Terms of Service

Updated: 01/03/2011

1. Term and Payment for Services

1.1. Term. This Agreement shall be for an "Initial Term", which shall be effective as of the date first written above and shall continue for a specified term and shall continue month to month from that point unless Customer or MaxiumASP notifies the other party in writing thirty (30) days in advance of the termination of the current one (1) Month period. You must provide MaximumASP with your notice of termination in writing via facsimile. Upon canceling service, you will be asked to provide MaximumASP with sufficient customer identification information so that MaximumASP may properly identify you and your account. Any notice of termination will be effective upon receipt of the cancellation fax.

1.2. Termination Policy - Shared and Virtual Services. If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, (a) MaximumASP will refund to you any fees paid in advance of such termination and (b) the refunded amount shall be equal to the discounted amount of the remainder of whole months remaining in the billing cycle, less the plan period discount applicable to the whole number of months in which service has already been provided. Notwithstanding the foregoing, if you terminate your receipt of Hosting Services prior to the end of the first thirty (30) days of the Initial Term, you are entitled to a refund of the fees you paid in advance for the monthly Services, not including any set-up fees. Your termination request or notice must be submitted to MaximumASP in the manner described in Section 1.1.

1.2.1. Termination Policy - Dedicated Services. Termination of dedicated services is not permitted prior to the end of the Initial Term of the contract. If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term you are responsible for all fees and amounts due for the remainder of the Initial or Renewal Term. Your termination request or notice must be submitted to MaximumASP in the manner described in Section 1.1.

1.3. Default and Cure. In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within fifteen (15) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.

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1.4. Billing Cycles. MaximumASP bills on a monthly billing cycle. MaximumASP will bill Customer according to the following schedule: Monthly billings to occur 30 days from the initial signup date.

1.5 Charges to Customer. You agree to pay for all charges attributable to your use of the Services at the then current MaximumASP prices, which shall be exclusive of any applicable taxes. You will be charged USD $3 per 1 gigabyte (GB) of data transferred in excess of the pre-allocated amounts in any calendar month from your server. You are responsible for the payment of all federal, state, or local use, franchise, use, value added, excise, sales or privilege taxes, duties, fees, and any other taxes assessed with respect to the Services, or similar liabilities chargeable to or against MaximumASP resulting from the Services furnished by MaximumASP, other than taxes based on MaximumASP's net income.

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1.6 Payment. All charges for Services must be paid in advance according to the then current prices applicable to the Services. Upon entering this Agreement, you choose to pay by direct charge to a credit or debit card and receive a receipt for each transaction processed by MaximumASP. If you choose to pay by credit or debit card upon registering for the Services, you thereby authorize MaximumASP to charge your credit or debit card to pay for any charges that may apply to your account. You agree that MaximumASP may accumulate any supplemental charges, incurred by you in your use of the Services ("Supplemental Charges") until such charges exceed $10 and then charge your account. You must notify MaximumASP of any charges to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit MaximumASP from charging your account. If you fail to pay any fees and taxes within seven (7) days from applicable due date on credit card payments, the Customer account shall be put into a suspension period of an additional seven (7) days. During this time Customer access to the services will be restricted. If during this seven (7) day suspension period, Customer provides valid payment information and pays the balance due in-full, service will be reinstated upon the processing of the new payment information. In addition, your failure to fully pay any fees and taxes within fourteen (14) days after the applicable due date will be deemed a material breach of this Agreement, justifying MaximumASP's suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstatement of Services. Any such suspension or termination would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.


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2. Use of Services

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2.1. Effect of Acceptable Use Policy. The MaximumASP Acceptable Use Policy (the "AUP") governs the general policies and procedures for use of the Services. The AUP is described below in Section 2.1.2. and posted on MaximumASP's Web site (or other such location as MaximumASP may specify) and may be updated and/or revised from time to time. YOU SHOULD CAREFULLY READ THE FOLLOWING AUP. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE AUP AND ANY MODIFICATIONS. MAXIMUMASP RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE AUP OR THIS AGREEMENT.

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2.1.1. Acceptable Use Policy. As a provider of web site hosting, and other Internet-related services, MaximumASP offers its customers (also known as subscribers), and their customers and users, the means to acquire and disseminate a wealth of public, private, commercial, and non-commercial information. MaximumASP respects that the Internet provides a forum for free and open discussion and dissemination of information, however, when there are competing interests at issue, MaximumASP reserves the right to take certain preventative or corrective actions. In order to protect these competing interests, MaximumASP has developed an Acceptable Use Policy (the "AUP"), which supplements and explains certain terms of this Agreement and is intended as a guide to the customer's rights and obligations when utilizing MaximumASP's services. Customer's use of MaximumASP's services after changes to the AUP are posted on MaximumASP's web site, wwwMaximumASP.com, will constitute Customer's acceptance of any new or additional terms of the AUP that result from those changes.

One important aspect of the Internet is that no one party owns or controls it. This fact accounts for much of the Internet's openness and value, but it also places a high premium on the judgment and responsibility of those who use the Internet, both in the information they acquire and in the information they disseminate to others. When Customer obtains information through the Internet, Customer must keep in mind that MaximumASP cannot monitor, verify, warrant, or vouch for the accuracy and quality of the information that Customer may acquire. For this reason, Customer must exercise his or her best judgment in relying on information obtained from the Internet, and also should be aware that some material posted to the Internet is sexually explicit or otherwise offensive. Because MaximumASP cannot monitor or censor the Internet, and will not attempt to do so, MaximumASP cannot accept any responsibility for injury to its subscribers that results from inaccurate, unsuitable, offensive, or illegal Internet communications.

When Customer disseminates information through the Internet, Customer also must keep in mind that MaximumASP does not review, edit, censor, or take responsibility for any information its subscribers may create. When users place information on the Internet, they have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Also, because the information they create is carried over MaximumASP's network and may reach a large number of people, including both subscribers and nonsubscribers of MaximumASP, subscribers' postings to the Internet may affect other subscribers and may harm MaximumASP's goodwill, business reputation, and operations. For these reasons, Customer violates MaximumASP policy and this Agreement when Customer, their customers, affiliates, or subsidiaries engage in the following prohibited activities:

Spamming -- Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming"). It is not only harmful because of its negative impact on consumer attitudes toward MaximumASP, but also because it can overload MaximumASP's network and disrupt service to MaximumASP subscribers. Also, maintaining an open SMTP relay is prohibited. When a complaint is received, MaximumASP has the discretion to determine from all of the evidence whether the email recipients were from an "opt-in" email list.

General Practices for use and storage of email -- You acknowledge that MaximumASP may establish general practices and limits concerning use of the Service including, without limitation, the maximum number of days that email messages, message board postings or other uploaded Content will be retained by the Service, the maximum number of email messages that may be sent from or received by an account on the Service, the maximum size of any email message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on MaximumASP's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that MaximumASP has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. MaximumASP uses anti-spam measures such as RBL lists and heuristic scanning and reserves the right to delete any message that we believe is spam. You acknowledge that MaximumASP reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that MaximumASP reserves the right to modify these general practices and limits from time to time.

Intellectual Property Violations -- Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities. Also, engaging in activity that violates privacy, publicity, or other personal rights of others. MaximumASP is required by law to remove or block access to customer content upon receipt of a proper notice of copyright infringement. It is also MaximumASP's policy to terminate the privileges of customers who commit repeat violations of copyright laws.

Obscene Speech or Materials -- Using MaximumASP's network to advertise, transmit, store, post, display, or otherwise make available pornography or obscene speech or material. Also, MaximumASP is required by law to notify law enforcement agencies when it becomes aware of the presence of child pornography on or being transmitted through MaximumASP's network.

Defamatory or Abusive Language -- Using MaximumASP's network as a means to transmit or post defamatory, harassing, abusive, or threatening language.

Forging of Headers -- Forging or misrepresenting message headers, whether in whole or in part, to mask the originator of the message.

Illegal or Unauthorized Access to Other Computers or Networks -- Accessing illegally or without authorization computers, accounts, or networks belonging to another party, or attempting to penetrate security measures of another individual's system (often known as "hacking"). Also, any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity).

Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities -- Distributing information regarding the creation of and sending internet viruses, worms, Trojan horses, pinging, flooding, mail bombing, or denial of service attacks. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment.

Facilitating a Violation of this AUP -- Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP, which includes the facilitation of the means to spam, initiation of pinging, flooding, mail bombing, denial of service attacks, and piracy of software.

Export Control Violations -- Exporting encryption software over the Internet or otherwise, to points outside the United States.

Usenet Groups -- MaximumASP reserves the right not to accept postings from newsgroups where we have actual knowledge that the content of the newsgroup violates the AUP.

Other Illegal Activities -- Engaging in activities that are determined to be illegal, including advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating software.

Other Activities -- Engaging in activities, whether lawful or unlawful, that MaximumASP determines to be harmful to its subscribers, operations, reputation, goodwill, or customer relations.

The responsibility for avoiding the harmful activities just described rests primarily with the Customer. MaximumASP will not, as an ordinary practice, monitor the communications of its subscribers to ensure that they comply with MaximumASP policy or applicable law. When MaximumASP becomes aware of harmful activities, however, it may take any action to stop the harmful activity, including but not limited to, removing information, shutting down a Web site, implementing screening software designed to block offending transmissions, denying access to the Internet, or take any other action it deems appropriate.

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2.2. Material and Product Requirements. Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on MaximumASP's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by MaximumASP. MaximumASP will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready," MaximumASP has the option at any time to reject this material. MaximumASP will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of MaximumASP. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. It is not MaximumASP's responsibility to provide this knowledge or customer support outside of the Services agreed to by you and MaximumASP.

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2.3. Bandwidth and Storage Usage. You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out. If you use any bandwidth in excess of the agreed upon number of gigabytes per month, you agree to pay the associated additional charges.

For the purpose of billing bandwidth overages, MaximumASP will employ systems that sample traffic at a regular interval of five minutes traversing the switch port(s) that Customer's equipment is connected to. This data will be stored after collection and analyzed by evaluating the source and destination IP address of the sampled traffic. MaximumASP will maintain an up-to-date listing of all IP addresses managed and owned by MaximumASP, and will further keep a database showing the current allocation of these IP addresses by customer device.

Any traffic being transmitted to, or in an outbound fashion to an IP address that is not owned and managed by MaximumASP will be considered billable traffic (external traffic). All traffic being transmitted from an IP address owned and managed by MaximumASP to another IP address owned and managed by MaximumASP will be considered non-billable traffic (internal traffic).

Unless Customer has pre-paid for additional bandwidth capacity in excess of the pre-allocated amount provided with their device(s), MaximumASP will bill for any bandwidth overage on the first day of the calendar month following the preceding billable period. Each billable period will be considered one calendar month.

MaximumASP will bill customers for bandwidth overages using the higher of one of two methods:

1.) Volume of Data Transferred - This measurement will be the volume of data transferred during the billable period as measured in GB that is in excess of the pre-allocated specified for the given device.

2.) 95th Percentile Method - This measurement will use the rate of data transfer per Mbps and use the 5 minute samples collected over the billable period to determine the maximum bandwidth used during the period. The top 5% of these samples will be thrown out, and the next highest interval will be used to determine the overage amount for billing purposes.
The formula used to make the conversion from GB / month to Mbps is agreed to be:

1 Mbps sustained for 30 days = 324 GB data transferred

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2.3.1. Disk Space Management. You agree that MaximumASP may utilize certain tools both automated and manual in design that allow MaximumASP's support staff to maximize the efficiency of disk space utilization within Customer's account space. These tools will be used to compress and archive log files for the account for the purpose of maximizing useable disk space within the account. If Customer requires archived data for statistical analysis purposes or for local copy retention, Customer may request that an archived log file set be uncompressed by the MaximumASP support staff. The default schedule for archiving of log files is set at one (1) week.

2.4. Dedicated and Virtual Dedicated Server Uptime Guarantee / Service Level Agreement. MaximumASP shall make all reasonable attempts to provide a 100% uptime. The 100% uptime shall be monitored and computed as the aggregate uptime of each calendar month. In the case that MaximumASP fails to provide uptime equal to 100%, Customer shall be credited an amount as determined by our Service Level Agreement (SLA) which is located at www.maximumasp.com/about/sla.aspx. Please note, issues relating to "add-on" services purchased from MaximumASP are credited at same rates as described in the SLA. Due to the technical complexities of some services, a successful outcome cannot be guaranteed. Services such as bare metal restores, SQL Server restores, log shipping, and successful exploit prevention are examples of tasks that MaximumASP will attempt to perform for clients on a "best effort" basis with no guarantee of the outcome. In no event, shall the refunded amount for any period of unscheduled downtime or failure of any "add-on" service exceed the amount paid to MaximumASP in one calendar month by the client. MaximumASP has no financial liability to clients for service, data recovery or downtime other than as described in this paragraph.

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2.5. VPS Uptime Guarantee. MaximumASP shall make all reasonable attempts to provide a 99.93% server uptime. The 99.93% uptime shall be monitored and computed as the aggregate uptime of each calendar month. In the case that MaximumASP fails to provide uptime equal to, or in excess of 99.93%, Customer shall be credited an amount that is equal to the prorated amount of time that service was not available. The credited amount shall be rounded to the nearest quarter hour, and shall be applied at the subscribed billing amount, including any discounts given.

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2.6. MaximumASP may from time to time schedule network maintenance periods resulting in network interruptions. These maintenance periods will be announced in advance via e-mail to the primary technical contact for the account. These maintenance periods shall be exempt from the uptime guarantee contained herein, and a credit will be provided only in the event that the scheduled downtime extends beyond the announced maintenance window. MaximumASP agrees to make all reasonable effort to limit direct maintenance on customer equipment to one (1) time each week. The preferred maintenance window will be Sunday morning from 1:00AM EST to 3:00AM EST. Customer acknowledges that MaximumASP may from time to time be required to perform emergency maintenance activities to the network and supporting equipment. Customer agrees that these maintenance activities fall outside of the scope of customer operated equipment and may lead to downtime and latency. Customer waives all claims relating to these announced indirect maintenance outages.


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3. Enforcement

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3.1. Investigation of Violations. MaximumASP may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. MaximumASP will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.

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3.2. Actions. MaximumASP reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, MaximumASP may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on MaximumASP's systems, and/or (d) disabling or removing any hypertext links to third-party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by MaximumASP which, in MaximumASP's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes MaximumASP to civil or criminal liability or public ridicule. It is MaximumASP's policy to terminate repeat infringers. MaximumASP's right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services. If MaximumASP takes corrective action due to such possible violation, MaximumASP shall not be obligated to refund to you any fees paid in advance of such corrective action.

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3.3. Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect MaximumASP's systems and customers, or to ensure the integrity and operation of MaximumASP's business and systems, MaximumASP may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on MaximumASP's servers and systems. MaximumASP also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.

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3.4. Liability of Customer. Any mistakes, accidents, omissions, interruptions, delays, errors or defects in transmission or Service which are caused or contributed to, directly or indirectly, by an act or omission of the Customer or other or by the use of Customer-provided facilities or equipment, or by the use of facilities or equipment furnished by any other person using Customer's facilities which are connected to MaximumASP's facilities, shall not result in the imposition of any liability upon MaximumASP and Customer shall pay to MaximumASP any reasonable costs, expenses, damages, fees or penalties incurred by MaximumASP as a result thereof, including costs of local exchange company, labor and materials.


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4. Intellectual Property Rights

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4.1. Your License Grant to MaximumASP. You hereby grant to MaximumASP a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Term to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to MaximumASP a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

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4.2. MaximumASP Materials and Intellectual Property. All materials including but not limited to any computer software (in object code and source code form), data or information developed or provided by MaximumASP or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by MaximumASP to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of MaximumASP or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by MaximumASP during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on any such software is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.

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4.3. Trademarks. You hereby grant to MaximumASP a limited right to use your trademarks, if any, for the limited purpose of permitting MaximumASP to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.


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5. Warranty; Warranty Disclaimer

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5.1. Customer and/or Third Party Acts. MaximumASP is not responsible in any manner for any nonconforming Services to the extent caused by you or your customers. In addition, MaximumASP is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond MaximumASP's reasonable control.

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5.2. No Express or Implied Warranty. ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY MAXIMUMASP UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT MAXIMUMASP EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH MAXIMUMASP'S COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. MAXIMUMASP DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, MAXIMUMASP DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR ANY PURPOSE FOR THE SERVICE OR LOCAL ACCESS, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.

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5.3. Your Warranties and Representations to MaximumASP. You warrant, represent, and covenant to MaximumASP that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.


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6. Limitation and Exclusion of Liability

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6.1. Limitations. IN NO EVENT SHALL MAXIMUMASP HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. MAXIMUMASP SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF ANY BREACH, DELAY OR DEFAULT IN PERFORMANCE OF THIS AGREEMENT, EVEN IF MAXIMUMASP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF MAXIMUMASP TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO A CREDIT ALLOWANCE OF THE AMOUNT ACTUALLY PAID TO MAXIMUMASP BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY MAXIMUMASP UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE MAXIMUMASP FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. MAXIMUMASP'S LIABILITY ARISING OUT OF DELAYS IN INSTALLATION, COMMENCEMENT OR RESTORATION OF SERVICE, OR OUT OF MISTAKES, ACCIDENTS, OMISSIONS, INTERRUPTIONS, DELAYS, OR DEFECT IN TRANSMISSION, INCLUDING THOSE WHICH MAY BE CAUSED BY REGULATORY OR JUDICIAL AUTHORITIES, SHALL IN NO EVENT EXCEED THE AMOUNT OF CREDIT ALLOWANCE, IF ANY, AVAILABLE UNDER THIS SECTION. WITHOUT LIMITING THE FOREGOING, MAXIMUMASP SHALL HAVE NO OBLIGATION TO PROVIDE ALTERNATIVE ROUTING WITH RESPECT TO ANY SERVICE PROVIDED PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL MAXIMUMASP BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, FIRM OR ENTITY IN ANY RESPECT, INCLUDING, WITHOUT LIMITATION, FOR ANY DAMAGES, EITHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, PUNITIVE, OR FOR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF MISTAKES, NEGLIGENCE, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS OR DEFECT IN TRANSMISSION, OR DELAYS, INCLUDING, BUT NOT LIMITED TO, THOSE WHICH MAY BE CAUSED BY REGULATORY OR JUDICIAL AUTHORITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OBLIGATIONS OF MAXIMUMASP PURSUANT TO THIS AGREEMENT.

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6.2. Interruption of Service. Customer understands and agrees that occasional temporary interruptions of any Internet Services may occur as normal events in the provision of Internet Services. You hereby acknowledge and agree that under no circumstances will MaximumASP be held liable to Customer or any other person, firm or entity for any financial or other damages due to any temporary delay, outages or interruptions of the Services. Further, MaximumASP shall not be liable to Customer or any other person, firm or entity for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any cause or causes including, but not limited to, any act of God, fire, explosion, vandalism, cable cut, storm, or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure); any law, order, regulation, direction, action or request of the United States government or of any other government (including state and local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority; national emergencies, insurrections, riots, wars; or strikes, lockouts, or work stoppages or other labor difficulties; MaximumASP failures, shortages, breaches or delays.

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7. Indemnification. You will defend, indemnify, release and hold harmless MaximumASP and its officers, directors, shareholders, employees, consultants, agents, affiliates, subsidiaries, and suppliers (an "Indemnitee") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, consequential damages, including but not limited to attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to, your negligence, gross negligence, or willful misconduct; (iii) your improper or illegal use of the Services; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by MaximumASP; (v) any claim relating to your services or products, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or non-proprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity); (vi) Customer's use of MaximumASP's services and facilities provided to Customer under this Agreement; even if MaxiumASP has been advised of the possibility of such damages; and (vii) MaximumASP's and/or an Indemnitee's own conduct, including but not limited to, negligence, gross negligence, or willful misconduct.


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8. Miscellaneous

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8.1. Confidentiality. The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. "Confidential Information" means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure. If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years.

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8.2. Notices. All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.

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8.3. Choice of Law and Forum. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF KENTUCKY, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN KENTUCKY, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.

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8.4. Entire Agreement; Amendment. This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally by Customer but only by an agreement in writing signed by both parties. However, MaximumASP at its sole discretion may change the terms of this Agreement at any time. Customers will be notified of changes via email and shall be bound by said changes. This Section does not prevent MaximumASP from amending the terms or adding terms to this Agreement through appendices or otherwise.

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8.5. No Fiduciary Relationship; No Third-Party Beneficiaries. MaximumASP is not the agent, fiduciary, trustee or other representative of you. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.

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8.6. Assignments. You may not transfer or assign your rights, duties, or obligations under this Agreement without MaximumASP's prior written consent. MaximumASP may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without your prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.

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8.7. No Waiver. MaximumASP's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of MaximumASP's right to subsequently enforce such provision or any other provisions under this Agreement.

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8.8. Severability. If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

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8.9. Survival. All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.

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8.10. Common Carrier. MaximumASP and Customer agree that MaximumASP is solely acting as a common carrier in its capacity of providing services hereunder, is not a publisher of any material or information and has no right to edit or censor the material at Customer's site.