Exhibit 10.3
0 Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
(phone) 000-000-0000 [LOGO]
(fax) 000-000-0000 EGGROCK
eCo-Share Agreement (url) xxx.xxxxxxx.xxx partners
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This eCo-Share Agreement including all attachments ("Agreement") is made and
entered into as of March 7, 2000 ("Effective Date"), by and between Eggrock
Partners, Inc. ("Eggrock") with its principal place of business at 0 Xxxxx Xxxxx
Xxxxx, Xxxxxxx, XX 00000 and c Me Run Corp. ("Client") with its principal place
of business at 0000 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
1. Summary of Services & Fees.
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Item eCo-Share Service Start Date Frequency Price
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1 Profile: eCo-Share Instant Enterprise--eCRM One Time $5,000
Hub
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2 Implementation: eCo-Share Instant Enterprise-- One Time $20,000*
eCRM Hub
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3 Shared Hosting and Application Management: Commence- Monthly $199 per
eCo-Share Instant Enterprise Implementation-- ment Date user per
eCRM Hub month
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4 Additional Services Monthly $200/hour
(as required)
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* this price reflects a standard Instant Enterprise implementation --
customizations of the Instant Enterprise are available for implementation at an
additional fee -- customizations and the associated implementation fee will be
determined during the Profile phase.
2. Term.
2.1 The "Initial Term" of this Agreement will begin on the Profile start
date and continue for a period of twenty-four (24) months from the Commencement
Date (as defined below), unless sooner terminated by Eggrock or Client in
accordance with paragraph 11. "Commencement Date" means the date after
completion of the Implementation phase that Eggrock first notifies Client the
Instant Enterprise is available for access by end users.
2.2 Upon completion of the Initial Term and thereafter on each anniversary
of the Commencement Date, this Agreement will automatically renew for one-year
periods, unless Client gives written notice of its decision not to renew thirty
(30) days prior to expiration of the current term.
3. eCo-Share Services.
3.1 Profile: Eggrock will facilitate a two day brainstorming and planning
session with Client where, together, Client's strategic business concepts are
captured and translated into design and implementation requirements. The Instant
Enterprise's standard functionality will be thoroughly reviewed with Client and
measured against the identified requirements. The output of the session will be
documented and used to guide the Implementation phase. The following items will
be included in the Profile document: business objectives, business value points
(quantitative and qualitative), requirements map and critical success factors.
3.2 Implementation: Immediately upon completion of the Profile phase,
Eggrock will begin Implementation. During the Implementation phase, Eggrock will
configure the user interface (labels and drop-down lists) of the Instant
Enterprise and code the business rules in accordance with the Profile document.
Any customizations identified in the Profile document chosen to be included by
Client will also be implemented during this phase (the implementation price will
be adjusted accordingly and documented by a change order to this Agreement).
Once all configurations, business rules and any customizations have been
completed, Eggrock will perform system and regression tests. In parallel with
the implementation activities, Eggrock will configure the application server(s),
database server(s), web server(s) and file storage devices (collectively
"Server") residing in Eggrock's data center to support Client's Instant
Enterprise.
3.3 Shared Hosting: Eggrock will provide and maintain the shared Server
environment for Client's use during the Term on a 7x24 basis. Shared hosting
includes Internet connectivity from Eggrock's network hubs and points of
presence ("Network"). Hosting activities include daily server
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backups, firewall log reviews, performance statistics reviews, Web trend
reports, diagnostic reports and other monitoring to confirm that the Server
Environment is able to respond to HTTP requests.
3.4 Application Management: Eggrock will be Client's single point of
contact for all technical and functional issues associated with the Instant
Enterprise. The authorized Client representatives identified in Exhibit A will
have access to Eggrock's Customer Assistance Center ("eCAC") to alert Eggrock to
problems with the Instant Enterprise. Client may contact the eCAC on a 7x24
basis, however; only application critical problems (i.e. end users are not able
to access the Instant Enterprise) will be addressed 7x24. Corrections to the
Instant Enterprise to bring it in substantial compliance with the Profile
document will be provided during normal business hours (Monday through Friday,
8:00 AM to 6:00 PM EST).
3.5. Client may utilize the eCAC to request additional services associated
with the Instant Enterprise, such as moderate changes/additions to the Instant
Enterprise functionality, training and data conversion. These services will be
provided on a time and materials basis at rate identified in section 1.
4. Fees and Payment.
4.1 The fees for eCo-Share Services are set forth in paragraph 1. Eggrock
will not increase Fees during the Initial Term of the Agreement, but may
thereafter change Fees upon a thirty day written notice.
4.2 The Fees will be invoiced as follows:
4.2.1 Profile: The Profile fee will be invoiced upon delivery of the
Profile document.
4.2.2 Implementation: One half of the Implementation fee will be
invoiced upon start of the implementation and the other half on the
Commencement Date.
4.2.3 Shared Hosting and Application Management: The first monthly
fee will be invoiced at the end of the month in which the Commencement
Date falls. Thereafter, the monthly fee will be invoiced in advance at the
beginning of each month. First month fees for users activated in the
middle of a month will be prorated.
4.3.4 Additional Services: These fees will be billed monthly in
arrears.
4.3 Payments are due ten (10) business days after date of invoice.
Accounts are in default if payment is not received within thirty (30) days after
date of invoice. Accounts in default are subject to an interest charge on the
outstanding balance of the lesser of 1.5% per month or the maximum rate
permitted by law. Accounts in default are also subject to service interruption
or termination. Any such interruption does not relieve Client of the obligation
to pay amounts due.
4.4 Fees are exclusive of any taxes which may be levied or assessed upon
the equipment or eCo-Share Services. Any such taxes will be paid by Client.
5. Service Commitment.
5.1. If Eggrock determines in its reasonable commercial judgment that the
Instant Enterprise is unavailable for use by end users due to an outage caused
solely by the items maintained by Eggrock, then Client will be credited a
portion of the eCo-Share Shared Hosting and Application Management monthly fee
as described below. The Instant Enterprise will be deemed to be unavailable if
it is not responding to HTTP requests issued by Eggrock's monitoring software.
Scheduled or routine maintenance will not be deemed to be Instant Enterprise
unavailability.
5.1.1 If the Instant Enterprise is unavailable for four or more
consecutive hours during any calendar month, Eggrock, upon Client's
request, will credit Client an amount equal to one days' service for the
affected month.
5.2 The remedies set forth in this paragraph will not apply if
unavailability of the Instant Enterprise is due to Client's content, acts of
Client or its agents, network unavailability outside of the Eggrock Network or
events of force majeure.
5.3 This paragraph sets forth Client's exclusive remedies for any
unavailability of the Instant Enterprise. EGGROCK MAKES NO WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, FOR THE SERVICES OR ENVIRONMENT IT IS
PROVIDING, AND DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY,
NON-INFRINGEMENT, YEAR 2000 COMPLIANCE OR REMEDIATION, OR FITNESS FOR A
PARTICULAR PURPOSE.
6. Maintenance.
6.1 Rountine maintenance of the eCo-Share Environment will be performed
each Thursday from 1:00 AM - 3:00 AM EST.
6.2 Emergency maintenance will be performed on Sundays from 12:00 AM to
4:00 AM EST.
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6.3 Eggrock will provide Client with an email notification five days prior
to any unscheduled maintenance that will impact use of the Instant Enterprise.
7. Unacceptable Use Policy. Client agrees to comply with Eggrock's Unacceptable
Use Policy attached as Exhibit B. Eggrock may suspend the eCo-Share Services
and/or terminate this Agreement upon written notice that Client has violated
such policy.
8. Software License.
8.1 Eggrock hereby grants Client a nonexclusive, nontransferable,
worldwide license, without the right to grant sublicenses, to use the Instant
Enterprise on the shared hosted environment (including any operating system or
other software owned, licensed or developed by Eggrock provided in connection
with the Instant Enterprise).
8.2 Client will not, and will not permit others to, (a) modify, copy, or
otherwise reproduce the Instant Enterprise in whole or in part; (b) reverse
engineer, decompile, disassemble, or otherwise attempt to derive the source code
form or structure of the Instant Enterprise; (c) distribute, sublicense, assign,
share, timeshare, sell, rent, lease, grant a security interest in, or otherwise
transfer the Instant Enterprise or Client's right to use the Instant Enterprise.
8.3 All right, title, and interest in and to the Instant Enterprise and
all copyrights, patents, trademarks, or other intellectual property or
proprietary rights shall remain exclusively with Eggrock and its Licensors.
9 Confidential Information.
9.1 Each party acknowledges that it will have access to Confidential
Information of the other party. Each party agrees that it will not use in any
way, for its own account or the account of any third party, except for the
performance of this Agreement, nor disclose to any third party (except as
required by law or to that party's attorneys, accountants and other advisors as
reasonably necessary), any of the other party's Confidential Information and
will take reasonable precautions to protect the confidentiality of such
information.
9.2 As used herein, "Confidential Information" means any information and
data, regardless of whether it is in tangible form, of either party that such
party has either marked or identified as confidential or proprietary.
Confidential Information will include, without limitation, the Instant
Enterprise, information regarding business plans, strategies, methodologies,
technology, Clients, employees and partners, products and the terms of this
Agreement.
9.3 Information will not be deemed Confidential Information hereunder if
such information: (i) is known to the receiving party prior to receipt from the
disclosing party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (ii) becomes known
(independently of disclosure by the disclosing party) to the receiving party
directly or indirectly from a source other than one having an obligation of
confidentiality to the disclosing party; (iii) becomes publicly known or
otherwise ceases to be secret or confidential, except through a breach of this
Agreement by the receiving party; or (iv) is independently developed by the
receiving party.
10. Marketing Communications.
10.1 Upon written consent by Client, Eggrock may reference this
relationship with Client and utilize Client's name, logo and company profile in
Eggrock marketing activities including:
10.1.1 General Use: Client list, web site, sales/marketing
collateral and advertising.
10.1.2 Specific Programs: Case studies, press releases, white
papers, direct marketing campaigns and seminars.
10.1.3 Eggrock internal use.
10.2 Eggrock may ask to include specific Client personnel to participate
in various educational and marketing activities (such as seminars) to provide
both parties with positive market awareness and exposure.
11. Termination.
11.1 Termination for Cause. Either party will have the right to terminate
this Agreement if: (i) the other party breaches any material term or condition
of this Agreement and fails to cure such breach within thirty (30) days after
receipt of written notice, except in the case of (a) failure to pay fees, which
must be cured within ten (10) days after receipt of written notice from Eggrock
and (b) a breach of the Unacceptable Use Policy referenced in section 7, which
must be cured within three (1) day after receipt of
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notice from Eggrock; (ii) the other party becomes the subject of a voluntary
petition in bankruptcy or any voluntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors; or (iii)
the other party becomes the subject of an involuntary petition in bankruptcy or
any involuntary proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors, if such petition or proceeding is not
dismissed within sixty (60) days of filing.
11.2 Early Termination. After the first anniversary of the Commencement
Date, Client may terminate this Agreement upon a merger, consolidation, sale of
its business or other such change in control event. The effective date of
termination will be three (3) months after Eggrock's receipt of a written notice
(the "Termination Period"). In the event of such termination, Client will
reimburse Eggrock (a) immediately for all outstanding invoices and (b) within
thirty (30) days after issuance of the termination notice, fees for the
eCo-Share Services to be provided during the Termination Period, calculated as
follows: the then current Shared Hosting and Application Management monthly fee
multiplied by the highest number of users invoiced since the Commencement Date
multiplied by three (3) months.
11.3 Effect of Termination. Upon the effective date of expiration or
termination of this Agreement: (a) Eggrock will immediately cease providing
access to the Instant Enterprise; (b) any and all payment obligations of Client
under this Agreement will become due immediately; (c) each party will return all
Confidential Information of the other party in its possession at the time of
expiration or termination and will not make or retain any copies of such
Confidential Information; (d) Network space allocated by Eggrock must be
returned to Eggrock; and (e) Eggrock will return Client Content in a standard
text-based format
12. Limitation of Liability.
12.1 Eggrock exercises no control over and accepts no responsibility or
liability for the content of the information passing through the Instant
Enterprise and the Eggrock Network.
12.2 Use of any information obtained via the Eggrock Network is at
Client's own risk. Eggrock specifically denies any responsibility for the
accuracy or quality of information obtained through the eCo-Share Services.
12.3 Eggrock assumes no responsibility for any encrypted data that is sent
to, stored on or retrieved off of the Server. The technology used to encrypt
data being transmitted to or from the Servers is licensed by Eggrock from one or
more third parties and Eggrock makes no claims or warranties regarding the
viability, effectiveness, integrity or robustness of these methods or the
encryption used. Further, Eggrock is not responsible for and expressly disclaims
any liability for the success or failure of a secure Server to properly encrypt
data. By using a secure Server, Client assumes the risk that the encryption
algorithm may not function properly such that the data being transmitted is
visible to others.
12.4 Eggrock assumes no responsibility for any commercial transactions
attempted or completed involving the eCo-Share Services or for any third party
software or other products used by Client in combination with the eCo-Share
Services designed to enable such transactions. Client's rights and obligations
with such third party software and other products are subject solely to any
agreement(s) between Client and the applicable third party.
12.5 Eggrock shall not be liable for any delay or failure in performance
due to events of Force Majeure, which shall include without limitation acts of
God, earthquake, labor disputes, changes in law, regulation or government
policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers,
equipment failures, transporting difficulties, or other occurrences which are
beyond Eggrock's reasonable control.
12.6 NEITHER CLIENT, EGGROCK OR EGGROCK'S LICENSORS AND PARTNERS SHALL BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
THAT RESULT FROM THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES
FOR LOST PROFITS OR LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES,
MISDELIVERIES OR SERVICE INTERRUPTIONS. EGGROCK'S, ITS LICENSORS' AND PARTNERS'
AGGREGATE LIABILITY FOR ALL CLAIMS AND LIABILITIES ARISING HEREUNDER (WHETHER IN
CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE LESSER OF TWELVE (12) TIMES
THE MONTHLY FEE(S) OR $250,000.
13. Indemnification. Client agrees to indemnify and hold harmless Eggrock and
its officers, directors, employees, agents, representatives and counsel from any
and all losses, liabilities, damages, costs or expenses, whatsoever as incurred
including without limitation, attorney's fees, arising out of business
activities conducted by Client, or arising out of or relating to this Agreement.
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14. Survival. Paragraphs 4, 8, 9, 10, 12, 13, 14 and 16 will survive any
expiration or termination of this Agreement.
15. Credit Clearance. Acceptance of this Agreement by Eggrock may be subject, in
Eggrock's absolute discretion, to satisfactory completion of a credit check of
Client. Activation of eCo-Share Services shall indicate Eggrock's acceptance of
this Agreement. Use of the eCo-Share Services described herein constitutes
acceptance of this Agreement by Client.
16. General.
16.1 Relationship of the Parties. Nothing in this Agreement will be
construed to imply a joint venture, partnership, or agency relationship between
the parties, and Eggrock will be considered an independent contractor when
performing services under this Agreement.
16.2 Notices: All notices called for under this agreement will be in
writing and given by personal delivery, certified mail, return receipt
requested, or by commercial overnight courier, to the recipient's address set
forth above or to such other address or addresses as either party may specify in
writing to the other. Notice will be deemed given the date of personal delivery,
the third business day after mailing, or the next business day after delivery to
such courier (unless the return receipt or the couriers records evidence a later
delivery).
16.3 Amendments: This Agreement may not be amended or modified except by
written agreement executed by both parties.
16.4 Assignment: With the exception of an assignment to an entity that
acquires a party by merger or purchase of substantially all of such party's
assets, this Agreement may not be assigned by either party without the prior
written consent of the other.
16.5 Severability: Any provision of this Agreement which may be determined
to be unenforceable under applicable law by a court of competent jurisdiction
shall be considered severed from this Agreement and will not affect the
enforceability of all remaining provisions.
16.6 Waiver: No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy under this Agreement shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right or remedy granted herein or by law.
16.7. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts. Eggrock
and Client agree to submit to the jurisdiction of the courts of the Commonwealth
of Massachusetts in connection with any dispute or litigation arising out of
this Agreement.
16.8 Entire Agreement. This Agreement, including all attachments, contains
the entire understanding between the parties with respect to the eCo-Share
Services and supersedes any prior written or oral understandings and agreements.
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ACCEPTED BY C ME RUN CORP. ACCEPTED BY EGGROCK PARTNERS, INC.
/s/ Xxxxx X. Xxxxxx
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SIGNATURE SIGNATURE
Xxxxx X. Xxxxxx
--------------------------------- ---------------------------------------
NAME NAME
Vice President
--------------------------------- ---------------------------------------
TITLE TITLE
3/22/00
--------------------------------- ---------------------------------------
DATE DATE
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Attachments:
Exhibit A -- Authorized Representatives
Exhibit B -- Unacceptable Use Policy
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14. Survival. Paragraphs 4, 8, 9, 10, 12, 13, 14 and 16 will survive any
expiration or termination of this Agreement.
15. Credit Clearance. Acceptance of this Agreement by Eggrock may be subject, in
Eggrock's absolute discretion, to satisfactory completion of a credit check of
Client. Activation of eCo-Share Services shall indicate Eggrock's acceptance of
this Agreement. Use of the eCo-Share Services described herein constitutes
acceptance of this Agreement by Client.
16. General.
16.1 Relationship of the Parties. Nothing in this Agreement will be
construed to imply a joint venture, partnership, or agency relationship between
the parties, and Eggrock will be considered an independent contractor when
performing services under this Agreement.
16.2 Notices: All notices called for under this agreement will be in
writing and given by personal delivery, certified mail, return receipt
requested, or by commercial overnight courier, to the recipient's address set
forth above or to such other address or addresses as either party may specify in
writing to the other. Notice will be deemed given the date of personal delivery,
the third business day after mailing, or the next business day after delivery to
such courier (unless the return receipt or the couriers records evidence a later
delivery).
16.3 Amendments: This Agreement may not be amended or modified except by
written agreement executed by both parties.
16.4 Assignment: With the exception of an assignment to an entity that
acquires a party by merger or purchase of substantially all of such party's
assets, this Agreement may not be assigned by either party without the prior
written consent of the other.
16.5 Severability: Any provision of this Agreement which may be determined
to be unenforceable under applicable law by a court of competent jurisdiction
shall be considered severed from this Agreement and will not affect the
enforceability of all remaining provisions.
16.6 Waiver: No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy under this Agreement shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right or remedy granted herein or by law.
16.7. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts. Eggrock
and Client agree to submit to the jurisdiction of the courts of the Commonwealth
of Massachusetts in connection with any dispute or litigation arising out of
this Agreement.
16.8 Entire Agreement. This Agreement, including all attachments, contains
the entire understanding between the parties with respect to the eCo-Share
Services and supersedes any prior written or oral understandings and agreements.
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ACCEPTED BY C ME RUN CORP. ACCEPTED BY EGGROCK PARTNERS, INC.
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxxx
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SIGNATURE SIGNATURE
Xxxxx X. Xxxxxx XXXXX. X. XXXXXXXX
--------------------------------- ---------------------------------------
NAME NAME
Vice President DIRECTOR
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TITLE TITLE
3/22/00 3/22/00
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DATE DATE
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Attachments:
Exhibit A -- Authorized Representatives
Exhibit B -- Unacceptable Use Policy
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EXHIBIT A
Authorized Representatives
The following Client representatives are the only individuals authorized to
contact Eggrock's eCAC. A maximum of five individuals may be named. Client may
modify the list of representatives at any time upon written notice.
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Name Title Phone Number Email
---- ----- ------------ -----
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Xxxx Xxx Boise Ops Mgr 000 000 0000 XXxxxx@xxxxxx.xxx
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XX Xxxxxxxxx Mktg Prog. Mgr 000 000 0000 XXXxxxxxxxx@xxxxxx.xxx
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Xxxxxx Xxxxxx VP. Bus. Dev 000 000 0000 XXxxxxx@xxxxxx.xxx
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Xxxxxx Xxxxxx VP. Development 000 000 0000 Xxxxxxx@xxxxxx.xxx
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Xxxxx Xxxxxx VP. Sales & Mktg 000 000 0000 XXxxxxx@xxxxxx.xxx
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Exhibit B
Unacceptable Use Policy
Eggrock prohibits users of the Instant Enterprise to engage in actions specified
in the following Unacceptable Use Policy. Eggrock reserves the right to modify
the policy at any time, effective upon written notice. Indirect or attempted
violations of the policy, and actual or attempted violations by a third party on
behalf of Client or a Client end user, shall be considered violations of the
policy by Client.
1. Illegal Use. The Instant Enterprise may be used only for lawful
purposes. Transmission, distribution or storage of any material in violation of
any applicable law or regulation is prohibited. This includes, without
limitation, material protected by copyright, trademark, trade secret or other
intellectual property right used without proper authorization and material that
is obscene, defamatory, constitutes an illegal threat, or violates export
control laws, or which contains any virus, Trojan horse, or disabling or
distorting device or code.
2. System and network security. Violations of system or network security
are prohibited, and may result in criminal and civil liability. Eggrock 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:
2.1 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.
2.2 Unauthorized monitoring of data or traffic on any network or
system without express authorization of the owner of the system or
network.
2.3 Interference with service to any user, host or network including,
without limitation, mailbombing, flooding, deliberate attempts to overload
a system and broadcast attacks.
2.4 Forging of any TCP-IP packet header or any part of the header
information in an email or a newsgroup posting.
3. Email. Sending unsolicited mail messages, including without limitation,
commercial advertising and informational announcements, is explicitly
prohibited. A user shall not use another site's mail server to relay mail
without the express permission of the site.
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