Privacy Statement

XMission has created this privacy statement in order to demonstrate our firm commitment to privacy. The following discloses our information gathering and dissemination practices.

Personal Information Collection and Use

Most of the information given to XMission in the registration process, or at any other time is for XMission’s use only. XMission is the sole owner of this information and we will not sell, share, or rent this information to others. A court order is the only way that this information can be accessed by another party or organization.

The one exception to this is the "Online Name" field that’s filled out during registration. When someone runs the UNIX "finger" command on an account (e.g., "finger username@xmission.com"), it will show this "Online Name." This will also be displayed on a new customer's default Web page. This is the only information that is made public and you, as a customer, may elect to put anything you would like (or nothing at all) in this particular field. It can also be modified at any time.

XMission does not offer services or sell products to children and does not request or knowingly collect personally identifiable contact information from anyone under the age of 13.

Shared and Unlimited Web Hosting on XMission

Shared and Unlimited resources on XMission are intended to support a large number of customer and a wide array of web services. XMission makes every commercially reasonable effort to provide the best services possible so long as the subscriber's use of the service complies with these terms.

It is expected that subscribers will practice efficiency in web coding, database usage, storage optimization, and bandwidth transfers to not adversely impact others on the shared hosting services. The term "unlimited" does not allow a small number of users to disproportionately utilize any of the provided features. We expect our subscribers to play fair and be realistic in their expectations regarding shared hosting services.

This service is architected to host websites for personal and business applications. XMission does not provide unlimited space for online storage, file backups, documents, MySQL tables, log files, ISOs, warez, and etc. Other unacceptable items include: IRC scripts/bots, anonymizers, IP scanners, bruteforce programs, mail bombers, commercial audio/video streaming, fraudulent sites, sites that link to inappropriate content, filesharing/ptp activities, and topsites. Inodes are not to exceed more than 250,000 on any shared account.

Violation of any of these terms may result in immediate termination with or without notice.

Should your sites require dedicated resources, which we highly recommend for businesses which depend on their web sites to generate revenue, XMission encourages you to try our enterprise hosting service one month for free at Stackable.com.

System Logs

All information logged by our various systems is also used for internal purposes only, and will not be released unless under a court order. Retention governed by available disk space.

Public Forums and Links

XMission makes chat rooms (IRC), forums, message boards, and news groups available to its customers. Please remember that any information that you choose to disclose in these areas becomes public information and you should exercise caution before disclosing your personal information. XMission's customers should also be aware that any information they disclose on their own websites becomes publicly available. XMission is not responsible for any information our customers choose to make available in any of these forums.

Also, please note that XMission has links to other sites. We encourage our customers to be aware when they leave our site and to read the privacy statements of each and every Web site that collects personally identifiable information. This privacy statement applies solely to information collected by XMission's Web site.

Information Security

XMission takes every precaution to protect our customers' information. When customers submit sensitive information via our Web site, your information is protected using the safest and most secure methods available.

When our registration or service request forms ask customers to enter sensitive information (such as a credit card number), that information is encrypted and is protected with the best encryption software in the industry for the Web – SSL. While on a secure page, such as our secure credit card payment form, the lock icon on the bottom of Web browsers.

While we use SSL encryption to protect sensitive information online, we also do everything in our power to protect user-information off-line. All of our customers’ information, not just the sensitive information mentioned above, is restricted in our offices and data center. Only employees who need the information to perform a specific job (for example, our billing clerk or a customer service representative) are granted access to personally identifiable information. Our employees must use a secure shell (ssh) to access this information and must also be allowed access from a specific IP address within the office.

Furthermore, ALL employees are kept up-to-date on our security and privacy practices to avoid security breaches through what is called, "social engineering." Important details and changes are discussed in staff meetings and email memos. Finally, the servers that we store personally identifiable information on are kept in a secure environment, protected by a firewall and kept in a secure room in our data center.

If you have any questions about XMission's security, please feel free to contact security@xmission.com.

Necessary Submission of Information

Personally identifiable consumer information is shared with Authorize.Net, the credit card processing company we use, to the extent it is necessary for them to provide payment processing services.

Correction/Updating Personal Information

If a user’s personally identifiable information changes (such as your zip code), or if a user no longer desires our service, we will endeavor to provide a way to correct, update or remove that user’s personal data provided to us. This can be done by contacting accounting@xmission.com or by calling 801-539-0852. The person changing the information MUST be the contact on the account. Normally, the contact is the person who opened the account or a person who was assigned to the account by the business. To change the information, you must be able to verify that you are, in fact, the contact on the account.

Notification of Changes

If we ever need to change our privacy policy, we will post those changes on this page. We will also send an email announcement so our customers are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. Rest assured that XMission has no intention of disclosing or selling customer information in the future.

Contacting XMission

If you have any questions about this privacy statement, the practices of this site, or your dealings with XMission, you can contact XMission’s support staff.

Acceptable Use Policy

• Billing
• Bounced Check or Credit Card Payments
• Refund / Account Termination
• Purged Accounts
• Password
• Limits for Individual Subscribers (Dial-up and DSL)
• Server Services on DSL and Residential UTOPIA
• Mail and WWW Forwarding Option
• IP Address Assignment
• Appropriate Use of Accounts
• Parental Control and Censorship
• Customer Web Site Content
• Illegal or Damaging Activity
• Malicious Activities By XMission Subscribers
• Copyright Infringement
• XMission "spam" Policy (i.e., Unsolicited Email/Fax/Pages/News)
• Software and Software Usage
• Maintenance
• Client Premise Equipment and Software Usage
• Web Hosting Support Policy
• Upgrading a Dedicated or Colocate Service Account
• Downgrading a Dedicated or Colocate Service Account
• Colocate Rack Space Modifications and Billing Adjustments
• Colocation Peripherals
• Colocate Facility Access Restrictions For Late Payment
• Colocation Power Policy
• Dialup Limits for Dedicated and Colocate Clients
• Donated Accounts
• Links

XMission reserves the right to take whatever actions we deem appropriate to enforce these policies. We also reserve the right to change these policies without prior notice at any time. The actions we take may include account suspension or termination. We do not issue any credits for accounts cancelled due to policy violations. We reserve the right to refuse service to anyone at any time for any reason.

XMission reserves the right to take whatever measures it deems necessary to secure its networks and clients against abuse. This includes, but is not limited to: scanning for open mail relays, virus filtering, etc. Policy will apply to any activity which affects or mentions an XMission account, user, network, or server.

XMission reserves the right to take legal action against anyone who abuses our network, servers, or services. Fees may also be levied at $50 per incident and $100 per hour to help cover systems administration costs related to an incident.

All subscribers are expected to read and abide by XMission's Service Agreement since, "Use of XMission LLC services by you as a company and/or an individual constitutes acceptance of these Terms and Conditions in full."

Billing

XMission bills for all services in advance. Non-Dedicated accounts are suspended 7 days after their due date if payment is not made. Invoices are sent via either postal mail or email, depending on customer preference; this can be changed at any time. XMission notifies clients an account is due on three separate occasions:

1. with the original invoice (typically 7 days before account comes due)
2. the day the account is due
3. the day before the account will be suspended

XMission accepts all forms of payment: cash, checks, and credit cards (Mastercard, Visa, American Express,Discover). Any Dedicated account that is 30 days past due will be levied a servic echarge of 1-1/2% per month. If an account is referred to collections, the customer agrees to pay any collection costs incurred, including attorney's fees, filing fees and court costs. If Dedicated account clients have anyquestions about billing, they can review their contract and SLA or contact our Corporate Client manager. XMission clients are bound by the Uniform Consumer Credit Code of the State of Utah. Payments by any dedicated or colocation client indicate full acceptance and understanding of your obligation, at invoiced service levels, under the terms and conditions of the Master Service Agreement.

Bounced check or credit card payments

There will be a $10 fee assessed on all returned check or credit card invoices.

Refund / Account termination

Any customer terminated account is subject to refund for the balance due minus a $10 processing fee. This fee will be credited one time to clients who later return to XMission. Accounts cancelled by XMission for policy violation are NOT subject to refund and penalty fees may apply.

Purged Accounts

After 45 days of non-payment XMission accounts are purged from the system. That means that any and all information in the client directory is purged, including email, Web, FTP, and any extraneous files located on XMission. XMission does not keep archives of purged accounts.

Password

Clients are responsible for periodically changing their XMission passwords. If a customer wishes, they can keep their password indefinitely but clients are solely responsible for security of their account--not XMission.

Limits for Individual subscribers (Dial-up and DSL)

XMission Individual subscribers are allowed only one dial-up or DSL connection per account.

If you need multiple dial-up or DSL connections, we strongly recommend purchasing additional accounts. We can arrange billing so that the primary account is billed for all additional accounts.

Non-dedicated Residential Dial-up accounts are meant to be available for "unlimited access," meaning "access on demand rather than a dedicated connection." Any subscriber who needs more than this may need to purchase additional services. With dial-up, this means you cannot keep your connection up indefinitely.

Abuse and violation of the rules will result in one warning, then termination without refund if the problem persists.

Server Services on DSL and Residential UTOPIA

XMission allows DSL and UTOPIA subscribers to run and maintain their own servers. Dial-up clients should not use their connection for constantly connected server services. Clients can run server services on their DSL and Residential UTOPIA lines but we cannot guarantee performance since DSL and Residential UTOPIA is sold and marketed as a best-effort end user product and is non-SLA product unlike our dedicated and colocation services. If the client needs server services on a regular basis we highly recommend use of a dedicated or colocation account which come with a 100% Service Level Agreement.

Mail and WWW forwarding options

Subscribers moving to a new Internet Service Provider are recommended to continue their accounts on XMission for an additional month beyond transfer of information to the new ISP for forwarding purposes. If you need your site to forward longer simply pay for the amount of time you need your mail and WWW pages forwarded. Subscribers who are transferring their account from XMission to another provider outside of Utah can have their service forwarded for 3 months at no cost, but only by special arrangement by contacting accounting@xmission.com. This service is granted on a case by case basis.

IP Address Assignment

Unless otherwise stated, IP addresses assigned by XMission are not portable to other Internet Service Providers, or networks outside of XMission. Addresses are assigned for the term of the customer's subscription to XMission. Once that subscription ends, the addresses may be reassigned to other XMission clients Independently assigned networks through ARIN can be routed by XMission upon connection to the XMission network and transferred with ease to other ISPs and networks outside of XMission.

Appropriate Use of Accounts

Aside from specific features and services outlined elsewhere, XMission accounts can use their web space to sell and advertise their products or services. However, XMission has a strict spam policy which prohibits unsolicited bulk communications (i.e., email/fax/paging/news).

Parental control and censorship

XMission provides a content proxy filter designed for pre-teens that can help children avoid accidentally happening upon Web sites that might be considered inappropriate. This service can only be enabled after reading our disclaimer. XMission encourages parents to take an active role in their child's Internet experience. Many resources are available to help parents do just this.

Customer Web Site Content

XMission does not control or monitor the content of subscribers to our service. Anyone who has a problem with a web site on our service must FIRST contact the site owner. If no response is received, we can try to contact the owner to inform them that we have been contacted, but that is the extent of our helpfulness on the matter.

Illegal and/or damaging activity

Any Internet activity which references back to XMission or its services in a damaging manner will result in suspension or termination of your account(s). Illegal Internet activity using or referencing to XMission or an XMission account will result in immediate termination, possible prosecution, and liability for any legal fees accrued.

Malicious Activities By XMission Subscribers

XMission clients shall not intentionally: disrupt network activity; attack machines within XMission's network or anywhere on the Internet; capture the private data of others; or engage in any other activity deemed malicious or harmful to others. XMission Systems Administrators reserve the right to determine if any activity meets these criteria.

Clients found to be in violation of this policy may have their accounts terminated or suspended immediately and without notice. Violators may alsobe reported to appropriate law enforcement officials.

Copyright Infringement

XMission does not condone copyright infringement. We do not, however, needlessly invade our clients' privacy without notice and reasonable suspicion of wrongdoing. XMission's Designated Agent for notice of any claimed infringement, as provided for under the U.S. DMCA, is:

Hector Nevarez, Technical Support

XMission, L.C.

51 East 400 South, Suite 200

Salt Lake City, UT 84111

Phone: 801.539.0852

Fax: 801.539.0855

Abuse ResponseEmail: abuse@xmission.com

In order for XMission to review your claim, you must:

1. Identify the copyrighted work allegedly infringed
2. Identify the material which you claim is infringing
3. Provide your name, address, telephone number and email address

In addition, the notification must be signed by an authorized person, and state a good faith belief that the material is infringing, as well as that the information contained in the notice is accurate. In turn, XMission will investigate any legitimate complaints, and will take remedial measures where required by law.

XMission Spam Policy (i.e., Unsolicited Email/Fax/Pages/News)

To both aid in the fight against spam, and to keep our mailservers off Internet blacklists, XMission has a zero tolerance policy in regards to clients sending unsolicited (email/fax/pages/news) messages. Specifically, if we receive complaints about bulk email you send, your account will be cancelled if you cannot prove the recipient requested bulk email from you.

Use of XMission services, or addresses, to send unsolicited communications will result in the IMMEDIATE termination of your account, and possibly legal action and the collection of fees at $50 per incident and $100 per hour. Communications of this nature sent from other networks but referencing services hosted on XMission's networks will also result in account termination. While bulk email is the primary concern, XMission's Spam policy applies to all other forms of bulk communications.

1. Since XMission cannot monitor every message that our customers send, we determine that email is unsolicited if we receive "spam complaints" about customer email. In other words, if recipients consider email you send as unsolicited then we generally will consider it spam too. Therefore, all efforts should be made on your part to only email those who have requested your communications. As well, you cannot include email addresses that were acquired from "partners."
2. To best avoid spam complaints, and to get a complaint waived, we strongly recommend that anyone who sends bulk email use the "double opt-in" method to confirm recipients indeed want to receive bulk email from you. If someone doesn't want email from you, and never confirmed they wanted your email, there is a good chance they will report you as a spammer.
3. By "double opt-in" we mean:
   An individual must ask to be added to your list and then reply to a confirmation email you send immediately to their email address. The initial request can simply come from them checking a box when they purchase something from you or signing up to be a member with your organization. Only people who respond to the confirmation email saying they want to be on your list should receive bulk email from you. This confirmation must use an authentication scheme that prevents recipients from being signed up for lists by anyone other than themselves. Note that most corporations use the double opt-in method.
4. If we receive complaints about email, the sender of bulk email must be able to prove that the recipient contacted the sender to request that such messages be received in advance of the bulk mailing. The best way to do this is by using the double opt-in method.
5. To prove that customers did request to receive emails, XMission requires clients who send bulk email to maintain a database that contains the following information about the recipient list:
   • Date and time of the recipient's request to be added to your list
   • IP address that the customer made the request from, (if applicable).
   Upon request, the sender of bulk email must be able to provide both XMission and the recipient with the above information within one business day.
6. Unsubscribe information should be clearly readable in every message that is sent out. The sender of the list must act upon all unsubscribe requests within one business day. All unsubscribe requests must also be processed before additional mailings are sent out.

Software and Software Usage

XMission reserves the right to remove any illegal or potentially damaging software stored on its network/system.

XMission reserves the right to control what software may be run on our network and/or servers. Such software includes, but is not limited to, software intended to harass or annoy, IRC bots, Usenet "Spam" scanners, or bulk mailing software.

XMission allows clients to run, maintain, and create CGI scripts (and other non-dedicated processes) on XMission machines. Should a client's process run out of control and consume resources in such a way as to cause degradation of the XMission network, the process will be halted by an employee of XMission This halting will be followed by an email asking you to overhaul the problem code to work properly before you attempt to run it again. Any testing of new code should be implemented during standard daytime business hours to allow for proper monitoring. Repeated failure to run proper code can result in the loss of your CGI and processor privileges. XMission consultation fees may also be required to resolve issues with your code in extreme cases. Please remember that XMission's machines are shared resources and our systems administrators must ensure that they function properly for our entire subscriber base.

Software usage may be disallowed for any subscriber installed program forwhich source code is not available on request for review by XMission's technical staff.

Maintenance Policy

All scheduled systems maintenance will be performed during approved maintenance window times. Maintenance will be approved by your manager in advance and listed by an admin doing the maintenance on the netstatus web page: http://stats.xmission.com/netstatus

Critical systems refers to: electrical infrastructure, core routers/switches, core servers (e.g., mail, web hosting, etc)

Approved maintenance window times:

• For critical systems: between midnight-6am on Sat/Sun/Mon mornings
• For non-critical systems: outside of business hours, preferably between 10pm-7am
• Maintenance windows cannot be scheduled for holidays or other times where staff are not readily available to help with systems/phones if anything goes wrong

Best practices rules of thumb regarding maintenance policies:

• Maintenance should include any task that could aversely affect customers that you can’t readily undo if something goes wrong.
• Maintenance performed on critical systems should include a discussion and review with peers in advance to reduce the chances of error.
• We can look in Cacti to see when low-usage points occur.
• Since it is nearly impossible to write a definition of “maintenance” that will encompass all possible situations, we should evaluate the nature of each situation to determine how to appropriately handle it.
• If a service is critical enough that it would (or could) generate a page to oncall, it’s more than likely service impacting.

Client Premise Equipment and Software Usage

You may provide at your own expense, your own physical equipment and/or software products that are not provided by XMission. You are responsible for obtaining, installing, and servicing your own equipment and software, and for ensuring that such equipment and/or software is compatible with the service provided by XMission. You remain liable for payments to XMission under your service agreement even if your equipment and/or software impair your use of XMission services. XMission will not be responsible if any changes in hardware, software, or services cause your equipment and/or software to become obsolete, or to require modification or alteration. If you request, XMission may provide technical services or consulting services for an additional fee. Such services will be billed to you at the rates in effect at the time such services are requested. XMission has the right to refuse any such technical or consulting services at its sole discretion.

Web Hosting Support Policy

XMission will provide customers access to our infrastructure for hosting their website and data to ensure it functions as advertised. Technical support will be provided free of charge in regards to questions and issues specific to utilizing XMission web hosting products. XMission hosting customers must provide materials and data in a "server ready" condition which means that it will not require consultation or any additional manipulation by XMission to host your website. Customers are fully responsible for uploading all content to their website, and supplementing, modifying, and updating their website as needed, which may include occasional security updates to software you custom install for your site. XMission customers are also responsible for ensuring that the content and all aspects of their website are compatible with the hardware and software used by XMission to provide the services. While XMission recommends customers hire their own consultants to handle configuration and maintenance of their web sites, in some cases XMission may be willing to perform basic consulting assistance at a reasonable hourly fee.

Upgrading a Dedicated or Colocate Service Account

Clients may upgrade their minimum increment level at any time. Generally a call to XMission during standard business hours allows the client to upgrade accounts within half an hour or by the next business day. This can also be accomplished by email sent to dedicated@xmission.com. Most incremental upgrades have no additional setup fees once the inital setup fee has been paid. Client will be billed for the new service fee based on the contract schedule.

Downgrading a Dedicated or Colocate Service Accounts

Downgrades can be requested although they require approval from XMission otherwise existing contract terms apply. Any approved downgrade requires a new contract. Conditions of current client agreement are outlined in the "Term and Termination" paragraph of the Master Service Agreement. Requests to downgrade must be submitted via fax or postal mail only. Please contact dedicated@xmission.com for assistance. Account downgrades cannot be used to lessen early termination penalty fees. Termination fees are based on the highest bandwidth and RMU service levels paid for on the account in the last 90 days.

Colocate Rack Space Modifications and Billing Adjustments

Clients adding or removing their equipment from XMission colocation rack space must provide written notice to colocates@xmission.com regarding the change. Clients who do not provide written notice and a rack space audit shows that additional rack space (RMU) has been used will have their account billed back to the beginning of the contract term. Additionally, if you remove equipment and lessen the footprint of your colocate, XMission will not automatically adjust your account fees until such time as you provide written notice of the modification. We will verify the changes and adjust your bill accordingly. Adding or removing hardware affects the footprint portion of your service and your monthly bill. XMission charges a minimum $35 RMU fee for any colocation account. Please be sure to notify colocates@xmission.com of any changes to avoid surprises on future invoices.

Colocation Peripherals

Attached peripherals are allowed only if the following guidelines are followed. Please note, it is at XMission's discretion to allow attached devices. In many instances, attached devices may require their own RMU purchase.

• Each powered device is billed standard power costs of $15 p/mo per power source.
• Any attached device may not extent beyond the 19" width or standard rack depth. (28" maximum depth)
• Peripherals may not hang vertically or occupy space outside the purchased RMU.
• Peripherals may not hinder access by other clients to their colocated gear or create safety concerns.
• Peripherals may only be attached using non-conductive materials such as plastic zip ties. No metal.
• Peripherals are not to be tied or hung to the back of server(s) or to XMission property.

Colocate Facility Access Restrictions For Late Payment

Colocation clients with payment past due by 30 days or more will have their access rights disabled. The only way to access your machine will be during standard business hours with an XMission employee escorting you to your machine(s). While the account is in default clients are forbidden from removing equipment from the Colocation facility. Automated access will not be re-activated until the billing is resolved.

Colocation Power Policy

All XMission colocation clients are required to comply with XMission’s power policy:

XMission provides the following security cabinet power guidelines:

• Full Security Cabinet 5760 Watts or 48 Amps consumption @ 120 Volt
• Half Security Cabinet 2880 Watts or 24 Amps consumption @ 120 Volt
• Third Security Cabinet 1920 Watts or 16 Amps consumption @ 120 Volt

Available power service and consumption limits by footprint size.

XMission's Data Center is equipped with 20 Amp or 30 Amp, 120 V and 208 V electrical power service options. To conform to National Electrical Code for peak power use and safety, maximum power usage is limited to 80% of the dedicated circuit value (i.e. 16 Amps on 20 Amp and 24 Amp on 30 Amp). XMission audits client circuits on a real-time basis to monitor usage and circuit condition. View your real-time statistics here: https://datacenter.xmission.com/

If more power is needed, additional power circuits must be purchased. Requests for additional power may be limited by cooling requirements, capacity, and power-to-footprint ratio guidelines as outlined. In some instances it may be necessary for the client to purchase additional footprint or supplemental cooling to meet power needs.

Individual circuit load limits:

• 80% to 89% Load: Clients receiving warnings at this level are requested to upgrade power service immediately. Exceeding 80% or more 5 times in any 7 day period requires a mandatory upgrade. We recommend contacting XMission colocation sales to arrange an upgrade at your convenience.
• 90% to 99% Load: Clients receiving warnings at this level are only allowed 2 such notices in any 7 day period before they are required to upgrade power service. Please contact XMission colocation sales now.
• 100% Load and higher: Clients receiving warnings exceeding 100% usage at any time will be subject to mandatory and immediate power upgrades. Please contact your sales agent or XMission's VIP colocation emergency support staff immediately. We will work quickly to resolve the power concerns.

Dialup Limits for Dedicated and Colocate Clients

The Dial-up access included with Dedicated and Colocate accounts is only provided for temporary backup connectivity and emergency needs. Hence, Dedicated and Colocate clients are asked not to use their dial-up connection for active or constantly connected services.

If your primary connection is temporarily down, such services are permitted during the outage. XMission also allows for occasional use of such services for testing purposes. However, if the client needs such services on a regular basis we recommend use of a dedicated line account or the purchase of one or more traditional dial-up accounts to handle such needs. DSL is not included with a colocate account.

Donated accounts

A Donated Account provides access to most XMission services for distribution of information concerning the civic group or organization. Donated Accounts are available solely to non-profit organisations that have received form 501(c)3 from the IRS confirming their status as a non-profit.

Links

• Verizon Business – http://www.verizonbusiness.com/terms/us/aup/
• Level 3 – http://level3.com/legal/acceptable_use_policy.html
• nLayer – http://www.nlayer.net/aup/
• Global Crossing – http://www.globalcrossing.com/global/terms_of_use.aspx
• XO – http://xo.com/about/policy/Pages/terms.aspx
• AFS – http://www.afsnetworks.com/files/AFS_Acceptable_Use_Policy_Revision_2.0.pdf

Terms of Service

Note: If you have already registered an XMission account but choose to not agree to all or any of the following terms and conditions after reading this agreement in full, please call XMission accounting to cancel your account.

Service Agreement

You (the XMission customer and/or user, hereafter collectively referred to as "you") agree to purchase and/or use XMission services in accordance with the terms and conditions of this Service Agreement ("Agreement").

1. XMission LLC will exercise no control whatsoever over the content of any information passing through it.
2. Stated bandwidth(s) apply only to the customer-to-XMission LLC router port attachment. No guarantee of end-to-end bandwidth on the Internet is made.
3. 1. You will use XMission LLC services only for lawful purposes. Any transmission or re-transmission of material in violation of any Federal or State laws and/or regulations is expressly prohibited. This extends to include, but is not limited to: any copyrighted materials, materials or communications prohibited by trade secret.
   2. As a customer of XMission LLC and a user of our services, you (as an individual, and/or officer or agent of a company, and/or company) agree to indemnify and to hold harmless XMission LLC from ANY and ALL claims resulting from the use of the service which causes damage to you or any other party. XMission LLC shall not be liable, either in contract or in tort, or for protection from unauthorized access of its customer's transmission facilities or customer-owned equipment on premises, or for unauthorized access to, alteration, theft or destruction of a customer's data files, programs, or information through accident, fraudulent means or devices, or any other method, even should such access occur as a result of XMission LLC's negligence. XMission LLC shall not be in any way responsible for claims or damages caused by a customer, through fault, negligence or failure to perform customer's responsibilities, claims against a customer by any other party; any act or omission of any party furnishing services and/or products; or for the installation and/or removal of any and all equipment supplied by any service provider or XMission LLC.
4. XMission LLC will not be responsible for any damages you or your business suffers. XMission LLC makes NO WARRANTEES OF ANY KIND, EXPRESSED OR IMPLIED, for services we provide. XMission LLC also DISCLAIMS ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. This includes loss of data resulting from delays, non deliveries, wrong deliveries, and any and all service interruptions caused by XMission LLC and its employees by its own negligence or your errors or omissions.
5. Any and all information you obtain through XMission LLC data network services (public and or private) is at your own risk.
6. Any and all access to other networks via XMission LLC must be in compliance with all policies and rules of those networks. This applies to any other network that XMission LLC attaches to.
7. Rates: Rates are set forth on the XMission LLC Internet Service Order Form. XMission LLC will provide 30 days written notice prior to a change in our base prices. In the event that you do not wish to continue your account paying the changed base price, you, the customer, have 10 days from the date of notification of the effective increase to provide XMission LLC with a written request to terminate services and incur no termination liability. Otherwise, the existing service will be billed at the new base prices. However, you will continue to be responsible for all charges up to 30 days from the date the XMission LLC notice was received.
8. Payment (for Dedicated Accounts only): Installation fees and first and last month's port charges are required to be paid at the time your services are ordered. These fees and charges are non-refundable. Invoices for subsequent months are billed 30 days in advance. Invoices are due in full no later than 35 days after the bill date. After that your service is subject to interruption. If your service is interrupted for non-payment there will be a restoration fee (equal to the installation fee of the service type) to be paid in full and XMission LLC may take up to 30 days to restore service after payment. This policy will be strictly enforced. If you are not able to meet our payment terms please do not apply for services. You, the customer, will pay all sales and use taxes, as well as duties or levies on products and services.
9. In the event of default, XMission LLC may retake possession of any and all hardware and/or software it has supplied you, employees and/or agents (before, during and after any sanctions to recover sums of money). In such a case, you will provide XMission LLC full and free access to the hardware and/or software for this purpose. XMission LLC will retain all payments made hereunder, and recover charges you owe as well as any damages XMission LLC may have sustained due to your default. Title and property rights, including all intellectual property rights to services, are and shall remain with XMission LLC whether or not they are embedded in any programming, software and/or hardware.
10. You recognize and acknowledge that any and all XMission LLC services and/or products, programming and software used hereunder constitute valuable trade secrets of XMission LLC. You will use your best efforts to protect and keep confidential any and all programming and software used by you, your employees, and/or agents and shall never make any attempt to copy, examine in any way, alter or re-engineer, tamper with, or otherwise misuse such services, programs, hardware, etc.
11. 1. Cancellation (for Dedicated Accounts only): XMission may cancel and/or terminate service with 30 day written notice to you, the customer, for any reason.
    2. Only a written request to terminate service, made in accordance with paragraph 11.c. or 11.d. as applicable to you, relieves you and/or your company from the obligation to pay your charges. An act of default will accelerate payment to be due at once, and any type of credit agreement will be immediately and automatically terminated.
    3. Long-term service orders are considered to be anything extending over 3 months in length. To terminate long-term service, a company or an individual must provide XMission LLC with 45 days written notice. In case of early termination of any long-term order, the company or individual will pay a lump sum equal to six (6) months charges. There is NEVER a termination charge when a customer upgrades to a higher level of service.
    4. To terminate month-to-month service, a company or an individual must provide XMission LLC with 30 days written notice. There is NEVER a termination charge when a customer upgrades to a higher level of service.
12. You shall provide all necessary preparations required to comply with XMission LLC's installation, maintenance and operational specifications. Customers will be responsible for all costs of relocation of service once installed by XMission LLC and/or its vendors, and will provide XMission LLC, and its suppliers of communication service and equipment, reasonable access to your premises to perform any acts required by this agreement.
13. Physical Equipment and/or Software products that are NOT provided by XMission LLC are the responsibility of the customer, company or individual or both as the limits of the law allows for. XMission LLC will not be responsible for the installation of and/or service on equipment and/or software not provided by XMission LLC. All customers are responsible for the use and compatibility of hardware and software not provided by XMission LLC. In the event that the customer uses hardware and/or software that does impair the customer's use of XMission LLC services, the customer shall nonetheless be liable for regular payment to XMission LLC. Upon notice from XMission LLC that the hardware and/or software not provided by XMission LLC is causing, or in the sole opinion of XMission LLC, is likely to cause hazard, interference's or service obstruction, the customer shall eliminate the hazard, interference or service obstruction at once. Customers will, if necessary, pay XMission LLC to troubleshoot problems caused by such equipment and/or software not provided by XMission LLC. XMission LLC will not be responsible if any changes in hardware, software or services cause equipment not provided by XMission LLC to become obsolete, require modification or alteration, or in any other way affect the total performance of XMission LLC on an end-to-end basis and protect the XMission LLC backbone network and those networks attached to the XMission LLC network. In the case of customer-owned hardware and/or software connected to the XMission LLC network, the customer is totally responsible for any and all service to that equipment. XMission LLC, at its option, may supply technical services in the form of consulting and/or service to XMission LLC customers at their request. Such services will be billed out at rates set on the XMission LLC pricing sheet and/or at rates in effect at the time such services are requested. XMission LLC has the right to refuse any such technical services at its sole option. On leased telephone lines, no matter who the leasing party is, XMission LLC must have free and open access to such lines.
14. XMission LLC always reserves the right to change its rates and otherwise modify these Terms and Conditions by notifying you 30 days in advance of the effective date of such changes. These Terms and Conditions hereby supersede all previous representations, understanding, or agreements and shall prevail notwithstanding any variance with terms and conditions of ANY and ALL orders submitted.
15. As a XMission LLC customer you may not sell, assign or transfer your service order without the prior written consent of XMission LLC. XMission LLC may at any time sell, assign or transfer this agreement with no notice.
16. XMission LLC will not be responsible for performance of its obligations thereunder where delayed or hindered by war, riots, embargoes, strikes or acts of its vendors and will attempt to notify customers in the event of any of the foregoing occurrences. Should such occurrences continue for more than 90 days, XMission LLC or its customers may cancel service for the affected services and/or products with no further liability.
17. The provision of XMission LLC services and/or products are subject to XMission LLC's continuing approval of customer credit-worthiness. All XMission LLC customers shall furnish financial information upon request as XMission LLC may from time to time choose to re-determine a customer's credit-worthiness.
18. Any legal action arising out of failure, malfunction or defects in XMission LLC's services or goods shall be brought within a period of one year of the occurrence or is deemed waived.
19. If you are declared in default, XMission LLC will have all rights and remedies provided by law. XMission LLC may terminate your account and take any physical equipment and/or software products provided by XMission LLC subject to applicable state law, including the right to enter the premises where the physical equipment and/or software is kept in order to repossess it. You agree to pay XMission LLC's costs on demand as well as any reasonable attorney's fees and legal expenses incurred as a result of XMission LLC's exercise of any default remedies under this agreement.
20. Severability. If any provision of this Agreement is not valid according to the law, all other provisions will remain in force. If any provision is stricken, both parties agree to negotiate a mutually acceptable substitute provision.
21. Waiver. XMission LLC's failure to insist upon your complying with any term or provision of this lease or it's waiver of any default shall not be construed as waiving any such term or provision and shall not preclude XMission LLC from taking action regarding any subsequent default.
22. Governing laws. This agreement shall be governed by the internal laws of the State of Utah.
23. THESE TERMS AND CONDITIONS CANNOT BE MODIFIED EXCEPT BY WRITTEN AMENDMENT BY THE PARTIES. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF XMISSION LLC HAS THE AUTHORITY TO BIND THE PARTIES TO ANY RESPRESENTATION OR WARRANTY UNLESS SUCH IS SPECIFICALLY INCLUDED IN THESE TERMS AND CONDITIONS, THE XMISSION LLC INTERNET SERVICE ORDER FORM OR WITH A WRITTEN AMENDMENT THERETO. NOTICE TO PARTIES OF DISPUTES ARISING UNDER THIS AGREEMENT SHALL BE SENT BY REGISTERED MAIL TO THE PARTIES AT THE ADDRESS SHOWN ON THE MOST RECENT SERVICE ORDER. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF UTAH.
24. ALL USERS DESIRING CONNECTIVITY ON THE INTERNET ARE SUBJECT TO THE ACCEPTABLE USE POLICY.
25. XMission is a member of the Utah division of the Better Business Bureau and is committed to arbitration and mediation.
26. Use of XMission LLC services by you as a company and/or an individual constitutes acceptance of these Terms and Conditions in full.