The following Terms of Service (TOS or Agreement) apply to all services provided by Maiahost to You. By purchasing services from Us You, as Our client, agree to these terms of service.

User Agreement

This agreement (“Agreement”) is officially made between Maiahost.com, a division of Psionic-Studios, LLC (“PROVIDER”, “Maiahost”, “We”, “Us” and “Our”) and the party set forth in the related Registration From or specified in the online application (“CLIENT”, “You” and “Your”) incorporated herein by reference (together with any subsequent Registration Forms or other online signup, acceptance or order form submitted by CLIENT, the “Registration Form”), and applies to the purchase of all services ordered by CLIENT on the Registration Form (collectively, the “Service” or “Services”). As used herein and on, the terms “CLIENT”, “You” and “Your” will be accredited to but not limited to any user, client, affiliate, subscriber or person who uses the services provided by Maiahost in a direct or indirect manner obtained by or through Maiahost.

SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN YOU, AS CLIENT AND US, AS PROVIDER OF THESE SERVICES CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING OUR GENERAL USER CONDITIONS AND POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

General User Conditions, Acceptable Use Policy and Copyright Infringement Policy.

• According to this current Agreement, the CLIENT shall and will comply and conform to the current Acceptable Use Policy (“AUP”), Copyright Infringement Policy (“CIP”), standards and conditions set forth and as amended, modified or updated by and only by Maiahost and its officers, and other agreements which will always be available for access and view under the Terms of Service section on the Maiahost.com Web site and which is incorporated in this Agreement by reference. These will collectively be referred to as “Terms of Service” or “TOS” hereafter. By accepting the services of the PROVIDER, the CLIENT hereby acknowledges that it has reviewed the AUP and that the terms of the AUP and CIP are incorporated herein by reference. The terms of the current AUP and CIP will be dominant and shall govern in case of the presence of any inconsistencies between this Agreement and the AUP and CIP. The most updated version of both policies is available on-line any time or as a hard copy by request only. CLIENT understands that the services are subject to immediate termination without compensation for non-compliance with the policies. Further, CLIENT will be responsible for the full amount of any tangible and intangible damages this may cause.
• The PROVIDER has no intention of regularly monitoring the content submitted to, stored on or distributed or disseminated by the CLIENT via the Service (the “Client Content”). Client Content includes content of the CLIENT’s and/or users of CLIENT’s Web site. CLIENT is to be always legally responsible for Your users content and activities on Your Web site. You are responsible for obtaining any licenses and/or permissions from public or private authorities that are required to upload the contents of Your Web site or the web activity undertaken by You. PROVIDER reserves the right to disclose Your name and address to a complaining individual or naming authority if and only if in its reasonable discretion it is necessary or appropriate to do so. In this sense, notwithstanding anything to the contrary contained in this Agreement, PROVIDER may immediately take corrective action, including removal of all or a portion of the Client Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by CLIENT of the AUP. In the event PROVIDER takes corrective action due to a violation of the AUP, PROVIDER shall not refund to CLIENT any fees paid in advance of such corrective action. CLIENT hereby agrees that PROVIDER shall have no liability to CLIENT or any of CLIENT’s users due to any corrective action that PROVIDER may take (including, without limitation, suspension, termination or disconnection of Services).
• Maiahost’s Service Level Agreement (SLA) sets out the hosting performance you can expect from us. The SLA is your sole and exclusive remedy for our failure to provide the Services to you.
• You will receive a password to be used when you log into your User Area and/or server. You are solely responsible for all passwords, and you shall keep all passwords confidential and take security measures to prevent any unauthorized person from gaining access to your passwords.
• Maiahost retains the exclusive ownership of, and proprietary rights in, all Equipment.
• If necessary, we will provide an IP address for You. We retain ownership of this IP address. It may only be used by You while using the Services, and may not be transferred. Upon Termination of this TOS, or a particular Service, Your right to use an IP address will end. IP addresses are recycled.

CLIENT’s Responsibilities

• CLIENT is solely responsible for the quality, performance and all other aspects of the Client Content and the goods or services provided through the CLIENT’s Web site.
• CLIENT will cooperate fully with PROVIDER in connection with Maiahost’s provision of the Services. CLIENT must provide any equipment or software that may be necessary for You to use the Services. Delays in CLIENT’s performance of its obligations under this Agreement will extend the time for PROVIDER’s performance of Our obligations that depend on Your performance on a day for day basis. CLIENT must provide complete, correct and genuine contact information in the Registration Form and update such information as necessary from time to time so it remains complete, correct and genuine at all times; failure to do so may result in suspension or cancellation of Services. CLIENT will notify Maiahost of any change in Your mailing address, telephone, electronic mail or other contact information.
• CLIENT assumes full responsibility for providing end users with any required disclosure or explanation of the various features of Your Web site and any goods or services described therein, as well as any rules, terms or conditions of use.

CLIENT’s Representations and Warranties

CLIENT hereby represents and warrants to PROVIDER, and agrees that during the Initial Term and any Term thereafter You will ensure that:

• CLIENT is the owner or valid licensee of the Client Content and each element thereof, and You have secured all necessary licenses, consents, permissions, waivers and releases for the use of the Client Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Maiahost to pay any fees, residuals, guild payments or other compensation of any kind to any Person.
• CLIENT’s use, publication and display of the Client Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated.
• CLIENT will comply with all applicable laws, rules and regulations regarding the Client Content and the Client Web site and will use the Client Web site only for lawful purposes.
• CLIENT has used its best efforts to ensure that the Client Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
• CLIENT grants PROVIDER the right to reproduce, copy, use and distribute all and any portion of the Client Content to the extent needed to provide and operate the Services.
• In addition to transactions entered into by CLIENT on Your behalf, CLIENT also agrees to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your agent, and transactions entered into by anyone who uses Your account, whether or not the transactions were on Your behalf.
• CLIENT must be over the age of 18 at the time you place your Order.
• CLIENT shall provide to Maiahost, at Your cost, any information, resources or facilities reasonably requested by PROVIDER for the delivery of the Services and, where necessary, ensure that Your employees, contractors and other suppliers cooperate fully and promptly with PROVIDER
• For avoidance of doubt, the individual or entity set out in the Account Owner Information my profile section of the Clients Area is considered by Us to be the owner of the account and all associated services except Third party services purchased through Maiahost that are subject to additional terms and conditions. The individual or entity paying for the Services is not considered to be the owner. It is Your obligation to ensure that You correctly indicate ownership of Your account. If there is a dispute about ownership, the account will be locked until the parties to the dispute agree on a resolution, or until the matter is resolved judicially.
• Shared Hosting, VPS, and Semi-Dedicated Server services are provided on the basis of the Initial Term specified on your Order. 7 days prior to the expiration of the Initial Term, VPS and Active Dedicated Server services will renew for a period of equal length until terminated as described in paragraph 6 (a Renewal Term). For all other accounts, Services shall renew for a one year period each year (a Renewal Term), unless you choose to renew for a different period or unless terminated as provided herein. Any such termination or cancellation will be subject to the payment of any outstanding charges. Fees for any Renewal Term will be set out in our written acceptance of the renewal 15 days prior to expiration of the Term for Shared Hosting and all associated services, 7 days prior to expiration for VPS and Active Dedicated Server Services and upon expiration for monthly Shared Hosting services.

Payment

• CLIENT will be fully responsible for making any payments and covering all fees for using the Services provided by Maiahost as described in the Registration Form.
• Invoices are due immediately upon receipt. Fees must be paid without deduction or set-off. Unpaid invoices shall accrue interest at a rate of 1.5%, and PROVIDER reserves the right to suspend the Services until payment is made. Time for payment is of the essence. Domain name registration Fees must be paid in full before your Order will be reviewed.
• CLIENT agrees to pay by credit card. CLIENT agrees to provide updated credit card information on-line as may be requested in case Your card is being declined.
• CLIENT understands that non-payment will result in automatic “suspension” on Your account. During the suspended period the Web site will not be accessible. The account will be “reactivated” after payment in full is received. Credit card accounts will be automatically renewed unless notified prior to expiration date of service.
• Our obligation to provide the Service is contingent on Your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. You are responsible for keeping a current credit card on file. It is Your responsibility to ensure that We receive payment of the Fees. Should the Service be suspended, for any reason, Fees will continue to accrue. Set up and domain name registration charges are not refundable for any reason.
• We often offer special promotions (Special Promotions). These promotions have specific terms, and generally do not apply to current customers. They do not apply to Renewal Terms except when expressly stated in the special promotion terms. If You terminate the Services to which a Special Promotion was applied, the discount, or other benefit provided by the Special Promotion will be removed, and Your account will be rebilled as if it had been set up without the Special Promotion. If this results in additional Fees, You will be charged for those Fees.
• We are not responsible for Your data or domain name if Service is terminated because of credit card expiration.
• PROVIDER has the right to change the price of the services to reflect a change in the cost of the service, or other reasons. In case of price change, PROVIDER will send a 30 day advanced notice to CLIENT(s) by email only.
• We will charge you a $1.00 service fee each time your credit card is declined.
  We are pleased to provide you with a statement of account in your Client Area. This statement is based on our records and, to ensure accounting consistency, we cannot alter the information in our records.
• CLIENT agrees to pay a one time penalty of 6% of the amount due plus $10 per month for delayed payments.
• If You do not re-register Your domain name(s), PROVIDER may choose to register the domain name. At that time the title in, and ownership of, this domain name will vest in Maiahost. PROVIDER may sell this domain name without restriction as if the full legal and beneficial owner. Unpaid domain names may become the property of Maiahost.
• If Maiahost collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Maiahost prevails in any action to which the CLIENT and PROVIDER are parties, CLIENT will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Maiahost’s reasonable attorneys’ fees.
• In the event that any amount due to Maiahost is not paid when due, PROVIDER, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
• There may be a minimum $30.00 charge to reinstate accounts that have been terminated/closed more than 6 months after expiration. If the account was closed over 6 months the fee is $60.00 Cold Storage restoration fee (we may store your expired websites for a period up to 7 years on VIP accounts)
• YOU ACKNOWLEDGE, AGREE AND AUTHORIZE US TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED HEREIN.

Money Back Guarantee

Our money back guarantee provides You with the comfort that Our Services will meet the expectations set out in this paragraph. We will refund all prepaid Fees if You notify Us in writing within thirty days of the Effective Date, that You wish to terminate the Services. The following conditions apply to the Money Back Guarantee:

• It applies only to individual Services in an Order. It does not apply to previously ordered Services.
• Set Up and domain name Fees are not refundable, and may be charged if We waive them initially as part of a Special Promotion.
• Only Our Shared Hosting Services are covered. If You purchase services other than Shared Hosting, or Third Party Services through Us, or if they are incorporated into the Services, the Money Back Guarantee does not apply.
• The Money Back Guarantee does not apply to Renewal fees.
• The Money Back Guarantee is your sole and exclusive remedy should Our Services fail to meet the expectations set out herein.

Term, Termination and Cancellation Policy

• Term:
  • The initial term of this Agreement shall be as set forth in the Registration Form (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to CLIENT. After the Initial Term, this Agreement shall automatically renew. ADDITIONALLY AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE US TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
  • Each and every Order for Services by CLIENT shall be deemed to be an offer by You to buy the Services from Maiahost subject to these TOS. No Order shall be deemed to be accepted by PROVIDER until We provision Your account. The date on which We provide notice to You that the account is provisioned is the Effective Date. The Initial Term of the Services is set out on your Order (Initial Term).
• Termination by either party:
  • Either party may terminate this TOS upon written notice to the other if one party materially breaches any of these terms and the breaching party fails to correct the breach within 10 (ten) days following the party’s written notice, or immediately if the breach is incapable of cure.
• Termination by PROVIDER:
  • PROVIDER may terminate this TOS with or without a 14 (fourteen) days advance note, if CLIENT fails to pay any sums due to Maiahost as they fall due; or if, in PROVIDER’s reasonable opinion, CLIENT does not have sufficient technical expertise to use the Service without excessive ongoing technical support; or if CLIENT violates this TOS or any agreement incorporated by reference.
  • PROVIDER may terminate a particular Order or Service, or aspect of the Services, if a Third Party ceases to make components of them available to Us, or if providing them to You becomes cost prohibitive.
  • PROVIDER reserves the right to refuse Services to anyone at PROVIDER’s own personal and reasonable discretion.
• Termination by CLIENT:
  • If an account with a thirty (30) day money-back guarantee is purchased and cancelled within thirty (30) days of sign-up, the CLIENT will, upon request, receive a full refund of all hosting fees. Refunds made for a thirty (30) day money-back guarantee will not include domain registration fees or setup fees, nor will they include any fees for additional services that are purchased in the first thirty (30) days. If Your plan includes a free domain name and You cancel within the first 30 days, a fee for the domain will be deducted from your refund. You can keep the domain name and use with with different hosting providers or other DNS servers. If you do not wish to keep the domain name, it will be deleted or parked until it expires.
    
  • CLIENT may terminate the Services with a written notice sent by mail to 37-28 61 st Street, Woodside, NY 11377, request it via support ticket on our Client Area www.maiahost.com/clients or by email to sales@maiahost.com. Those are the only ways to effectively terminate the Services. Both parties agree in this case that there will be no monetary compensation for the termination of services including refunds or pro-rates regardless of reason.
  • Upon termination of the TOS, PROVIDER shall be entitled to immediately block Your Space and to remove all data located on it. PROVIDER will delete data for VPS Services automatically upon account suspension. IP space and Back Up tapes are recycled. It is CLIENT’s obligation to ensure that You arrange to transfer anything You need from the Services prior to cancellation. We have no obligation to forward e-mail following Termination.
  • If CLIENT cancels this Agreement, upon proper notice to Maiahost, prior to the end of the Initial Term or any Term thereafter, CLIENT shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. PROVIDER may (but is not obligated to) refund to CLIENT all pre-paid fees for basic hosting services for the full months remaining after effectiveness of cancellation (i.e., no partial month fees shall be refunded), less any setup fees, cancellation fees, and any discount applied for prepayment, provided that You are not in breach of any terms and conditions of this AUP, CIP or any other User Agreements and Policies provided herein.
  • Any cancellation request shall be effective within thirty (30) days after receipt by PROVIDER, unless a later date is specified in such request.

Configuration and Support

• The Services are provided to You as configured and described for our standard customer. In other words, Technical Support is provided on as is as available basis.  In some cases, Services may have the manufacturer’s default settings. You bear ultimate responsibility to ensure that the Services are configured to meet Your operational, privacy and security needs. Your hardware, software and any other items You deem necessary to use the Services must be compatible with the Services. PROVIDER is and will not be obligated to modify the Services to accommodate Your use. You may not terminate an Order based on Your inability to use the Services, because such a use is incompatible with them. If Your use of the Services damages the Services or Equipment, You will be charged for any repairs PROVIDER needs to make to the Services or Equipment. We may suspend Your use of the Services until We determine whether Your use of the Services has damaged the Services or Equipment.

• Bandwidth Only. You will ensure that neither You nor any of your End Users makes excessive or wasteful use of the Server to PROVIDER’s detriment or that of PROVIDER’s other customers. The terms “excessive” and “wasteful” are defined by Our experience with similarly situated customers. This means that Your use of Our resources may not exceed that of similarly situated customers. Unlimited use applies to Your use of web pages only (html, php, etc.), not for storage or sharing purposes. More specifically:

• With regard to data traffic on Shared Hosting services, a Fair Use policy will apply. If the contents of Your Space regularly generate more server traffic than is deemed acceptable by Maiahost, to the detriment of other Maiahost clients, Maiahost shall issue a warning by email to CLIENT, at the address CLIENT has provided to Maiahost in which Maiahost requests that CLIENT removes the contents or upgrade to a more suitable package. Excessive traffic may be caused by abnormally high traffic on Your web pages or by powerful software solutions which You have installed on the Space. Our warning will also contain the terms and conditions for the appropriate solution which is capable of handling Your prevailing level of traffic. If CLIENT does not comply with this warning within 5 business days, PROVIDER reserves the right to suspend or even terminate this TOS at its own discretion, in such case full backup is provided.
  

• Virtual Private Servers (VPS) have a set bandwidth allocation applicable to each Service, as set out on the Product Page. If in any calendar month You obtain any bandwidth or disk space usage over that basic allocation, then PROVIDER will charge You its standard overage Fee currently set at $5/GB. Unused bandwidth may not be carried over from month-to-month.

• PROVIDER acts in good faith to back up data stored on the CLIENT’s account occasionally. We keep 4 restore points created everty 7 days (backups are processed during the weekends). It is Your own responsibility to back up data of Your Web site and Client Content, email messages, SQL databases and anything else You may store on the Space We provide You. We may determine that certain file extensions are not suitable for backup. Such file types include, but are in no way limited to: iso; ace; arj; avi; bak; bin; bz; bz2; cab; car; cbr; ccd; cdr; cue; drw; exe; flv; gz; gzip; img; iso; jar; jmy; lbs; md; mid; midi; mov; mp2; mp3; mp4; mpa; mpeg; mpg; nrg; pae; pak; psb; psd; r00; r01; r02; r03; ram; rar; rm; rmf; sea; sub; tar; tar.gz; tgz; vob; wad; wav; wave; wma; wmv; zip. It is CLIENT’s obligation to verify whether particular files will be backed up.
• CLIENT is solely liable for performing and storing a back-up copy of Your data, files and hosting account prior to requesting technical support and agreeing to any technical interference or operation, provided by the Maiahost. In the event the CLIENT is not satisfied with the outcome of any technical action You shall be solely responsible for restoring the back-up copies of Your hosting account and uploading Your Web site.
• CPU Usage. CLIENT agrees that You shall not use excessive amounts of CPU processing on any of PROVIDER’s servers. Any violation of this policy may result in corrective action by PROVIDER, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in PROVIDER’s sole and absolute discretion. If Maiahost takes any corrective action under this section, PROVIDER shall not be entitled to a refund of any fees paid in advance prior to such action.
• Account Sharing. Account sharing is only permitted when used in conjunction with our hosting plans.

Intellectual Property Rights and General Consents

• Maiahost retains ownership of all intellectual property rights in the Services. Maiahost grants to You a limited license to the Services to access and use them. All trademarks, product names and company names or logos used by PROVIDER are Maiahost property or the property of their respective owners. No permission is given by Maiahost to You or an affiliate to use any such trademarks, product names, company names, logos or titles, and You acknowledge that such use is an infringement of the owner’s rights.
• If We have not provided a license for You to use software as part of the Services, You agree to procure appropriate licenses to use all “Required Licenses.” “Required Licenses” means any licenses, consents or approvals required to use software, hardware and other items installed on the Equipment, or whose use is facilitated by the Service. You agree to provide Us with copies of the Required Licenses promptly following our written request.
• CLIENT is solely responsible for obtaining all intellectual property rights in the intellectual property of others, including but not limited to clearances and/or other consents and authorizations necessary to use the names, marks or other materials which are used by You in, or transmitted via the Services (Objects). On becoming aware of any dispute between You and any other individual or organization regarding the Objects, PROVIDER reserves the right, at Our sole discretion and without notice or liability to You, to cease any further use of such Objects including, without limitation, deleting or suspending them from its computer systems and/or to make appropriate representations or provide information to any relevant authority or interested party.
• Unless otherwise set out in this TOS, You own all right, title and interest to the information You place on Our servers pursuant to the Services. If You submit feedback to Us in the form of trouble tickets or in another similar fashion, We shall have the right to use that information to improve Our business processes. You have no right to any intellectual property that is based on an improvement to Our business based on this feedback information.

Representations and Warranties

• CLIENT representation and warranty:

CLIENT represent and warrant that:

• You have the experience and knowledge necessary to use the Service;
• You and Your End Users understand and appreciate the risks inherent to You, Your business and Your person that come from accessing the Internet;
• You have sufficient knowledge about administering, designing and operating the functions facilitated by the Service necessary to take advantage of the Service;
• You will not violate any applicable laws and/or regulations in Your use of the Services;
• You own all intellectual property rights in, or have a license to use, any information You provide to Us necessary for Us to perform the Services, or to any information transmitted by Us through the Services;
• You will make back-up copies of all information in a location independent of Ours, and will not use Our Back Up Services as Your sole back up;
• You will pass through the terms of this TOS, and any agreements incorporated by reference, to your End Users.
• PROVIDER representation and warranty:
  • Maiahost is acting only as a reseller or licensor of certain services, hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-Maiahost Product”). Maiahost shall not be responsible for any changes in the Services that cause the Non-Maiahost Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Maiahost Product either sold, licensed or provided by Maiahost to CLIENT or purchased directly by CLIENT used in connection with the Services will not be deemed a breach of Maiahost’s obligations under this Agreement. Any rights or remedies CLIENT may have regarding the ownership, licensing, performance or compliance of Non-Maiahost Product are limited to those rights extended to CLIENT by the manufacturer of such Non-Maiahost Product. Maiahost is entitled to use any Non-Maiahost Product supplied by Maiahost only in connection with CLIENT’s permitted use of the Services. CLIENT shall use its best efforts to protect and keep confidential all intellectual property provided by Maiahost to CLIENT through any Non-Maiahost Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. CLIENT shall not resell, transfer, export or re-export any Non-Maiahost Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
  • WE MAKE NO WARRANTIES, AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED. THE SERVICE(S) ARE PROVIDED AS-IS. YOUR USE OF THE SERVICE(S) IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S) WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICE(S) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF.

Limitation of Liability

YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS TOS OR UNDER ANY OTHER DOCUMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE 3 MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU AGREE THAT IN THOSE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

• The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other Terms of Service theory (including strict liability), other than claims based on fraud or willful misconduct.
• Notwithstanding anything to the contrary in this Agreement, Maiahost’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by CLIENT for the Services which gave rise to such damages, losses and causes of actions during the 3-month period prior to the date the damage or loss occurred or the cause of action arose.
• CLIENT understands, acknowledges and agrees that if Maiahost takes any corrective action under this Agreement because of an action of CLIENT or one if its Users or a reseller, that corrective action may adversely affect other Users of CLIENT or other reseller Users, and CLIENT agrees that Maiahost shall have no liability to CLIENT, any of its Users or any Reseller User due to such corrective action by Maiahost.
• This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.

Indemnification

CLIENT agrees to indemnify, defend and hold harmless Maiahost and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to CLIENT’s use of the Services, (ii) any violation by CLIENT of the AUP or CIP, (iii) any breach of any representation, warranty or covenant of CLIENT contained in this Agreement or (iv) any acts or omissions of CLIENT. The terms of this section shall survive any termination of this Agreement.

Waiver of Jury Trial

• Both You and Maiahost hereby agree to waive all respective rights to a jury trial of any claim or cause of action related to or arising out of this Agreement.
• The scope of the waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relate to the subject matter herein, including without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims.
• You and Maiahost each acknowledge that the waiver is a material inducement for each party to enter into a business relationship, that each party has already relied on the waiver in entering into this Agreement and that each will continue to rely on the waiver in their related future dealings.
• Each party further warrants and represents that each has had the opportunity to have counsel review this Agreement and this waiver.
• The waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver shall apply to any subsequent amendments, renewals, supplements or modifications to this Agreement. In the event of litigation, this Agreement may be filed as written consent to a trial by court.

Miscellaneous

Independent Contractor. Maiahost and CLIENT are independent contractors and nothing contained in this Agreement places Maiahost and CLIENT in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

Governing Law; Jurisdiction. This Agreement was entered into in the State of New York and its validity, construction, interpretation and legal effect shall be governed by the laws and judicial decisions of the State of New York applicable to contracts entered into and performed entirely within the State of New York. Any dispute arising under this Agreement shall be resolved by binding arbitration in the city of Woodside, New York and under the rules of the American Arbitration Association. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

Headings. The headings herein are for convenience only and are not part of this Agreement.

Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Maiahost may give written notice to CLIENT via electronic mail to the CLIENT’s electronic mail address as maintained in CLIENT’s billing records.

Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.

Assignment; Successors. CLIENT may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Maiahost. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Maiahost may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of CLIENT. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.

Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Force Majeure. PROVIDER shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of God, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, other catastrophes, or any other circumstances beyond PROVIDER’s reasonable control. In the event of any such delay or failure, performance of the Services shall be deferred to a date and time mutually agreeable by the parties.

No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, Terms of Service or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, CLIENT acknowledges and agrees that any supplier of third-party product or service that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against User as if it were a party to this Agreement.

No partnerships/joint venture. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment relationship, franchise relationship or taxable entity between the parties, nor shall either party have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other party hereto, it being understood that the parties are independent contractors vis-a-vis one another.