BestPresence Email Acceptable Use Policy (AUP) or Spam Policy

We strongly urge all our customers and potential customers to carefully review this page in its entirety. If any item in this posting is unclear, contact info@bestpresence.com. Ignorance of the provisions outlined below shall not be accepted as a mitigating circumstance.

Regrettably few people realize the full extent of the consequences of sending unsolicited bulk emails (UBE) or better known as spam. Not only does sending spam cause much damage and service interruptions to us and our customers, it also exposes the spammer to a host of legal liabilities, resulting in huge fines and penalties, and even imprisonment. We must emphasize and remind anyone not to send any unsolicited messages, especially as the definition of what is considered spam is becoming broader day by day.

BestPresence has explicit policies regarding sending Unsolicited Commerce Email (UCE), Unsolicited Bulk Email (UBE) or commonly better known as spam. These policies are clearly expressed in both the service agreement and at http://www.bestpresence.com/htmls/policy.html. Nothwithstanding these explicit prohibitions, a few customers still choose to disregard these policies, thereby endangering our own and our customers' ability to conduct business on the web.

We have therefore adopted a zero tolerance policy. To ensure that there are no misunderstandings, we will once more clarify our position, defining what is not permitted, outlining the response we will take when our policy is violated and highlight some of the potential legal exposure that that anyone who engages in spamming may have:

• Do not send out any Unsolicited Commercial Email (UCE, also known as spam). We do not want to conduct business with anyone who does unsolicited bulk mailings.
• Spam-tising your website, i.e. sending out unsolicited bulk email promoting your site at BestPresence but using another ISP's servers to transmit these messages is absolutely prohibited. These prohibitions also encompass newsgroups and public mailing lists and bulletin boards. Do not flood newsgroups or public mailing lists. Even bulk emails with "opt-out" instructions (e.g. those conforming to Section 301, Paragraph (a)(2)(C) of S.1618) are not permitted.
• You will be held liable for such infringment even if the spamming action was done by a third party for your benefit. I.e. if your advertising agency or one of your employees does the spamming, you would still be held responsible. If a sublessee of your site spams, accountability still remains with you.

In short, any kind of mass emailing is prohibited except in those cases where the recipient is a current, active customer of yours (i.e. purchased in the past 12 months) or has signed up on an opt-in email list. You will need to be able to present irrefutable proof of the foregoing if a recipient challenges you on this.

Failure to observe the above mentioned restrictions will result in

• an immediate suspension and subsequent deletion of the hosting account, with full forfeiture of all setup and remaining hosting fees.
• recovery of all costs incurred by BestPresence to undo any disruptions caused by the transmission of the UCE. Currently, State of California statutes allow us to recover USD 50 per individual message sent, up to a maximum of USD 25,000 daily, plus legal costs.
• our submission of the the spammer's domain name(s) to all anti-spam blocking databases, making the domain virtually unuseable even when the spammer transfers to another provider.

As mentioned above, by sending UCE's a spammer exposes himself to the following legal liabilities: (this is only a sample listing)

• In California, the recovery penalties as prescribed above, i.e. USD 50 per individual message sent up to a maximum of USD 25,000 daily, plus legal costs. Furthermore, the State of California criminalized the use of forged headers with penalties up to 1 year in prison and a $5000 fine. Note that the California statute applies to any message that is routed through network facilities located in the state, whether or not the spam originated in California. It also applies if the site being promoted is hosted on a server in California. So, this includes all BestPresence hosted sites.
• In the State of Washington, every individual recipient of the spam is entitled to collect USD 500 per copy of the message, no matter where it originated from. Note that this law has some tooth in it and has been effective in a few cases. The claims can be filed in Small Claims Court, and increasingly collection agencies are finding that pursuing collections on the resulting judgements is easy and profitable. So, a spammer does not need to be located in Washington state per se to be very vulnerable to these collection agencies. These agencies do report to the major credit bureaus.
• Legislation passed in the State of Virginia (by no coincidence home of spam's biggest victim: AOL) makes it a crime to send out spam. Spam is being defined as theft, and as such, becomes a felony. If such similar law were to be applied in a three-strike state (such as Texas or California), it would be conceivable that a spammer could be find himself locked up for life if the felony conviction resulting from the spamming incident is the third strike. Though we admit that this is a far fetched example, given the unpredictability of the US legal system, one cannot rule out any possibility.
• We saved the best (or worst if you are a spammer) for last. Apparently, according to a posting by a IRS Inspector, the US Internal Revenue System has established a special email address, at net-abuse@nocs.insp.irs.gov to report spam regarding money making schemes. Apparently, many spammers forget to declare the income derived from their electonic marketing ventures, so, one can understand that the IRS would have a particular interest in identifying those e-mail marketers and refresh their memory.

Note again that putting up a disclaimer stating that the email was sent in accordance to proposed Section 301 is not acceptable. It doesn't dissolve you of any liability. Not only you would still be violating your service contract with BestPresence, but you would still be violating parts of the several states' commercial law codes.

In conclusion, we strongly urge you to consider the above. There is only one rule and it is very simple: DO NOT SPAM. If you are not sure whether you are spamming or not, then you probably are. In that case, stop right away.