ACCEPTABLE USE POLICY AND TERMS OF SERVICE
FOR WHOLESALE AND RETAIL PRODUCTS AND SERVICES
South Dakota Network, LLC, Express Communications, Inc., and any of its affiliates or subsidiaries (aka SDN Communications) (collectively “SDN”) have established this Acceptable Use Policy (“AUP”) for the protection of SDN and its customers for the use of SDN’s wholesale and retail products and services. SDN can be contacted at 1-800-247-1442 regarding any questions you have about this AUP, SDN, or SDN’s products and services. By using services provided by SDN, you agree to be bound by the terms of this AUP.
1. General Provisions: The following terms and conditions apply only to SDN products and services and any facilities and equipment used to furnish the service or product (“Services”). If a specific provision in an SDN contract or tariff is in conflict with any of these more general terms and policies, the specific contractual or tariff provision will prevail. SDN does not discriminate in the provisioning of its services, and will provide its Services where technically feasible and within reasonably anticipated capacity conditions to any entity able to contract for them and under terms and conditions that are fair, reasonable and responsive to competitive market conditions.
a. SDN is only responsible for the installation, operation and maintenance of its Services. SDN’s does not warrant that its Services meet standards other than those set forth in a specific contract or tariff. A customer may not assign or transfer the use or relocation of SDN Services unless assignee or transferee assumes in writing all outstanding indebtedness and all contractual or tariff obligations applicable to the Services and SDN consents in writing to the assignment or transfer.
b. SDN’s liability, if any, for its willful misconduct is covered by this AUP. With respect to any other claim by a customer or others for damages associated with the installation, provision, operation, termination, maintenance, repair or restoration of the Services, SDN liability, if any, shall not exceed an amount equal to the proportionate charge for the Services for the period during which the Services were affected. SDN shall not be liable for any act or omission of any other carrier or customer providing a portion of the Services.
c. The customer shall indemnify, defend and hold harmless SDN against any claim, loss or damage arising from its use of the Services involving: (1) claims for libel, slander, invasion of privacy, or copyright infringement; (2) claims for patent infringement; or (3) any claim arising out an act or omission of the customer.
d. If performance by SDN of any obligation under this AUP is prevented, restricted or interfered with by causes beyond SDN’s control, including, but not limited to, the failure or malfunction of Customer-supplied equipment, acts of God, explosions, vandalism, cable cuts, natural disasters, power failure, national emergencies, insurrections, riots, war, strike, lockouts, boycotts, work stoppages or other labor difficulties, delays caused by third party vendors, or any order, regulation or other actions of any governmental authority, agency instrumentality or any civil or military authority, SDN shall be excused from such performance on a day-to-day basis to the extent of such restrictions or interference. SDN shall use reasonable commercial efforts under the circumstances to avoid or remove such causes of nonperformance with reasonable dispatch.
e. Services provided by SDN shall be maintained by SDN. Neither a customer nor any third party may rearrange, move, disconnect, remove or attempt to repair Services without the written consent of SDN.
f. Services can only be used for lawful purposes. SDN, in its sole discretion, may refuse to provision or may disconnect Services when it reasonably believes that use of the Services by the customer is unlawful or is likely to cause harm to SDN’s network or the provisioning of Services to other customers.
g. Failure of a customer to pay charges due and owing for Service may result in the disconnection of those Services and the refusal by SDN to provide further or additional Services. Under normal circumstances payment of undisputed charges for Services is due within thirty (30) days of the bill date. SDN will give thirty (30) days notice of delinquency, after which, the Services are subject to disconnection. Customer must in good faith dispute charges within thirty (30) days of the bill date. A customer waives its right to dispute charges if undisputed charges are not paid within thirty (30) days of the bill date. Customer may not withhold or offset undisputed charge amounts against disputed charges. All past due charges will be subject to a late payment fee of one and one-half percent (1.5%) per month unless stated otherwise in writing in a contract or tariff.
h. SDN will make all reasonable, commercial efforts to prevent Service interruptions and will restore Services as quickly as is reasonably possible.
i. The laws of the State of South Dakota shall apply to this AUP. Any disputes or other matter requiring adjudication or arbitration will be venued in the state and federal jurisdictions located in Minnehaha County, South Dakota.
j. Any controversy or claim arising out of or relating to this AUP shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Any award rendered by the arbitrator is final and may be entered in any court having jurisdiction thereof.
2. Internet Service. This AUP applies to customer use of any wholesale or retail SDN Internet service regardless of technology or the Internet-based application utilized. SDN will provide Internet access and services upon a bona fide request and the signing of appropriate contracts. SDN is knowledgeable of, adheres to, and will continue to adhere to applicable FCC principles regarding net neutrality and does not favor any lawful Internet content or applications over others. A customer may not:
a. Use any Internet service or use or permit the use of Internet service for unlawful purposes or purposes that SDN believes to be unacceptable.
b. Use any Internet service to transmit, post or receive material that is threatening, abusive, libelous, defamatory, obscene, pornographic, or otherwise in violation of any local, state, federal or international law or regulation.
c. Transmit any information or software that contains a virus, worm, Trojan Horse, or other harmful component.
d. Transmit or download any information, software or other material that is protected by copyright or other proprietary right without the permission of the person owning that protected right.
e. Transmit SPAM or other bulk email.
f. Add, remove, or modify identifying network heading information (aka “spoofing”) in an effort to deceive or mislead or any impersonation of another person using forged headers or other improper identifying information.
g. Engage in any activity which would compromise customer privacy or system security or gain access to any system or data without required permission (e.g. “hacking”) of the owner.
h. Engage in any activity which would result in third-party charges to SDN.
i Resell or otherwise share SDN’s retail Internet service, account information or passwords.
SDN does not screen in advance any specific content using its Internet service. SDN reserves the right, but not the responsibility, to block or limit access to content that violates this AUP. SDN disclaims any liability for any act or omission with regard to Internet content the customer finds objectionable or unsuitable. Use of information accessed by the Internet is at customer’s own risk. SDN disclaims any responsibility for the accuracy, privacy or quality of the information. By using the Internet service, the customer agrees to hold SDN harmless for content accessed using the Internet service. The customer further agrees that SDN has the right to electronically monitor its service and to use or disclose any information it deems necessary to satisfy any legal or operational requirements. Any IP address assigned to a customer on either a dynamic or static basis remains the property of SDN and may not be appropriated or transferred to any other party for any use other than as intended by SDN.
SDN reserves the right to evaluate on an individual account basis bandwidth or hardware utilization. Excessive bandwidth or hardware usage that adversely affects SDN’s ability to provide its Internet or any other Services may result in additional account management and fees.
SDN provides methods to secure and protect its Internet service. Such action is not a substitute for the customer providing his/her own security or protection. SDN specifically disclaims any liability for any breach of security or any harm to customer’s computing system while connected to SDN’s Internet service.
A retail customer of SDN may not use SDN’s Internet service for web or email hosting without making special written subscription arrangements with SDN.
SDN’s reserves the right to disconnect or limit any account access to the Internet that in the opinion of its system administrator is a threat to the security or lawful operation of the Internet service or the service’s software and/or hardware or that repeatedly violates the terms of this AUP.
The customer agrees to indemnify and hold SDN harmless for any and all claims, damages, losses, expenses (including attorneys’ fees and other legal expenses) resulting from the customer’s use of SDN’s Internet service whether or not such use is found to be in violation of any statute, regulation or rule.
3. Electronic Communications Privacy Act (ECPA) Notice. Customers are hereby notified that SDN does NOT offer the same degree of privacy for email or files that the customer expects from regular paper mail.
4. Digital Millennium Copyright Act (DMCA) Policy. When SDN receives a notice from a copyright holder or its authorized representative regarding an alleged violation of law by someone using an IP address identified as belonging to SDN, the following actions will be initiated:
a. SDN personnel will review the address to determine whether the address is in use by SDN or by one of its owners or affiliates. If the address has been assigned to an entity other than SDN, the DMCA notice will be forwarded to that entity for review and any action or response.
b. If the address is assigned to and used by SDN or one of its customers, SDN personnel will attempt to identify the user. If the offender cannot be identified, the SDN Agent listed on SDN’s Internet site will be notified so he can respond accordingly to the copyright holder or its agent. If the offender is identified, SDN will take the following actions:
i. If the offender is an employee, the responsible supervisor will be notified and conduct the necessary investigation. If appropriate, disciplinary action may be warranted. A copy of the violation will be filed by HR in the employee’s personnel file.
ii. If the offender is a customer, the customer will be notified electronically of the offense. If it is a first time offense, the customer will be notified and advised that an alleged violation of copyright law has been received and that any further violations could affect the customer’s access to the Internet. A second offense will result in notice that Internet service may be restricted for ninety (90) days to limit the ability to violate the law. A third offense may result in the termination of Internet service.
c. Each time a customer is notified pursuant to this policy, that fact and the results of the contact will be communicated by email to the SDN Agent named above for use in replying to the copyright holder or its agent. Records of all contacts with the customer regarding the matter will be retained electronically in the customer record.
d. The foregoing does not limit the ability of SDN or any entity using an SDN assigned IP address from taking more immediate action to stop the use of SDN’s Internet service for unlawful or harmful purposes.
5. Network and Data Security.
a. The security of SDN’s network and the data transmitted and stored using SDN equipment and facilities is both an SDN and a customer responsibility. SDN does not guarantee that it will be able to detect, prevent, or mitigate efforts by persons seeking, whether unlawfully, maliciously or for whatever reason, to hack or otherwise invade and compromise SDN’s systems, equipment, facilities, data, and data storage. SDN does provide services that are designed to assist the customer in meeting network security needs; to protect sensitive customer/user information such as personally identifiable information (PII), customer proprietary network information (CPNI) and protected health information (PHI); to minimize the threat of identity theft (Red Flags); and to prevent, detect and mitigate attacks on network sustainability (e.g. distributed denial of service (DDoS)).
b. Customers will take whatever measures commercially and technically necessary to protect their company and customer/user data when such data is transmitted and/or stored using SDN Services and facilities. Data encryption may be an option for a customer depending on the sensitivity of the data and the degree of security and privacy required.
c. SDN’s obligation to provide Services is conditioned on customer not allowing the Services to be used for any unlawful purposes or in violation of applicable law or regulation. SDN may take whatever action is deemed necessary in its sole discretion to protect its network, access to other or third-party networks, and end user customers. Customer is responsible for activities of it end users that are illegal or seek to misuse or compromise SDN’s Services or facilities.
Revised November, 16 2016