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Acceptable Use Policy

By using TierPoint’s (“TierPoint”, “our”, “us” or “we”) products and services, you (“you”, “your” or “Customer”) agree to comply with our policies. TierPoint’s Acceptable Use Policy (“AUP”) for the services of TierPoint and TierPoint’s affiliates is defined herein. This AUP is incorporated by reference into each Master Service Agreement and/or Service Order. Your use of our products and services is subject to your acceptance and compliance with this AUP. We reserve the right to amend or modify this AUP from time to time, and we will post any such changes to the AUP on our website at www.tierpoint.com. We will provide you with written notification of any material changes to the AUP.

You are responsible for complying with this AUP and for violations attributable to your customers and users, whether authorized or not by you or by us. You must take all reasonable steps to ensure that your customers and users comply with this AUP. YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD AND ACCEPTED THE TERMS OF THIS AUP. WE EXPRESSLY DISCLAIM ANY LIABILITY FOR THE DATA AND CONTENT TRANSMITTED THROUGH OR TEMPORARILY OR PERMANENTLY STORED ON OUR NETWORK OR ANY SERVER AND FOR THE ACTIONS OR OMISSION OF USERS.

Interpretation

The provisions of this AUP are intended as guidelines and are not meant to be exhaustive. Generally, conduct that violates law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in this AUP, is prohibited. We reserve the right at all times to prohibit activities that damage our or our affiliates’ commercial reputation and goodwill. We will be the sole and final arbiter as to what constitutes a violation of our policies.

Illegal Use

Our products and services may be used only for lawful purposes. Transmission, distribution or storage of any material 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 rights used without proper authorization, and material that is obscene, indecent, harassing, abusive, threatening, is otherwise unlawful, or violates export control laws.

Security

Violations of our system or network security are prohibited and may result in criminal and civil liability. Our servers and networks may not be used for:

  • introducing or executing malicious programs into any network or server, such as viruses, worms, Trojan Horses, and key loggers;
  • causing or initiating security breaches or disruptions of network communication and/or connectivity, including port scans, flood pings, email-bombing, packet spoofing, IP spoofing, and forged routing information;
  • executing any form of network activity that will intercept data not intended for your server;
  • evading or circumventing user authentication or security of any host, network or account, including cracking, brute-force or dictionary attacks;
  • interfering with or denying service to any user, host or network other than your host, such as a denial of service attack or distributed denial of service attack;
  • conduct designed to avoid restrictions or access limits to specific services, hosts, or networks, including the forging of packet headers or other identification information;
  • making available any software, program, product or service designed to violate this AUP;
  • soliciting the performance of any illegal activity, even if the activity is not performed; or
  • using any program or sending messages of any kind, designed to interfere with or disable a user’s terminal session.

The preceding list provides examples and is not an exhaustive list of prohibited activity. If you are aware of or believe that a violation of this AUP has occurred, please contact us and report the violation.

Spamming

(i) You may not:

  • send unsolicited bulk messages over the Internet (spamming);
  • create a fake weblog or weblogs which are intended or reasonably likely to promote the author’s affiliated websites or to increase the search engine rankings of associated sites (splogs); or
  • send spam to weblog sites or automatically post random comments or promotions for commercial services to weblogs (spamming blogs).

(ii) All users must comply with all relevant legislation and regulations on bulk and commercial e-mail, including but not limited to the CAN-SPAM Act of 2003.

(iii) Users may not send mass unsolicited e-mail, which is email that is sent to recipients who have not “opted-in” to mailings from the user. Users who send mass mailings must maintain complete and accurate records of all consents and opt-ins and provide such records to TierPoint upon request. If a user cannot provide positive and verifiable proof of such consents and opt-ins, we will consider the mass mailing to be unsolicited. Users are prohibited from operating mailing lists, listservs or mailing services that do not target an audience that has voluntarily signed up for e-mail information using an “opt-in” process or that has made their email addresses available to a user for distribution of information. Users who operate mailing lists must maintain complete and accurate records of all consents and “opt-in” elections and provide such records to TierPoint upon its request. If a user cannot provide positive and verifiable proof of such consents and “opt-in” elections, we will consider the list mailing to be unsolicited. Any user-maintained mailing list must also allow any party on the list to remove itself automatically and permanently. Other prohibited activities include, without limitation, the following:

  • use of our network for the receipt of replies to unsolicited mass e-mail;
  • forgery of e-mail headers (spoofing);
  • spamming via third-party proxy, aggregation of proxy lists, or installation of proxy mailing software;
  • configuration of a mail server to accept and process third-party messages for sending without user identification and authentication;
  • hosting web pages advertised within “spam email” sent from another network (spamvertising);
  • hosting web pages or providing services that support spam;
  • any other unsolicited bulk messages, postings, or transmissions through media such as weblog posts, IRC/chat room messages, guestbook entries, HTTP referrer log entries, usenet posts, pop-up messages, instant messages, or SMS messages; and
  • instructing others in any activity prohibited by this AUP.

(iv) If you or any user that is your customer use our products or services in a manner that causes us or our affiliates or customers to be “blacklisted” or blocked, we reserve the right to (a) suspend permanently or terminate your TierPoint services and/or (b) suspend permanently or terminate your access to the TierPoint services. Operating our products or services on behalf of, or in connection with, or reselling any service to persons or firms listed in the Spamhaus Register of Known Spam Operations database at http://www.spamhaus.org shall constitute a violation of this AUP.

(v) If, as a result of your actions, our mail servers or IP address ranges are placed on black hole lists or other mail filtering software systems, we shall charge you $250 upfront and $120 per hour thereafter for any necessary remedial actions.

CONSEQUENCES OF VIOLATIONS AND ENFORCEMENT

When we become aware of a violation or an alleged violation of this AUP, we will initiate an investigation. During the investigation we may restrict Customer’s access in order to prevent further possible unauthorized activity. Depending on the severity of the violation, we may, in our sole discretion, restrict, suspend, or terminate Customer’s account and/or pursue other civil remedies. If such violation is a criminal offense, we will notify the appropriate law enforcement agency of such violation. We reserve the right to disclose information relating to you and your use of our products and services if such information is disclosed in connection with an investigation or in order to prevent the death of or bodily harm to any individual, as determined in our sole discretion. We do not issue service credits for any product or service incurred through service disablement resulting from policy violations, and we will not be in default for disabling any such services. You shall be liable for all costs and expenses incurred by us resulting from an investigation of your prohibited use of our products and services.

You will cooperate and comply with any investigation regarding this AUP or the use of our products or services, including, without limitation, the following: discovery orders, subpoenas, freeze orders, search warrants, information requests, wire taps, electronic intercepts and surveillance, preservation requests, and any other order from a court, government entity or regulatory agency.

We may enforce this AUP, with notice to you if possible, by any action we deem reasonable, in our sole discretion. In addition to the remedial provisions provided elsewhere in this AUP, we may:

  • disable access to your content that violates this AUP;
  • suspend or terminate your access to our products and services;
  • remove DNS records from Servers;
  • block mail or any other network service;
  • effect IP address null routing; and/or
  • take legal action against you to enforce compliance with this AUP.

Any suspension, termination or other legal, remedial or enforcement related action taken as a result of your violation of this AUP shall not relieve you of the obligation to pay all outstanding fees.