Max Dedicated'
Responsibilities
Max Dedicated agrees to furnish services, which are paid for in advance by the
client, to the client, subject to complete compliance with the AUP and these
Terms of Service.
Max Dedicated reserves the right to refuse Services to any
potential client and/or to deny renewal of Services to any existing client, at
the sole discretion of
Max Dedicated.
Changes to Terms of Service and AUP
Max Dedicated' Terms of Service and AUP are both subject to change at any time
and without notice at the sole discretion of
Max Dedicated. A change in policy
shall not be grounds for early contract termination or non-payment. Client
recognizes that the nature of the service supplied and the initial rates and
charges have been communicated to the client. The client is aware that from time
to time rates may change based on availability of hardware, overall market
conditions or other factors. Clients will be notified of any increases in rates
or charges prior to the billing renewal date on which such increases will take
effect.
Acceptance of Contractual Agreement
1. All regular prices listed are the current regular prices and are subject to change at any time. Client agrees that by placing an order either by means of electronic ordering
(web order form) or submitting a written contract, and receipt of such order by
Max Dedicated, that you are agreeing to our TOS, AUP, and SLA. No Modifications
of said contract by customer is allowed.
2. Max Dedicated will provide, and Customer will purchase and pay for, the
Services, and service fees specified in the Order for the applicable Service
Description. Customer acknowledges that the service, and service fees have been
communicated to the customer, and that they are aware of all applicable charges
as per contract, AUP, SLA, and TOS. Customer also understands that any
promotional offers unless specified in contractual terms will not be applicable
to their individual service.
3. In connection with any Hosting Services, if Customer's actual bandwidth usage
in any month exceeds allotted amount, specified in Customer's contract, Customer
will pay Max Dedicated any additional fees as specified in the Service
Description within three (3) days of invoicing period. Any BW overage bill not
paid within three (3) days of invoicing will be subject the server and services
to suspension.
Payment:
Establishment of this service is contingent upon receipt of payment from
Customer to Max Dedicated.
Subsequent payments are due on the anniversary date of the month for that
month's service.
Payments and Fees:
Acceptable means of payment are credit card, Paypal, and wire transfer.
Customers submitting their payment by Wire
transfer must also submit extra $30 processing fee for the service (service
charge + $30). Payment is due on the
defined monthly recurring billing date of each month. Credit cards that are
declined for any reason are subject to a $10.00 declination fee. Service will be
interrupted on accounts that reach 24hrs past due. Service interrupted for any
reason is subject to a $200.00 reconnection charge. Accounts not paid by due
date are subject to a $7.95 late fee. Accounts that are not collectible by
Max Dedicated will be turned over to an outside agency for collection. If your
account is turned over for collection, you agree to pay the company a
"Processing and Collection" Fee of not less than Fifty($50.00) nor more than One
Hundred, Fifty($150.00).
Non-Payment/Service Interruption
Services interrupted for non-payment may be subject to a $25 late fee. Data
stored on a client's services will not be available to the client until
reconnection is established or alternative arrangements are made to the sole
satisfaction of Max Dedicated. Clients deactivated for non-payment or charge-back
are subject to their data being destroyed seven (7) days from
suspension/charge-back date. Max Dedicated is not responsible for data integrity,
regardless of circumstance. Max Dedicated strongly recommends keeping up to date
and off network backups to protect against data loss.
Disputes/Refunds/Charge-Backs
Max Dedicated do not offer refunds for any services ordered. Prepayments and
account credit are ineligible to be refunded, or transferred to alternate
accounts. Any and all charge disputes must be reported directly to Max Dedicated
within thirty (30) days of the date which the charge originally occurred. If a
charge which is deemed valid by Max Dedicated, and validated by our Terms of
Service or AUP, is disputed to a financial institution by performing a
charge-back, will result in immediate service interruption, and Administrative Fee' of $200 in
addition to original amount of funds which were reclaimed. Clients
deactivated their services for charge-back disputes are subject to their data
being destroyed seven (7) days from suspension/charge-back date. Max Dedicated is not responsible for data integrity,
regardless of circumstance. Max Dedicated strongly recommends keeping up to date
and off network backups to protect against data loss.
Suspensions
In the event a service is suspended for non-payment, it will be subject to
termination 24hrs from the time of suspension.
Max Dedicated assumes no liability for
the integrity of the data stored on a suspended server.
Cancellations
Max Dedicated requires a
seven (7) day notice of cancellation prior to the billing
renewal date for the upcoming billing cycle, submitted via support ticket. A
seven (7) day notice before the upcoming billing date is also required for any
downgrades. All client data will be destroyed immediately after the cancellation
date. If the notice of cancellation is not provided within seven (7) days, the
server will be billed regular monthly rate and it will be canceled on the next
renewal date.
Official Max Dedicated Resellers may cancel their servers up to twenty-four (24)
hours after the server's billing renewal date. After twenty-four (24) hours, the
server can still be requested to be canceled by the reseller, however the
termination fee of $25 will be applied to the account and must be paid within 15
days to avoid full account suspension.
Payment Verification (If Required Only)
Clients agree to submit to identity verification measures, designed for both the
security of the client as well as the security of Max Dedicated. The identity
verification measures may include the faxing of two forms of government issued
identification to Max Dedicated, as well as a front and back copy of the credit
card used for payment, as well as a copy of a utility bill with the billing
address. In certain circumstances additional identity verification may be
required, in addition to the previously listed forms.
Fraud
In the event fraud is discovered the fraudulent account, and all related
accounts, are subject to immediate suspension or termination at the sole
discretion of Max Dedicated. All information available to Max Dedicated about the
fraudulent account/service shall be submitted to both local authorities, as well
any financial institutions involved. All fraudulent orders are investigated, and
all fraudulent clients will be prosecuted to the fullest extent of the law,
whether within the United States, or abroad.
Disclaimers of Liability; Indemnification
WE PROVIDE THE SERVICES .AS IS., .WITH ALL FAULTS. AND .AS AVAILABLE.. WE AND
OUR SUPPLIERS MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE
SERVICES. TO THE EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS DISCLAIM IMPLIED
WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY,
ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE AND OUR
SUPPLIERS DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF
THE SERVICES WILL BE EFFECTIVE, RELIABLE, ACCURATE OR MEET YOUR REQUIREMENTS. WE
DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER
DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR
CHOOSING. NO ORAL OR WRITTEN INFORMATION GIVEN BY A Max Dedicated, INC.
REPRESENTATIVE SHALL CREATE A WARRANTY. You may have additional consumer rights
under your local laws that this contract cannot change. You use the Services at
your own risk.
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US OR OUR SUPPLIERS IS THE
CANCELLATION OF YOUR ACCOUNT. IN NO EVENT SHALL OUR, OUR AFFILIATES' AND OUR
SUPPLIERS' AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS
RELATING TO THE USE OF THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES, IF ANY,
THAT YOU PAID DURING THE PERIOD DURING WHICH SUCH CLAIMS AROSE. WE, OUR
AFFILIATES, AND OUR SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF OR
INABILITY TO USE THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST
PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR
MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR
SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR
LIABILITY, AND THE LIABILITY OF OUR AFFILIATES AND SUPPLIERS, SHALL BE LIMITED
TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold harmless us, our employees,
contractors, officers, directors, agents, affiliated companies, and suppliers,
from all liabilities, claims, and expenses, including attorneys' fees, which
arise from your use or misuse of the Services. We reserve the right to assume
control of the defense of any third party claim that is subject to
indemnification by you, in which event you will cooperate with us in asserting
any available defenses.
Support
Max Dedicated provides hardware support related to each direct client's service
functioning. Max Dedicated does not offer software support of any kind.
Max Dedicated does not provide software support/troubleshooting for the software
items chosen from the order form. Max Dedicated only ensures the correct default
installation of any software item chosen from the order form, and in no way
assumes liability for the configuration of any of the installed software.
Max Dedicated is not responsible for any downtime associated with the incorrect
configuration of operating system kernels or any software, whether installed by
Max Dedicated or the client. Max Dedicated may provide enhanced software support
(including kernel configuration) for an additional fee. Please contact sales or
support for enhanced support pricing. Each client is eligible for one (1)
complimentary operating system (.OS.) reload per billing cycle; each additional
OS reload is $50 per reload. Installation of an unsupported OS is subject to the
prior approval of Max Dedicated and to a $50 fee. Max Dedicated does not provide
any type of support to the clients of our clients (third party clients).
Max Dedicated will only provide support directly to clients of Max Dedicated.
Server Management and Paid Support
•Full Server Management services are provided on 'Best Effort' basis, and do not
necessarily guarantee intended results.
•The Tier 1 and Tier 2 ticketing fee is limited to issues requiring an hour or
less of tech time. Issues taking more than 1 hour to resolve will require a
$60.00 Tier 3 Ticketing Fee in order to be completed. You may, however, choose
to cancel the ticket for no additional fee.
•A final confirmation will be provided when the work is completed. Up to two (2)
days will be given for the client to state if the work was not completed
correctly. After the two (2) days, the ticket is considered completed and will
require an additional cost for more work to take place.
•Max Dedicated shall not be held liable for any downtime that is due to any
paid support. paid support time is not eligible to be counted in any way
towards the Max Dedicated SLA (Service Level Agreement).
•Once a paid support ticket is opened, it is non-refundable.
Abuse/Spam/Bulk Email Policy
Max Dedicated reserves the right to deny mail delivery from any servers hosted on
our network if they are believed to be involved in SPAM or SPIM activities. This
includes spam support services such as DNS or spamvertised web sites. Our abuse
department will locate abusive servers based on public blacklist monitors, abuse
reporting from external networks, and other means. If our abuse department
receives a report or otherwise becomes aware of abuse-related activities active
on our network, we will identify the server the abuse was initially sent from
(via IP and in some cases by domain) and create a ticket on behalf of the user
who occupies the server with information regarding the abuse such as logs
describing the abuse and an explanation of what abuse took place.
The following actions will be taken on a case-by-case basis:
1.An abuse ticket serves as notification that our abuse department has received
reports of abuse originating from the server. We require a client response to
ALL abuse tickets within 48 hours of the ticket being opened. Typically no
service will be suspended or filtered within the first 48 hours of an abuse
ticket being opened. If a response is not received within 48 hours, or the
server is determined to be abusive (or likely to be abusive in the case of spam blacklistings) after the ticket is opened, our abuse technicians may filter or
disable ports or IPs assigned to the server temporarily to prevent further abuse
until a response is received.
2.If a response has not been received to an abuse ticket within 7 days of being
opened, the server is eligible for suspension and may be completely disabled
until we receive a response.
3.Habitual neglect of abuse occurring on a client's server may lead to service
termination or longer-term port filters as some blacklistings can take several
weeks to time out or be removed.
Max Dedicated reserves the right to refuse services to any client whose account(s)
have been fined or terminated for abuse-related activities. If an IP range or IP
address has been blacklisted as a result of excessive abuse reports,
Max Dedicated reserves the right to issue a fine of $200 and immediately
terminate the service.
Compromised servers issued abuse notifications: If our abuse department suspects
that abuse reports associated with a client's server are a result of the
server's security being compromised, our abuse department will offer the
following options:
•At the discretion of our abuse department, we will typically offer the ability
to log in to the server and remedy the security compromise while leaving the
abusive traffic filtered.
•Operating System reinstallation, setting the configuration back to the
original state it was provisioned in.
•If Operating System reinstallation is not accepted as an option, Max Dedicated
may offer to manually retrieve/repair the files on the server, at a fee to be
assessed and paid prior to any work being done.
•Habitual security compromises that result in abusive traffic being transmitted
or received from the server may result in service termination.
If a client wishes to dispute any abuse reports, or any fine assessed in
connection with abuse reports or blacklistings, the client must provide
Max Dedicated with an explanation via
our ticketing system within 10 days
of the abuse ticket being opened.
DMCA Complaints
Max Dedicated handles any and all Digital Millennium Copyright Act (.DMCA.)
complaints very seriously, and will thoroughly investigate each complaint
received. Max Dedicated reserves the right to pursue civil remedies for any costs
associated with the investigation of a substantiated policy violation.
The following actions will be taken on a case-by-case basis:
1.A ticket is opened as a warning, providing 48 hours to resolve the situation.
2.After 48 hours with no client response, connection to the IP address from the DMCA complaint will be disabled at the network level. At this time, We MaxDedicated have the right to assess a $25 fine.
3.After 72 hours with no resolution, services on the server in question will be
suspended.
4.After 7 days of being suspended and the issue not having been resolved,
services on the server in question will be canceled and an Abuse Charge of $200
will be placed on the account. All client data will be destroyed immediately
after the cancellation date.
Users who violate this policy and fail to resolve the situation within 48 hours
agree that in addition to these administrative penalties, they will pay
.Research Fees' not to exceed $50 per hour that Max Dedicated personnel must
spend to investigate the matter, to be charged only if claims are found to be
valid.
Bandwidth Usage/Overages (Limited Packages and Plans
Only)
Overage fees will apply to any service utilizing more than it's assigned
bandwidth allocation, except for those services advertised/sold as "UNMETERED".
Clients agree to pay any and all bandwidth overage charges accrued on their
account from the previous billing cycle. Bandwidth overage charges are billed
per gigabyte at a rate of $0.75 (seventy five cents) over the allotted bandwidth
on the service. Max Dedicated
reserves the right to suspend any account which does not pay bandwidth overage
charges within 15 days. Max Dedicated is not
responsible for spikes in bandwidth that are caused on a client's service for
any reason. Client assumes liability for all bandwidth to and from their
services. If issued an expected to exceed bandwidth notification, clients are
required to make payment arrangements within 24 hours of that notification to
prevent possible service interruption until adequate arrangements are made.
These arrangements may include being required to pro-actively upgrade bandwidth.
Delinquent Accounts:
Max Dedicated may temporarily deny service or terminate this Agreement upon
failure of Customer to pay charges when due. Such termination or denial will not
relieve Customer of responsibility for the payment of all accrued service fees,
or any collection fees.
Delinquent Reseller Accounts:
Should your reseller account become delinquent, and payment not made to
Max Dedicated, resulting in a suspension of service you will have 48 hours to
make restitution for the delinquent balance. Any account left unpaid after 48
hours of suspension and reseller not contacting the
Max Dedicated billing
department to resolve the issue will allow for the reseller's client to be able
to purchase the server directly, and assume financial responsibility from that
point forward. The balance must be paid entirely by the client prior to lifting
the service suspension. Resellers shall not hold
Max Dedicated responsible for
failure to appropriately pay their invoices in a timely manor set forth in your
original contracts.
Co-Location Services is defined as servers that are property of the Clients,
renting; ;rack space, bandwidth, and Ethernet ports from
Max Dedicated. Client is
responsible for supplying replacement parts, and software media.
Max Dedicated
may provide such hardware in requested situations, but is not liable to provide
such equipment in any specific timeframe, unless agreed upon by approved
Max Dedicated representatives. All services performed on the Clients servers are
subject to and a $75.00 an hour labor fee. Max Dedicated does not take
responsibility for the overall security of servers.
Network Uptime is the total time in a calendar month that
Max Dedicated network
is available through the Internet, provided that Client has established
connectivity. Max Dedicated takes responsibility for Network availability within
their network, however, we cannot be held liable for upstream problems, outside
of our network. Our guarantee is that our Network will be available to clients
free of Network Outages, that render 100% packet loss, 99.9% of each calendar
month.
Network Outages or Unscheduled Downtime is any unplanned or unscheduled
interruption in Service availability during which Client is unable to access the
services as described in the section titled "Network Uptime" above. A Network
Outage is defined as a period in which 100% packet loss to our network is
experienced, which is determined to have been caused by a problem in
Max Dedicated's Network as confirmed by
Max Dedicated. Downtime or outages are
measured as the total length of time of the unplanned interruption in service
availability in a calendar month.
Scheduled Downtime is any
Max Dedicated scheduled interruption of Services, for
the purpose of network upgrades, or replacement of any equipment in order to
provide for you better service. Scheduled downtime occurs during notified
downtime periods, with as much advance warning as possible via e-mail with a
minimum of 24 hours notice.
SLA Network Violation Credit occurs when our network uptime guarantee is not
met. Max Dedicated will refund the customer 5% of the monthly fee for each hour
of downtime (up to 100% of your monthly fee) for network downtime. Network
downtime is measured from the time the network is 100% unreachable, until
service is once again restored. In order to request a performance credit, you
must e-mail our sales department, within 10 days of reported violation, at:
sales@Max Dedicated.com . SLA violations will be reviewed by our personnel Monday
- Friday 9AM to 5PM EST and applied on the 1st business day of the next month.
*Network violation SLA credit does not cover server hardware failure.*.
Performance Credit exclusions: The following are excluded from the monthly
calculation of Service Availability: Scheduled downtime . Problems outside of
Max Dedicated's network (upstream providers, or client's inbound connection) not
effecting 100% loss to our network . Interruptions or failure of individual
service caused by client, their employees, client's customers, etc. to their
service. These include inaccurate configuration, 3rd party software, client
abuse or over utilization of resources, hacked servers, attacks, exploits, or
server hardware failures.
Server Hardware for Dedicated, or Co-Located Servers Hardware is defined as the
Processor(s), RAM, hard disk(s), motherboard, NIC card and other related
hardware included for Dedicated Servers, and switches for Co-Located Servers,
unless client provides their own switch.
Hardware replacement will occur within 6 hours of the reported problem,
Max Dedicated will refund 5% of the monthly fee per additional 6 hours of down
time (up to 100% of customer's monthly fee). In order to reduce replacement
hardware downtime, we keep a small quantity of pre-built systems on hand to swap
out Hard disks, so that your server can be back up in the shortest amount of
time. In order to request an SLA hardware
violation credit, you must email sales, within 10 days of reported violation,
at: sales@Max Dedicated.com . SLA violations will be reviewed by our personnel
Monday - Friday 9AM to 5PM EST. *Hardware SLA violations do not cover network
violation*.
Performance Credit exclusions:
The following are excluded from the monthly
calculation of Service Availability:
Scheduled downtime.
Interruptions or failure of individual service caused by client, their
employees, client's customers, etc. to their service. These include inaccurate
configuration, 3rd party software, client abuse or over utilization of
resources, hacked servers, attacks, exploits, or server hardware failures.
Replacement is defined as returning the server to original configuration when it
was purchased. If hardware failure causes corrupted Operating System, Data
Files, or Configuration of server, Max Dedicated will restore the system to
original state.
Max Dedicated is not responsible for the restoration of data to server. We
strongly recommend that your purchase backup options for your server, and keep
copies of your data off-site with you for emergency purposes. If hardware
failure and data loss occurs, you the client are responsible for data
restoration. Max Dedicated shall not be liable for loss of data under any
circumstance.
*Subscriber acknowledges that the service provided is of such a nature that
service can be interrupted for many reasons other than the negligence of the
company and that damages resulting from any interruption of service are
difficult to ascertain. Therefore, subscriber agrees that the company shall not
be liable for any damages arising from such causes beyond the direct and
exclusive control of the company. Subscriber further acknowledges that the
company's liability for its own negligence may not in any event exceed an amount
equivalent to charges payable by subscriber for services during the period
damages occurred. In no event shall the company be liable for any special or
consequential damages, loss or injury.*
Publicity
Max Dedicated keeps all client information private and will not publicly disclose
that they are providing services to the client unless permission is received on
a case-by-case basis. Max Dedicated reserves the right to use client quotes for
promotional uses. Such quotes will be anonymous unless the client agrees to
disclosure of their name.
All communications from
Max Dedicated and the client are strictly confidential
and for the intended use of the addressee only. Any disclosure, use or copying
of the information by anyone other than the intended recipient is prohibited and
you agree to be held liable for damages if you violate this agreement, forward
the information, post it or allow it to be posted online in public or private
forums or venues.
Electronic Notifications
Your affirmative act of using the Services constitutes your electronic signature
to these Terms of Service and your consent to enter into agreements with us
electronically. You also agree that we may send to you in electronic form any
privacy or other notices, disclosures, reports, documents, communications or
other records regarding the Services (collectively, .Notices.). We can send you
electronic Notices to the e-mail address that you provided to us during
registration. The delivery of any Notice from us is effective when sent by us,
regardless of whether you read the Notice when you receive it or whether you
actually receive the delivery. You can withdraw your consent to receive Notices
electronically by canceling or discontinuing your use of the applicable
Services. In order to receive Notices electronically, you must have a personal
computer with a modem connected to a communications source (telephone, wireless
or broadband), and a Windows-based or a Macintosh-based operating system with an
Internet browser. You will need a printer attached to your personal computer to
print any Notices. You can retrieve an electronic copy and a printable version
of this contract by clicking on the .Terms of Service. link on any web page that
hosts any of the Services. All contracts completed electronically will be deemed
for all legal purposes to be in writing and legally enforceable as a signed
writing.
Entire Agreement
This contract and any supplemental terms, policies, rules and guidelines posted
on our website constitute the entire agreement between you and us and supersede
all previous or contemporaneous written or oral agreements. If any part of these
Terms of Service is held invalid or unenforceable, that portion shall be
construed in a manner consistent with applicable law to reflect, as nearly as
possible, the original intentions of the parties, and the remaining portions
shall remain in full force and effect.
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