Hosting Service Agreement

This Acceptable Use Policy (this “AUP”) describes prohibited uses of the web services offered by EnCirca, Inc. and activities that are not allowed on our network. The examples described in this AUP are not exhaustive. We may modify this AUP at any time by posting a revised version on our Site. By using our hosting service or accessing EnCirca’s site, you agree to the latest version of this AUP. If you violate the AUP or authorize or help others to do so, we may suspend or terminate your use of EnCirca’s hosting service.

Capitalized terms used in this AUP and not otherwise defined herein shall have the meaning given in the Agreement.

Inquiries regarding this AUP should be directed to abuse@encirca.com.

No Illegal, Harmful, or Offensive Use or Content
You may not use, or encourage, promote, facilitate or instruct others to use, EnCirca’s email or web hosting service for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. Prohibited activities or content include:

• Illegal Activities. Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography or otherwise unlawfully exploits persons under 18 years of age.
• Harmful or Fraudulent Activities. Activities that may be harmful to others, our operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.
  Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
• Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.
• Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
• Violent Content. Publishing, transmitting or storing any content or links to any content that is excessively violent, incites violence, threatens violence, contains harassing content or hate speech, creates a risk to a person’s safety or health, or public safety or health, compromises national security or interferes with an investigation by law enforcement.
• Deceptive Content. Content that is unfair or deceptive under the consumer protection laws of any jurisdiction.

No Security Violations
You may not use EnCirca’s email or web hosting service to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System”). Prohibited activities include:

• Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.
• Interception. Monitoring of data or traffic on a System without permission.
• Falsification of Origin. Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. This prohibition does not include the use of aliases or anonymous remailers.

No Network Abuse
You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include:

• Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
• Unauthorized Access. Unauthorized access to or use of data, Systems or networks, including any attempt to probe, scan or test the vulnerability of a System or to breach security or authentication measures without express authorization of the owner of the System.
• Deceitful Actions. Introducing intentionally, knowingly or recklessly, any virus or other contaminating code into the Service; Collecting or using information, including email addresses, screen names or other identifiers, by deceit, (such as phishing, Internet scamming, password robbery, spidering, and harvesting).
• Deceptive Information. Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting.
• Covert Usage. Distributing software that covertly gathers or transmits information about a user.
• Denial of Service (DoS). Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
• Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
• Operation of Certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.
• Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.
• Retaliation Against EnCirca. Any conduct that is likely to result in retaliation against the EnCirca system or website, or EnCirca’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a DoS.
• Withholding Identity. Any activity intended to withhold or cloak identity or contact information, including the omission, deletion, forgery or misreporting of any transmission or identification information, such as return mailing and IP addresses.
• Spam. Any action which directly or indirectly results in any of our IP space being listed on any abuse database (i.e. Spamhaus).
• Illegal Activities. Any action that is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to EnCirca.

No E-Mail or Other Message Abuse
You will not distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. You will not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission. You will not collect replies to messages sent from another internet service provider if those messages violate this AUP or the acceptable use policy of that provider.

Mail Requirements
You must comply with the laws and regulations applicable to bulk or commercial email in your jurisdiction. In addition, your bulk or commercial email must meet the following requirements:

• You must have a Privacy Policy posted for each domain associated with the mailing;
• You must have the means to track anonymous complaints; and
• You must not obscure the source of your e-mail in any manner.
• You must post an email address for complaints (such as abuse@yourdomain.com) in a conspicuous place on any website associated with the email, and you must promptly respond to messages sent to that address;
• Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure, and you can produce the evidence of such consent within 72 hours of receipt of a request by the recipient or EnCirca;
• You must use reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
• You must include the recipient’s e-mail address in the body of the message or in the “TO” line of the e-mail.
• You must honor revocations of consent and notify recipients of the same;
• These policies apply to messages sent using the email service, or to messages sent from any System by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via the Service. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. These requirements apply to distribution lists created by third parties to the same extent as if you created the list.

Our Monitoring and Enforcement
We reserve the right, but do not assume the obligation, to investigate any violation of this AUP or misuse of EnCirca’s email or web hosting service. We may:

• investigate violations of this AUP or misuse of the hosting service or EnCirca’s site; or
• remove, disable access to, or modify any content or resource that violates this AUP or any other agreement we have with you for use of EnCirca’s hosting service.
• We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this AUP.

Vulnerability Testing
You may not attempt to probe, scan, penetrate or test the vulnerability of an EnCirca system or network, or to breach the EnCirca security or authentication measures, whether by passive or intrusive techniques. Additionally, you may not perform such testing of your own Service without EnCirca’s prior written consent.

Newsgroup, Chat Forums, Other Networks
You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.

You must comply with the rules of any other network you access or participate in using your the Service.

Intellectual Property and Other Proprietary Rights
You may not use the service in a manner that infringes on or misappropriates the rights of a third party in any work protected by copyright, trade or service mark, invention, or other intellectual property or proprietary information. For example:

• You may not use the service to download, publish, torrent, distribute, use, or otherwise copy in any manner any text, music, software, art, image, or other work protected by copyright law unless you have permission from the owner of the work to use or copy the work in that manner, or you are otherwise permitted by established intellectual property law to copy or use the work or rights in that manner;
• You may not use the service to publish content intended to assist others in defeating technical copyright protections; and
• You may not display another person’s trademark without permission.
• In addition, you may not use the service to publish another person’s trade secrets, or to publish information in violation of a duty of confidentiality. It is EnCirca’s policy to terminate the services of customers who are repeat infringers in appropriate circumstances.

Excessive Use of Shared System Resources
You may not use any shared System provided by EnCirca in a way that unnecessarily interferes with the normal operation of the shared System, or that consumes a disproportionate share of the resources of the System. For example, we may require you to repair coding abnormalities in your Cloud-hosted code if it unnecessarily conflicts with other Cloud customers’ use of the Cloud. You agree that we may quarantine or delete any data stored on a shared System if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the System or other customers’ data that is stored on the same system.

Third Party Conduct
You are responsible for violations of this AUP by anyone using your service with your permission or on an unauthorized basis as a result of your failure to use reasonable security precautions. Your use of the service to assist another person in an activity that would violate this AUP if performed by you is a violation of the AUP.

You must use reasonable efforts to secure any device or network within your control against being used in breach of the applicable laws against spam and unsolicited email, including where appropriate by the installation of antivirus software, firewall software and operating system and application software patches and updates. Our right to suspend or terminate your Service applies even if a breach is committed unintentionally or without your authorization, including through a Trojan horse or virus.

Other

• You must have valid and current information on file with EnCirca for any domain hosted by EnCirca. You may only use IP addresses assigned to you by EnCirca in connection with your email and web hosting service.
• If you breach the AUP we may suspend or terminate your hosting service in accordance with the Agreement. We may intercept or block any content or traffic belonging to you or to users where the Service is being used unlawfully or not in accordance with this AUP.
• You may not register to use any Service under a false name, or use an invalid or unauthorized credit card in connection with any Service.
• No credit will be available under the EnCirca Service Level Agreement for interruptions of service resulting from any AUP violation.

Reporting of Violations of this AUP
If you become aware of any violation of this AUP, you will immediately notify us and provide us with assistance, as requested, to stop or remedy the violation. To report any violation of this AUP, please contact us at abuse@encirca.com.