Legal Information

Acceptable Use Policy

This Acceptable Use Policy (“AUP”) specifies the actions prohibited by MaxCDN. MaxCDN is a brand of NetDNA, LLC. NetDNA, LLC is a Delaware Limited Liability Company (hereinafter referred to as “MaxCDN”). This AUP specifies prohibited user behavior of MaxCDN’s Content Delivery Network (“CDN”). MaxCDN reserves the right to modify this AUP at any time by posting an updated version of this documents at MaxCDN’s website.

Illegal Use

MaxCDN’s CDN and all other services may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws

Adult Content

MaxCDN allows “adult content” providers to use MaxCDN’s services. There are no restrictions on what “adult content” providers may serve, however all content must be legal under the laws of the United States of America and each of the 50 States of the Union, and “adult content” providers must abide by all other Terms of Service at all times

Malicious or Unauthorized Hacking

Violations of system or network security are strictly prohibited, and in addition to immediate account suspension and termination without notice, may result in criminal and civil liability. MaxCDN will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, but are not limited to, the following: Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system and network. Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system and network. Interference with service to any user, host or network including, without limitation, mail-bombing, flooding, deliberate attempts to overload a system and broadcast attacks. Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting

Usenet

Posting the same or similar message to one or more newsgroups (excessive cross-posting or multiple-posting, also known as “SPAM”) is explicitly prohibited

Email

Sending unsolicited mail messages (SPAM), including, without limitation, commercial advertising and informational announcements, is explicitly prohibited. A user shall not use another site’s mail server or system to relay mail without the express permission of the site. In addition, this policy applies to any email or content transmitted by a user or on a users behalf which uses a MaxCDN account as a mailbox for responses or promotes content hosted or transmitted using MaxCDN facilities, or which indicates in any way that MaxCDN was involved in the transmission of such email or content.

Abuse

Complaints regarding suspected Illegal Use or System or Network Security issues should be sent to [email protected].

Last Modified: 11-18-2013

DMCA

Infringement Notifications under the Digital Millenium Copyright Act

To file a notice of infringement with MaxCDN or any of NetDNA’s brands (NetDNA is the parent company of MaxCDN), you must provide a written communication that contains your LEGAL SIGNATURE (we cannot process a DMCA complaint without a signature) by email (in PDF format), fax or regular mail that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that a product or activity is infringing your copyrights. Indeed, in a past case (please see http://www.onlinepolicy.org/action/legpolicy/opg_v_diebold/ for more information), a company that sent an infringement notification seeking removal of online materials that were protected by the fair use doctrine was ordered to pay such costs and attorneys fees. The company agreed to pay over $100,000. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney.

Please note that in addition to being forwarded to the person who provided the allegedly infringing content, a copy of this legal notice will be sent to a third-party which may publish and/or annotate it. As such, your letter (with your personal information removed) may be forwarded to Chilling Effects (http://www.chillingeffects.org). You can see an example of such a publication at http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=861.

Counter Notifications

The administrator of an affected site or the provider of affected content may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. When MaxCDN receives a counter notification, we may reinstate the material in question. To file a counter notification with MaxCDN or any of our brands, you must provide a written communication that contains your LEGAL SIGNATURE (we cannot process a DMCA complaint without a signature) by email (in PDF format), fax or regular mail that sets for the items specified below. Please note that you will be liable for damages (including costs and attorney’s fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney. A sample counter notification may be found at Chilling Effects.

To expedite our ability to process your request, please use the following format (including section numbers):

1. Identify in sufficient detail the copyrighted work that you believe has been infringed upon (for example, “The copyrighted work at issue is the text that appears on http://www.legal.com/legal_page.html”) or other information sufficient to specify the copyrighted work being infringed (for example, “The copyrighted work at issue is the “Touch Not This Cat” by Dudley Smith, published by Smith Publishing, ISBN #0123456789″).
2.  Identify the material that you claim is infringing the copyrighted work listed in item #1 above. If you are sending a large number of URLs in one removal request, please also send an electronic copy of the notice to [email protected].
3. Provide information reasonably sufficient to permit MaxCDN to contact you (email address is preferred). 
4. Provide information, if possible, sufficient to permit MaxCDN to notify the owner/administrator of the allegedly infringing webpage or other content (email address is preferred). 
5. Include the following statement: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.” 
6. Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.” 
7. Sign the paper.
8.  Send the written communication to the following address:
   NetDNA, LLC
   Attn: MaxCDN DMCA Complaints
   11684 Ventura Blvd. #825
   Studio City, CA 91604

   OR fax to:
   (323) 843-9584, Attn: MaxCDN DMCA Complaints

   OR email a PDF to: [email protected]

For any additional questions regarding the DMCA process for MaxCDN services, please contact us at [email protected] or (323) 313-1206. You can also read our blog post on DMCA that goes into the topic in more depth.

Last Modified: 11-18-2013

Privacy Policy

MaxCDN demonstrates its commitment to customers’ privacy by providing this statement. We will do everything in our power to ensure your right to privacy. We are committed to developing long lasting relationships that are built on trust. MaxCDN will never violate that trust.

Personal Data Transmissions Are Encrypted

When you order from MaxCDN, all your personal information is protected. We use Secure Sockets Layer (SSL), the industry standard, for encrypting all personal information, including name, address and credit card numbers. MaxCDN Will Not Sell Your Personal Information. MaxCDN keeps all your information confidential.

Policy Changes

MaxCDN is dedicated to providing the best content delivery network service possible to every one of our clients. We are also dedicated to staying on top of available technology. While MaxCDN strives to provide our clients with reasonable notification, MaxCDN reserves the right to change its policy at any time to meet the needs of our customers, changing laws and new technology.

Cookie Policy Statement

MaxCDN understands that many of you are concerned about cookies. We provide this Cookie Policy Statement to let you know how we use this technology. MaxCDN uses cookies to help us improve our website and web hosting services, and, most importantly, provide our existing customers with the opportunity for continued savings and increased convenience. By using MaxCDN’s website you specifically agree to this policy.

Cookies For Improving Our Web Site

MaxCDN uses cookies to inform us of a repeat visit. The cookie does not tell us who you are, your name, email address, or passwords.

Cookies For Banner Rewards Program

To offer our customers continued savings, MaxCDN uses cookies to help monitor the traffic generated from MaxCDN banners and logo buttons displayed on third-party websites. For every new MaxCDN customer that was introduced to MaxCDN through an affiliated third-party website, our affiliate may receive a credit.

Cookies For Customer Account Management

For our customers, MaxCDN uses cookies to store user names for added convenience to the Webmaster. As part of our service offerings, MaxCDN offers password-protected, web-based management tools. By storing the customers’ Usernames in a cookie, the user will not have to keep filling out form fields when they desire to manage their account. (The cookie does not store Passwords.) MaxCDN is dedicated to using the newest technologies in order to simplify our customers’ lives.

Last Modified: 11-18-2013

Service Level Agreement (SLA)

This Service Level Agreement (“SLA”) is a policy governing the use of the MaxCDN Service (“CDN Service”) under the terms of the Terms of Service (the “MaxCDN Terms of Service”) between NetDNA, LLC doing business as “MaxCDN”, NetDNA, LLC is a Delaware Company (hereafter referred to as “MaxCDN”) and users of MaxCDN’s services (“Customer”). This SLA applies separately to each MaxCDN Enterprise account. Unless otherwise provided herein, this SLA is subject to the terms of the MaxCDN Enterprise Agreement and Terms of Service and capitalized terms will have the meaning specified in the MaxCDN Terms of Service. MaxCDN reserves the right to change the terms of this SLA at any time and in its sole discretion in accordance with the MaxCDN Terms of Service. This MaxCDN SLA states and represents Customer’s sole and exclusive remedy for any failure by MaxCDN to meet the MaxCDN SLA. In the event of any conflict between this SLA and MaxCDN’s Enterprise Service Agreement or Terms of Service, the Enterprise Service Agreement or Terms of Service will govern.

Service Commitment

MaxCDN will use commercially reasonable efforts to make CDN Service available with a Monthly Uptime Percentage (defined below) of 100% during any calendar month (the “Service Commitment”). In the event MaxCDN does not meet the Service Commitment, Customer may be eligible to receive a Service Credit as described below.

Definitions

“Error Rate” means: (i) the total number of internal server errors returned by MaxCDN as error status “Internal Error” or “Service Unavailable” divided by (ii) the total number of requests during that five minute period. MaxCDN will calculate the Error Rate for each MaxCDN account as a percentage for each five minute period in a calendar month. The calculation of the number of internal server errors will not include errors that arise directly or indirectly as a result of any of the MaxCDN SLA Exclusions (as defined below). “Monthly Uptime Percentage” is calculated by subtracting from 100% the average of the Error Rates from each five minute period in the monthly billing cycle. “Service Credit” is a dollar credit, calculated as set forth below, which MaxCDN may add to the end of Customer’s term for the Service.

Service Credits

Monthly Uptime Percentage	Service Credits
Equal to or greater than 99.999% but less than 100%	5%
Equal to or greater than 99.99% but less than 99.999%	10%
Equal to or greater than 99.9% but less than 99.99%	15%
Equal to or greater than 99% but less than 99.9%	25%
Less than 99%	50%

MaxCDN will apply any Service Credits directly to Customer’s MaxCDN Account by adding the Service Credit to the end of Customer’s term for the Service. Service Credits shall not entitle Customer to any refund or other payment from MaxCDN. A Service Credit will be applicable and issued only if the credit amount for the applicable calendar month is greater than fifty dollars ($50 USD). Service Credits may not be transferred or applied to any other MaxCDN – Service Level Agreement account. Customer’s sole and exclusive remedy for any unavailability or non-performance of CDN Service or other failure by MaxCDN to provide CDN Service is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA or termination of Customer’s use of MaxCDN.

Service Credit Request – Notice Requirement

To receive a Service Credit, Customer must submit a request by emailing: [email protected] with the subject heading: ‘SLA Claim’. To be eligible, the credit request must (i) include your account email address; (ii) include the dates and times of each incident of non-zero Error Rates that Customer claims to have experienced; (iii) include your server request logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks); and (iv) be received by MaxCDN within forty-eight (48) hours of MaxCDN’s suspected failure to provide 100% uptime under this SLA. If MaxCDN determines that the Monthly Uptime Percentage applicable to the month of such request is less than 100%, then MaxCDN will issue the Service Credit to Customer within one billing cycle following the month in which the error occurred. Customer’s failure to timely provide the request and other information as required above will disqualify Customer from receiving a Service Credit.

Exclusions

The Service Commitment does not apply to any unavailability, suspension or termination of CDN Service, or any other CDN Service performance issues: (i) scheduled, emergency or Customer-requested service interruptions; (ii) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of any MaxCDN Global Point of Presence, including any denial-of-service attacks on a single or multiple CDN nodes; (iii) that result from any actions or inactions of Customer or any third party; (iv) that result from Customer’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control); (v) arising from our suspension and termination of service or Customers right to use CDN Service in accordance with MaxCDN’s Terms of Service; (VI) related to Customer maintenance, configurations, negligence, accidents or omissions or use of MaxCDN’s network or services in breach of MaxCDN’s Terms of Service or Acceptable Use Policy. Under no circumstances will any tests (for example PING tests) performed by Customer, its vendors or partners be recognized by MaxCDN as a valid measurable criterion of violation length, quality or type for the purposes of establishing a service credit hereunder. Failure of Customer to promptly inform MaxCDN of changes to Customer’s technical contacts lists may result in the denial of credits under this SLA. The SLA objectives contained herein apply only to MaxCDN CDN customers with a valid and signed MaxCDN Enterprise Service Agreement in good standing; they do not apply to customers of Customer or Customers that signed up using a promotional offer without a signed Enterprise Service Agreement. If availability is impacted by factors other than those used in our calculation of the Error Rate, MaxCDN may issue a Service Credit considering such factors in our sole discretion.

Last Modified: 11-18-2013

 

Terms of Service

This Agreement is entered into on the date the order is placed, (the “Effective Date”) by and between Customer listed below (“Customer”) and MaxCDN, a brand of NetDNA, LLC., NetDNA, LLC is a Delaware Limited Liability Company (hereafter referred to as “MaxCDN”). Customer and MaxCDN are sometimes referred to collectively in this Agreement as the “Parties.

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE “ORDER NOW” BUTTON ON THE ORDER FORM REFERENCED HEREIN OR BY SIGNING OUR SERVICE ORDER or 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 BUT NOT LIMITED TO, MaxCDN’s PRIVACY POLICY & ACCEPTABLE USAGE POLICY. YOUR USE OF THE SERVICES ALSO CONSTITUTES ACCEPTANCE OF THIS AGREEMENT

Customer desires to engage MaxCDN for the purpose of, but not limited to, providing content delivery network and related services to Customer’s site on the World Wide Web (the “Website”) and providing metered bandwidth to Customer over the Internet.

To carry out these purposes, the Parties have agreed to the following:

Definitions

Browser

The term “Browser” refers to a program used to provide interactive, graphical access to sites on the World Wide Web.

Internet

The term “Internet” refers to the global network of computers using the TCP/IP protocol for communication.

Web

The term “Web” refers to the World Wide Web. The Web is a graphical interface used to access sites on the Internet.

Website

The term “Website” refers to a series of interconnected Hypertext Markup Language documents capable of residing on a single CDN server or computer.

MaxCDN will provide content delivery network and related services to the Customer (the “CDN”):

Storage

Disk space through MaxCDN’s website as amended on CDN’s server for storage of the parts of the Website and any data files associated with the Website at various times. Additional disk space is available at a rate per GB each month as listed on MaxCDN’s website as amended from time to time at MaxCDN’s sole discretion.

Bandwidth

Monthly bandwidth (data transfer) as stated on MaxCDN’s website as amended from time to time at MaxCDN’s sole discretion. Bandwidth generally expires on the billing date (for example monthly or annually) unless explicitly stated otherwise.

Availability of MaxCDN

MaxCDN’s Content Delivery Network will be available to Internet users approximately 24 hours a day, subject to planned or unplanned maintenance and network interruptions. To minimize server downtime during peak usage periods, MaxCDN will schedule routine maintenance during the hours of lowest on average usage of MaxCDN’s network. A 100% uptime SLA is available for MaxCDN Enterprise customers.

Log Information

Customer will have access to usage statistics via the Web.

Backups

Customer is solely responsible for all backups.

1. Compensation
   1. The price for all services provided by MaxCDN to Customer will be in US Dollars as described on MaxCDN’s website. MaxCDN’s pricing may be amended from time to time at MaxCDN’s sole discretion. MaxCDN may provide limited technical support as part of Customer’s service package and may charge Customer additional fees for such services. Unless otherwise determined by MaxCDN in its sole discretion, MaxCDN will invoice Customer for any and all MaxCDN products and services on a monthly basis. All invoices are due and payable upon receipt. All sales are final and unless otherwise agreed to by MaxCDN in writing there is no trial or cooling-off period.
2. Term and Cancellation
   1. The initial term of this Agreement shall be for 12 months unless otherwise specified in writing and/or set forth in the Order Form (the “Initial Term”) at the time of ordering the service. The Initial Term shall begin upon receipt of payment from Customer. After the Initial Term, this Agreement shall always continue to automatically renew at the then current MaxCDN pricing on the date of the anniversary date of Customer’s term commencement date.
   2. AT THE END OF THE INITIAL TERM ENDS, CUSTOMER ACKNOWLEDGES, AGREES AND AUTHORIZES MAXCDN TO AUTOMATICALLY BILL AND/OR CHARGE CUSTOMERS CREDIT CARD ON FILE FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELED BY EITHER PARTY AS PROVIDED FOR IN THIS AGREEMENT. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
   3. This Agreement may be terminated (A) by giving MaxCDN thirty (30) days prior written notice, (B) by MaxCDN in the event of nonpayment by Customer, (C) by MaxCDN at any time, without notice, if, in MaxCDN’s sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of this Agreement and related agreements, MaxCDN’s or NetDNA’s Acceptable Use Policy, or Customer’s use of the Services disrupts or, in MaxCDN’s sole and absolute discretion and/or judgment, could disrupt, MaxCDN’s business operations.
   4. MaxCDN reserves the right to cancel service(s) at any time. All fees paid in advance of cancellation will be pro-rated and refunded by MaxCDN to customer if MaxCDN initiates its right of cancellation and customer is NOT in violation of these Terms and Conditions. If cancellation is caused by customers and/or its client’s breach of the Enterprise Service Agreement, Terms of Service, Acceptable Use Policy, or Privacy Policy then customer agrees that no refund is due and any prepaid charges are considered liquidated damages to MaxCDN. Customer understands that service(s) may be canceled at any time effective the end of the contract.
   5. All account cancellations must be done by opening up a cancellation ticket with the MaxCDN billing department ([email protected]). Notifications of cancellation must be made at least 30 days prior to successive rebill period. MaxCDN reserves the right to deny, forfeit, or refuse refunds at any time if necessary. Third party cancellations are not accepted.
3. Customer Warranties. Customer represents and warrants to MaxCDN that:
   1. Customer owns or has the right to use all material provided to MaxCDN, including all text, graphics, sound, video, programming, scripts, and applets; and
   2. The use, reproduction, distribution, and transmission of the content, or any information or materials contained in it, on and from MaxCDN’s server computer does not:
      1. infringe or misappropriate any copyright, patent, trademark, trade secret, or any other proprietary rights of a third party;
      2. violate any criminal laws;
      3. constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity, or violate any other law or regulation.
4. Limitations of Warranties and Liability.
   1. Customer agrees that its use of Services and its reliance upon information provided by MaxCDN are entirely at Customer’s own risk. Customer acknowledges and agrees that MaxCDN exercises no control over, and accepts no responsibility for, the content of data, scripts, or other information passing through MaxCDN’s host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NEITHER MaxCDN, ITS CUSTOMERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FOR THE SERVICES OR ANY EQUIPMENT PROVIDED IN CONJUNCTION THEREWITH. NEITHER MaxCDN NOR ITS CUSTOMERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. MaxCDN IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CUSTOMERS VIA THE SERVICES PROVIDED BY MaxCDN. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY MaxCDN EMPLOYEE, CUSTOMER, OR AGENT WILL CREATE A WARRANTY; NOR MAY CUSTOMER OR ANY OF CUSTOMER’S CUSTOMERS, EMPLOYEES, OR AGENTS RELY ON ANY SUCH INFORMATION OR ADVICE. The parties hereby agree that the terms of this section shall survive any termination of this Agreement.
5. Indemnification.
   1. Customer agrees to indemnify, defend and hold harmless MaxCDN and its parent, subsidiary and affiliated companies, and each of their respective members, officers, directors, employees, shareholders 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 Customer’s use of the Services, any violation by Customer of this agreement, any breach of any representation, warranty or covenant of Customer contained in this Agreement or any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
6. Limitation of Liability.
   1. Customer agrees neither MaxCDN nor any of its employees, Customers, or agents shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or otherwise unauthorized means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to MaxCDN at the time) which may exist in the Services or MaxCDN’s equipment used to provide the Services.
   2. Under no circumstances, including negligence, shall MaxCDN or any of its employees, Customers, or agents be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its Customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if MaxCDN has been advised of the possibility of such damages. No MaxCDN Person shall be liable to Customer, any of its Customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to MaxCDN’s records, programs, equipment or services.
   3. Notwithstanding anything to the contrary in this Agreement, MaxCDN’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims regardless of the legal theory or the nature of the cause of action shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the twelve (12) month period prior to the date the cause of action arose or the injury or loss occurred.
   4. Customer understands, acknowledges and agrees that if MaxCDN takes any corrective action under this Agreement because of an action of Customer or one its Customers that corrective action may adversely affect other Customers of Customer or other Reseller Customers, and Customer agrees that MaxCDN shall have no liability to Customer, any of its Customers or any Reseller Customer due to such corrective action by MaxCDN.
   5. This limitation of liability reflects an informed and voluntary allocation of risks between the parties and applies to risks both know and unknown that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
7. Prohibited Uses and Activities.
   1. MaxCDN may immediately take corrective action, including removal of all or a portion of the Customer’s content, disconnection or discontinuance of any Services if Customer, or anyone accessing Customer’s account or server space, engages in any of the prohibited Uses or Activities set forth in Section 16 of this agreement. Customer hereby agrees that MaxCDN shall have no liability to Customer or any of Customer’s Customers due to any corrective action that MaxCDN may take (including, without limitation, disconnection of Services).
8. Violations of Intellectual Property Rights.
   1. Customer agrees that it shall not violate any intellectual property rights and that it shall not resell services to any party which violates intellectual property rights. Any violation of any individual or entity’s intellectual property rights including, rights of privacy and rights of publicity are prohibited and may result in a suspension or termination of your account with MaxCDN. MaxCDN is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see “Copyright Infringement Notice Information” below).
9. Spamming.
   1. Customer agrees not to send spam or resell its services to anyone who sends spam. The term “spam” includes, but is not limited to, the sending of unsolicited bulk and/or commercial e-mail messages over the Internet or maintaining an open SMTP policy. In the event of a dispute, MaxCDN reserves the right to determine, in its sole and discretion, whether e-mail recipients were from an opt-in email list.
10. Misrepresentation of Transmission Information.
    1. Customer agrees not to forge, misrepresent, omit, or delete message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of any message or to resell services to anyone who engages in said conduct.
11. Viruses and Other Destructive Activities.
    1. Use of the Services for creating or sending malicious, destructive or nuisance code, examples of which include but are not limited to, viruses, worms and Trojan horses, or for pinging, flooding or mail-bombing, or engaging in denial of service attacks is prohibited and is a breach of this agreement. Customer also agrees not to engage in any other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment).
12. Malicious or Unauthorized Hacking.
    1. Customer agrees not conduct or promote any “Hacking” activity and agrees that “Hacking” as herein defined includes but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in malicious or unauthorized hacking or cracking. Any such activity on the part of Customer is a material breach of this Agreement.
13. Export Control Violations.
    1. The exportation of encryption software outside of the United States and/or violations of United States law relating to the exportation of software is prohibited.
14. Child Pornography.
    1. The use of the Services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. MaxCDN will as required by law, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
15. Other Illegal Activities.
    1. The use of the Services to engage in any activities that are determined by MaxCDN, in its sole and absolute discretion, to be illegal or which in MaxCDN’s opinion are likely to be found to be illegal is prohibited. Such illegal or potentially illegal activities include, but are not limited to, storing, posting, displaying, transmitting or otherwise making available ponzi or pyramid schemes, password and cracking information, fraudulently charging credit cards or displaying credit card information or other private information of third parties without their consent, and failure to comply with applicable on-line privacy laws. MaxCDN will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.
16. Obscene, Defamatory, Abusive or Threatening Language.
    1. Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive or threatening language is prohibited.
17. Other Prohibited Activities.
    1. Engaging in any activity that, in MaxCDN’s sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, MaxCDN’s business, operations, reputation, goodwill, Customers and/or Customer relations, or the ability of MaxCDN’s Customers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate this Agreement. In addition, the failure by a Customer to cooperate with MaxCDN in correcting or preventing violations of this Agreement by, or that result from the activity of, a Customer of the Subscriber is a violation of this Agreement.
18. Copyright Notice Infringement Information.
    1. Pursuant to the Digital Millennium Copyright Act, MaxCDN has adopted a policy that provides for the termination of websites hosted by MaxCDN that are claimed to infringe on copyrights of third parties. MaxCDN reserves the right to remove or block content that is properly complained about pursuant to this Section. Customer expressly acknowledges that they are aware of this provision. Customer waives any claims against MaxCDN it may have should it be injured by the enforcement of this provision. If a Copyright Holder believes that there has been a violation of their copyright on a website that is hosted by MaxCDN and the copyright Holder demands that MaxCDN remove the website or disable the material in question, MaxCDN will work to remove or disable access to the website if the Copyright Holder provides MaxCDN with all of the following information:
       1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
       2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site
       3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
       4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
       5. A statement that the complaining party has 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.
       6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
19. Right to Monitor and Remove Unacceptable Content.
    1. MaxCDN has the right, but not the duty, to review and monitor all content submitted for or included on the CDN, and in its sole discretion to remove any content that MaxCDN finds objectionable for any reason, without prior notice to Customer.
20. Assignment.
    1. This Agreement may not be assigned by Customer, but may be assigned by MaxCDN without notice to or permission from Customer.
21. Modifications.
    1. This Agreement may be amended at any time and from time to time at MaxCDN’s sole and absolute discretion by posting changes to the MaxCDN website and Customer hereby agrees to review the MaxCDN website for changes that shall become part of this Agreement.
22. Force Majeure.
    1. MaxCDN will be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the Party. However, to be excused from delay or failure to perform, the Party must act diligently to remedy the cause of the delay or failure.
23. Undefined Terms.
    1. Terms that are not specifically defined in this Agreement are used as set forth in the California Uniform Commercial Code.
24. Joint Drafting And Neutral Construction.
    1. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties including, but not limited to California Civil Code section 1654, the provisions of which are hereby waived. This Agreement shall be construed and interpreted in a neutral manner.
25. Severability Of Agreement.
    1. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
26. Entire Agreement.
    1. This Agreement, including all Exhibits, Appendices, and Attachments, contains the entire agreement of the Parties relating to the rights granted and obligations assumed in this Agreement. Any oral representations or modifications concerning this instrument shall be of no force or effect unless contained in a subsequent written modification signed by the Party to be charged.
27. Venue And Applicable Law.
    1. This Agreement shall be governed, construed, and interpreted in accordance with the laws of the State of California (without respect to principles of conflicts of law), and the Parties submit to jurisdiction of and venue in the Los Angeles, California in any legal proceeding necessary to interpret or enforce this Agreement or any part of this Agreement.
28. Attorney Fees And Costs.
    1. In any action brought under this Agreement, the prevailing party shall be entitled to recover its actual costs and attorney’s fees pursuant to California Civil Code section 1717 and all other litigation costs, including expert witness fees, and all actual attorney’s fees and litigation costs incurred in connection with the enforcement of a judgment arising from that action or proceeding. The provisions of the preceding sentence shall be severable from the provisions of this Agreement and shall survive the entry of any such judgment. The Parties submit to jurisdiction and venue in the State of California in any legal proceeding arising regarding this Agreement.
29. Remedies.
    1. The remedies available by law to MaxCDN are not limited in any way by this provision. However, in the event that Customer violates any of the above provisions of this Agreement, MaxCDN may at their discretion terminate Customer’s account and Customer agrees to waive any right to a refund of any amount paid as well as complete payment of any outstanding amount due to MaxCDN.

Last Modified: 11-18-2013