Clients will be held responsible for all actions their account performs, whether done by the account holder or others. If server security is compromised, the account holder is responsible for all violations of these Terms of Service (so called herein) and Rackmax Acceptable Use Policy (.AUP.), including SPAM, and all disconnect and reconnect fees associated with violations. Limestone Networks does not harden or enable additional server security software outside operating system defaults.

The following terms constitute an agreement between you and Rackmax, Inc. (“Rackmax“). These Terms of Service govern your use of the services provided by Rackmax (the “Services”).

BY USING THE SERVICES, YOU SIGNIFY THAT YOU AGREE TO THESE TERMS OF SERVICE, including that you agree to transact with us electronically, that you consent to the information practices disclosed in our AUP and Privacy Policy, and that you consent to resolve in Oklahoma County, Oklahoma any dispute that you may have with us, our suppliers, or the Services. Please note that we offer the Services “AS IS” without warranties.

Disclosure to Law Enforcement: The AUP specifically prohibits using our service for illegal activities. Therefore, Subscriber agrees that the Company may disclose any subscriber information, including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to the Subscriber. In addition, Rackmax shall have the right to terminate all services outlined in this Agreement.

Rackmax Responsibilities

Rackmax agrees to furnish services, which are paid for in advance by the client, to the client, subject to complete compliance with the AUP and these Terms of Service. Rackmax reserves the right to refuse Services to any potential client and/or to deny renewal of Services to any existing client at the sole discretion of Rackmax.

Changes to Terms of Service and AUP

Rackmaxs’ Terms of Service and AUP are both subject to change at any time and without notice at the sole discretion of Rackmax. A policy change shall not be grounds for early contract termination or non-payment. The client recognizes that the nature of the service supplied and the initial rates and charges have been communicated to the client. The client is aware that, occasionally, rates may change based on the availability of hardware, overall market conditions, or other factors. Clients will be notified of any rate increases or charges before the billing renewal date on which such increases will take effect.

Non-Payment/Service Interruption

Services interrupted for non-payment may be subject to a $25 late fee. Data stored on a client’s services will not be available to the client until reconnection is established or alternative arrangements are made to the sole satisfaction of Rackmax. Clients deactivated for non-payment, or charge-back are subject to their data being destroyed three (3) days from the suspension/charge-back date. Rackmax is not responsible for data integrity, regardless of circumstance. Rackmax strongly recommends keeping up-to-date and off-network backups to protect against data loss.

Refunds/Charge-Backs

No Services rendered by Rackmax are eligible for a refund. Prepayments and account credits are ineligible to be refunded or transferred to alternate accounts. Any charge disputes must be reported directly to Rackmax within thirty (30) days of the date on which the charge initially occurred. If a charge which is deemed valid by Rackmax, and validated by our Terms of Service or AUP, is disputed to a financial institution by performing a charge-back, then the client agrees to pay an ‘Administrative Fee’ of $200 in addition to the original amount of funds which were reclaimed.

Suspensions

If a service is suspended for non-payment, it will be subject to termination three (3) days from the time of suspension. Once a single service is terminated for non-payment, ALL services under that account are subject to full account suspension until billing is brought current. Rackmax assumes no liability for the integrity of the data stored on a suspended server.

Cancellations

Rackmax requires a five (5) day’s notice of cancellation before the billing renewal date for the upcoming billing cycle, submitted via support ticket. A five (5) day’s notice before the upcoming billing date is also required for downgrades. All client data will be destroyed immediately after the cancellation date. If the cancellation notice is not provided within five (5) days, the service invoice is still due and must be paid to avoid full account suspension.

Official Rackmax Resellers may cancel their servers up to twenty-four (24) hours after the server’s billing renewal date. After twenty-four (24) hours, the server can still be requested to be canceled by the reseller. However, the termination fee of $25 will be applied to the account and must be paid within 15 days to avoid full account suspension.

Fraud

If fraud is discovered, the fraudulent account, and all related accounts, are subject to immediate suspension or termination at the sole discretion of Rackmax. All information available to Rackmax about the fraudulent account/service shall be submitted to local authorities and any financial institutions involved. All fraudulent orders are investigated, and all fraudulent clients will be prosecuted to the fullest extent of the law, whether within the United States or abroad.

Disclaimers of Liability; Indemnification

WE PROVIDE THE SERVICES. AS IS., WITH ALL FAULTS. AND. AS AVAILABLE. WE AND OUR SUPPLIERS MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES. TO THE EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS DISCLAIM IMPLIED WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE AND OUR SUPPLIERS DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE SERVICES ‘ USE WILL BE EFFECTIVE, RELIABLE, ACCURATE, OR MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. NO ORAL OR WRITTEN INFORMATION GIVEN BY A RACKMAX, INC. REPRESENTATIVE SHALL CREATE A WARRANTY.

YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US OR OUR SUPPLIERS IS THE CANCELLATION OF YOUR ACCOUNT. IN NO EVENT SHALL OUR AFFILIATES’ AND SUPPLIERS’ AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID DURING THE PERIOD DURING WHICH SUCH CLAIMS AROSE. WE, OUR AFFILIATES, AND OUR SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY, AND THE LIABILITY OF OUR AFFILIATES AND SUPPLIERS, SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

Subscriber acknowledges that the service provided is such a nature that service can be interrupted for many reasons other than the company’s negligence and that damages resulting from any interruption of service are difficult to ascertain. Therefore, the subscriber agrees that the company shall not be liable for any damages arising from such causes beyond the direct and exclusive control of the company. Subscriber further acknowledges that the company’s liability for its negligence may not, in any event, exceed an amount equivalent to charges payable by the subscriber for services during the period damages occurred. The company shall not be liable for any special or consequential damages, loss, or injury.

You agree to defend, indemnify, and hold harmless us, our employees, contractors, officers, directors, agents, affiliated companies, and suppliers from all liabilities, claims, and expenses, including attorneys’ fees, which arise from your use or misuse of the Services. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you. In this event, you will cooperate with us in asserting any available defenses.

Support

Rackmax provides hardware support related to each direct client’s service functioning. Rackmax does not offer software support of any kind. Rackmax does not provide software support/troubleshooting for the software items chosen from the order form. Rackmax only ensures the correct default installation of any software item selected from the order form and in no way assumes liability for the configuration of any installed software. Rackmax is not responsible for any downtime associated with the incorrect configuration of operating system kernels or any software installed by Rackmax or the client. Rackmax may provide enhanced software support (including kernel configuration) for an additional fee. Please contact sales or support for enhanced support pricing. Each client is eligible for one (1) complimentary operating system (.OS.) reload per billing cycle; each additional OS reloads for $50 per reload. Installation of an unsupported OS is subject to the prior approval of Rackmax and a $50 fee. Rackmax does not provide any support to the clients of our clients (third-party clients). Rackmax will only provide support directly to clients of Rackmax.

Abuse/Spam/Bulk Email Policy

Rackmax reserves the right to deny mail delivery from any servers hosted on our network if they are believed to be involved in SPAM or SPIM activities. This includes spam support services such as DNS or spamvertised websites. Our abuse department will locate abusive servers based on public blacklist monitors, abuse reporting from external networks, and other means. If our abuse department receives a report or otherwise becomes aware of abuse-related activities active on our network, we will identify the server the abuse was initially sent from (via IP and, in some cases, by domain) and create a ticket on behalf of the user who occupies the server with information regarding the abuse such as logs describing the abuse and an explanation of what abuse took place.

The following actions will be taken on a case-by-case basis:

1. An abuse ticket serves as a notification that our abuse department has received reports of abuse from the server. We require a client response to ALL abuse tickets within 24 hours of the ticket being opened. Typically no service will be suspended or filtered within the first 24 hours of an abuse ticket being opened. Suppose a response is not received within 48 hours, or the server is determined to be abusive (or likely to be abusive in the case of spam blacklistings) after the ticket is opened. In that case, our abuse technicians may temporarily filter or disable ports or IPs assigned to the server to prevent further abuse until a response is received.
2. If a response has not been received to an abuse ticket within 7 days of being opened, the server is eligible for suspension. It may be completely disabled until we receive a response.
3. Habitual neglect of abuse occurring on a client’s server may lead to service termination or longer-term port filters, as some blacklistings can take several weeks to time out or be removed.

Rackmax reserves the right to refuse services to any client whose account(s) have been fined or terminated for abuse-related activities. If an IP range or IP address has been blacklisted due to excessive abuse reports, Rackmax reserves the right to issue a fine of $200 and immediately terminate the service.

Compromised servers issued abuse notifications: If our abuse department suspects that abuse reports associated with a client’s server are a result of the server’s security being compromised, our abuse department will offer the following options:

• At the discretion of our abuse department, we will typically offer the ability to log in to the server and remedy the security compromise while leaving the abusive traffic filtered.
• Offer an Operating System reinstallation, setting the configuration back to the original state it was provisioned in.
• Suppose Operating System reinstallation is not accepted as an option. In that case, Rackmax may offer to manually retrieve/repair the files on the server at a fee to be assessed and paid before any work is done.
• Habitual security compromises that result in abusive traffic being transmitted or received from the server may result in service termination.

If a client wishes to dispute any abuse reports or any fine assessed in connection with abuse reports or blacklistings, the client must provide Rackmax with an explanation via our ticketing system within 10 days of the abuse ticket being opened.

DMCA Complaints

Rackmax handles any Digital Millennium Copyright Act (.DMCA.) complaints very seriously and will thoroughly investigate each complaint received. Rackmax reserves the right to pursue civil remedies for any costs of investigating a substantiated policy violation.

The following actions will be taken on a case-by-case basis:

1. A ticket is opened as a warning, providing 24 hours to resolve the situation.
2. After 24 hours with no client response, connection to the IP address from the DMCA complaint will be disabled at the network level. At this time, Rackmax reserves the right to assess a $25 fine.
3. After 48 hours without resolution, services on the server in question will be suspended.
4. After 7 days of being suspended and the issue not having been resolved, services on the server in question will be canceled, and an Abuse Charge of $200 will be placed on the account. All client data will be destroyed immediately after the cancellation date.

Users who violate this policy and fail to resolve the situation within 48 hours agree that in addition to these administrative penalties, they will pay . Research Fees not to exceed $50 per hour that Rackmax personnel must spend to investigate the matter, to be charged only if claims are found to be valid.

Bandwidth Usage/Overages

Clients agree to pay any bandwidth overage charges accrued on their accounts from the previous billing cycle. Bandwidth overage charges are billed per gigabyte at a rate of $0.03 over the allotted bandwidth on the service. Rackmax reserves the right to suspend any account which does not pay bandwidth overage charges within 15 days. Rackmax is not responsible for bandwidth spikes caused by a client’s service for any reason. Client assumes liability for all bandwidth to and from their services. If issued an expected to exceed bandwidth notification, clients must make payment arrangements within 24 hours of that notification to prevent possible service interruption until adequate arrangements are made. These arrangements may include being required to upgrade bandwidth proactively.

Payment Verification

Clients agree to submit to identity verification measures designed for both the security of the client as well as the security of Rackmax. The identity verification measures may include faxing two forms of government-issued identification to Rackmax, a front and back copy of the credit card used for payment, and a copy of a utility bill with the billing address. In certain circumstances, additional identity verification may be required in addition to the previously listed forms.

Publicity

Rackmax keeps all client information private and will not publicly disclose that they are providing services to the client unless permission is received on a case-by-case basis. Rackmax reserves the right to use client quotes for promotional uses. Such quotes will be anonymous unless the client agrees to disclose their name. All communications from Rackmax and the client are strictly confidential and for the intended use of the addressee only. Any disclosure, service, or copying of the information by anyone other than the intended recipient is prohibited. You agree to be held liable for damages if you violate this agreement, forward the information, post it, or allow it to be posted online in public or private forums or venues.

Electronic Notifications

Your affirmative act of using the Services constitutes your electronic signature to these Terms of Service and your consent to enter into agreements with us electronically. You also agree that we may send you in electronic form any privacy or other notices, disclosures, reports, documents, communications, or other records regarding the Services (collectively, Notices.). We can send you electronic Notices to the e-mail address you provided during registration. The delivery of any Notice from us is effective when sent by us, regardless of whether you read the Notice when you receive it or whether you actually accept the delivery. You can withdraw your consent to receive Notices electronically by canceling or discontinuing your use of the applicable Services. To receive Notices electronically, you must have a personal computer with a modem connected to a communications source (telephone, wireless, or broadband) and a Windows-based or a Macintosh-based operating system with an Internet browser. You will need a printer attached to your personal computer to print any Notices. You can retrieve an electronic copy and a printable version of this contract by clicking on the . Terms of Service. Link on any web page that hosts any of the Services. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.

Entire Agreement

This contract and any supplemental terms, policies, rules, and guidelines posted on our website constitute the entire agreement between you and us and supersede all previous or contemporaneous written or oral agreements. Suppose any part of these Terms of Service is held invalid or unenforceable. In that case, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.

Choice of Law and Location for Resolving Disputes

You agree that the laws of the State of Oklahoma govern this contract and any claim or dispute that you may have against our suppliers or us, without regard to the conflict of laws rules thereunder and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims you may have against us or our suppliers will be resolved exclusively by a court in Oklahoma County, Oklahoma. PLEASE NOTE THAT BY AGREEING TO THESE TERMS OF USE, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN OKLAHOMA COUNTY, OKLAHOMA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US RELATING TO OR ARISING OUT OF THE SERVICES, THE SERVICE OR THE AGREEMENT; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN OKLAHOMA COUNTY, OKLAHOMA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.