True Holdings, Inc. – Acceptable Use Policy
This AUP is incorporated by reference in your Service Order with True Holdings, Inc. and your services may be suspended or terminated for violation of this AUP in accordance with the Master Services Agreement.
Capitalized terms used in this AUP shall have the meaning given in the Master Services Agreement.
Inquiries regarding this policy should be directed to abuse(AT)trueholdingsinc.com.
You may not use True Holdings, Inc ‘s network or Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:
* 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;
* Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
* Interference with service to any user of the True Holdings, Inc. or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
* Use of an Internet account or computer without the owner’s authorization;
* Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
* Collecting or using information without the consent of the owner of the information;
* Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
* Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
* Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft’s “ad/remove” tool); or
* Any conduct that is likely to result in retaliation against the True Holdings, Inc. network or website, or True Holdings, Inc.’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).
Bulk or Commercial Email
You must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, you must obtain True Holdings, Inc.’s advance approval for any bulk email, which will not be given unless you are able to demonstrate all of the following to True Holdings, Inc.’s reasonable satisfaction:
* Your intended recipients have given their consent to receive email from you via some affirmative means, such as an opt-in procedure;
* Your procedures for seeking consent include reasonable means to ensure that the person giving consent is the owner of the email address for which consent is given;
* You retain evidence of each recipient’s consent in a form that can be promptly produced on request, and you honor recipient’s and True Holdings, Inc.’s requests to produce consent evidence within 72 hours of receipt of the request.
* You have procedures in place that allow a recipient to revoke their consent – such as a link in the body of the email, or instructions to reply with the word “Remove” in the subject line; you honor revocations of consent within 48 hours, and you notify recipients that the revocation of their consent will be implemented in 48 hours;
* You must post an email address for complaints (such as email@example.com) in a conspicuous place on any website associated with the email, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
* You have the means to track anonymous complaints;
* You may not obscure the source of your email in any manner. Your email must include the recipients email address in the body of the message or in the “TO” line of the email.; and
* You must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days.
These policies apply to messages sent using your True Holdings, Inc. service, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site or an email address hosted via your True Holdings, Inc. service. In addition, you may not use a third party email service that does not practice similar procedures for all its customers. These requirements apply to distribution lists prepared by third parties to the same extent as if the list were created by you.
True Holdings, Inc. may test and otherwise monitor your compliance with its requirements, and may block the transmission of email that violates these provisions.
You may not attempt to probe, scan, penetrate or test the vulnerability of a True Holdings, Inc. system or network or to breach True Holdings, Inc.’s security or authentication measures, whether by passive or intrusive techniques, without True Holdings, Inc.’s express 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 True Holdings, Inc. services.
You may not publish or transmit via True Holdings, Inc.’s network and equipment any content or links to any content that True Holdings, Inc. reasonably believes:
* Constitutes, fosters, or promotes child pornography or bestiality;
* is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
* is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
* is defamatory or violates a person’s privacy;
* creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
* improperly exposes trade secrets or other confidential or proprietary information of another person;
* is intended to assist others in defeating technical copyright protections;
* infringes on another person’s copyright, trade or service mark, patent, or other property right;
* promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
* is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to True Holdings, Inc.; or
* is otherwise malicious, fraudulent, or may result in retaliation against True Holdings, Inc. by offended viewers.
Content “published or transmitted” via True Holdings, Inc.’s network or equipment includes Web content, email, bulletin board postings, chat, and any other type of posting or transmission that relies on the Internet.
You may not use True Holdings, Inc.’s network or equipment to download, publish, distribute, or otherwise copy in any manner any text, music, software, art, image, or other work protected by copyright law unless:
* you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner;
* you are otherwise permitted by established United States copyright law to copy the work in that manner.
True Holdings, Inc. may terminate the service of copyright infringers.
* You must have valid and current information on file with your domain name registrar for any domain hosted on the True Holdings, Inc. network.
* You may only use IP addresses assigned to you by True Holdings, Inc. in connection with your True Holdings, Inc. services.
* You agree that if the True Holdings, Inc. IP numbers assigned to your account are listed on Spamhaus, Spews, NJABL or other abuse databases, you will be in violation of this AUP, and True Holdings, Inc. may take reasonable action to protect its IP numbers, including suspension and/or termination of your service, regardless of whether the IP numbers were listed as a result of your actions.
Consequences of Violation of AUP
True Holdings, Inc. may charge you its hourly rate for AUP breach recovery (currently $500.00) plus the cost of equipment and material needed to (i) investigate or otherwise respond to any suspected violation of this AUP, (ii) remedy any harm caused to True Holdings, Inc. or any of its customers by the violation of this AUP, (iii) respond to complaints, including complaints under the Digital Millennium Copyright Act, (iv) respond to subpoenas and other third party requests for information as described in the Master Services Agreement, and (v) have True Holdings, Inc.’s Internet Protocol numbers removed from any abuse database. No credit will be available under your True Holdings, Inc. Service Level Agreement for interruptions of service resulting from AUP violations.
(i) to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Master Services Agreement,
(ii) to law enforcement or government agency if requested, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law;
(iii) as required by law; or
(iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
You agree that we may publicly disclose that we are providing services to you and may include your name in promotional materials including press releases and on the True Holdings, Inc. Web site. Neither of us may publicly use the other party’s logo or other trade or service mark without permission.
- LIMITATION ON DAMAGES
17.1 We are not liable to you for failing to provide the IT Hosting Service unless such failure results from a breach of the deployment guaranty stated in the Service Order Form, a breach of the Service Level Agreement, or results from our gross negligence, willful misconduct, or intentional breach of the Agreement. The dollar credits stated in the Service Order Form and Service Level Agreement are your sole and exclusive remedy for our failure to meet those guaranties for which dollar credits are provided unless such failure is due to True Holdings, Inc.’s willful misconduct. Termination of the Agreement is your sole and exclusive remedy for our failure to meet The Fanatical Support Promise.
17.2 Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
17.3 We are not liable to you for lost data unless and to the extent you purchase data back up services from True Holdings, Inc. and we fail to provide the back up services as agreed. You release True Holdings, Inc. from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a back up.
17.4 Notwithstanding anything in the Agreement to the contrary, except for claims based on our willful misconduct, the maximum aggregate monetary liability of True Holdings, Inc. and any of its employees, agent, suppliers, or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed six times the monthly recurring fee payable under the Service Order(s) in effect for the configuration at the time of the occurrence of the event(s) giving rise to the claim.
18.1 If you, your affiliates, or any of your or their respective employees, agents, or suppliers, is faced with: (i) a legal claim by a third party arising out of True Holdings, Inc.’s actual or alleged gross negligence, willful misconduct, violation of law, or failure to meet the security obligations required by the Agreement, or (ii) a legal claim by a third party alleging that the IT Hosting Service infringes on the United States patent or copyright of a third person, then, subject to the limitations stated in Section 17 above, True Holdings, Inc. will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on you as a result of the claim.
18.2 If we, our affiliates, or any or our or their respective employees, agents, or suppliers is faced with a legal claim by a third party arising out of your actual or alleged: gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, violation of your agreement with your customers or ends users, violation of Section 9 (Export Matters) of this Master Services Agreement, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on True Holdings, Inc. as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you.
18.3 You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
18.4 If either of us receives notice of a claim that is covered by this Section, the notice must be promptly forwarded to the financially responsible party. The party against whom the claim is made will be allowed to choose legal counsel to defend it and to make decisions regarding the defense of the claim, provided that these decisions are reasonable and are promptly communicated to the financially responsible party. The party against whom the claim is made may not settle the claim without the consent of the financially responsible party, although such consent may not be unreasonably withheld. Notwithstanding anything to the contrary in this Section, if we are financially responsible under this Section for claims against multiple customers, we may elect to choose counsel to defend the claims and control the defense of the claims. Amounts due under this Section must be paid by the financially responsible party as they are incurred by the party against whom the claim is made.
You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten days advance written notice to us. In addition to the terms of our Agreement, your use of any Microsoft® software is governed by Microsoft’s license terms. If you resell any part of the IT Hosting Service that includes Microsoft software then you must include these Microsoft terms in a written agreement with your customers.
- OTHER PEOPLE’S PRODUCTS AND SERVICES
We may from time to time arrange for you to purchase or license third party software, services or other products that are not included as part of the IT Hosting Service, either as part of the Integrated Solution Partner Program or other Supplemental Service. True Holdings, Inc. MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND AS BETWEEN YOU AND True Holdings, Inc., SUCH SERVICES ARE PROVIDED “AS IS.” Your use of any third party software, services, and other products is governed by the terms of your agreement with the third party.
- WHO MAY USE THE SERVICE
You may resell the IT Hosting Service and you may permit your subsidiaries and affiliated companies to use the Services if you wish, but you are responsible for use of the Service by any third party to the same extent as if you were using the Service yourself. True Holdings, Inc. will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
Your routine communications regarding the Services should be sent to your True Holdings, Inc. account team using the True Holdings, Inc. portal. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first class United States mail to:
True Holdings, Inc.’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier, except that True Holdings, Inc. may give notice of an amendment to the AUP by posting the notice on your True Holdings, Inc. portal. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to your True Holdings, Inc. portal after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
- OWNERSHIP OF INTELLECTUAL PROPERTY
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by True Holdings, Inc. during the performance of the Services shall belong to True Holdings, Inc. unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
- OWNERSHIP OF OTHER PROPERTY
You do not acquire any ownership interest in or right to possess the servers or other hardware we provide for your use, and you have no right of physical access to the hardware. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your True Holdings, Inc. servers or other devices. On termination of the Agreement you must promptly release any Internet protocol numbers, addresses or address blocks assigned to you in connection with the Service (but not any URL or top level domain or domain name) and agree that we may take steps to change or remove any such IP addresses.
- INTELLECTUAL PROPERTY INFRINGEMENT
If True Holdings, Inc. or any of its customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and True Holdings, Inc. is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then True Holdings, Inc. may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
You may not assign the Agreement without True Holdings, Inc.’s prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business.
- FORCE MAJEURE
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
- GOVERNING LAW, LAWSUITS
The Agreement is governed by the laws of the State of Georgia, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Barrow County, Georgia. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against True Holdings, Inc. or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
- SOME AGREEMENT MECHANICS
If you sign multiple Service Orders for a single configuration – for example, to add a server or additional services, then the Master Services Agreement, Service Level Agreement, and Acceptable Use Policy referenced in the last signed Service Order will govern the entire configuration.
Except for amendment to the AUP as described in Section 10 above, the Master Services Agreement, Acceptable Use Policy and Service Level Agreement may be amended only by a formal written agreement signed by both parties.
A Service Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail or the True Holdings, Inc. ticketing system, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies services in connection with a configuration established by a Service Order shall be deemed to be an amendment to that Service Order, notwithstanding the fact that the correspondence does not expressly refer to the Service Order.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Service Order, the Service Level Agreement, any addendum to the Master Services Agreement, the Master Services Agreement, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” Sections 8, 14, 15, 17, 18, and 28, and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which taken together will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
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