Acceptable Use Policy

Data Foundry, Inc. (“Data Foundry”) is in the business of providing Internet access, co-location, bandwidth and server storage in connection with its information technology outsourcing services. This Acceptable Use Policy (this “AUP”) sets forth guidelines for your use of any of Data Foundry’s systems, services, and products that provide access to the Internet (the “Data Foundry Services”). This AUP applies to all aspects of the Data Foundry Services, including without limitation, e-mail, usenet, postings, chatting and browsing. BY USING THE DATA FOUNDRY SERVICES, YOU ARE INDICATING THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE POLICIES, TERMS, AND CONDITIONS SET FORTH BELOW IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION, AS WELL AS BY ALL APPLICABLE LAWS AND REGULATIONS, AS IF YOU HAD HANDWRITTEN YOUR NAME ON A CONTRACT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE DATA FOUNDRY SERVICES. If the user is not an individual, then “you” means your company, its officers, directors, members, managers, employees, agents, representatives, successors and assigns. If you violate any of the sections of this AUP, Data Foundry reserves the right to suspend or terminate any and all services being provided to you.

Overview

This AUP supplements and further explains certain terms of your existing agreement with Data Foundry. By using the Data Foundry Services, you agree to abide by this AUP as modified from time to time. Any violation of this AUP may result in the suspension or termination of your account or such other action as Data Foundry deems appropriate. You will not be issued a credit for any interruption in service resulting from violations of this AUP. You are solely liable and responsible for your use of the Data Foundry Services and any and all Content (as herein defined) that you display, upload, download or transmit through the use of such service. Data Foundry reserves the right, in its sole discretion, to refuse service to anyone at any time. For purposes of this AUP, “Content” or “content” shall mean all text, graphics, software, music, sound, photographs, videos, messages, posts, data, information, e-mail, Web pages, personal home pages, domain names or other materials created by a person originating such Content.

By using the Data Foundry Services, you represent and warrant that (i) you understand and agree that this AUP is a legally binding agreement and the equivalent of a signed, written contract; (ii) you will use the Data Foundry Services in a manner consistent with all applicable laws and regulations and in accordance with the terms and conditions of this AUP; (iii) you are authorized to sign for and bind the contracting party; (iv) you will not impersonate any person or entity, misrepresent any affiliation with another person, entity or association, use false headers or otherwise conceal your identity from Data Foundry for any purpose.

Prohibited Activities

It is a violation of this AUP for you to engage in or otherwise facilitate any of the following prohibited activities:

Illegal Uses

The Data Foundry network (the “Data Foundry Network“) may only be used for lawful purposes. Use of the Data Foundry Services for transmission, distribution, retrieval, or storage of any information, data, or other material in violation of any applicable law is prohibited. This includes, but is not limited to material or data which:

  • Infringes any copyright, trademark, trade secret, or other intellectual property right.
  • Violates export control laws or regulations.
  • Violates any party’s privacy rights.
  • Constitutes use or dissemination of child pornography.
  • Is illegal or unlawful.

Abuse

The following general actions are considered “abuse” and are strictly prohibited:

  • Using the Data Foundry Network to transmit material that Data Foundry believes to be illegal, obscene, or inappropriate.
  • Using the Data Foundry Network to harass, intimidate, threaten, or abuse any person or entity, by any means, including the use of vulgar, hateful, racially or ethnically offensive, sexually harassing, or otherwise objectionable content.
  • Distributing information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, “mailbombing,” or denial of service attacks.
  • Forging of message headers or identity information, or taking any action with the intent of bypassing restrictions or limits on access to a specific service or site. This prohibition does not restrict the legitimate non-commercial use of pseudonymous or anonymous services.
  • Interfering with, disrupting, or harming in any way the Data Foundry Services including the networks, servers, data centers or other Data Foundry Internet access facilities that comprise the Data Foundry Services.

Sending Unsolicited Commercial E-mail

Data Foundry enforces a zero-tolerance policy with regard to the sending of unsolicited commercial e-mail (“UCE” or “Spam“) over the Data Foundry Network. You may not use, nor permit others to use, the Data Foundry Services to transmit UCE. You may not host, nor permit hosting of, sites or information that is advertised by UCE from other networks.

Commercial e-mail may be sent only to recipients who have expressly requested receipt of such e-mails, by the sending of an e-mail request to the person performing the mass or commercial mailings. This exchanging of requests, acknowledgements, and final confirmations (commonly referred to as a “double opt-in” process) must be adhered to in their entirety for any mass or commercial e-mail to be considered “solicited” by Data Foundry.

Users that send mass or commercial e-mail are required to maintain complete and accurate records of all e-mail subscription requests, specifically including the e-mail and associated headers sent by every subscriber, and to immediately provide Data Foundry with such records upon request of Data Foundry. Subscriptions that do not have a specific recipient generated e-mail request associated with them are invalid, and are strictly prohibited.

Transmitting to or through the Data Foundry Network any unsolicited commercial e-mail will result in an immediate suspension or termination of service.

Examples of such spamming that violate the Data Foundry’s Acceptable Use Policy and accompanying Data Foundry’s Anti-Spam policy include:

  • Materially falsifying header information in multiple commercial e-mails to disguise the origin of any content and intentionally initiating the transmission of such e-mails to or through the Data Foundry Network.
  • Transmitting to or through the Data Foundry Network any unsolicited commercial e-mail including, without limitation, promotional materials, junk mail, chain letters, URLs, pyramid schemes, or any other type of unauthorized solicitation that you may e-mail, transmit or otherwise make available.
  • Transmitting to or through the Data Foundry Network any unsolicited commercial e-mail that uses another person’s Internet domain name without the other person’s consent.
  • Relaying to or through the Data Foundry Network unsolicited commercial e-mail from a third party’s mail servers without the permission of that third party.
  • Transmitting to or through the Data Foundry Network any unsolicited commercial e-mail that contains false, deceptive, or misleading information in the subject line of said e-mail.
  • Registering, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names, and intentionally initiates the transmission to or through the Data Foundry Network of multiple unsolicited commercial e-mails from any combination of such accounts or domain names.
  • Falsely representing oneself to be the registrant or the legitimate successor in interest to the registrant of 5 or more Internet Protocol addresses, and intentionally initiates the transmission to or through the Data Foundry Network of multiple unsolicited commercial e-mails from such addresses.
  • Using “robots” and/or harvesting other’s e-mail addresses to or through the Data Foundry Network for purposes of sending unsolicited commercial e-mail.
  • Configuring any e-mail server in such a way that it will accept third party e-mails for forwarding (commonly known as an “open mail relay”). If a site has roaming users who wish to use a common mail server, the mail server must be configured to require some form of user identification and authorization.

When a complaint is received, Data Foundry has the discretion to determine from the evidence whether the e-mail recipients were from an “opt-in” e-mail list.

Upon notification of an alleged violation of Data Foundry’s Spam policy, Data Foundry may initiate an investigation. During the investigation, Data Foundry may restrict a potential violator’s (as determined by Data Foundry, in its sole discretion) access to the Data Foundry Network to prevent further violations. If you are found to be in violation of Data Foundry’s Spam policy, Data Foundry may, at its sole discretion, restrict, suspend or terminate your account. In addition, if it is determined that you have posted spam through the Data Foundry servers, you will be charged a $50 cleanup fee per spam message that you posted. Further, Data Foundry reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Data Foundry will notify law enforcement officials if the violation is believed to be a criminal offense.

Violation of Data Foundry’s Spam policy may be reported to abuse@datafoundry.com.

Security Violations

Network and System Security Violations of the Data Foundry Network security are prohibited, and may result in criminal and civil liability. Data Foundry will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:

  • Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
  • Unauthorized probing and/or scanning of any system without prior consent of the owner or system administrator. This includes, but is not limited to, “dictionary attacks” and/or attempts to harvest or verify e-mail addresses.
  • Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
  • Interference with service to any user, host or network including, without limitation, mail-bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
  • Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.
  • Attempt to gain unauthorized access to, or attempt to interfere with or compromise the normal functioning, operation, or security of any network, system, computing facility, equipment, data, or information.
  • Engage in any activities that may interfere with the ability of others to access or use the Data Foundry Service or the Internet.

USENET Groups (also known as Newsgroups)

Data Foundry reserves the right to not accept postings from newsgroups where Data Foundry has actual knowledge that the content of the newsgroup violates this AUP.

Data Foundry recommends that users not post to any newsgroup until they have familiarized themselves with the subjects, established guidelines, and restrictions of such newsgroups. All USENET guidelines and restrictions are incorporated herein by reference, and users of Data Foundry agree to adhere to such guidelines unconditionally.

Without limitation of the foregoing, it is strictly prohibited to engage in any of the following activities:

  • Spam, including repetitive posting, commercial posts, and promotional posts.
  • “For Sale” Groups, Chain Letters/Pyramid Schemes, Cross posting, Off-Topic Posting, Trolling, and Altered Headers.

Data Foundry will consider the circumstances of the posting, the newsgroup to which it was posted, and the number of complaints received about the posting. In certain cases, we may consider whether there was a malicious intent apparent in the abusive posting. In addition to other factors, our staff will evaluate whether the subject posting is consistent with the kind of service we have chosen to offer to consumers.

When we receive a valid abuse report about a Data Foundry customer, our staff will take immediate action, as we feel necessary to ensure posting of the abusive material will cease. This may include, without waving any other rights Data Foundry may have in accordance with this AUP, suspension of posting on the account where the posts originated, pending investigation of the report.

Intellectual Property & Intellectual Property Violations

All software used in connection with the Data Foundry Services is the property of Data Foundry or its software suppliers and protected by U.S. and international copyright laws. You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit the software used in connection with the Data Foundry Services, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the software used in connection with the Data Foundry Services, except as specifically permitted herein, is strictly prohibited. Data Foundry is a trademark of Data Foundry. Your use of the Data Foundry trademark is strictly prohibited.

Content

Data Foundry does not control the content of data traversing the Data Foundry Network and therefore Data Foundry assumes no responsibility for the content of any data or communication that may be transmitted over the Data Foundry Network.

By posting Content to the Internet through the use of the Data Foundry Services, or by transmitting Content using the Data Foundry Services, you represent and warrant to Data Foundry that you have all necessary permission to post or transmit such Content.

Digital Millennium Copyright Act

The United States Congress enacted the Digital Millennium Copyright Act (“DMCA”) in 1998 to address copyright infringement by electronic means, particularly over the Internet.

Data Foundry has registered an Agent with the U.S. Copyright Office as required under the DMCA. In compliance with the DMCA, please send DMCA notifications of claimed copyright infringements to: dmca@datafoundry.com or by registered mail to:

Data Foundry, Inc.
DMCA Designated Agent
2500 Bee Cave Rd, Bldg 1, Ste 400
Austin, TX 78746

Full notification agent information is on the website of the U.S. Copyright Office, at //www.copyright.gov/onlinesp/agents/d/datafoundry.pdf.

Data Foundry is required by law to remove or block access to customer content upon receipt of a proper notice of copyright infringement. It is also Data Foundry’s policy to terminate the privileges of customers who commit repeat violations of copyright laws. Data Foundry will cooperate fully with any civil or criminal litigation arising from the violation of this policy.

Modifications to AUP

Data Foundry may revise this AUP at any time and you agree to be bound by the revised AUP. Data Foundry does not and will not assume any obligation to notify you of changes to this AUP. Users of the Data Foundry Network are encouraged to review this AUP often for changes or new information. Please send questions, comments, or complaints regarding this AUP to: abuse@datafoundry.com.

Your Security Responsibilities

You are solely responsible for any breaches of security affecting servers under your control. This responsibility includes maintaining the confidentiality of your password and account information. If one of your servers is involved in an attack on another server or system, it will be shut down and an immediate investigation will be launched to determine the cause or source of the attack. In such event, you are responsible for the cost to rectify any damage done to your server and any other server affected by the security breach. You agree to immediately notify Data Foundry of any unauthorized use of your account or any other breach of security known to you. Information and inquiries regarding security matters may be directed to abuse@datafoundry.com or via mail to:

Abuse, Data Foundry, Inc.
2500 Bee Cave Rd, Bldg 1, Ste 400
Austin, TX 78746

Cooperation with Investigations

Data Foundry will cooperate with appropriate law enforcement agencies and other parties involved in investigating claims of illegal or inappropriate activity. Data Foundry reserves the right to disclose customer information to the extent authorized by federal surveillance statutes.

Suspension and Termination of Data Foundry Services

Without waiving any other rights Data Foundry has under law or other agreement with you, Data Foundry reserves the right to suspend or terminate your access to the Data Foundry Services at any time for any material failure by you, your representatives or your users to comply with this and any and all future versions of this AUP. In most circumstances, Data Foundry will attempt to notify you of any activity it deems to be in violation of this AUP and request that you immediately cease the activity. However, in cases where the viability of the Data Foundry Network is threatened or cases involving UCE, mail relaying, alteration of your source IP address information, denial of service attacks, illegal activities (including violations of the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.), CAN-SPAM Act of 2003 (18 U.S.C. § 1037 et seq.), and Section 46.002 of the TEXAS BUSINESS & COMMERCE CODE), harassment or copyright infringement, Data Foundry reserves the right to suspend your access to the Data Foundry Services without notification. Any suspension of your Data Foundry Services shall not be deemed to be a termination of your agreement with Data Foundry or a release of any obligation to pay Data Foundry in accordance with the terms of your agreement with Data Foundry. A termination of your agreement and any release of any obligation to pay Data Foundry for Data Foundry Services set forth in an agreement must be provided to you in writing (but not by electronic mail) by an authorized representative of Data Foundry.

Rev. May 4, 2004