INTRODUCTION

Hibernia Networks provides a variety of services (the “Services”). Hibernia Networks has formulated this Acceptable Use Policy (“AUP”) in order to ensure the appropriate use of the Services and its network and facilities (the “Infrastructure”) by its Customers, its Customers’ customers, and any other parties who use or access the Services or the Infrastructure (collectively, the “Users”).  All Users must comply with this AUP.  Customers are responsible for violations of this AUP by any User who accesses the Services through its account which includes, without limitation, a User to whom Customer provides services as a reseller of Services, and Customer shall indemnify Hibernia Networks against any and all damages that may arise from a violation of this AUP by Customer or its Users. All terms used in this AUP and not defined herein have the meanings set forth in the Hibernia Networks Master Services Agreement (“MSA”), to which the AUP forms an integral part.

RIGHTS OF HIBERNIA NETWORKS

Hibernia Networks reserves the right to change this AUP at any time and from time to time and will notify Users by posting a revised copy of the AUP on Hibernia Networks’ website.  By using or accessing a Service or Infrastructure, Users agree to be bound by the terms and conditions of this AUP. Any indirect or attempted violation of this policy by or on behalf of a User, and any actual or attempted violation by a third party on behalf of a User, shall be considered a violation of this AUP by the Customer and the Customer shall be held directly accountable therefore.

PROHIBITED USES

Users shall not use the Services or Infrastructure to transmit, distribute or store material: (a) in violation of any applicable foreign or domestic law, rule, regulation, or judicial order; (b) that violates the terms of this AUP, the terms of any applicable agreement with Hibernia Networks, or any other Hibernia Networks policy applicable through the MSA; (c) that interferes with, or adversely affects, the Services or Infrastructure or use of the Services or Infrastructure by other Hibernia Networks customers; or (d) that may expose Hibernia Networks to criminal or civil liability. Users shall cooperate with Hibernia Networks in investigating and correcting any apparent breach of this AUP. Because the Internet is an inherently open and insecure means of communication, any data or information a User transmits over the Internet may be susceptible to interception and alteration. Hibernia Networks makes no guarantee regarding, and assumes no liability for, the security and integrity of any data or information a User transmits via a Service or over the Infrastructure or the Internet, including any data or information transmitted over any server designated as “secure.” Users are solely responsible for any material that they store, maintain, transmit, download, view, post, distribute or otherwise access or make available using a Hibernia Service, the Infrastructure or the Internet. This AUP is not intended to constitute an exhaustive list of prohibited activities and should not be interpreted as such.  In particular, but without limiting the more general prohibitions set forth in this AUP, Users shall not use the Services or Infrastructure, or assist anyone else, to:

  1. Transmit, distribute or store information or material that, as reasonably determined by Hibernia Networks,
    1. is obscene (including child pornography), defamatory, threatening, abusive, advocating violence or which violates a law, regulation or public policy;
    2. is harmful to, or interferes with, Hibernia Networks’ provision of Services, the Infrastructure, or any third party’s networks, equipment, applications, services, or web sites (e.g., viruses, worms, Trojan horses, etc.);
    3. would infringe, dilute, misappropriate, or otherwise violate any privacy, intellectual property, publicity or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets or other proprietary information (including unauthorized use of domain names);
    4. is fraudulent or contains false, deceptive, or misleading statements, claims, or representations (such as “phishing”);
    5. consists of the unauthorized transmission of any material that might violate export control laws or other regulations;
    6. misrepresents or forges message headers to mask the originator of an email message; or
    7. violates generally accepted standards of Internet usage.
  2. Attempt to gain unauthorized access to, or attempt to interfere with or compromise, the normal functioning, operation or security of the Infrastructure. A User may not use the Service to engage in any activities that may interfere with the ability of others to access or use the Service, the Infrastructure or the Internet. A User may not use the Service to monitor any data, information or communications on any network or system without authorization. A User may not attempt to gain unauthorized access to the accounts or passwords of other Users or other Customers of Hibernia Networks.
  3. Attempt to disrupt, degrade, impair or violate the integrity or security of the Services or Infrastructure or the computers, services, accounts, or networks of any other party (e.g., “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing, or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of Hibernia Networks IP space.
  4. Avoid incurring charges or otherwise being required to pay for Services.
  5. Transmit unsolicited bulk e-mail messages (“Spam”); having third parties send out Spam on any User’s behalf; receiving replies from unsolicited emails (commonly referred to as “drop-box” accounts) or configuring any email server in such a way that it will accept third party emails for forwarding (e.g., “open mail relay”). Bulk email may only be sent to recipients who have expressly requested receipt of such e-mail messages via a “verified opt-in” process, which must be adhered to in its entirety for any bulk email to be considered “solicited” by Hibernia Networks.
  6. Send bulk email without maintaining complete and accurate records of all e-mail subscription requests (verified opt-ins), specifically including the email and associated headers sent by every subscriber, and to immediately provide Hibernia Networks with such records upon request of Hibernia Networks. If a site has roaming users who wish to use a common mail server, the mail server must be configured to require user identification and authorization. Users are also prohibited from using the service of another provider to send Spam in order to promote a site hosted on, or connected to, the Services or Infrastructure, and Users shall not use the Services or Infrastructure in order to (a) send e-mail messages that are excessive and/or intended to harass or annoy others, (b) continue to send e-mail messages to a recipient that has indicated that he/she does not wish to receive them, (c) send e-mail with forged TCP/IP packet header information, or (d) send malicious e-mail, including, without limitation, “mailbombing”.
  7. Intentionally or negligently injecting false data into the Internet, for instance in the form of bad routing information (including but not limited to the announcing of networks owned by someone else or reserved by the Internet Assigned Numbers Authority) or incorrect DNS information.
  8. Attempt to send e-mail messages or transmit any electronic communications using a name or address of someone other than the User for purposes of deception. Any attempt to impersonate someone else by altering source IP address information or by using forged headers or other identifying information is prohibited. Any attempt to fraudulently conceal, forge or otherwise falsify a User’s identity in connection with use of the Service is also prohibited.
  9. Violate any charters, policies, rules or agreements promulgated by any search engines, subscription Web services, chat areas, bulletin boards, Web pages, USENET, or other services accessed via the Services or Infrastructure (“Usenet Rules”), including, without limitation, any cross postings to unrelated news groups, continued posting of off-topic messages, and disrupting newsgroups with materials, postings, or activities that are inappropriate (as determined by Hibernia Networks in its sole discretion), unless such materials or activities are expressly allowed or encouraged under the Usenet Rules.
  10. Use the Service in excess of the limitations that are specified for the Service.
  11. Violate the applicable acceptable use policies of other Internet Service Providers when data, content, or other communications are carried across the networks of such Internet Service Providers.

REPORTING AUP VIOLATIONS AND HIBERNIA NETWORKS RIGHTS AND REMEDIES

It is the Customer’s responsibility to immediately take action to prevent any known or suspected AUP violation and immediately report any such violation to Hibernia Networks.

Hibernia Networks has no responsibility for any material or information created, stored, maintained, transmitted or accessible on or through the Services or Infrastructure and is not obligated to monitor or exercise any editorial control over such material.  Hibernia Networks further reserves the right to cooperate with appropriate law enforcement agencies and other parties involved in investigating any claims of illegal or inappropriate activity.  Hibernia Networks reserves the right to disclose Customer information to the extent authorized by foreign, federal or state law.  In instances involving child pornography, Hibernia Networks complies with all applicable foreign, federal and state laws including providing notice to the National Center for the Missing and Exploited Children or other designated agencies in the U.S.   Hibernia Networks also reserves the right to implement technical mechanisms to prevent AUP violations.

Customer’s failure to comply with this AUP or failure to prevent its Users from violating this AUP shall constitute a violation (“Violation”), as determined in Hibernia Networks’ sole discretion, with each such failure constituting a separate Violation.  In the event of a Violation, Hibernia Networks may, in its sole and absolute discretion, take any or all of the following actions: (i)Warning – Hibernia Networks may issue an email or written warning notifying the Customer of the Violation and the corrective action that must be taken (a warning may also provide that Hibernia Networks will block access to, suspend or terminate all or part of a Customer’s Service in the event of any additional Violation; (ii) Suspension – Hibernia Networks may block, suspend, with or without warning, all or part of a Customer’s Service and may condition restoration of such Service upon Customer implementing corrective action; (iii) Termination – Hibernia Networks may, with or without warning, and with or without prior suspension, terminate all or part of Customer’s Service and may terminate the Customer’s MSA and associated service orders with Hibernia Networks.

Nothing in this AUP shall limit in any way Hibernia Networks’ rights and remedies at law or in equity that may otherwise be available.

DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)

In accordance with all applicable laws, Hibernia Networks respects the intellectual property rights of its Customers, suppliers, partners, end users and third parties. Without limiting Hibernia Networks’ rights and remedies, Hibernia Networks complies with all aspects of the Digital Millennium Copyright Act (42 USC 512) (“DMCA”) and maintains and enforces a policy whereby it will terminate services to any User guilty of repeat infringement.