1.1 This document (the “Agreement”) sets forth the principles, guidelines, and requirements of the Terms of Service of Maxim Software Development LLC, a Texas Limited Liability Corporation (the “Company”) governing the use by the customer (“Customer”) of Company’s services and products (“Services and Products”). These Terms of Service have been created to ensure the confidence in providing directly or reselling web space of a chosen vendor or through the use of our own equipment and facilities, promote the integrity, security, reliability, and privacy of Company’s facilities, network, and Customer data contained within.
1.2 The Company believes it provides the best services in the industry, and provides the following policies in the best interests of the Company and the Company’s clients. The Company retains the right to modify these Terms of Service at any time and from time to time and any such modification shall be automatically effective as to all customers when adopted by Company and published at http://www.maximdevelopment.com/termsofservices.htm. Company shall be the sole and final arbiter as to the interpretation of the following by utilizing the Company’s Services and Products, the Customer agrees to be bound by the terms herein outlined.
1.3 Questions or comments regarding this document should be forwarded to the Company at the following electronic mail address:
2.1 Customer shall not post, transmit, re-transmit or store material on or through any Services or Products which, in the sole judgment of the Company (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, “Persons”) or (iii) violates the rights of any person, including rights 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 Customer.
2.2 The Customer agrees to indemnify and hold harmless the Company from any claims resulting from the use of the services which damages the Customer or any other party. Customer shall be responsible for determining what laws or regulations are applicable to its use of the Services and Products.3. Prohibited Uses of Services and Products
In addition to the other requirements of these Terms of Service, Customer may only use the Services and Products in a manner that, in the Company’s sole judgment, is consistent with the purposes of such Services and Products. If Customer is unsure of whether any contemplated use or action is permitted, please contact the Company as provided above. By way of example, and not limitation, uses described below of the Services and Products are expressly prohibited.
3.1.1. Pornography and pornographic related merchandising are prohibited under all the Company’s services. This includes sites that include links to pornographic content elsewhere. Further examples of unacceptable content or links include pirated software, “hacker” programs, archives of “Warez Sites”, game rooms or MUDs, IRC Bots, Egg Drop programs, any kind of illegal software or shareware. In addition, sites offering online gambling, casino functionality, sports book betting (including offshore), and internet lotteries are prohibited.
3.1.2. Violations of the rights of any Person 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 Customer.
3.1.3. Actions that restrict or inhibit any Person, whether a customer of Company or otherwise, in its use or enjoyment of any of the Company’s Services and Products.
3.2. System and Network
3.2.1. Introduction of malicious programs into the Company’s or vendor’s network or server (e.g., viruses, trojans, and worms).
3.2.2. Effecting security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which Customer is not an intended recipient or logging into a server or account that Customer is not expressly authorized to access. For purposes of this Section 3.2.2, “disruption” includes, but is not limited to, port scans, flood pings, packet spoofing and forged routing information.
3.2.3. Executing any form of network monitoring which will intercept data not intended for the Customer’s server.
3.2.4. Circumventing user authentication or security of any host, network or account.
3.2.5. Interfering with or denying service to any user other than Customer’s host (for example, denial of service attack).
3.2.6. Using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable, a user’s terminal session, via any means, locally or via the Internet.
3.2.7. Creating an “active” full time connection on a Company or vendor-provided account by using artificial means involving software programming or any other method.
3.2.8. Any attempt to circumvent or alter monitoring, bandwidth tracking or utilization reporting, or other actions which have the effect of complicating the normal operational procedure of the Company or vendor, including but not limited to altering, removing or in any way modifying or tampering with Company created log files.
3.2.9. Any action which the Company determines, in its own judgment, will reflect poorly on the Company or negatively impact its operations.
3.2.10. Any action which the Company or vendor deems to be an unacceptable use of resources, business practice or otherwise unacceptable to the Company.3.3. Billing
3.3.1. Furnishing false or incorrect data on the order form, contract or online application, including fraudulent use of credit card numbers.
3.3.2. Attempting to circumvent or alter the processes any billing procedures or procedures to measure time, bandwidth utilization, or other methods to document “use” of the Company’s or vendor’s Services and Products.3.4. Mail
3.4.1. Sending unsolicited commercial email messages (UCE), including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material, who were not previous customers of Customer or with whom Customer does not have an existing business relationship (“email spam”).
3.4.2. Sending UCE referencing an email address for any domain hosted by the Company or vendor;
3.4.3. Sending UCE referencing a domain hosted by the Company or vendor;
3.4.4. Sending UCE referencing an IP address hosted by the Company or vendor;
3.4.5. Posting advertisements on IRC, ICQ, or any other public or private chat system containing an email address hosted by the Company, a domain hosted by the Company or vendor, an IP address belonging to the Company or vendor;
3.4.6. The Company will be the sole arbiter as to what constitutes a violation of these provisions.
3.4.7. Harassment, whether through language, frequency or size of messages;
3.4.8. Unauthorized use of forging, of mail header information;
3.4.9. Solicitations of mail for any other E-Mail address other than that of the poster’s account or service with the intent to harass or to collect replies;
3.4.10. Creating or forwarding “chain letters” or other “pyramid schemes” of any type.
3.4.11. Use of unsolicited email originating from within the Company’s or vendor’s network or networks of other Internet Service Providers on behalf of, or to advertise, any service hosted by the Company or vendor, or connected via the Company’s or vendor’s network;
3.4.12. Activities deemed to be unsolicited marketing efforts or otherwise harassing in any way
3.4.13. Customer will be charged a minimum $250 service charge for each instance of a verifiable UCE that is reported to the Company or vendor and faces immediate account suspension and/or termination, as well as further penalties.3.5. Customer Support
3.5.1. The Company promotes a mutually-professional relationship with its customers. Abusive, threatening, obscene or otherwise harassing communications with agents of the Company or vendor, via telephone, email, online chat or other means will result in immediate account termination not withstanding any other terms of this agreement. Violation of this or any section of this Agreement will result in refund ineligibility.4. Bandwidth & Utilization
In addition to the other terms of this agreement, which apply to all plans, bandwidth and utilization, by its nature, is subject to a number of differing and/or additional terms.
4.1. The Company and their vendors provide the space and transfer allocations in good faith to our Customers so that they may create their Web sites without the fear of running over their Web space or Web traffic allocation. While most Customers will use the extra Web space and traffic for their legitimate Web site needs, we recognize that others may try to take advantage of our offer and use the space and traffic in ways for which it is not intended. In the best interests of our Customers and in an effort to maintain the integrity of our service, the following common sense rules will apply:
4.1.1. Customer’s site must use and store only the information and data that relates to the Web site, at the IP address provided by the Company or vendor.
4.1.2. Customer may not resell or give away Web space under a domain name, nor may Customer build Web sites that house “sub domain” Web sites on behalf of other companies, groups, or individuals.
4.1.3. Customer may not use Customer’s Web site to store Web pages, files, or data for other IP addresses or domain names, nor may Customer use its Web site as a repository for file, data or “Warez group” download transfers. The Company reserves the right to make this determination, in its sole and absolute discretion;
4.1.4. The Company’s and vendor’s “unlimited traffic” and “storage” offer is to provide the company’s customers with storage space and bandwidth for active Web pages and cannot be used as a “storage space” for electronic files. Examples of sites that fall under “electronic storage” are large archives of images, compressed files, movies, or sound files. The Company permits up to 50 megabytes of archive storage, e.g. avi or wav files, images, compressed files, shareware, games, programs, etc.. All HTML pages MUST be linked to files (HTML, .jpg, .gif, etc.) stored on Company’s server and vice versa.
4.1.5. The storage and distribution of MP3 and media format files via the Company network or vendors is prohibited unless an amendment to these Terms of Service are agreed upon in writing by the Company on a per Customer basis. MP3 and media format files may be distributed provided that the Customer is the original copyright holder or has supplied Company proof of license to distribute the MP3 and/or media files obtained from the copyright holder. The Customer shall maintain full and complete responsibility for any legal issues resulting from the Customer's distribution of files. The Customer also agrees to indemnify the Company from all losses and damages incurred as a result of the distribution of MP3 or any media file including all legal fees and monetary costs involved. All media files, including MP3 files, are served through the PlayStream.com network. By distributing media and MP3 files through the Company, the Customer is establishing a relationship with PlayStream.com separate from the Company and this Agreement. Customer agrees to be bound by the PlayStream Service Agreement found at PlayStream.com (http://www.playstream.com).
As a convenience, the Company agrees to manage and operate an account with PlayStream.com on behalf of the Customer, and as a result, any questions or problems regarding the PlayStream.com network should be directed at the Company rather than PlayStream.com directly. Customer acknowledges that all fees billed for PlayStream registration and services will be billed directly to the Company’s credit card by PlayStream.com And that will be applied to Customer’s account. At no time shall the Company be responsible for any charges incurred through the use of PlayStream.com. The Company may charge an additional monthly fee for managing the PlayStream.com account and may require a deposit in order to guarantee payment to PlayStream.com on behalf of the Customer. If a deposit is required, the deposit, less any fees required to compensate PlayStream.com or the Company, shall be refundable upon termination of services and resolution of all account related matters with both the Company and PlayStream.com unless the Customer breaches the terms of this Agreement in which case the deposit is non-refundable.
In case of termination of services, Company will terminate the Customer's associated PlayStream.com account and shall provide Customer 30 calendar days or until PlayStream.com closes the account, whichever is earlier, to request a copy of the media files and data stored on the PlayStream.com network. Upon termination, before PlayStream.com closes the associated Customer's account, the Company reserves the right to invalidate owned web page links, rename associated media files on the PlayStream.com network, or remove media files from the PlayStream.com network in order to limit financial liability from use of the PlayStream.com and Company's networks. In the event the Company removes media files from the PlayStream.com network, the Company shall keep a copy of all data and media files removed for a period of 30 calendar days, and shall provide an additional copy to the Customer upon Customer's request.
4.1.6. The Company does not permit sites where 20% or more of the monthly traffic is from file downloads, or sites that use more than 10% of system resources, or sites which in the Company’s view are detrimental to the enjoyment of the Company or vendor services by the Company’s or vendor’s other clients, or are in the sole and final judgment of the Company, detrimental to network or business operations.
The Company may take whatever steps necessary to provide its services, and to provide for the enjoyment of such services by all of the Company clients, and to ensure that certain clients do not utilize services to the detriment of other clients. Customers with Web sites that do not comply with these simple rules, or who seek to take advantage of the Company unlimited storage or traffic plan in any other way, will, at the discretion of the Company, have their sites canceled and/or removed from the servers and have service charges assessed at the discretion of the Company.
The Company or vendor will be the sole and final arbiter as to Web sites or usages of resources that constitute a violation or intent to violate our policies. Those Customers found in violation of these policies are subject to a $250.00 service charge for each instance of violation, exclusive of charges for the bandwidth and/or other resources utilized. Web sites which the Company must suspend or cancel do to violation of these rules are not eligible to receive a refund for unused service, and are subject to charges for bandwidth and usage of resources at twice the standard rate for such resources Acceptance of these Terms of Service, and/or use of Company’s services constitute an acceptance of any fines, penalties or service charges which might arise out of violation of these policies.5. Terms and Termination
Upon creation of an account for the Customer, the Company may request the Customer provide a signed copy of these terms. In lieu of a signed copy, the Company shall accept an electronic mail stating acceptance of these terms, the creation of a ”User Account” on the Company's web site (http://www.maximdevelopment.com), or payment of the first charges due by the Customer. Negotiations of these terms may be made either by a signed amendment to these terms or by electronic mail. In the case any of the Terms are negotiated by electronic mail, all electronic correspondence regarding the negotiations shall be held to be legally binding and must be approved by Christopher Maxim. Any electronic mail regarding a negotiation of these Terms that does not originate from Christopher Maxim or publicly directed to Christopher Maxim, not including blind carbon copies, shall not be considered legally binding on behalf of the Company or the Customer. For purposes of Section 5 of this agreement, the term “Thirty Day Guarantee Period” shall be defined as the period extending from the date a Customer signs up his or her first domain with the Company through the thirtieth (30) day following the initial signup of the first domain enrolled.
5.1. Customer must notify the Company of a cancellation request a minimum of five (5) business days prior to the billing renewal date. If the Customer notifies the Company less than five (5) business days before the billing renewal date, a refund will not be issued unless the Customer’s cancellation request is submitted during the Thirty Day Guarantee Period.
5.1.1. All refunds requested within the Thirty Day Guarantee Period shall receive a full refund, less setup fees and add-on-service fees, which are non-refundable.
5.1.2. Cancellation requests will only be accepted via registered mail or delivery service that requires recipient signature. Any other form of cancellation request is not acceptable.
5.2. Customer will not receive a refund for any other reason, including but not limited to late cancellation, slow connection caused by Customer’s ISP/network, Customer’s ignorance, InterNIC delays, account termination for violation of policies.
5.3. By submitting a credit card or ACH information to the Company, Customer agrees to authorize all recurring charges to the account and any other balances incurred due to overages of limits, additions of extras to the account, service charges and/or any other fees, and to be bound to the terms of this Agreement.
5.4. Customer will not receive a refund for any setup fees or any fees other than the monthly recurring hosting fees.
5.5. Customer will be charged a $25 domain reactivation fee for each site suspended due to a billing-related issue.
5.6. Customer shall pay the fees and other charges for Services and Products ordered from Company as published on the Rate Schedule (http://www.maximdevelopment.com/rates.htm) at time of order. Company reserves the right to change rates without notice any changes in price will take effect upon renewal of the existing hosting account, immediately for new purchases.
5.6.1. Customer agrees that the company reserves the right to change its fees, features, and discount offering and the Customer agrees to be bound by any changes of fee, feature, and/or discounts.
5.7. The Company reserves the right to terminate this agreement, and to delete the Web site from its hardware, immediately upon the occurrence of any of the following events:
5.7.1. Non payment of any charges due from Customer;
5.7.2. Breach of any term or condition of this agreement by Customer;
5.7.3. Commencement of any lawsuit or proceeding against Customer arising from or relating to its use of the Web site, whether or not such suit names the Company as a party or seeks any recovery from the Company.
5.7.4. Payment for any charges is due at the time of signup and renewal respectively. All payments must be in U.S. Dollars. Accounts which have balances outstanding shall be deemed to be in default and subject to termination of service. Customer shall be responsible for all costs of collection, including reasonable attorney’s fees and court costs, in event of a default for nonpayment of any amounts due the Company.
5.7.5 Cessation of business practice by the Company.6. Indemnification of Provider/Relationship of Parties
6.1. Customer agrees to indemnify and hold the Company harmless from any lawsuit, claim, charge, or expense, including reasonable attorney fees and costs of defense, for any matter arising from or relating to Customer’s Web site provided hereunder.
6.2. Nothing contained herein shall be deemed to create a relationship between the Company and the Customer in the nature of a partnership, joint venture, editor/publisher or otherwise. Both parties acknowledge and agree that the Company has no interaction or substance of Customer’s Web site, except as necessary to maintain and/or develop or enrich the Web site.7. Security/Software
7.1. Customer agrees to take all steps reasonable, necessary, and prudent to protect Customer’s login ID and password.
7.2. Customer agrees not to attempt to undermine or cause harm to any server, software, system, or customer of the Company or vendor.
7.3. Customer agrees to maintain Customer’ computing equipment responsibly, including running virus software.
7.4. Uploading a virus to a Company or vendor server may result in account termination, service charges and/or prosecution.
7.5. Customer acknowledges that the Company cannot provide technical support for any software and/or script that the Customer installs, other than variable name changes. Customer also acknowledges that the Company and its vendors do not supply technical support for Microsoft FrontPage or any other Web site development tool. The Company supplies technical support for Web hosting issues and Web site development issues for Web sites developed and administered by the Company.8. Violation
Any attempt to undermine or cause harm to the Company server or another customer’s Web presence is strictly prohibited. Any violation of the above Terms of Service will result in ground for account termination, with no refunds given; the Company reserves the right to remove any account with prior notice. Violation of these Terms of Service may result in legal action, service charges or a combination thereof.9. Confidentiality
Customer acknowledges that by reason of their relationship, both the Customer and the Company may have access to certain products, information and materials relating to the other part’s business, which may include business plans, customers, software technology, and marketing plans that are confidential and of substantial value to either party, respectively, and which value would be impaired if such information were disclosed to third parties. Consequently, both the Company and the Customer agree that it will not use in any way for its own account or for the account of any third party, nor disclose to any third party, any such information revealed to it by either party, as the case may be.
The Customer and the Company further agrees that each will take every appropriate precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by either party of any such confidential information in its possession, and all confidential documents shall be returned to the rightful owner, or destroyed. The provisions of this section shall survive the termination of the agreement for any reason.
Upon any breach or threatened breach of this section, either party shall be entitled to injunctive relief, which relief will not be contested by the Customer or the Company.10. Refusal of Service
10.1. The Company reserves the right to refuse or cancel service in its sole discretion with no refunds.
10.2. If any of these Terms of Service are failed to be followed it will result in ground for immediate account deactivation.11. Disclaimer
11.1 USE OF THE COMPANY’S SERVICES AND PRODUCTS IS AT CUSTOMER’S SOLE RISK. NEITHER THE COMPANY NOR ITS EMPLOYEES, AGENTS, RESELLERS, THIRD PARTY INFORMATION PROVIDERSMERCHANTS, LICENSERS OR THE LIKE, MAKE ANY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE COMPANY’S SERVICES AND PRODUCTS WILL NOT BE INTERRUPRTED OR BE ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE COMPANY’S SERVICES AND PRODUCTS OR AS TO THE ACCURACY, OR RELIABILITY OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED OR PROVIDED THROUGH THE COMPANY’S SERVICE, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT OR AMENDMENT TO THIS AGREEMENT. THIS INCLUDES LOSS OF DATA, WHETHER RESULTING FROM DELAYS, ON DELIEVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY THE COMPANY AND ITS EMPLOYEES OR OTHER CAUSE.
11.2. THE SOLE CUMULATIVE LIABILITY OF THE COMPANY FOR ALL CLAIMS MADE BY THE CUSTOMER, OR ANY OTHER PARTY, REGARDLESS OF FORM, INCLUDING ANY CAUSE OF ACTION BASED ON CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES AND CHARGES PAID TO THE COMPANY BY THE CUSTOMER.
11.3. The Company reserves the right to revise or change these Terms of Service at any time.
11.4. This Agreement shall be governed in all respects under the laws of the State of Texas applicable to contracts made, accepted and performed wholly in Texas, without application to principles of conflict laws, and the Customer and the Company agree that the sole venue and jurisdiction for any disputes arising from this Agreement shall be the appropriate federal or state court located in the Commonwealth of Texas.12. Domain Registration Agreement
For domain name registrations obtained by the Customer through the Company, in addition to this Agreement and notwithstanding any other term of this Agreement, you agree to be bound by the terms and conditions of the Registration Agreement of Joker.com as amended from time to time (the ”Joker.com Service Agreement”) and which may be viewed at www.joker.com, and you agree to be bound by all policies of and all agreements between Joker.com and the Internet Corporation for Assigned Names and Numbers or Network Solutions, Inc. as amended from time to time. Without limiting the generality of the foregoing, you agree that any dispute with respect to your domain name will be subject to the provisions of the domain dispute policy located at the respective providers website as such policy is amended and revised from time to time.
12.1. Customer acknowledges that all fees billed for domain registration will be billed directly to the Company’s credit card by Joker.com and that will be applied to Customer’s account.
12.2. By registering a domain name through the Company, the Customer is establishing a relationship with Joker.com separate from the Company and this Agreement.
12.3. The Company is in the domain name hosting and software development business. All customer accounts are setup with the understanding that the Company will transfer authoritative DNS control of the domain hosted to the Customer or its vendors, i.e., the Company will update the domain name registration of any domain hosted by the Company or vendors to list the Customer or vendor’s domain name servers as the hosting entity, upon account termination. The Company does not provide extended access to its network through non-authoritative DNS means for any purpose other than initial account setup. Third-level domains are provided for 30 days after account creation and may not be used as a primary means of access to an assigned web space.
12.4. In the event of account termination, the Company agrees to transfer the authoritative control of the domain name provided that all account fees and charges are clear and/or that all open disputes are resolved. Terminations resulting as a breach of this Agreement by the Customer will result in a service charge of $500 per domain before authoritative control of the domain may be transferred.