Below you will find the agreement for your use of Maxanet software. If you have questions please email support@maxanet.com
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MAXANET SOFTWARE, LLC
HOSTED SERVICES AGREEMENT
1. AGREEMENT. By clicking "I Agree," as an individual or as an authorized representative of client, you as client or client which you represent ("Client"), agree to be bound by all terms and conditions of this Hosted Services Agreement ("Agreement"), including, without limitation, all documents, policies, and procedures incorporated herein by reference. This Hosted Services Agreement is a binding contract between Maxanet Software, LLC ("Maxanet" or "we") and you and/or the company or other legal entity that you represent (collectively, the "Client" or "you") for the use of Maxanet's hosted services (the "Hosted Services"). Maxanet and Client are referred to individually as a "party" and collectively as the "parties". If you are entering into this Agreement as an individual, you represent and warrant that you are over the age of eighteen (18) and possess the legal capacity to bind yourself to its terms and conditions. If you are entering into this Agreement on behalf of a business organization or entity, you represent and warrant that you are duly authorized to bind that entity to this Agreement.
2. SERVICES. All Hosted Services made available to you under this Agreement, including any related support services or Documentation we may provide, are collectively referred to in this Agreement as the "Hosted Services". The Hosted Services, including use of all servers, are unmanaged. Primary support is provided via email and is generally available Monday through Friday from 8:00 AM to 8:00 PM Eastern Time. We reserve the right to modify the Hosted Services at any time and without advance notice. At no time, and under no circumstances, does this Agreement represent a sale or license of the intellectual property contained within the Hosted Service or any software version of Maxanet (including any copy or update of the same) to you.
3. TERM. The term of this Agreement ("Term") will begin when the first of the following occurs: (i) you complete the registration process for your Hosted Services account and/or (ii) upon use of the Hosted Services (thereby accepting the terms and conditions of this Agreement). This Agreement will remain in effect until terminated by you or us in accordance with Section 4.
4. TERMINATION OR SUSPENSION.
(a) MAXANET TERMINATION OR SUSPENSION. In our sole discretion, we may immediately (and without prior notice) suspend or terminate the Hosted Services by sending you a written or electronic notice of suspension or termination if one or more of the following occurs: (i) you fail to comply with any provision of this Agreement; (ii) you fail to timely renew this Agreement or fail to make any payment when due (i.e. your credit card is declined); (iii) we determine, in our sole discretion, that your use of the Hosted Services poses a threat to the security or performance of our network or to any of our clients or suppliers;(iv) we determine, in our sole discretion, that your use of the Hosted Services is illegal, or that it misappropriates or infringes the property rights of Maxanet or a third party; or (v) we discover that you provided us with false information when you registered for Hosted Services, or that you lacked the capacity to enter into this Agreement at the time of its consummation. All terms of this Agreement which should reasonably survive termination of the Agreement shall survive such termination.
(b) CLIENT TERMINATION. Client may terminate this Agreement at any time by giving Maxanet 30 days advance notice pursuant to Section 16.
5. EFFECT OF SUSPENSION. During any period of suspension, the Hosted Services will be unavailable in whole or in part and you may not have access to your data. Notwithstanding the same, data may continue to be hosted by Maxanet (at its sole discretion) and fees may continue to accrue. In order for you to again gain access to the Hosted Services, we may charge you, in addition to the standard advance payment of fees associated with the Hosted Services, a reinstatement fee following any such suspension.
6. AMENDMENTS. Maxanet may amend this Agreement by providing you notice in accordance with the notice provisions in Section 16 below. Thirty (30) days after the effective date of an amendment to this Agreement, your continued use of the Hosted Services will be deemed to be your acceptance of that amendment.
7. FEES AND BILLING. FEES. Any fees paid for under this Agreement are non-refundable. All fees are due and payable by credit card upon receipt of invoice, provided via email. A paper invoice may be provided, at your request, for an additional fee of ten dollars ($10.00) per month.
(a) It is your sole responsibility to provide accurate billing contact information and to notify us of any changes to your billing contact information in accordance with the notice provisions in Section 16 below.
(b) Hosted Services will not increase for a period of ninety (90) days from original purchase date. After the initial ninety (90) day period we may increase your fees for the Hosted Services thirty (30) days after the increase is posted on the pricing page of our website.
(c) You are solely responsible for all fees relating to Hosted Servers that are associated with your Hosted Services account and for any fees that you incur until this Agreement is terminated. Maxanet may charge a late payment fee of fifteen dollars ($15.00) for any payment which is over fifteen (15) days late, in additional to interest on overdue fees at the lesser of 1.5% per month or the maximum rate permitted by applicable law. Moreover, your access to the Hosted Services may be suspended, pursuant to Sections 4 and 5 above, if you are over fifteen (15) days late in payment of fees.
8. TAXES. The Client shall be solely responsible for and agrees to pay, indemnify, and hold Maxanet harmless from any and all sales, use, communications, excise, or similar tax or duty, and any other tax not based on Maxanet's net income, including penalties and interest and any associated professional fees, and all other imposts levied upon or chargeable with respect to the use, license, sale, or delivery of the services or other deliverables in respect of this Agreement, and any costs associated with the collection or withholding of any of the foregoing items (collectively, "Taxes"), including based upon the Client's failure to comply with the next sentence. If the Client is exempt from paying such Taxes, the Client shall timely provide and maintain written exemption and/or registration documentation that is legally required to support the Client's tax exempt status, and promptly notify Maxanet if the Client's tax exempt status is revoked or modified. The parties acknowledge that Taxes should be imposed upon the transaction(s) described in this Agreement, if any, based upon the single/primary location to which such transactions are provisioned, as evidenced by the billing address on Maxanet's invoices to Maxanet.
9. SECURITY. NEITHER WE NOR ANY OF OUR EMPLOYEES, AGENTS, REPRESENTATIVES, ASSIGNS OR SERVICE SUPPLIERS WILL BE LIABLE FOR UNAUTHORIZED ACCESS (I.E., HACKING) INTO THE HOSTED SERVERS OR YOUR TRANSMISSION FACILITIES, PREMISES OR EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THEREON, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW.
10. DISCLAIMER OF WARRANTY. THE HOSTED SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. FURTHER, MAXANET DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE HOSTED SERVICES OR ITS ACCOMPANYING WRITTEN MATERIALS (IF ANY) IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE HOSTED SERVICES IS ASSUMED BY YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MAXANET, ITS DEALERS, DISTRIBUTORS, AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
NEITHER THE MAXANET NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE HOSTED SERVICES SHALL BE LIABLE FOR ANY DIRECT OR INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE HOSTED SERVICES EVEN IF MAXANET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NO ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11. LIMITATION OF DAMAGES. Maxanet's entire liability for all claims in the aggregate arising from your use of a Hosted Service acquired hereunder will not exceed the amount of any actual direct damages up to the amounts paid in the prior three (3) months for the Hosted Service that is the subject of the claim, regardless of the basis of the claim. This limit applies collectively to Maxanet, its parent, subsidiaries and contractors. MAXANET WILL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR ECONOMIC CONSEQUENTIAL DAMAGES, LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
12. INDEMNIFICATION. You agree to indemnify, defend and hold Maxanet and its employees, agents, shareholders, members, officers, directors, successors and assigns harmless from and against any and all claims, damages, liabilities, costs, settlements, penalties and expenses (including attorneys' fees, expert's fees and settlement costs) arising out of or relating to any suit, action, proceeding, arbitration, subpoena, claim or demand brought or asserted by a third party pursuant to any theory of liability against Maxanet arising out of or relating to any one or more of the following: (i) a breach by you of this Agreement; (ii) the use of the Hosted Services by you or your end users, or any Content or information on the Hosted Services; (iii) the alleged or actual infringement or misappropriation of any intellectual property right or other proprietary right by you, or by your agents, representatives or end users; (iv) your relationship with the manufacturer of any software installed or stored on the Hosted Services; or (v) your failure to use reasonable security precautions. We will provide you with written notice of the existence of any basis for indemnification and we will select our defense counsel. You will have the right to approve any settlement, but you may not unreasonably withhold your approval. You agree to indemnify us from all costs, expenses and liabilities as they become due.
13. MAINTENANCE; SERVICE MODIFICATIONS AND DISCONTINUANCE. In addition to our right to suspend or terminate the Hosted Services in accordance with Section 4 , we may suspend all or part of the Hosted Services without liability or prior notice to you (i) in order to maintain (i.e., modify, upgrade, patch, or repair) our Infrastructure or any Hosted Servers; (ii) as we determine may be required by law or regulation; or (iii) as we determine to be necessary to protect our Infrastructure and clients from unauthorized access or an attack on the Hosted Services. Notwithstanding the foregoing, we will endeavor in good faith to provide you with advance notice of any suspension or termination under this Section 13 in accordance with the notice provisions in Section 16 and we will provide you with notice of the suspension or termination as soon as it becomes practicable for us to do so.
14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. In case of any dispute related to this Agreement, the parties agree to submit to personal jurisdiction in the State of Delaware. Furthermore, the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any court of the State of Delaware or any federal court sitting in the State of Delaware for purposes of any suit, action or other proceeding arising out of this Agreement. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THIS AGREEMENT.
15. INTELLECTUAL PROPERTY. Maxanet owns all right, title and interest in and to the Hosted Services and the and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the you or any other party relating to the Hosted Services. This Agreement is not a sale and does not convey any rights of ownership in or related to the Hosted Services or other intellectual property. The Maxanet name, the Maxanet logo, and the product names associated with the Hosted Services are trademarks of Maxanet or third parties, and no right or license is granted to use them.
You may not copy, modify, download or transfer any component of the Hosted Services, in whole or in part. You may not reverse engineer, disassemble, decompile, or translate any portion of the Hosted Services, attempt to derive the source code of any software component of the Hosted Services, create any derivative work from the Hosted Services, or authorize any third party to do any of the foregoing. Any attempt to transfer any of the rights, duties or obligations under this Agreement is void. You may not rent, lease, loan, resell for profit, or distribute the Hosted Services, or any part thereof, nor may you provide access to the Hosted Services over the Internet or any network for use by any third parties. You may not remove or alter any proprietary notice or legend regarding Maxanet's proprietary rights in the Hosted Services. You may not use the Hosted Services except in accordance with applicable laws and regulations.
You acknowledge that the Hosted Services may display content, like photos, graphical material, trademarks, and other information and media provided to us by third parties (collectively, "Third-Party Content"). YOU ACKNOWLEDGE AND AGREE THAT MAXANET IS NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, CURRENCY, LEGALITY, SUITABILITY OR QUALITY OF THIRD-PARTY CONTENT AND SHALL HAVE NO LIABILITY TO YOU IN CONNECTION WITH THIRD-PARTY CONTENT OR IN CONNECTION WITH ANY PRODUCT, SERVICE OR OTHER OFFERING DESCRIBED THEREIN. You may not reproduce, publicly perform, publicly display, modify, distribute or create derivative works of any Third-Party Content, nor use any Third-Party Content except as provided by the standard functionality offered within the Hosted Services.
Maxanet respects the intellectual property rights of third parties. In the event that you have a good faith belief that your copyrights have been violated by the use or display of certain content within the Hosted Services, it is our policy to investigate and promptly undertake efforts to resolve the issue. To notify us regarding an alleged copyright violation, you must provide us with all of the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (ii) identification of the copyrighted work(s) claimed to have been infringed, and information reasonably sufficient to permit us to locate the material; (iii) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (iv) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (v) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
For this notification to be effective, you must provide it to Maxanet's designated agent at:
Fullsteam Operations LLC
Attn. Ed Graf
Maxanet Software, LLC
197 East University Drive
Auburn, AL 36832
16. NOTICES. All notices, demands, and other communications provided for hereunder shall be in writing and mailed (by certified mail, return receipt requested), sent, or delivered (including by way of overnight courier service or email), to each party, to such other person and/or at such other address, number or email address as shall be designated by such party in a written notice (including electronic) to the other party. All such notices, demands, and communications shall be effective when received, unless otherwise stated herein.
17. CONFIDENTIALITY. Each party agrees and undertakes that during the term of this Agreement and thereafter in perpetuity it will keep confidential and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party any information of a confidential nature (including without limitation trade secrets and information of commercial value) which may become known to that party from the other party ("Confidential Information") unless the information (i) is public know ledge or (ii) is already known to that party at the time of disclosure or (iii) subsequently becomes public knowledge other than by breach of this Agreement or (iv) subsequently comes lawfully into the possession of that party from a third party or (v) is required to be disclosed by law or court order provided that the recipient promptly notifies the discloser in writing of the requirement for disclosure and limits the content and distribution of such disclosure to the extent reasonably possible.
18. ASSIGNMENT. You may not assign this Agreement or resell the right to use the Hosted Services without our prior written consent. We may assign or subcontract this Agreement at any time. This Agreement will be binding upon and inure to the benefit of all of our successors and assigns, which will be bound by all of the obligations of their predecessors or assignors.
19. NON-WAIVER. Maxanet's failure at any time to require strict performance from Client of any of the provisions hereof shall not waive or diminish Maxanet's right thereafter to demand strict compliance therewith or with any other provision. Waiver of any default shall not waive any other default. Maxanet's rights hereunder are cumulative and not alternative.
20. SEVERABILITY. Should any portion of this Agreement be held to be invalid, unenforceable or void, such holding shall not have the effect of invalidating the remainder of this Agreement or any other part thereof. The parties hereby agree that the portion so held to be invalid, unenforceable, or void shall, if possible, be deemed amended or reduced in scope or entirely severed if necessary.
21. FORCE MAJEURE. Maxanet will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Maxanet's reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
22. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter contained herein. There are no other agreements, written or unwritten, that shall bind the parties. Additional or different terms in any written communication from you, including any purchase order or request for Hosted Services, are void.