PLASMA TELECOM SOUTH AFRICA (PTY) LTD T/A FLY.COOL ACCEPTABLE USE POLICY (“AUP”)
This Policy forms part of the Agreement between the Customer and Fly.cool and is binding on Customers using Fly.cool’s services. The AUP sets out in detail what forms of conduct Fly.cool regards as unacceptable on the part of its Customers and the steps which Fly.cool
may take in response to unacceptable use of its services. Please take the time to acquaint yourself fully with the provisions of this Policy and direct any queries to help@fly.cool
1. General
1.1.1. By contracting with Fly.cool for services, the Customer agrees, without limitation or qualification, to be bound by this Policy and the terms and conditions it contains, as well as any other additional terms, conditions, rules or policies which are displayed to the Customer in connection with the Services.
2. The purpose of this AUP is to:
2.1.1. ensure compliance with the relevant laws of the Republic of South Africa;
2.1.2. specify to Customers and Customers of Fly.cool’s service what activities and online behaviour are considered an unacceptable use of the service;
2.1.3. protect the integrity of Fly.cool, Fly.cool’s services and service providers as well as their associated network providers; and
2.1.4. specify the consequences that may flow from undertaking such prohibited activities.
2.1.5. Fly.cool respects the rights of Fly.cool’s Customers and Customers of Fly.cool services to freedom of speech and expression, access to information, privacy, human dignity, religion, belief and opinion.
3. Unacceptable Use
3.1.1. Fly.cool services may only be used for lawful purposes and activities. Fly.cool prohibits any use of its Services including the transmission, storage and distribution of any material or content using Fly.cool’s network that violates any law or regulation of the Republic of South Africa. This includes, but is not
limited to:
3.1.2. Any violation of local and international laws prohibiting child pornography, obscenity, discrimination (including racial, gender or religious slurs) and hate speech, or speech designed to incite violence or hatred, or threats to cause bodily harm;
3.1.3. Any activity designed to defame, abuse, stalk, harass or physically threaten any individual in the Republic of South Africa or beyond its borders; including any attempt to link to, post, transmit or otherwise distribute any inappropriate or defamatory material;
3.1.4. Any violation of Intellectual Property laws including materials protected by local and international copyright, trademarks and trade secrets;
3.1.5. Any violation of another's right to privacy, including any effort to collect personal data of third parties without their consent;
3.1.6. Any fraudulent activity whatsoever, including dubious financial practices, such as pyramid schemes; the impersonation of another Customer without their consent; or any attempt to enter into a transaction with Fly.cool on behalf of another Customer without their consent;
3.1.7. Any violation of the exchange control laws of the Republic of South Africa; and
3.1.8. Any activity that results in the sale, transmission or distribution of pirated or illegal software.
3.1.9. The Customer is solely responsible for ensuring that Customer uses the Services lawfully and that the Customer complies with all applicable laws and
with Fly.cool’s Acceptable Use Policy.
3.1.10. The Customer indemnifies Fly.cool and holds it harmless against any claims:
3.1.10.1. arising from a breach of this clause; and/or
3.1.10.2. by third parties in respect of prohibited or unlawful activities conducted by the Customer or its Customers.
3.1.11. The Customer shall not take any steps or fail to take any steps which directly or indirectly:
3.1.11.1. rearrange, disconnect, remove, attempt to repair, or otherwise tamper with the Services and service related devices, without the prior written consent of Fly.cool;
3.1.11.2. damage Fly.cool’s network (or any networks interconnected to Fly.cool) or any part thereof;
3.1.11.3. cause Fly.cool to breach any of its licence terms or any provision of applicable legislation;
3.1.11.4. cause the imposition of any lien or encumbrance on Fly.cool; and/or
3.1.11.5. constitute an abuse of the Services (in the reasonable opinion of Fly.cool).
3.1.12. To help ensure all Customers fair and equal use of the Service and to protect the integrity of its network, Fly.cool reserves the right, and will take necessary steps, to prevent improper or excessive usage. The action that Fly.cool may take includes, but is not limited to:
3.1.13. the implementation of technical mechanisms which prevent usage patterns in violation of this AUP. Fly.cool further reserves the right to take such action as may be necessary to protect the integrity of the system, including, but not limited to, system monitoring, as well as protocol management and shutting down of ports affected by viruses, worms or other malicious code.
3.1.14. Nothing contained in this policy shall be construed to limit Fly.cool’s rights or remedies in any way with respect to any of the foregoing activities, and Fly.cool reserves the right to take any actions that it may deem appropriate with respect to such activities, including without limitation: investigating suspected violations of this AUP, taking action to recover the costs and expenses of identifying offenders and terminating their access to and use of the Service, and levying cancellation charges to cover Fly.cool’s costs in the event of termination of access to the Service. In addition, Fly.cool reserves all available rights and remedies with respect to such activities at law.
3.1.15. This AUP may be clarified or modified periodically and Fly.cool reserves the right to modify this policy at any time, which changes shall become effective as soon as they are posted to the Fly.cool portal.
4. Threats to Network Security
4.1.1. Any activity which threatens the functioning, security and/or integrity of Fly.cool network is unacceptable. This includes:
4.1.2. Any efforts to attempt to gain unlawful and unauthorised access to the network or circumvent any of the security measures established by Fly.cool for this goal;
4.1.3. Any effort to use Fly.cool equipment to circumvent the Customer authentication or security of any host, network or account cracking or hacking
4.1.4. Forging of any TCP/IP packet headers (spoofing) or any part of the headers of an email or a newsgroup posting;
4.1.5. Any effort to breach or attempt to breach the security of another Customer or attempt to gain access to any other person computer, software, or data without the knowledge and consent of such person;
4.1.6. Any activity which threatens to disrupt the Service offered by Fly.cool through denial of service attacks flooding of a network or overloading a service or any unauthorised probes scanning or nuking of others networks;
4.1.7. Any activity which in any way threatens the security of the network by knowingly posting, transmitting, linking to or otherwise distributing any information or software which contains a virus, trojan horse, worm, malware, botnet or other harmful, destructive or disruptive component;
4.1.8. Any unauthorised monitoring of data or traffic on the network without Fly.cool's explicit, written consent;
4.1.9. Running services and applications with known vulnerabilities and weaknesses, e.g. insufficient anti-automation attacks, any traffic amplification attacks, including recursive DNS attacks, SMTP relay attacks; and
4.1.10. Failing to respond adequately to a denial of service attack (DOS / DDOS).
5. Interception
5.1.1. The Customer acknowledges that Fly.cool is lawfully required to intercept communications in accordance with the provisions of the Regulation of Interception and Provision of Communication-Related Information Act 70 of 2003 the Act Any interception of communications shall be strictly in accordance with the requirements of the Act, as and when required under the Act.
6. Laws and Legislation
6.1.1. Fly.cool infrastructure may be used only for lawful purposes. Customers may not violate any applicable laws or regulations of South Africa within the territory of South Africa. Should the Customer reside outside of South Africa, the laws of the country in which the Customer resides shall apply.
6.1.2. Transmission, distribution, or storage of any material on or through the infrastructure in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
6.1.3. The Customer undertakes to Fly.cool Services in accordance with any restrictions imposed under the following legislation:
6.1.3.1. Electronic Communications and Transactions Act 25 of 2002;
6.1.3.2. Electronic Communications Act 36 of 2005;
6.1.3.3. Films and Publications Act 65 of 1996 (as amended); and
6.1.3.4. Regulation of Interception and Provision of Communication-related Information Act 70 of 2003.
7. Network capacity
7.1.1. The Network capacity and performance is subject to contention for services from Customers. This means that a significant rise in demand can affect the availability of bandwidth to Customers. Fly.cool reserves the right to manage contention through the implementation of Quality of Service, Shaping and Throttling (on applicable products). Contention is a function of demand from Customers and is not strictly within Fly.cool direct control, however Fly.cool will use the provisions of the AUP and Terms and Conditions to manage contention and minimise the impact to performance to offer the best possible experience at all times.
8. Spam and Unsolicited Bulk Mail
8.1.1. Fly.cool regards all unsolicited bulk email (whether commercial in nature or not) as spam, with the following exceptions:
8.1.2. Mail sent by one party to another where there is already a prior relationship between the two parties and the subject matter of the message(s) concerns that relationship; and
8.1.3. Mail sent by one party to another with the explicit consent of the receiving party.
8.1.4. Customers should only receive bulk mail that they have requested and/or consented to receive and/or which they would expect to receive as a result of an existing relationship.
8.1.5. Fly.cool will take swift and firm action, which may include suspension, cancellation and reporting to the relevant authorities, against any Customer engaging in any of the following unacceptable practices:
8.1.6. Sending unsolicited bulk mail for marketing or any other purposes (political, religious or commercial) to people who have not consented to receiving such mail;
8.1.7. Using any part of Fly.cool’s infrastructure for the purpose of unsolicited bulk mail, whether sending, receiving, bouncing, or facilitating such mail;
8.1.8. Operating or maintaining mailing lists without the express permission of all recipients listed;
8.1.9. In particular, Fly.cool does not permit the sending of opt-out mails, where the recipient must opt out of receiving mail which they did not request. For all lists, the sender must maintain meaningful records of when and how each recipient requested mail. Fly.cool will also monitor Customers deemed to be operating “cleaning lists”, which is using illegally obtained email addresses but removing addresses as complaints arise. Should Fly.cool, at its discretion, believe that this is the case, it will be treated as SPAM;
8.1.10. Failing to promptly remove from lists invalid or undeliverable addresses or addresses of unwilling recipients or a recipient who has indicated s/he wishes to be removed from such list, or failing to provide the recipient with a facility to opt out;
8.1.11. Using Fly.cool service to collect responses from unsolicited email sent from accounts on other Internet hosts or e-mail services that violate this AUP or the AUP of any other Internet service provider. Advertising any facility on Fly.cool’s infrastructure in unsolicited bulk mail (e.g. a website advertised in spam);
8.1.12. Including Fly.cool name in the header or by listing an IP address that belongs to Fly.cool in any unsolicited email whether sent through Fly.cool network or not; and/or
8.1.13. Failure to secure a Customer mail server against public relay as a protection to themselves and the broader Internet community. Public relay occurs when a mail server is accessed by a third party from another domain and utilised to deliver mails, without the authority or consent of the owner of the mail-server. Mail servers that are unsecured against public relay often become abused by unscrupulous operators for spam delivery and upon detection such delivery must be disallowed.
Customers Outside of South Africa
8.1.14. Where any Customer resides outside of the Republic of South Africa, permanently or temporarily, such Customer will be subject to the laws of the country in which s/he is currently resident, and which apply to the Customer. On presentation of a legal order to do so, or under obligation through an order for mutual foreign legal assistance, Fly.cool will assist foreign law enforcement agencies (LEAs) in the investigation and prosecution of a crime committed using Fly.cool resources, including the provisioning of all personal identifiable data.
9. Protection of Minors
9.1.1. Fly.cool prohibits Customers from using Fly.cool service to harm or attempt to harm a minor, including, but not limited to, by hosting, possessing, disseminating, distributing or transmitting material that is unlawful, including child pornography and cyber bullying.
9.1.2. Fly.cool prohibits Customers from using Fly.cool’s service to host sexually explicit or pornographic material of any nature.
10. Privacy and Confidentiality
10.1.1. Fly.cool respects the privacy and confidentiality of Fly.cool’s Customers and Customers of Fly.cool’s service. Please review Fly.cool Privacy Policy which details how Fly.cool collects and uses personal information gathered in the course of operating its Services.
11. Customer Responsibilities
11.1.1. Customers are responsible for any misuse of Fly.cool services that occurs through the Customer account. It is the Customer responsibility to ensure that unauthorised persons do not gain access to or misuse Fly.cool service.
11.1.2. Fly.cool urges Customers not to reply to unsolicited mail or spam and not to click on any suggested links provided in the unsolicited mail. Doing so remains the sole responsibility of the Customer and Fly.cool cannot be held liable for the Customer being placed on any bulk mailing lists as a result, nor any damages suffered or breach of their confidential information.
11.1.3. Where the Customer has authorised a minor to use any of the Fly.cool services or access its websites, the Customer accepts that as the parent/legal guardian of that minor, the Customer is fully responsible for: the online conduct of such minor, controlling the minor access to and use of any services or websites, and the consequences of any misuse by the minor.
12. Complaints Procedure
12.1.1. Complaints relating to the violation of this AUP should be submitted in writing to complaints@fly.cool. Complaints must be substantiated, and unambiguously state the nature of the problem, and its connection to Fly.cool’s network and services.
13. Action Following Breach of the AUP
13.1.1. Upon receipt of a complaint, or having become aware of an incident, Fly.cool may, in its sole and reasonably exercised discretion take any of the following steps:
13.1.1.1. In the case of Customers, warn the Customer, suspend the Customer account and/or revoke or cancel the Customer’s Service access privileges completely;
13.1.1.2. In the case of an abuse emanating from a third party, inform the third party’s network administrator of the incident and request the network administrator or network owner to address the incident in terms of this AUP and/or the ISPA Code of Conduct (if applicable);
13.1.1.3. In severe cases suspend access of the third party’s entire network until abuse can be prevented by appropriate means;
13.1.1.4. In all cases, charge the offending parties for administrative costs as well as for machine and human time lost due to the incident;
13.1.2. Assist other networks or website administrators in investigating credible suspicions of any activity listed in this AUP;
13.1.3. Institute civil or criminal proceedings;
13.1.4. Share information concerning the incident with other Internet access providers, or publish the information, and/or make available the Customers' details to law enforcement agencies; and/or
13.1.5. Suspend or terminate the Service as provided for in the Agreement.
13.1.6. This policy applies to and will be enforced for intended and unintended (e.g., viruses, worms, malicious code, or otherwise unknown causes) prohibited
usage.
14. Reservation and Non-Waiver of Rights
14.1.1. Fly.cool reserves the right to amend or alter this policy at any time, and without notice to the Customer.
14.1.2. Fly.cool reserves the right to take action against any individuals, companies or organisations that violate the AUP, or engage in any illegal or unlawful activity while accessing Fly.cool’s services, to the fullest extent of the law.
14.1.3. Fly.cool reserves the right, at its sole discretion, to act against other types of abuse not listed in this document and to investigate or prevent illegal activities being committed over Fly.cool’s network.
14.1.4. Fly.cool does not waive its right to enforcement of this AUP at any time, or prejudice its right to take subsequent action, should Fly.cool fail, neglect or elect not to enforce a breach of the AUP at any time.