TOS-Acceptable Use Policy
I. Purpose
The purpose of this policy is to outline the acceptable use of web hosting, dedicated servers, and network connectivity and services provided by 4th Mind Communication Technologies, also known as 4th Mind Presence Development Group (both herein "4th Mind"). These rules are in place to protect 4th Mind and its customers. Inappropriate use exposes 4th Mind, and thereby also other 4th Mind customers, to risks including virus attacks, compromise of network systems and services, and legal issues.
II. Unacceptable Use
The following activities are, in general, prohibited. Under no circumstances is the customer authorized to engage in any activity that is illegal under local, state, federal or international law while utilizing 4th Mind-owned or leased resources, including but not limited to 4th Mind's servers, customer's leased services and any other service or application on 4th Mind's network.
4th Mind will be the sole arbiter as to what constitutes unacceptable use. If in doubt, please contact 4th Mind before proceeding.
The following activities are strictly prohibited, with no exceptions:
Violations of the rights of any person or company 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 the customer.
Unauthorized copying of copyrighted material including, but not limited to, digitization and distribution of photographs from magazines, books or other copyrighted sources, copyrighted music, and the installation of any copyrighted software for which the customer or the end user does not have an active license or right to use is strictly prohibited.
Exporting software, technical information, encryption software or technology, or any portion thereof in violation of international or regional export control laws, is illegal.
By law, 4th Mind is required to respond immediately to any and all such violations, and to block access to customer content and/or material on receipt of an official notice of violation. For more information on the Digital Millennium Copyright Act (DCMA), read the following document: http://lcweb.loc.gov/copyright/legislation/dmca.pdf . Common instances of violation, which the violator may or may not be aware of at time of violation, include unauthorized use of pictures, audio, framing another's web site inside your own without prior permission, and using another's trademark without their permission to promote products and/or services.
When we receive proper notice that your web site infringes the copyrights of another, we have a legal obligation, per Title 17 United States Code, Section 512, to "respond expeditiously to take the material down or block access to it." The procedure we follow, given our reading the DMCA [Title 17 United States Code, Section 512(c)(3)], is as follows:
1. If we receive "proper notification" of an infringing web site, we send an email notice to both our customer and the individual or organization issuing the "proper notification" (hereinafter "Complaining Party"), then we deactivate the web site"expeditiously." (See below regarding what "deactivate" means and note that neither the courts nor the DMCA have specifically defined what "expeditiously" means).
2. If we receive "notification," but it is not proper (i.e. more than technical errors contained within the notice), we will use our best judgment to ascertain whether the web site does indeed infringe on the copyrights asserted in the notification. If we deem the web site to infringe, we follow the activities in Step 1 above. If we cannot validate infringing activity, we will not "deactivate" the web site, but instead send an email notice to both Customer and the Complaining Party with a statement that we opted to not "deactivate" the web site because notice was not proper, and we could not determine copyright infringement; and we then request either "proper notification" or a court order.
3. If we do "deactivate" your web site because of "proper notification" (not court order), our customers have two options: (a) refute the claim, or (b) remove the alleged infringing material.
* Refuting the Claim. You may submit a "proper counter notification" (see below) to us indicating that "the material was removed or disabled through mistake or misidentification." We MUST reactive your web site when we receive such a proper counter notification, in not less than 10 business days and not more than 14 business days. When we receive proper counter notification from you, we do not validate your notice or any claims, although we are required by the DMCA to forward your counter notification to the Complaining Party.
* Removing the Alleged Infringing Material. You have the option of removing the infringing material and petitioning us to reactivate your account. To do so, you must submit an affidavit with us, specifically indicating that "under penalty of perjury that you have a good faith belief that all material alleged to infringe was removed or disabled from your web site" This affidavit must contain all the components indicated in "proper counter notification," except item #3 (see below). When we receive this affidavit, we will review and forward to the Complaining Party. We may, or may not, reactivate the web site at this time; although we will act as a conduit of communications between you and the Complaining Party until a resolution is achieved. Alternatively, you have the option submitting a "proper counter notification" (see "Refuting the Claim" above) once you feel your web site does not contain infringing material.
3. When you file a "proper counter notification" with us, the Complaining Party has the option of obtaining a court order to prevent activation of your web site If this happens, we will comply with the court order and notify you.
4. Proper Notice of Copyright Infringement: [Title 17 United States Code, Section 512(c)(3)(A)]. For "proper notice," we require (1) a physical or electronic signature of copyright holder or authorization to act on behalf the copyright holder; (2) Identification of the copyright work alleged to be infringed on the web site; (3) Identification of the material that is infringing or the subject of infringing activity; (4) Information necessary for us to contact the Complaining Party; (5) A statement that the Complaining Party has a good-faith belief that material alleged to be infringing is not authorized by the copyright holder; and (6) A statement that "the information in the notification is accurate and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
5. Proper Counter Notification: [Title 17 United States Code, Section 512(g)(3)]. For "proper counter notification," we require (1) Your physical or electronic signature; (2) Identification of the material which has been removed, disabled or deactivated; (3) A statement "under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;" and (4) Your name, address, telephone number and a statement that you "consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for the United States District Court, District of New Mexico and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person."
6. Deactivation: Deactivation does not necessarily mean deletion. Unless under court order, or if we judge your web site content to contain prohibited content, we will not delete your web site content when deactivated as a result of our receiving "proper notification" of copyright infringement. Your web site content will remain on our servers for as long as your account remains in good standing with us.
7. Repeat DMCA Violations: It is our policy to terminate the privileges of customers who commit repeat violations of copyright laws.
Send notices of copyright infringements to our Copyright Agent:
David Colwell
4th Mind
1 Overlook Terrace
Saugus, MA 01906
Trademark Infringement is any use of a trademark, service mark, trade dress or other identifying mark, word, phrase, color, picture or layout that could lead to a likelihood of confusion between you and the legitimate holder of a valid trade or service mark. For the purposes of this AUP, a "valid trade or service mark" is defined as another entity that either has a registered mark in a WTO signatory country ( http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm ), or can prove prior use. There are relatively few "safe harbor" provisions or exceptions in United States Trademark law that limit our liability to a Customer's infringing activity of a trademark. Therefore, we take notices of alleged trademark infringement seriously, and with few exceptions, will require Customers to quickly comply. There are fair use exceptions to trademark protections. We will allow Customer to use another's trademark in fair use situations, but we apply a rather restrictive view on the meaning of fair use. If there is any possibility of a likelihood of confusion as to the originator of the offerings (product, service or information) on your web site, we will side with the complaining party.
Alleged Trademark Infringement Procedure
When our Company receives notice of alleged trademark infringement activity, we will act as follows:
1. Submit a notice to the Customer.
2. If we believe there is any merit to the notice, we will give the Customer a predetermined amount of time (usually 48 hours) to take corrective action or provide unequivocal proof of either (a) permission to use trademark, or (b) that the Customer's use of trademark is superior to complaining party.
3. If the Customer fails to take corrective action, or fails to respond with unequivocal proof as required above, we will deactivate the account.
Any and all content or material of an "adult" or sexual nature (with exception of educational material which must be approved in advance by 4th Mind), and any slanderous, racist, or discriminatory content or material is strictly prohibited.
Storing or Distributing or Encouraging Pornography, or Obscene Speech or Materials by using our computer network or systems to advertise, transmit, store, post, display or otherwise make available pornography or obscene speech or material is prohibited. All material on our network and servers must comply with United States laws. Furthermore, all material placed on our network and servers by our customers must be legal in their own jurisdiction. Though not illegal, 4th Mind does not support pornography of any kind, and does not allow such on our servers or networks. For child pornography, we immediately notify law enforcement agencies when we become aware of the presence of child pornography on or being transmitted through our network.
Harassment is the act or intention of intimidating, frightening, threatening or otherwise harassing others, using company servers, networks, or other company services or infrastructure. Harassment can be the result of language of correspondence, or the frequency or size of messages. A single unwelcome message, whether email, fax, or phone, can be considered harassment. Additional messages sent to a recipient who has previously requested a sender stop sending such, or similar, or any messages can also be construed as harassment.
Defamatory or Abusive Language by using our network as a means to distribute, transmit, facilitate or post defamatory, harassing, abusive or threatening language or anything that a reasonable person would regard as hate speech or literature. This includes language or other activity that clearly prejudices, creates a hostile bias, or grossly defames any class of individuals. This policy includes links placed in web sites to other materials and sites containing this type of information. 4th Mind will be the sole arbiter in determining violations of this provision and reserves the right to take immediate action up to and including disabling your account upon receiving notice that your account contains this information.
C. Spamming
The act of sending, supporting, assisting, commissioning, or otherwise being involved in the sending of, unsolicited messages over the internet to others. This includes, but is not limited to, unsolicited or non-permission bulk mailing of advertisements of any kind, chain letters, charity requests, petitions for signatures, political or religious material, or announcements. Spamming puts unnecessary overload on our servers and networks, violates our terms of service with "Upstream Providers", and can encourage a negative perception of 4th Mind within our industry, which in turn, negatively affects our ability to negotiate favorable terms for services we extend to you, our client. Spamming includes, but is not limited to , any means of Internet-based transmissions such as email, newsgroup, Internet Fax, or IP Voice communication. It is a violation of this AUP to commission spamming by a third party, even if that third-party does not use 4th Mind systems, networks, or services, if the spam message contains any reference, message, or link to a web site or service hosted by us or otherwise within our network.
Forging Headers:
Forging Headers refers to the act of modifying, removing, or otherwise misrepresenting email headers, whether in part or in whole, in order to hide the originator of the email. As with spam, forging headers is harmful to our servers and compromises our reputation.
Spamming Newsgroups:
Sending, or Commissioning the sending of commercial advertisements or other messages to one or more off-topic newsgroups is commonly not allowed by most Usenet discussion groups, and by most electronic discussion lists (mailing lists). If you are not sure about a posting you wish to submit to a Usenet group, please refer to that newsgroup's or mailing lists's charger to discern whether your submission might be allowed.
Introduction of malicious programs into the network or server (e.g., viruses, worms, Trojan horses, e-mail bombs, etc.).
Revealing your account password to others or allowing use of your account by others that are not a direct member of your company. This includes family and other household members or visitors when accessing your 4th Mind hosting services, dedicated servers, or any other 4th Mind resource while at home or otherwise.
Using a 4th Mind computing asset to actively engage in procuring or transmitting material that is in violation of sexual harassment, discriminatory, or hostile workplace laws in the user's local jurisdiction.
Making fraudulent offers of products, items, or services originating from any 4th Mind's server or network.
Causing or assisting, in any way, shape, or form, security breaches or disruptions of network communication. 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. For purposes of this section, "disruption" includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes.
Port scanning or security scanning is expressly prohibited unless prior notification to 4th Mind is made and accepted.
Executing any form of network monitoring which will intercept data not intended for the customer's account/host.
Circumventing user authentication or security of any host, network or account.
Interfering with or denying service to any user other than the customer's account/host (for example, denial of service attack).
Using any program, script, or command, or sending messages of any kind, with the intent to interfere with, or disable, a user's terminal session, via any means, locally or via the Internet.
Running any IRC related scripts or programs, including but not limited to eggdrop, bnc, ircdaemon and irc bot.
Running any process / daemon / service in the background on 4th Mind's shared server without prior 4th Mind's approval.
On 4th Mind's shared server, running CGI or server-side scripts or programs, intentionally or otherwise using excessive amount of system resources or causing degradation of server performance. Any such process will be terminated without prior warning.
Attempting to circumvent security measures on 4th Mind systems or networks in order to acquire capabilities or services not included in your purchased package or plan.
E. Facilitating a Violation of this AUP
Facilitating a violation of this AUP by advertising, transmitting, or otherwise
making available any software, program, product, service or information that
is designed to violate, or assist in the violation of this AUP. This includes
the facilitation of the means to spam, initiation of pinging, flooding, mail
bombing, denial of service attacks, piracy of software, or other means or
mechanisms that interrupt another's use of the Internet or another's property.
F. Unauthorized Reselling or Providing Access to Account Services such as offering email services and accompanying features for use by individuals outside of the required use on your own account; the reselling of CGI scripts installed on the Companies servers; or providing access codes to individuals not authorized to receive such materials as necessary for the running of your web site or account.
G. Excessive CPU, Bandwidth or Disk Space Usage has the ability to compromise our shared hosting environment. This is the result of using the system in a manner that encumbers disk space, processors or other system resources beyond the allowances of your specific plan type and to the degree that your usage compromises the hosting accounts of our other customers.
H. Other Illegal Activities where the transmission or storage of any information, data or material is in violation of United States Federal or State regulations. Engaging in activities that are determined to be illegal, including advertising, transmitting or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging or collecting credit cards or information and pirating software. Activities may be deemed illegal according to the laws and jurisdictions of where the activity is generated, as well as according to the jurisdiction of where the activity is directed.
I. Other Activities or Information , lawful or unlawful, that we deem harmful, offensive, controversial, infamous or other to either the Company, its customers, or third-parties, such that we reasonably believe our customers, operations, reputation, goodwill or general customer relations could potentially be negatively impacted.
Responsibility of avoiding the above harmful activities rests solely on you, our Customer. We do not, and will not, monitor web site content or communications of our customers. However, if we learn of a violation of our AUP, we will respond accordingly and at our sole discretion. The type of action taken will depend on the severity and duration of the violation, as well as perceived breadth and severity of the harm to us, or others. When we become aware of an alleged violation of our AUP, we will (as quickly as practical) investigate the claim and determine the course of action necessary to remedy the problem. No credits will be issued for down time incurred if the account is suspended (i.e. "deactivated") or deleted due to what we perceive as a violation of this AUP, whether or not it is later proven that any AUP violation existed.
One or more of the following responses may occur:
* A warning is issued to the account holder.
* A request is issued to remove offending content.
* The hosting account is suspended (i.e. "deactivated").
* A monetary deposit is requested as assurance against future behavior (i.e. "security deposit").
* The hosting account is deleted, such that all information is permanently and irretrievably removed from our servers, potentially without your knowledge or notice.
* Action is taken in accordance with our AUP, Service Agreement, or applicable law.
* In certain egregious circumstances, we may notify the proper legal authorities.
Miscellaneous
Monitoring - We will not intentionally monitor private email messages sent or received by our customers, unless required to do so by law or court order. However, we reserve the right to monitor our servers and equipment, which may include your data and information, to ensure that our systems are operating optimally.
Disclosure of Private Information - We will not disclose private customer information unless compelled by law or court order.
Practicality / Timeliness - We will react to notices regarding violations as quickly as practical, given our judgment as to the potential harm and consequences of the alleged violation.
Proof - In instances where alleged AUP violations by our customers have not been substantiated by the notice sent to our Company and the accuracy of the notice cannot be substantiated by us after a review of the facts, we reserve the right to use our best judgment on who bears the burden of proof for or against the alleged AUP violation. In such cases, we generally place the burden of proving the AUP violation on the complaining party. However, there are some instances where we may place the burden of proving an AUP violation did not occur on our customer - these instances will usually involve what we view as a protected class (i.e. potential harm to minors).
Jurisdiction - We always apply the laws of the United States and the State of Massachusetts to any legal analysis by our Company. We may also apply the laws of other jurisdictions to a particular web site or issue. Customers must submit to personal jurisdiction in Massachusetts, and agree to file all legal claims in the County of Essex. In addition, Customers are required to comply with U.S. Export Control Laws regardless of where they may reside. Customers may not export items prohibited by the Department of Commerce Commodity Control List at http://w3.access.gpo.gov/bis/ear/ear_data.html . This agreement shall be governed in all respects by Massachusetts law without regard to the conflict of law provisions thereof.
We hope that this AUP is helpful in clarifying the obligations of our customers and their subscribers, as responsible users of the Internet, and our expectations as to conduct.