which it might have application does not amount to a waiver of Ubersmith’s rights.
   
   
6. IN NO EVENT WILL UBERSMITH BE LIABLE TO ANY USER OR THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES FOR ACTIONS TAKEN OR NOT TAKEN PURSUANT TO THIS AUP, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR DATA, OR OTHERWISE, EVEN IF UBERSMITH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IN FAVOR OF UBERSMITH IS IN ADDITION TO ANY LIMITATIONS SET FORTH IN ANY WRITTEN AGREEMENT BETWEEN UBERSMITH AND ANY APPLICABLE USER AND WILL APPLY WHETHER THE ACTION IN WHICH RECOVERY IS SOUGHT IS BASED IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), OR ANY APPLICABLE LAWS.
   
   

User Further Agrees:

1. Nothing in this AUP will limit or be deemed a waiver of any rights or protections of Ubersmith pursuant to any written Agreement between Ubersmith and any applicable User. This AUP will be read in connection with any such written Agreement and not in conflict with any such Agreement. This AUP, in connection with any such Agreement, supersedes any other oral or written representations or Agreements made by Ubersmith and/or its representatives regarding the Services.
   
   
2. This AUP will be governed by, construed under and enforced in accordance with the laws of the State of New York without reference to its choice of law principles or the United Nations Convention on the International Sale of Goods. Users consent to the exclusive personal jurisdiction and venue of the federal and state courts located in New York, New York.
   
   
3. User agrees to indemnify Ubersmith for any third-party complaints brought against Ubersmith for alleged violations of this AUP by the Customer and its Users.
   
   
4. If any provision of this AUP is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this AUP will not be affected thereby.