Acceptable Use Policy

Updated: February 10, 2010

Tier 3, LLC (“Tier 3”) has created this Acceptable Use Policy, hereinafter referred to as the AUP, with which you (the “Customer”) must comply when using services and products (collectively, “Services”) made available by Tier 3 to Customer, including, without limitation, on Tier 3’s website, www.tier3.com (“Website”).

By using the Services and the Website, Customer is accepting the policies described in this AUP. If Customer does not agree to the terms of this AUP, Customer must not use the Services or the Website. The AUP is not an all-inclusive or exhaustive list of prohibited activities, and Tier 3 reserves the right to modify or amend the terms of this AUP from time to time without notice. Customer’s continued use of the Services and the Website following the posting of changes to this policy will mean that Customer accepts those changes. If Tier 3 intends to apply the modifications or amendments to this AUP retroactively, Tier 3 will provide Customer with notice of the modifications or amendments.

Compliance with Law:Customer shall not post, transmit, re-transmit or store material on or through any of Tier 3’s Services which, in the sole judgment of Tier 3 (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or otherwise could adversely affect any individual, group or entity, or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or other software products that are not appropriately licensed for use by Customer. Customer shall be responsible for determining what laws or regulations are applicable to its use of the Services.

Customer Security Obligation:Customer must use reasonable care in keeping its software on the Tier 3’s servers up-to-date and patched with the latest security updates. A compromised server creating network interference may result in immediate Customer notification. Tier 3 staff will work with Customer to resolve the issue and if it cannot be resolved in a timely manner the compromised server will be disconnected from the network. No service credits will be issued for outages resulting from disconnection due to breached server security. Customer is solely responsible for any breaches of security under Customer control affecting servers. If Customer intentionally creates a security breach, the cost to resolve any damage to Customer’s server or other servers will be charged directly to Customer. The labor used to resolve such damage is categorized as Emergency Security Breach Recovery and is currently charged at $300 USD per hour.

System and Network Security:Customer shall not violate Tier 3’s system or network security, and any such violations may result in criminal and civil liability. Tier 3 investigates all incidents involving such violations and will cooperate with law enforcement if criminal violation is suspected.Examples of system or network security violations include, without limitation, the following:

• Introduction into the network or server and/or distribution of malicious programs including viruses, worms, Trojan Horses, root kits, password crackers, adware, and key stroke capture programs (and other executables intended to inflict harm root kits, password crackers, adware, key stroke capture programs and other programs).
• Effecting security breaches or disruptions of Internet communication and/or connectivity. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorized to access. Disruptions include port scans, flood pings, email-bombing, packet spoofing, IP spoofing and forged routing information.
• Circumventing user authentication or security of any host, network or account.
• Unauthorized access, alteration, destruction, or any attempt thereof, of any information of any Tier 3 customers or end-users by any means or device, including the use of sudo or other privileged operating system commands.
• Knowingly engage in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on the Tier 3 network or on another provider’s network.
• Using Tier 3’s Services to interfere with the use of the Tier 3’s network by other customers or authorized users.
• Using any program script/command, or sending messages of any kind, designed to interfere with or to disable, a user’s terminal session, via any means, locally or via the Internet.
• Obtaining or attempting to obtain service by any means or device with intent to avoid payment.
• Accessing or attempting to access Customer account or other Tier 3 services after Customer (or Tier 3) has terminated Customer’s account.
• Failing to comply with the Tier 3’s procedure relating to the activities of customers on the Tier 3’s premises. Violators of this policy are responsible, without limitations, for the cost of labor to correct all damage done to the operation of the network and business operations supported by the network. Such labor is categorized as Emergency Security Breach Recovery and is currently charged at US $300 per hour required. Network interference by any Customers that may cause or is currently causing network interference will be disconnected immediately.
• Phishing: Any activity associated with Phishing or systems designed to collect personal information under a false pretense is prohibited. Splash pages, phishing forms, email distribution, proxy email or any relation to phishing activities will result in immediate removal in addition to Tier 3’s other enforcement rights described in this AUP.
• Running any process that listens on a network port, unless explicit authorization is obtained in advance from Tier 3.
• Running chat servers or clients, including (but not limited to) IRC servers, IRC clients, Instant Messaging proxies and web-based chat programs, unless explicit authorization is obtained in advance from Tier 3.
• Running game servers or clients, including (but not limited to) web-based games, interactive shell games, and play-by-email games that require a process running on Tier 3’s server, unless explicit authorization is obtained in advance from Tier 3.
• Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at www.spamhaus.org.

Internet Etiquette:Each Customer is expected to execute reasonable Internet etiquette. The Customer will comply with the rules appropriate to any network to which Tier 3 may provide access. Except as set forth in a master services agreement between Tier 3 and Customer, Customer should not post, transmit, or permit Internet access to information the Customer desires to keep confidential. The Customer is not permitted to post any material that is illegal, libelous and tortuous, indecently depicts children or is likely to result in retaliation against Tier 3 by offended users.

Illegal Use:Any use of Tier 3’s Services in a manner which is defined or deemed to be statutorily illegal is a direct violation this AUP. This includes, but is not limited to: death threats, terroristic threats, threats of harm to another individual, multi-level marketing schemes, HYIP or Ponzi schemes, invasion of privacy, credit card fraud, racketeering, defamation, slander, and other common illegal activities.

Child Pornography:Tier 3 has a zero tolerance policy on child pornography and related sites and will cooperate fully with any criminal investigation into a Customer’s violation of the Child Protection Act of 1984.

Terrorist Websites:Tier 3 prohibits the use of its Services for the hosting of terrorist-related web sites. This includes sites advocating human violence and hate crimes based upon religion, ethnicity, or country of origin.

Email Policy:

Mass Mailings:Tier 3 has a zero tolerance policy on SPAM, Junk E-mail or UCE. Spam, Junk-mail and UCE are defined as: the sending of the same, or substantially similar, unsolicited electronic mail messages, whether commercial or not, to more than one recipient. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. UCE also includes e-mail with forged headers, compromised mail server relays, and false contact information. This prohibition extends to the sending of unsolicited mass mailings from another service, which in any way implicates the use of Tier 3 whether or not the message actually originated from our servers.

Mailing Lists:Tier 3’s mass mailing rules also apply to mailing lists, list servs or mailing services Customer may contract with. The policy is stated as follows: An acceptable mailing list will be focused at a targeted audience that has voluntarily signed up for e-mail information or that has made their e-mail address available for distribution of information from Customer. The list must also allow for automatic removal by all end Customers with non-distribution in the future.

If Customer’s actions have caused Tier 3 mail servers or Tier 3 IP address ranges to be placed on black hole lists and other mail filtering software systems used by companies on the Internet, in addition to any other enforcement rights of Tier 3 under this AUP, Customer may be assessed a US $500 charge to their account and US $300 per hour for administrative charges incurred to remove and protect mail servers and IP ranges.

In addition to Tier 3’s other enforcement rights set forth in this AUP, violation of the above email policy may result in one or all of the following:

• A warning via email.
• Removal of DNS for the advertised/originating site.
• Temporary shutdown of the server or a block on outgoing mail.
• IP address routing to null.

Repeat violation of the above terms may result in one or more of the following actions:

• Immediate disconnection of service with no re-connection.
• US $500 fee assessed to Customer account for violation.

Intellectual Property Infringement:Tier 3 services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights. Tier 3 will cooperate with all law enforcement agencies in relation to alleged intellectual property infringement housed on Tier 3’s services, Website, or servers.

IP Allocation:Tier 3 owns and manages all Internet Protocol (IP) Addresses. IP Addresses are non-transferable from Tier 3, and Customer retains no ownership or transfer rights. All IP Addresses are assigned by the Tier 3 engineering team on a per VLAN, per server basis. Attempted use of IP addresses not originally allocated for use or IP address use on non-assigned VLANs or servers is a violation of this AUP. All IP Addresses are currently registered to Tier 3 via Arin.net assignments or from premier providers that Tier 3 works directly with. Private IP assignments are available to qualified Customers. Use of an IP address in an unauthorized manner may result in a charge of $25 per IP in addition to any other enforcement rights of Tier 3 under this AUP. Use an IP address in an unauthorized manner that creates a third party Customer outage may result in a US $500 charge and termination of service until the IP allocation issue is resolved, in addition to any other enforcement rights of Tier 3 under this AUP.

DNS Services:Tier 3 utilizes Dynect Enterprise DNS services to provide redundant domain names services for all Customers purchasing dedicated services. These services include the use of authoritative name servers for public resolution of domain names. The DNS services are fully managed and maintained by Tier 3 and Dynect in a joint arrangement. In rare instances, where extreme intensive DNS lookups (greater than four queries/second (QPS) per domain) occur, Customer will be billed at US $20/QPS for those in excess of four.

Reporting Violation of the Acceptable Use Policy:Tier 3 accepts reports of alleged violations of this AUP via email sent to abuse@tier3.com. Reports of alleged violations must be verified and must include the name and contact information of the complaining party, and the IP address or website allegedly in violation, and description of the violation. Tier 3 owes no duty to third parties reporting alleged violations due to lack of privity in contract law. Tier 3 will review all verified third party reports and will take appropriate actions as described below or within its sole discretion.

Enforcement of this AUP:Tier 3 reserves the right, but does not assume the obligation, to strictly enforce this AUP. Tier 3 will use reasonable care in notifying the Customer and in resolving the problem in a method resulting in the least amount of service interference as reasonably possible. For single or for continued and repeated violations of the AUP, or at Tier 3’s discretion, to prevent a violation of the AUP, Tier 3 reserves the right to:

• Issue warnings;
• Ask the Customer to increase resources;
• Limit Customer access to Services or implement service and resource usage restrictions;
• Assess the applicable fees as set forth in this AUP;
• Suspend Services without notice for any violation of the AUP; and/or
• Terminate Service without notice for a single or for continued and repeated violations of the AUP.

Tier 3 shall be the sole determiner of which of the above actions is to be taken, and can reverse or revise its decision at any time.