ACCEPTABLE USE POLICY (AUP)

The First and Elm, Inc. ("First and Elm") Acceptable Use Policy ("AUP") is provided to give our customers and users a clear understanding of what First and Elm expects of them while using the service. All users of First and Elm's services must comply with this AUP and our TOS (Terms of Service).

Use of First and Elm's service constitutes acceptance and agreement to First and Elm's AUP as well as First and Elm's TOS (Terms of Service.)

IMPORTANT NOTICE: *All Payments To First and Elm Are Non-Refundable*

We support the uncensored flow of information and ideas over the Internet and do not actively monitor subscriber activity under normal circumstances. Similarly, we do not exercise editorial control over the content of any web site, e-mail transmission, newsgroups, or other material created or accessible over or through the services, except for certain proprietary Web sites. However, in accordance with our TOS (Terms of Service), we may remove any materials that, at our sole discretion, may be illegal, may subject us to liability, or which may violate this AUP. First and Elm may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrongdoing. Your violation of this AUP may result in the suspension or immediate termination of either your First and Elm account or other actions as detailed in Section 3 WITHOUT PRIOR NOTICE.

This document is intended to provide a basic understand of First and Elm's Acceptable Use Policy. The following are guidelines for the establishment and enforcement of First and Elm's AUP:

Ensure reliable service to our customers
Ensure security and privacy of our systems and network, as well as the networks and systems of others
Comply with existing laws
Maintain our reputation as a responsible service provider
Encourage responsible use of the Internet and discourage activities which reduce the usability and value of Internet services
Preserve the value of Internet resources as a conduit for free expression and exchange of information
Preserve the privacy and security of individual users

First and Elm intends to provide its customers access to everything the Internet has to offer. While the First and Elm is firmly committed to the principles of free speech, certain activities that may be damaging to the resources of both First and Elm and the Internet and cannot be permitted under the guise of free speech. The resources of First and Elm and the Internet are limited, and abuse of these resources by one user has a negative impact on the entire community.

We do not routinely monitor the activity of accounts except for measurements of system utilization and the preparation of billing records. However, in our efforts to promote good citizenship within the Internet community, we will respond appropriately if we become aware of inappropriate use of our service.

You may not use your website to publish material, which First and Elm determines, at its sole discretion, to be unlawful, indecent or objectionable. For purposes of this policy, "material" refers to all forms of communications including narrative descriptions, graphics (including photographs, illustrations, images, drawings, logos), executable programs, video recordings, and audio recordings.

If a First and Elm account is used to violate the Acceptable Use Policy or our TOS, we reserve the right to terminate your service without notice. We prefer to advise customers of inappropriate behavior and any necessary corrective action, however, flagrant violations of the Acceptable Use Policy will result in immediate termination of service. Our failure to enforce this policy, for whatever reason, shall not be construed as a waiver of our right to do so at any time. As a member of our network community, you must use your Internet access responsibly. If you have any questions regarding this policy, please contact us at abuse (at) First and Elm (dot) com.

VIOLATIONS OF FIRST AND ELM ACCEPTABLE USE POLICY 

The following constitute violations of this AUP:

Illegal use: First and Elm's services may not be used for illegal purposes, or in support of illegal activities. First and Elm reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrongdoing.
Harm to minors: Use of the First and Elm service to harm, or attempt to harm, minors in any way, including, but not limited to child pornography.
Threats: Use of the First and Elm service to transmit any material (by e-mail, uploading, posting or otherwise) that threatens or encourages bodily harm or destruction of property.
Harassment: Use of the First and Elm service to transmit any material (by e-mail, uploading, posting or otherwise) that harasses another.
Fraudulent activity: Use of First and Elm service to make fraudulent offers to sell or buy products, items, or services, or to advance any type of financial scam such as "pyramid schemes," "ponzi schemes," and "chain letters."
Forgery or impersonation: Adding, removing or modifying identifying network header information in an effort to deceive or mislead is prohibited. Attempting to impersonate any person by using forged headers or other identifying information is prohibited. The use of anonymous remailers or nicknames does not constitute impersonation.
Unsolicited commercial e-mail / Unsolicited bulk e-mail (SPAM): Use of the First and Elm service to transmit any unsolicited commercial or unsolicited bulk e-mail is expressly prohibited. Violations of this type will result in the immediate termination of the offending First and Elm account.
E-mail / News Bombing: Malicious intent to impede another person's use of electronic mail services or news will result in the immediate termination of the offending First and Elm account.
E-mail / Message Forging: Forging any message header, in part or whole, of any electronic transmission, originating or passing through the First and Elm service is in violation of this AUP.
Usenet SPAMing: First and Elm has a zero tolerance policy for the use of its network for the posting of messages or commercial advertisements, which violate the rules, regulations, FAQ or charter of any newsgroups or mailing list. Commercial messages that are appropriate under the rules of a newsgroup or mailing list or that are solicited by the recipients are permitted.
Unauthorized access: Use of the First and Elm service to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of First and Elm's or another 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, is expressly prohibited and the offending First and Elm account is subject to immediate termination.
Copyright or trademark infringement: Use of the First and Elm service to transmit any material (by e-mail, uploading, posting, hot linking, directly linking or otherwise) that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software.
Collection of personal data: Use of the First and Elm service to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
Net Send Spam: The use of the net send utility to send unsolicited bulk communication is prohibited. This technique may result in account suspension or termination. Violations of this policy carry severe penalties, including termination of service.
Fraud: Involves a knowing misrepresentation or misleading statement, writing or activity made with the intent that the person receiving it will act upon it.
Infringement of Copyright, Patent, Trademark, Trade Secret, or Intellectual Property Right: Distribution and/or posting of copyrighted or the aforementioned infringements will not be tolerated.
Distribution of Viruses: Intentional distributions of software that attempts to and/or causes damage, harassment, or annoyance to persons, data, and/or computer systems are prohibited. Such an offense will result in the immediate termination of the offending account.
Third Party Accountability: First and Elm subscribers will be held responsible and accountable for any activity by third parties, using their account, that violates guidelines created within the Acceptable Use Policy.

Security

You are responsible for any misuse of your account, even if the inappropriate activity was committed by a friend, family member, guest or employee. Therefore, you must take steps to ensure that others do not gain unauthorized access to your account. In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server.

Your password provides access to your account. It is your responsibility to keep your   password secure.
You should take care to prevent others from using your account since you will be held   responsible for such use.
Attempting to obtain another user's account password is strictly prohibited, and may   result in termination of service.
Users who violate systems or network security may incur criminal or civil liability. First and Elm will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations.

REVISIONS TO THIS ACCEPTABLE USE POLICY

First and Elm reserves the right to revise, amend, or modify this AUP, our TOS (Terms of Service) and our other policies and agreements at any time and in any manner. Notice of any revision, amendment, or modification will be posted in accordance with our TOS (Terms of Service).

TERMS OF SERVICE (TOS)

IMPORTANT NOTICE: *All Payments To First and Elm Are Non-Refundable*

First and Elm ("The Company") agrees to furnish services to the Subscriber, subject to the following TOS (Terms of Service).

Use of First and Elm Service constitutes acceptance and agreement to First and Elm's AUP as well as First and Elm's TOS (Terms of Service).

All provisions of this contract are subject to the TOS (Terms of Service) of First and Elm and AUP (Acceptable Use Policy). The AUP may be changed from time to time at the discretion of the Company. Subscriber understands that change to the AUP by the Company shall not be grounds for early contract termination or non-payment.

This Agreement shall be construed in all respects in accordance with the laws of the state of California, county of Contra Costa applicable to contracts enforceable in that state. Venue will be Contra Costa County, California.

Disclosure to Law Enforcement: The AUP specifically prohibits the use of our service for illegal activities. Therefore, Subscriber agrees that the Company may disclose any and all subscriber information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to the Subscriber. In addition First and Elm shall have the right to terminate all service set forth in this Agreement.
Service Rates: Subscriber acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to Subscriber. The specified rates and charges may change at any time. 30 day written notice will be delivered to Subscriber in the event of changes to rates or charges.
Payment: Upon subscription of service, Subscriber will be charged a one time setup fee, and any applicable domain setup or transfer fees. The first month's payment will be charged once Subscriber's website(s) is delivered. The first month's payment will be billed on the date of delivery, and will be prorated from the date of delivery through the end of the current month. Subsequent payments are due on the first day of each month for that month's service.
Delivery: Delivery is defined as the date on which Subscriber can access his First and Elm website(s) at his registered domain. First and Elm will make every effort to deliver Subscriber's website(s) within two business days of subscription. However, because the domain registration/transfer process is largely out of First and Elm's control, delivery could take as long as sixty business days.
Payments and Fees: Credit cards that are declined for any reason are subject to a $10.00 declination fee. Service will be interrupted on accounts that reach 10 days past due. Service interrupted for nonpayment is subject to a $200.00 reconnect charge. Accounts not paid by due date are subject to a $25.00 late fee. Accounts that are not collectable by First and Elm may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a "Processing and Collection" Fee of not less than $50.00 or more than $150.00. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS.
Refund and Disputes: All payments to First and Elm are nonrefundable. This includes the one time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred.
Failure to Pay: The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
Account Cancellation: Requests for canceling accounts may be made in writing with and emailed to HelpDesk (at) First and Elm (dot) com or mailed to:

First and Elm, Inc. 
Attn: Help Desk 
7901 Stoneridge Dr., Suite 390
 Pleasanton, CA 94588

Or you may call 925-203-3009 ext. 206  
Your account will be cancelled immediately, or on the date you specify. There will be no refund for the period of time between the cancellation date, and the end of the month, should these dates differ.
Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of the company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, subscriber agrees that the company shall not be liable for any damages arising from such causes beyond the direct and exclusive control of the company. Subscriber further acknowledges that the company's liability for its own negligence may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. In no event shall the company be liable for any special or consequential damages, loss or injury.
Notification of Violation: First and Elm is under no duty to look at each customer's or user's activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.
- First violation: Any User, which First and Elm determines to have violated any element of this Acceptable Use Policy, shall receive an email, warning them of the violation. The service may be subject at First and Elm's discretion to a temporary suspension pending a User's agreement in writing, to refrain from any further violations.
- Second Violation: Users that First and Elm determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.
Indemnification: First and Elm wishes to emphasize that in agreeing to the First and Elm Acceptable Use Policy (AUP) and Terms of Service (ToS), customer indemnifies First and Elm for any violation of the Acceptable Use Policy (AUP) and Terms of Service (ToS) that results in loss to First and Elm or the bringing of any claim against First and Elm by any third-party. This means that if First and Elm is sued because of a customer's activity, the customer will pay any damages awarded against First and Elm, plus all costs and attorney's fees.
Miscellaneous Provisions: You must provide us with, and keep current, good contact information for you. E-mail, fax, and telephone contacts are used, in that order of preference. A waiver by the Company of any breach of any provision of this Agreement by Subscriber shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof. Subscriber shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Subscriber. Company reserves right to cancel customers rights under this contract at anytime without further obligation. First and Elm takes no responsibility for any material input by others and not posted to the First and Elm Network by First and Elm. First and Elm is not responsible for the content of any other websites linked to the First and Elm Network; links are provided as Internet navigation tools only. First and Elm disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or party's violation of this policy. First and Elm is not responsible for any damages your business may suffer. First and Elm does not make implied or written warranties for any of our services. First and Elm denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by First and Elm. 
Denial of Service: We reserve the right to refuse service to anyone at any time for any reason.