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Acceptable Use Policy (AUP)

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Acceptable Use Policy


Each and every customer that has service with Virtacore Systems (VCS) is responsible to agree to the rules set forth in this AUP.

Violation of any of the terms and conditions listed in this AUP may result in the immediate termination or suspension of your services. Failure to comply with this AUP may not only result in the immediate termination of your service, depending on the severity of the infraction, it could lead to further legal action.

An AUP is a set of rules and guidelines which govern the use of VCS services. These rules are put in place to protect not only VCS, but also our customers. We reserve the right to modify these rules at any time, and when such an occurrence happens, we will post the new AUP on our webpage, at http://www.virtacore.com/aup.php.

The customer agrees any disputes or legal remedies will be filed in Loudoun County in the state of Virginia. This agreement is governed by the laws of the State of Virginia.

Again, these rules are here to protect not only us, but to protect our customers as well.

You may not:
  • Participate in any illegal activity that could adversely affect VCS?s legal interests. You are responsible for the contract between yourself and VCS. If you resell services, and one of your customers partakes in any illegal activity that we deem puts us at risk, we will hold you responsible for your customers actions. Of course if the infraction is minor, we will ask you to correct the situation first. Please consult a legal attorney if you are not sure of the legal status of you or your customer?s actions.
  • Hacking/cracking of any sort will not be tolerated and will result in the immediate termination of your services as well as possible further legal action from VCS. You are not allowed to tamper with other accounts, files, programs, etc, on any VCS systems, machines, or assets.
  • You may not use any of our services for distribution of illegal material such as pirated software, illegal pornography, credit card information, publishing someone else?s private data (phone number, social security number, etc) in web pages or other public places.
  • You may not use any of our services to launch attacks on others, such as floods, DoS attacks, email spam, USENET spam, Multi-level marketing type programs, or in any negligent manner that intends to cause harm or damage to other systems either connected to VCS or elsewhere on the Internet.If we receive complaints about spam/UCE originating from equipment under your control, we will contact you immediately to correct the situation. We reserve the right to take any action necessary to resolve the situation if you are not able to or refuse to resolve the situation when we notify you. This may include removing your server from the network and termination of service.
  • Something which we take seriously is child pornography. VCS will fully cooperate with any criminal investigation into a violation of this policy. CHILD PORNOGRAPHY IS STRICTLY PROHIBITED ON VCS NETWORKS, SERVERS, AND FROM ANY OTHER SERVICE WE OFFER. VCS customers are responsible for the actions of their clients and are liable for illegal material posted by their clients.
    • According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.

TERMS AND CONDITIONS GOVERNING SERVICES
Virtacore Systems, Inc. (“VCS”) hereby agrees to provide and the customer noted herein (“Customer”) is subject to the following terms and conditions:
  1. Intended Use of the Service. Customer agrees to use the Services only for lawful purposes. Unauthorized transmission or storage of any information, data, or material in violation of any Federal or State law or regulation, including without limitation illicit transmission or use of copyrighted material, obscene material, material protected by trade secrets or materials designed to harass or interfere with others, is strictly prohibited. Customer shall at all times strictly comply with VCS?s Acceptable Use Policy (AUP) located on VCS?s website at: http://www.virtacore.com/aup.php. VCS reserves the right to amend its Acceptable Use Policy in its sole discretion from time to time. Customer shall strictly comply with the rules of any other network Customer accesses through the use of the Services. VCS undertakes no obligation to monitor the content of communications sent, posted, linked or otherwise conveyed by Customer but reserves the right to do so including, but not limited to, where directed to do so by law enforcement authorities. For the purposes of this Agreement, to the extent that an employee or third party uses the Services provided hereunder, such employee, agent or third party use shall be deemed Customer?s use for the purposes of this Agreement.
  2. IP Addresses. Internet Protocol numbers ("IP numbers") provided or assigned by VCS in connection with the Services at all times remain the property of VCS and are not portable, and Customer shall have no rights with respect thereto. Assignment of IP Numbers subject to ICANN and ARIN guidelines and is not guaranteed, and VCS may modify such assignments at any time in its sole discretion. Customer shall provide an accurate host count at the time of the contract signing; such count shall be subject to verification by VCS.
  3. Invoice/Payment. VCS invoices service charges as follows:
    • Non-Reoccurring-Charges (NRC), including without limitation, installation and equipment charges, shall be invoiced by VCS at the time that the Customer order is placed;
    • Monthly-Reoccurring-Charges (MRC), such as collocation, access costs and minimum commitments shall be billed in advance each month. The invoice for the first months? fixed charges will be issued upon service acceptance, as described in Section 5;
    • Charges for usage-based services will be calculated in accordance with Section 4 below and billed in arrears;
    • All charges are due within five (5) business days of the invoice date unless noted otherwise on the Sales Order Form. All invoicing is done electronically via email and it is the responsibility of Customer to make sure VCS has a current email address on file for Customer to receive invoices.

      Overdue accounts are subject to a finance charge of the lesser of 2.0 percent per month or the maximum allowed by law. Accounts shall be deemed in default if not paid within 5 days of due date. If Customer?s payment is returned to VCS unpaid due to insufficient funds, Customer shall be subject to a returned payment charge of $35. If Customer fails to pay invoices in full when due, VCS may terminate or suspend Services to Customer without any penalty or liability to VCS. Such termination or suspension shall not relieve Customer from its obligation to make payment under this Agreement. In the event that VCS suspends Services to Customer, an account reinstatement fee of $99 shall be required to reactivate each of such Services. Claims of fraudulent use of the Services or bad debt shall not operate to relieve Customer of its obligation to pay any charges when due.

      Customer hereby grants to VCS a lien on any Customer equipment located in VCS owned or leased facilities. In the event of termination for non-payment or other default, VCS may hold such equipment until Customer satisfies all outstanding balances due VCS. In the event that Customer fails to pay all amounts due within sixty (60) days of the effective date of termination, then VCS may retain or sell, in its sole discretion, any such equipment without liability to Customer.
  4. Usage-based Dedicated Internet Access Burstable/Usage-based Billing.
    • Usage/Burstable-based Billing. The minimum interface rate for the Burstable Billing option is 1Mb/s. For Burstable Billing, the Customer contracts for a selected Committed Access Rate and VCS provides Customer the capability to burst up to the physical capacity of the port. The amount of Burstable Bandwidth is derived from the 95th percentile calculation described below. The 95th percentile calculation is based on industry standard „Base 10? method where 1 kilo bits per second (Kbps) equals 1,000 bits per second. The Burstable Bandwidth Charge described below will be invoiced to the Customer in arrears and is in addition to the Flat Rate Billing for the selected Committed Access Rate.
    • “Burstable Bandwidth” calculation. VCS polls the routers and switches for Customer ingress and egress usage at five minute intervals. The higher usage number for each poll is stack ranked. The top 5% of the usage number is discarded. The next highest measurement is the Burstable Bandwidth. The “Burstable Bandwidth Charge” = (Burstable Bandwidth – Committed Access Rate) * (Burstable Bandwidth price per Megabit)
  5. Term/Commitments/Rates.
    • Customer agrees to continue to purchase the Services for the complete term identified on the Sales Order Form (“Term”). Unless otherwise stated on the Order Form, the Term for Services shall commence on the service activation date. This is the date that VCS notifies Customer that the Service is operational. Customer has seventy-two (72) hours from its receipt of VCS notice to advise VCS, in writing, that the Service is not performing in accordance with VCS?s specifications. Such notice shall describe with specificity the deficiencies in the Service. If Customer fails to notify VCS within the timeframe referenced above, then the Service will be deemed accepted, and billing will commence, as of the date of VCS?s operational notice. For the avoidance doubt, VCS may commence billing for the Service even if the Service is not operational if the delay is solely due to Customer?s failure to provide information, access, equipment or other services necessary to operate the Service.
    • This Agreement shall commence upon VCS?s execution of this Agreement and shall continue in full force and effect until the expiration or other termination of the last Order issued hereunder. VCS reserves the right to perform a credit check on or seek other reasonable assurances of payment from Customer, prior to the final approval of the Agreement or initiation of Services.
    • VCS reserves the right to pass through to Customer any additional fees or charges created by a change in regulation, new tax or similar surcharge or a change in the telephone or telecommunications fees with respect to services that VCS purchases from a third party to provide the Services. Such change in rates shall not give rise to any right of Customer termination.
    • VCS may, in its sole discretion, change rates and fees by notifying Customer thirty (30) calendar days in advance of the effective date, provided, however, that Customer may terminate this Agreement by providing VCS written notice of termination during the thirty (30) calendar days following the date of such notice. Such cancellation shall be without penalty only if it explicitly references the rate change. For the avoidance of doubt, changes in rates or fees resulting from a Customer-initiated add, move, or change to the Services shall not constitute a rate increase by VCS and shall not give rise to any right of cancellation by Customer.
    • Following completion of the Term, this Agreement will automatically renew on a month-to-month basis until such time as either Party provides advance written notice to the other of its intent to terminate the Agreement. Such notice shall be provided at least thirty (30) calendar days prior to the end of the current billing cycle. The terms listed on the Sales Order can and will override section 5-e as it pertains to month to month, yearly commitments, and renewals. If the Sales Order does not state any contract terms, the default is a twelve (12) month commit.
    • If Customer cancels the Services before the end of the Term, such cancellation shall be deemed a breach of this Agreement for the purposes of Section 8 below. It is expressly understood and agreed by Customer that the charges for the Services purchased by Customer hereunder are based on the Customer?s term commitment. The early termination fees set forth in Section 11 represent the Parties? good faith estimate of VCS?s damages in the event Customer terminates this Agreement prior to the end of the Term.
  6. Service Level Agreements. VCS shall provide the Services in compliance with the Service Level Agreements (“SLAs”) posted on VCS?s website (which you hereby acknowledge you have read and will in the future read), and Customer shall, upon written request, be entitled to service credits as set forth in such SLAs if VCS fails to provide Services in compliance with such SLAs.
  7. Warranties and Liability.
    • CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ALL USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. VCS MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, FOR THE GOODS, SERVICES OR SOFTWARE IT PROVIDES. VCS ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
    • For those Services for which VCS offers a system of credits or rebates for service interruptions, regardless of cause, such credits or rebates shall be Customer?s sole remedy therefore.
    • For direct, proven damages arising out of its performance or failure to perform hereunder, VCS?s liability shall be limited to an amount equivalent to the charges actually paid by Customer under this Agreement for the Services during the period, which such damages occur.
    • Notwithstanding the foregoing, neither VCS nor its affiliates, officers, directors, employees or agents shall be liable to Customer or to any third party for any indirect, consequential, incidental, exemplary, or punitive losses or damages, including, without limitation, lost profits or data, regardless of the cause thereof, even if VCS is advised of the possibility of such loss.
  8. Indemnification. Customer will defend, indemnify and hold VCS harmless from and against any and all liabilities, causes of action, lawsuits, penalties, claims or demands (“Claims”) brought by third parties and resulting from or arising out of Customer?s use of the Services.
  9. Third Party Vendors. To the extent that VCS is acting as a reseller with respect to hardware and software offered under this Agreement ("Equipment"), VCS will provide Customer with the same warranties and support services that VCS receives from its vendors. Malfunctioning equipment will be repaired or replaced, at VCS?s option.
  10. Price Escalations. Notwithstanding anything to the contrary in the Sales Order or this MSA, Customer shall be obligated to pay Virtacore Systems the MRC and NRC for the Services as expressly set forth herein throughout the term of this agreement. Additionally, commencing at the beginning of the second (2nd) year of the initial Service Term; the MRC will automatically increase for all Services at a rate of five percent (5%) per year; provided however, if VCS?s cost to provide power services increase by more than five percent (5%) per year, VCS may increase the rates for Customer?s power service by more than five percent (5%) per year. Customer shall pay VCS such increased rates pursuant to this MSA throughout the Term, including renewal periods. Any additional service(s) ordered by Customer on a subsequent order that is not specifically listed above, shall be subject to the then-current rate for such service, and shall be subject to the automatic price increase set forth herein.
  11. Notice. Notice to VCS shall be deemed given to VCS upon actual delivery when delivered to Virtacore Systems, 44470 Chilum Place, Building 1 Suite 1197, Ashburn, VA 20147 or such other address as may be selected by VCS from time to time.
  12. Termination/Breach.
    1. VCS may suspend Services or, in its sole discretion, terminate this Agreement immediately without liability to Customer if: (i) Customer is in default of its payment obligations hereunder and has failed to remedy such default within five (5) business days of the date of VCS?s written notice thereof; or (ii) Customer is in violation of VCS?s Acceptable Use Policy and fails to remedy its non-compliance within seventy-two (72) hours of VCS?s written notice thereof. No such termination or suspension shall relieve Customer of its obligations to make any payments when due.
    2. In addition to VCS?s rights set forth in Section 12(a), either Party may terminate this Agreement in the event that the other Party has committed a material breach of its obligations under this Agreement and has failed to remedy such breach within thirty (30) days of its receipt of the non-breaching Party?s written notice thereof.
    3. In the event that (i) VCS terminates this Agreement for cause as set forth in Section 12 or elsewhere in the Agreement, or (ii) Customer terminates this Agreement prior to the end of the Term without cause, then Customer shall be liable to pay to VCS the following early termination fees, which represent a reasonable estimation of VCS?s damages in the event of Customer?s early termination or breach of this Agreement:
      * an amount equal to one-hundred percent of the aggregated monthly payments which Customer would have paid over the remainder of the Term, and,
      * all fees to third-party telecommunications providers that VCS committed to pay in connection with Customer?s commitment under this Agreement for the duration of said Agreement.
  13. Force Majeure. VCS shall not be liable if its failure to perform under the Agreement is caused by damages, losses or other factors beyond VCS?s control, including without limitation, failure or impairment of essential facilities, governmental action, war, civil disturbance, weather, general material shortages, labor strikes or walkouts, acts of God or other similar events.
  14. No Waiver. VCS?s failure to enforce any right hereunder shall not be deemed a waiver of such right or any other right hereunder.
  15. Assignment. Customer may not assign its rights or obligations under this Agreement without the express written consent of VCS. VCS may assign or novate all or part of its rights, benefits (including, without limitation, the benefits of this clause), interest, obligations and liabilities in connection with the Agreement to any party.
  16. Modification. Except as may be stated otherwise herein, this Agreement may only be modified by an instrument in writing executed by authorized representatives of each of the Parties, making specific reference to this Agreement.
  17. Relationship of the Parties/No Joint Venture. The Parties declare and agree that each Party is engaged in a business that is independent from that of the other party and that nothing contained herein shall be construed to imply a partnership, joint venture, principal and agent or employer and employee relationship between the Parties hereto.
  18. Governing Law/Choice of Venue. This Agreement and the rights of the Parties hereunder shall be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia, excluding its laws relating to conflicts of laws. The Parties agree that any appropriate state or district court located in Loudoun County, VA, shall have exclusive jurisdiction over any case or controversy arising hereunder and shall be the proper forum in which to adjudicate such case or controversy.
  19. Survival. The obligations of this Agreement which by their nature should survive the expiration or termination, including but not limited to Sections 7, 8, 10, 11 and 12 of this Agreement, shall survive.
  20. Severability. If any portion of this Agreement shall be deemed invalid or unenforceable, such invalidity or non-enforceability shall not invalidate or render unenforceable any other portion of this Agreement.
  21. No Third Party Beneficiaries. No provision of this Agreement is intended, nor shall any be interpreted, to provide any person not a party to this Agreement with any remedy, claim, liability, reimbursement or cause of action or create any other third-party beneficiary rights.
  22. Entire Agreement. This Agreement, including any attachments or exhibits hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof. Except as otherwise stated herein, this Agreement supersedes all oral or written communications and understandings between the Parties with respect to the subject matter of this Agreement.