Version 2.12 | Last update: 14 September 2010
These Terms of Service are entered into between EVERWORKS Solutions (M) SDN BHD (EVERWORKS) and the individual or entity set out on the Order Form (Customer). In this Terms of Service EVERWORKS Solutions (M) SDN BHD is referred to as EVERWORKS, we, us, or our. Our customer is referred to as Customer, you, or your. If Customer incorporates our Services into its own products and/or services, that customer is referred to as “End User.
To become a Customer, you submit an Order Form to us. The products, services and other items you ask us to supply to you are referred to in this Terms of Service as the “Services.” Each Order Form submitted by you shall be deemed to be an offer by you to buy the Services from EVERWORKS subject to this contract. No Order Form shall be deemed to be accepted by EVERWORKS until we provision the Services. The date on which we provide notice to you that the Services are provisioned is the Effective Date. The initial Term of the Services is set out on your Order Form. The Term will renew for periods of equal length on each anniversary unless terminated as set out in paragraph 6. Any other provisions imposed by you on your own order forms, or otherwise, are expressly excluded. EVERWORKS may alter this Terms of Service at any time without notification to you. However, the current Terms of Service is always available on EVERWORKS’s website. When you complete the Order Form, you are required to provide us with information about you (Customer Information). We will rely on this Customer Information. It is your obligation to provide us with correct, understandable and updated Customer Information. If you fail to do so, you will be in material breach of this Terms of Service. The entity listed in the field “Company Name” on the Order Form is considered by us to be our Customer and the owner of all information, equipment and other items associated with the account and Services we provide.
Flow through agreements
2.1.1 Section A – Shared Web, Email & Database Hosting
2.1.2 Section B – VPS (Virtual Private Server) Hosting
2.1.3 Section C – Dedicated Server Hosting
2.1.4 Section D – Equipment Rental / Lease to own
2.1.5 Section E – Colocation Hosting
2.1.6 Section F – Professional Services
Configuration and support
The Services and/or Equipment are configured by us for a typical user. They may have default or factory settings that are less than optimal for your, or an End User’s, needs. It is your obligation to determine whether these settings are appropriate, or secure. We have no liability to you or an End User for damages based on these settings. From time to time, these settings may be modified by us to optimize network performance. We are not responsible to you for any resulting damage.
We are not obligated to modify the Equipment to accommodate your use. You may not terminate this contract based on your inability to use the Services because such a use is incompatible with them. If your use of the Services damages our Equipment, you will be charged for any repairs we need to make to the Equipment at our standard hourly consulting rate applicable at the time of the repair, plus the costs of parts, if any.
Third Parties may have reserved the right to make changes to their services. We will use reasonable efforts to determine whether these changes will alter our Services, and work with the Third Parties to mitigate this change. However, we have no liability for these changes and you may not terminate this contract even if these changes are material changes.
We will use reasonable efforts to ensure that the Services set out on your Order Form are available during the Term. However in certain circumstances we may be unable to continue to provide the Services to you. We will not be in breach of this contract if we are unable to provide the Services to you (i) because a Third Party stops making key aspects of the Services available to us; (ii) a law, regulation or order prohibits us from providing the Services; (iii) circumstances beyond our reasonable control make it cost prohibitive for us to continue to provide the Services to you; (iv) an “alpha” or “beta” period ends; (v) a trial period ends; or (vi) at any time within the Termination notice period prior to a Renewal Term.
Server and Bandwidth Usage
Your use of our Equipment and Services must be reasonable. This use may not consume so much of our network, and if you purchase shared hosting, processing, resources so as to limit the use of those resources by other customers. You may not attempt to circumvent any restrictions we place on your use of our network. If we determine that your use falls within the descriptions set out in this paragraph, we have the right to limit your use of our resources while we determine a more suitable set of resources for you. Once we propose these resources to you, you may either accept or reject them within 5 business days. If you reject them, you agree to change your use of the Services so that your use is reasonable; if you fail to do so, and continue to use an excessive amount of resources, your service may be terminated without notice.
If set out on your Order Form, we will provide back-up Services to you (Back-Up Services). Back-Up Services are secondary to your own back-up and disaster recovery efforts. You understand and agree that our BackUp Services (i) only capture data that is available to them at the time the Back-Up Services run; (ii) do not run constantly, and may miss new data; (iii) cannot capture some data; (iv) only back-up partial data (up to your maximum purchased back-up storage space); and (v) are not failsafe. Data from the Back-Up Services is provided in raw form. You may be required to reformat or otherwise reconfigure the data for your use. We do not provide this reformatting or reconfiguration as part of the Back-Up Service. The Back-Up Service is not designed for litigation purposes. We have no responsibility to hold data in the Back-Up Services pursuant to “litigation hold” letters or other documents. We will charge you for these activities.
We may determine that certain file extensions are not suitable for back-up. It is your obligation to verify whether particular files will be backed up.
If your request for technical support exceeds that of the included service level or of similarly situated customers, or is based on your lack of technical sophistication, we may charge you our standard hourly rate for support. We will inform you, and receive your consent, prior to charging you for technical support. If you request technical support, you agree that we may have full access to your equipment, account and any and all items accessible to us based on your request. While we will use reasonable efforts to provide technical support to you, all support is provided AS-IS and on a “best efforts basis,” and subject to the disclaimers of warranties and limitation of liability set out herein. We retain the right to refuse to provide technical support to you or terminate your account if your use of technical support exceeds that of similarly situated customers, if you refuse to pay for the support that you require, or if you are verbally or otherwise abusive to our employees or contractors.
Third Party Software
The Services may include software provided by Third Parties. You may be required to agree to licenses provided by the Third Parties prior to your use of this software. The Equipment and/or Services may have installed software for which you are required to have a preexisting license, or to procure such a license. Your use of this software shows that you do in fact have such a license, and you (i) agree to provide us with evidence of that license on our, or a Third Party’s request; and (ii) indemnify us from any claims made against us based on that use.
We each agree that in order to carry out our respective obligations set out in this contract, that a level of cooperation and civility is required. While we have endeavored to set out specific instances in which cooperation is required, we each agree to work together to the extent reasonably possible.
You agree that you have the knowledge and experience to use the Services and Equipment as well as to administer the Services so that they may be used.
You are required to implement industry standard methods to maintain the security of the Services and Equipment. This includes, but is not limited to, only uploading data, software and other items that you have determined are free of security issues, setting secure passwords (not using dictionary words, username as password, or other weak, easily crack -able passwords) for all of your and your user login instances, and promptly patching any and all your software, including the operating system, when any new security patches are available. Your End Users have the same obligation, and you are responsible for their failure to do so
It is your obligation to report any security breaches in the Services and/or Equipment.
No data transmission over the Internet is 100% guaranteed to be secure. Neither EVERWORKS, nor Third Parties, are responsible for security of information transmitted over the Internet. The security of our network is maintained according to generally accepted industry standards. If we determine that your use of the Services and Equipment endangers the security of our network, or any of our other customers or third parties, you are required to cooperate with us in a security review. If we determine that your use of the Services or Equipment has in fact compromised the security of the items set out in this subparagraph, you will be charged for any security remediation. Your ability to use the Services may be suspended during this time.
The Term of this contract begins on the Effective Date. The Initial Term is set out on your Order Form. Upon expiration of the Initial Term, the Services renew for a period of equal length until terminated in writing (Renewal Term). A party must notify the other in writing of its intent to Terminate this contract no later than 30 days prior to the next Renewal Term. Any such termination or cancellation will be subject to the payment of any outstanding Fees. Fees for a Renewal Term will not change unless agreed upon by the parties. If you have prepaid the Fees, but cancel prior to the end of a Term, the Fees will be recalculated without the Special Promotion and/or term discount, on a month-to-month basis (using the month-to-month fees in place at the time of your service order, including any setup fees), and the resulting used services amount deducted from the amount you have pre-paid, to determine any refund due; in some cases this may result in an additional payment due from you to us.
The billing cycle for the Services is set out on the Order Form. You are responsible for all Fees set out on the Order Form, or elsewhere in this contract (Fees). Non-recurring and domain name registration Fees are not refundable, nor are they subject to any satisfaction guarantee policy.
We often offer special promotions (Special Promotions). These Special Promotions have specific terms. Generally they do not apply to current customers, nor do they apply to Renewal Terms. If you Terminate the Services to which a Special Promotion applied, the discount, or other benefit provided by the Special Promotion, will be removed and your account will be re-billed as if it had been set up without the Special Promotion. If this results in additional Fees you will be charged for those Fees.
If the Fees are not paid by the Due Date, your account will be considered delinquent and Services may be suspended. You are responsible for all amounts charged to us as a result of your delinquency, including, but not limited to collection charges and attorney’s fees. We may charge you late fees of 2% per month or the maximum amount allowed by law.
cards 5.2.1 It is your responsibility to keep an accurate and valid credit card on file with us. We have no liability to you or any third party should your access to the Services and/or Equipment be disrupted by your failure to provide us with a valid credit card, or should the charges on your credit card be declined. You will be charged an additional RM15.00 each time your credit card is declined after the payment due date (there is no charge for declines prior to due date), and a RM300 reconnection fee should you request to have the Service reinstated following a declination and subsequent account closure/service suspension.
If your credit card is declined, or you fail to pay the Fees by the due date, the Service will be suspended. This means that the Equipment will be disconnected from our network, and will have no access to the Internet. You must pay all past due Fees, and any other charges, before we will reconnect the Equipment. If the Services are suspended and the Equipment is disconnected, the Equipment will be recycled in 30 days, and at that time the data on the Equipment will not be recoverable.
If you believe a Fee charged to you is not authorized by this contract, you agree to contact us in writing within 30 calendar days of the date when you were charged this Fee, but in no case subsequent to the Due Date (Fee Dispute). Your Fee Dispute must contain a detailed description of the grounds for your dispute (including a reference to the particular paragraph of this contract on which your claim is based), and be in sufficient detail for us to determine the basis and underlying causes for the Fee Dispute. We will then have 30 calendar days to review the Fee Dispute, and either accept or reject it. If we accept it, you will be credited the amount of the disputed Fee. If we reject it, we will provide you with a written explanation of the basis of our rejection. We will then each have 30 calendar days to resolve our dispute. You may only dispute individual Fees. You may not withhold payment on your entire account.
Legal costs associated with indemnification will be billed to your credit card on file, or, if no credit card is on file or if charges are declined, you will remain responsible for all such legal costs, and any costs associated with collection. Non-payment of any such costs upon invoicing will result in your account being placed in a delinquent status and accordingly disconnected, as per paragraph 5.2.2 of this contract.
Termination for material breach Either party may terminate this contract, or a particular Service, for the other party’s material breach. The party claiming a material breach must provide written notice to the allegedly breaching party and 10 calendar days to cure. Any notice must contain sufficient information that would allow the allegedly breaching party to cure the material breach. The term “material breach” shall be determined from the perspective of a reasonable business person experienced in using dedicated web hosting products. Your termination of this contract, or a particular Service, is your sole and exclusive remedy for our material breach. The following activities shall be considered to be a material breach on your part entitling us to immediate termination of this contract without opportunity for you to cure:
(i) failure to pay Fees when due;
(ii) failure to cure your, or an End User’s, violation of this contract; or
(iii) failure to cooperate with our security requests, or engaging in any activity that endangers our network, network stability, or materially endangers our other customers. Either party may terminate this contract, or a particular Service, immediately if a material breach is incapable of cure.
You may terminate the Services through EVERWORKS’s helpdesk system at http://support.everworks.net. This is the recommended and fastest way to terminate the Services. We will send you an email verification of the Termination Request (Termination Verification). You must acknowledge the Termination Verification to terminate the Services. If you do not acknowledge the Termination Verification, or, you fail to use a Termination Request to terminate the Services, the Services will not be Terminated and Fees will still be charged. You must follow this procedure in order to terminate each Service. Once you provide us with the Termination Verification, it may take us up to 5 calendar days to process the Termination. Once the Termination is processed, the soonest possible day for your Services to be terminated is 30 days from the date of receiving and verifying your Termination Verification. You are responsible for any Fees that accrue during this period. And, as such, you are recommended to submit a Termination Request at least 35 days prior to your desired Termination Date.
Should you have no access to your EVERWORKS’s helpdesk system at http://support.everworks.net, alternate acceptable methods of Terminating Service (Alternate Termination Request) include registered mail or fax to:
EVERWORKS Solutions (M) SDN BHD
G-1-28, Jln PJU 1/45 Aman Suria Damansara,
47301 Petaling Jaya, Selangor Darul Ehsan, Malaysia.
Fax: +60 (3) 7806 5586
All mailed or faxed termination requests should include, at minimum, the full company and individual contact name and email address of the account holder, the customer ID number and the primary domain name, and the last five digits of the credit card on file, or if no credit card is on file, then the identifiable details of the last payment made (such as account number check or wire transfer sent from, exact amount, exact date sent). All such requests must be signed by the primary account holder. If any of this information is unavailable or can not be verified, further verification of the request may be required, or the request should be submitted via EVERWORKS’s helpdesk system at http://support.everworks.net. An Alternate Termination Request will not be processed until all the required information listed herein is provided and verified. The required thirty day termination notice period will begin effective the date the complete Alternate Termination Request is verified by us and confirmed by you (i.e. on the day when we have received your Termination Verification).
For account security purposes and to ensure the request is received and processed properly by our staff, we cannot accept termination requests received by any other means, including telephone or email. All such requests will be directed to our acceptable methods of Termination Request submission accordingly.
We may terminate a particular Order Form, 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 as set out in Paragraph 2.3.2 or 30 days prior to the end of the Initial Term or any Renewal Term.
On termination of the contract, EVERWORKS shall be entitled to immediately block the Services and to remove all data located on the Equipment.
Following Termination the space used on the Equipment for the Services (or, if applicable, the Equipment itself), IP space and Back-Up Services (if any), are recycled. It is your obligation to ensure that you arrange to complete the transfer of anything you need from the Services and/or Equipment on the Termination day prior to 12:00 am in the time zone of the particular data center in which the Services are provided. We have no obligation to forward mail following Termination.
The entity in the “Organization” field, or if none entered then the individual in the “Name” field, in our records is the owner of the account. Upon learning of an ownership dispute, we may lock the account and prohibit transfer of the account to another entity, and require judicial resolution of the ownership dispute.
If you administer the account on behalf of another individual or entity, you agree that you will do so on a good faith basis. You agree to indemnify us against all losses and liabilities we sustain should you administer the account in ways that are adverse to an End User, the actual owner of the account, and such an activity results in a claim against us or a third party.
The individual or entity paying for the Services may not be considered to be the owner of the account, unless also listed as the account owner in the account records (as per 7.1, above), for certain purposes, such as account Termination or Transfer of account ownership. The individual or entity paying for the Services, however, is considered the account owner, and is accordingly held responsible for the purposes of collections and revenue assurance.
EVERWORKS retains ownership of all intellectual property rights in the Services. EVERWORKS grants to you a limited license to use the Services to access and use them. All trademarks, product names and company names or logos used by EVERWORKS are EVERWORKS property or that of their respective owners. No permission is given by EVERWORKS 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 and/or Equipment, you agree to procure the Required Licenses to use all the Services. “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.
You are 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, EVERWORKS reserves the right, at its 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.
From time to time you may contact us for technical support. The non-confidential information you provide us to secure technical support may be used by us to improve our products (Feedback Information). You agree that Feedback Information of a general nature shall be considered non-confidential and our property. You further agree to a no-charge assignment to us of all worldwide rights, title, and interest in copyrights and other intellectual property rights to the Feedback Information. We shall be free to use such information on an unrestricted basis.
We each warrant to the other that: (i) we each have the power, authority and legal right to enter into this contract; and (ii) we each have the power, authority and legal right to perform our obligations under this contract and all incorporated provisions.
Your representations and warranties
You represent and warrant that (i) you have the experience and knowledge necessary to use the Services and Equipment; (ii) you and your End Users understand and appreciate the risks inherent to you, your business and your person that come from accessing the Internet; (iii) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Services necessary to take advantage of the Services; (iv) that you will not violate any applicable laws and/or regulations in your use of the Services; (v) that 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; (vi) that 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; and (vi) that you will pass through the terms of this contract, and any agreements incorporated by reference, to your End Users.
OTHER THAN SET OUT IN THE PARAGRAPH ENTITLED “RECIPROCAL WARRANTIES” WE MAKE NO WARRANTIES, AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED. THE SERVICE(S) ARE PROVIDED AS-IS. IN PARTICULAR, WE MAKE NO WARRANTIES WHATSOEVER ABOUT THE MATERIALS POSTED ON OUR FAQ, SUPPORT, OR OTHER SELF-HELP WEBSITES. YOUR USE OF THIS INFORMATION 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, NONINFRINGEMENT, 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.
We shall indemnify and hold you harmless from, and at our own expense agree to defend, or at our option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Service infringes any issued Malaysia patent or registered copyright. This indemnification provision is expressly limited to aspects of the Service which are fully owned by us. It does not extend to products or services provided by Third Parties even if incorporated into the Service. This paragraph will be conditioned on your promptly notifying us in writing of the claim and giving us full authority, information, and assistance for the defense and settlement of that claim. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in our opinion is likely to occur, you agree to permit us, at our option and expense, either to: (i) procure for you the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate our obligations (and your rights) under this contract with regard to such Service and refund to you the price originally paid by you to us for the Service, or the Fee actually received by us from you for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based. This shall be your only remedy, and our only obligation to you, should a third party allege that the Service infringes any issued Malaysia patent or registered copyright.
You agree to indemnify, defend and hold harmless us, our parent, subsidiary and affiliated companies, Third Party service providers and each of their respective 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: (i) your use of the Service; (ii) any violation by you of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in this contract; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this contract. For the purpose of this paragraph only, the term “you” as set out in subparagraphs (i) through (iv) include you, End Users, visitors to your website, and users of your products or Services, the use of which is facilitated by us.
You are responsible for sending mail in accordance with the CAN-SPAM Act. EVERWORKS will take all reasonable steps to ensure accurate and prompt routing of messages, but it will not accept any liability for non-receipt or misrouting or any other failure of email.
UBE and UCE
Bulk (or Broadcast) E-mail
Bulk E-mail is sending of substantively similar e-mails to more than 20 e-mail addresses.
Commercial E-mail is any e-mail message, the primary purpose of which is the commercial advertisement or promotion of a commercial product or service, including content on a web site, which is operated for a commercial purpose, or which has as its primary goal a commercial purpose.
EVERWORKS’s services may not be used to send UBE and UCE (a.k.a. spam).
EVERWORKS’s systems may not be used to send Unsolicited Bulk E-mails (UBE) or Unsolicited Commercial E-mails (UCE). Customers or others acting on their behalf may not send UBE or UCE promoting or advertising domain names, URLs or e-mail addresses hosted by EVERWORKS.
Other Commercial Announcements Neither customers nor End Users may post any commercial advertisement on any public bulletin board system or web site unless it is expressly allowed on that system or web site. Complaints will be handled in the same manner as UBE and UCE complaints.
Bulk Mailing Through EVERWORKS
EVERWORKS’s mail servers are the only servers designed to send Bulk E-mail using the mailing list system that may be part of the subscriber’s account. Sending Bulk (or Broadcast) e-mail through or from any EVERWORKS owned server, that is not expressly designed to handle mailing lists, is strictly prohibited. This specifically includes but is not limited to EVERWORKS web servers running any operating system or combination of server software. Violations of this policy may lead to sanctions permanently or temporarily inhibiting the ability to send any mail from those servers or total account termination at EVERWORKS’s sole discretion.
Mail Bombing is sending more than 10 substantively similar e-mails to the same recipient in any 24-hour period. EVERWORKS’s systems may not be used to engage in Mail Bombing.
Usenet Usenet is a distributed hierarchy of publicly accessible forums primarily defined by RFC1036.
Cross-posting is posting a single Usenet message that is marked as appearing in multiple newsgroups.
Multi-posting is repeatedly posting identical or substantively similar messages. Multiposting is considered bad because each copy of a multi-posting must be separately distributed across Usenet, whereas a cross-posted message need only be transferred once (even though it appears in multiple newsgroups).
In order to quantify how bad a multi-posted or cross-posted message is, the Briedbart index is used.
If during any 45-day period, a series of substantively similar messages are posted, the first cross-posted to n1 groups, the second to n2 groups, the third to n3 groups, etc., the Briedbart index of that series of postings is calculated as the sum of the square roots of n1, n2, n3, etc.
Excessive Multi-Posting (EMP)
Any series of substantively similar postings with a Briedbart index greater than 20 constitutes Excessive Multi-Posting (EMP).
Prohibition of EMP
EVERWORKS’s systems may not be used for EMP. Customers or others acting on their behalf may not engage in EMP promoting or advertising domain names, URLs or e-mail addresses hosted by EVERWORKS.
Many newsgroups have charters which place restrictions on what messages may be posted to them. Charters can be searched for here: http://www.faqs.org/faqs/faqsearch.html.
Where a charter exists for a newsgroup, a message posted to it which violates that charter is off-topic.
Prohibition of Off-Topic Posts
EVERWORKS’s systems may not be used to post off-topic messages. Customers or others acting on their behalf may not post off-topic messages promoting or advertising domain names. URLs or e-mail addresses hosted by EVERWORKS are also prohibited.
Prohibited Services & Protocols
IRC-related programs, including, but not limited to, clients, bots, and servers, may not be run using EVERWORKS’s Services. No connections to IRC or IRC-like servers or hosts may be made from EVERWORKS’s Services.
Customers may not make use of the multicast protocol unless they have a written and signed exemption to this rule from EVERWORKS. Customers using the multicast protocol without prior written authorization will be billed up to RM500 per hour that multicast is used.
Customers may not make use of proxy servers that are not protected by a username and/or password or restricted to specific IP addresses to make indirect network connections to other network services. This includes, but is not limited to, SOCKS proxies, Web proxies, Network address translation (NAT) proxies, Web-based proxy servers and open SMTP relays.
EVERWORKS expressly reserves the right to suspend or terminate, without notice, all Services for any customer who violates the acceptable uses set out in this contract. The sub-sections in this section are only presented as a guide to how complaints are normally handled. Complaints about any violation or unacceptable activity may lead to suspension or termination of any Service or Services offered by EVERWORKS. No refunds are provided for Services terminated because of any violations of this paragraph.
If practical, we will contact Customer (either by e-mail or telephone) before any action is taken. Where EVERWORKS believes that the violation was accidental or will not be repeated, EVERWORKS may, at its discretion, choose to re-enable Services. In these circumstances EVERWORKS may also place restrictions or further conditions on Customer’s use of EVERWORKS’s network, require a formal undertaking from them regarding their future conduct or require payment to cover costs incurred by EVERWORKS In dealing with the abuse incident.
In certain circumstances, EVERWORKS may suspend a customer’s Services in the interests of preventing further abuse while EVERWORKS investigates.
Consequences of UBE and UCE Complaints
UBE and UCE are a material breach of this contract, and will be dealt with firmly by EVERWORKS. Since it is true that complaints do come in about UBE or UCE and the complainant is actually a valid subscriber, there is an allowance as follows: The responsibility lies on Customer to make sure their mailing lists are kept up to date and clean of all non-subscribers. Even responded to warnings under this section will count against the total for subsequent offenses.
Two or More Complaints in One 24-Hour Period
If UBE or UCE generates two or more complaints in one 24-hour period, Customer will be notified of those complaints with copies of the reported e-mails. This one chance will be given to cease this activity, secure the network from relaying/abuse, or unsubscribe those who filed the complaints.
Five or More Complaints in Three Consecutive 24-Hour Periods
If UBE or UCE generates five or more complaints in three 24-hour periods, Service will be suspended for 10 days. Customer will be notified of those complaints with copies of the reported e-mails. It will be the responsibility of Customer to request reconnection when the ten-day suspension period has expired. A reconnection fee, equivalent to the normal account/service set-up Fee, will apply.
Eight or More Complaints in Five Consecutive 24-Hour Periods
If UBE or UCE complaints indicate an open relay or open proxy or EVERWORKS discovers an open relay or open proxy through the course of business, Customer will be notified after Services are suspended. Restoration of Service will require written acknowledgement of the reason for suspension and either:
(i) An indication that the security issue will be remedied including how this will be achieved; or
(ii) Customer pays EVERWORKS to remedy the security issue on the Customer’s behalf.
If Any Portion of Our Network is Blocked or “Blacklisted” by a Third Party
If any Services consumed by a customer, or End User, are found to be the cause for any part of EVERWORKS’s network being blocked or “blacklisted” by any third party in any way, EVERWORKS reserves the right to terminate some or all Services offered by EVERWORKS without notice. It is the responsibility of Customer to be sure they and their End Users are not abusing our network and causing problems for other customers.
Prohibited Uses. The following uses of our Service are expressly prohibited. We reserve the right to prohibit uses that are not set out below if we have a reasonable belief that they will damage us, interfere with our ability to provide the Services, interfere with our other customer’s ability to use the Services, or contravene generally accepted Internet etiquette.
You may not allow any remote code execution of malicious software.
You may not engage in activity that may be reasonably interpreted to be malicious or harmful.
You must comply with Intellectual property protections.
Other Intellectual Property Infringement
Customers, and End Users, may not engage in activity that infringes or misappropriates the intellectual property rights of others. This includes but is not limited to, trademarks, service marks, trade secrets, software piracy and patents. Complaints about such activity by customers or End Users may be directed to.
Customers determined to have infringed another entity’s trademark will be required to remove the infringement from the site in question completely. Failing to do so promptly may result in immediate service suspension for the account in question.
You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on licensed products.
You may not reverse engineer, decompile, or disassemble licensed products.
Denial of Service
Under no circumstances may EVERWORKS’s systems be used to gain access or deny access to a system or attempt to gain or attempt to deny access to a system without the permission of the system’s owners (or rightful users).
A Denial of Service (DoS) attack is designed to disproportionately consume the resources of a system in order to reduce its ability to serve its function. Under no circumstances may EVERWORKS’s network be used in DoS attacks.
Abnormal traffic shapes may cause detrimental effects to other users and/or the network, and, in extreme cases, may have DoS attack-like effects.
You are solely responsible for maintaining the security of access codes, authorization codes, and passwords.
You are solely responsible for maintaining the security of access codes, authorization codes, and passwords.
Maximum pps Ratio
Customers must ensure that their packets per second (pps) ratio is below 1 packet/second per each 1000 bits/second (i.e., 1 pps per 1 Kb/s). Any higher pps to bandwidth ratios are a material breach of this contract and will result in immediate termination. Furthermore, Customer will be liable for a minimum fine of RM500 per hour that the pps ratio is exceeded, or greater based on the scope of the effect on other users and/or the network.
Compliance With Applicable Laws
The Customer shall comply with and not to contravene all applicable laws of Malaysia relating to the Services including but not limited to Communication and Multimedia Act 1998 and its subsidiary legislation, other Acts or Parliament, local by-laws, rules and regulations issued by relevant Government Bodies and/ or Authorities.
This Agreement shall be governed and construed in accordance with the laws of Malaysia.
Probes and Scans
A probe is a connection made to a computer in order to determine if it has a security vulnerability (for example, testing a mail relay to see if it allows third party relay). This also includes unauthorized security testing of any system or network.
A port-scan is making multiple attempts to connect to a computer on different ports in order to determine the services it provides.
A sweep is a series of attempts to connect to multiple network addresses in order to determine whether they are in use, providing a specific service or to map a network’s topology.
Spoofing is faking the details of a connection in order to make it appear to come from a different computer, organization or individual without their permission.
Prohibition of Probes, Port-Scans, Sweeps and Spoofing
Probes, port-scans, sweeps and spoofing of systems without the express permission of the owners of those systems is prohibited, and may be reported to law enforcement agencies. EVERWORKS reserves the right to use probes, port-scans, sweeps and spoofing on any system connected to the EVERWORKS network in the course of performing security assessments and threat management.
Microsoft Office Products may include, and identify certain photographs, clip art, shapes, animations, sounds, music and video clips (Media Elements). You may copy and modify the Media Elements, and license, display and distribute them, along with modifications as part of your software products and Services, including your websites. You may not sell, license or distribute copies of the Media Elements by themselves or as part of any collection, product or service, if that is the primary value of the product.
EVERWORKS may disclose your name and address to a complaining individual or naming authority if in its reasonable discretion it is necessary or appropriate to do so.
We may disclose information, including information that you or End Users may consider confidential, in order to comply with a court order, subpoena, summons, discovery request, warrant, regulation, or governmental request. We assume no obligation to inform you or an End User that information has been so provided, and in some cases may be prohibited by law from giving such notice. We may also disclose such information when it is necessary for us to protect our business, or others, from harm.
We are not required to provide information to you in conjunction with any civil litigation. If we choose to provide this information to you, it will be subject to a separate agreement, and you will be charged for our expenses in providing this information, including legal fees.
If a law or regulation compels disclosure of information we have about you, we are required to respond. Unless notifying you is prohibited by the law, or a reasonable interpretation of that law, we will use reasonable efforts to contact the account owner as set out in our records. We are not required to respond to demands by you that we provide information about your account as part of your litigation. If we agree to do so, we will charge you an administrative fee of RM300 per hour, charged in one hour increments, for each hour we spend responding to your request. You will also be charged the fees we are charged by our attorneys in responding to your request.
Each of our rights and obligations set out in this contract are undertaken as independent contractors. Neither of the parties shall have the right to create an obligation on behalf of the other, unless expressly set out on an Order Form.
During the term of this Agreement and for a period of one (1) year after the termination of this Agreement, you shall not solicit, discuss employment with, offer employment to, offer a contract to, nor otherwise use, hire, or utilize the services of any employee of EVERWORKS or any person who has been employed or exclusively contracted by EVERWORKS, or a key vendor/supplier of EVERWORKS, within one (1) year prior to the date of solicitation, hiring, or other such activity.
Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this contract or such other address as such party may from time to time have communicated to the other in writing. Notices shall be deemed received upon confirmation of receipt.
If we receive notice that content on your site allegedly violates to equivalent law in Malaysia, we are required to take certain actions. It is important in that case that you understand your rights and obligations. We cannot advise you on these.
You are required to provide notices to us about the Services through EVERWORKS’s Helpdesk at http://support.everworks.net. We have no responsibility for misdirected notices based on your failure to provide correct information.
Termination notices must be provided to us as set out in paragraph 6.2.
Legal Notices to us, which are effective only upon acknowledged receipt, shall be provided to us as follows:
EVERWORKS SOLUTIONS (M) SDN BHD
ATTENTION: LEGAL DEPARTMENT
G-1-28, JLN PJU 1/45 AMAN SURIA DAMANSARA,
47301 PETALING JAYA
FAX: +60 (3) 7806 5586
Force Majeure. Except for the obligation to pay the Fees, neither party shall be liable to the other for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event more than 10 days from the beginning of the event.
If any provision of this contract or part thereof shall be void for whatever reason, the offending words shall be deemed deleted and the remaining provisions shall continue in full force and effect.
No waiver of rights under this contract, or any of our policies, or other agreement between the parties shall constitute a subsequent waiver of this or any other right under this contract. Any delay or forbearance by either party in enforcing any provisions of this contract or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
This contract does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
Paragraphs 8, 9.3, 10, 11 and 14 shall survive the termination of this contract.
Customer may only use the Services for lawful purpose. Transmission of any material in violation of any international, Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, pornographic, profane, or material protected by trade secrets. This also includes links or any connection to such materials. Customer also warrants that it has the right to use any applicable trademarks, which are featured in the Customer’s environment for the Services.
The Customer shall comply with and not to contravene all applicable laws of Malaysia relating to the Services including but not limited to Communication and Multimedia Act 1998 and its subsidiary legislation, other Acts or Parliament, local by-laws, rules and regulations issued by relevant Government Bodies and/ or Authorities.
This Section incorporates by reference the Product Pages entitled “Web & Email Hosting” or “Shared Account”.
Shared accounts cannot be transferred or used by anyone other than you. You may not sell, lease or assign the connection or parts of the connection to any party not named in our records. You may allow FTP access, SSH access, HELM control panel for windows or Plesk control panel for LINUX customer, and host websites for your customers without violating this contract.
Shared IP. Your IP address (dedicated or shared, as applicable) may be changed to another IP address upon reasonable notice.
Fair Use. In instances in which an excessive amount of network, storage or processing resources are utilized by you, we reserve the right to place bandwidth, traffic, disk space, and/or CPU process limits on the Services to prevent the disruption of other customers. If your account usage exceeds these Fair Use guidelines, you may be required to upgrade your account or service type. Failure to do so within a reasonable timeframe, will result in termination. We are the sole arbiter of what is considered to be high resource usage. For shared hosting accounts, excessive use thresholds include but are not limited to: – database queries may not exceed 10% of system resources in any second
– Database and general processing resource usage (CPU load, I/O, etc.) not to exceed 250% of that of other customers with the same account type average usage over the last comparable period.
– there may be no more than 20 simultaneous processes
– no more than 64 MB of the server memory resources at any given time
– no more than 20 simultaneous connections from a single IP
– no more than 10Mb/s peak network activity
– Shared email customers may not exceed 100MB of data downloaded per day on a standard email plan of 250MB on a high volume plan (at an additional fee). Data downloads over 250MB per day are not permitted on the shared email platform.
Shared e-mail account storage varies by account type and as is described in our current account/service type specifications.
This Section incorporates by reference the Product Page entitled “VPS Accounts.”
Description of Services. Our Virtual Private Server Services allow you to connect with our network using a portion of a server partitioned in a manner that allows you to have virtual control over all features and aspects of that server, other than certain preset characteristics (Virtual Dedicated Product). The Virtual Dedicated Product features and access speeds are set out on the Product Page.
Your use of the Equipment provided to use the Virtual Dedicated Product is not exclusive. You will take no actions to limit the use of the Equipment by our other customers or other entities in general. You will not alter, or attempt to alter mechanisms, including software, implemented by us to facilitate the sharing of the Equipment. You understand that certain aspects of the Virtual Dedicated Product are designed to facilitate use by multiple parties and these features may affect your use and administration of the Equipment. You may not terminate this contract based on the implementation of these features.
This Section incorporates by reference the Product Page entitled “Dedicated Accounts.” Because we do not sell Dedicated Service as a standalone product, additional terms and conditions will apply to you.
Sale of bandwidth
The particular Services you choose to be provided by us are set out in your Order Form, described on the Product Pages, and referred to as the “Dedicated Service.” If provided, specific Dedicated Product features, access speeds and other items you have initially selected are set out on your Order Form.
We agree to sell to you the amount of traffic specified on your Order Form. Your use will be the only user of the Equipment, however, we will retain ownership in the Equipment. We will install the Equipment in our data center.
You have the right to connect to our network, using the Equipment, on a 24 x 7 basis, limited by this contract.
You are responsible for management of the Equipment. Our only responsibility is to enable connection of the Equipment to our network. If your management of the Equipment creates a security or operational hazard for our network or other customers, we may take the Equipment off-line. You are required to make any changes we request to ensure that your management of the Equipment does not endanger our network.
We provide Customers with the option of contracting with us to support the Dedicated Product. Customers may purchase support by either enrolling in a pre-paid support plan, or pay-as-you-go. All support is provided as is, and as available. Support is specifically subject to the disclaimer of warranties set out in this Agreement.
Dedicated service is the combination of Hardware Rental or Lease-to-Own (Section D) and Colocation (Section E). As such, these two sections apply to all Dedicated Customers. In case of the lease-to-own option, the Dedicated Service pricing will be unbundled, including removing any bundle (of colocation and hardware rental) discounts, and change to the standard colocation rate for the equipment once it is customer owned, past the end of the lease-to-own period.
Colocation Product Description
This Section incorporates by reference the Product Page entitled “Colocation Accounts.” EVERWORKS agrees to sublease the Space as more fully described in the Order Form according to the terms and conditions set out in this Schedule and all other applicable agreements. The products and services we provide pursuant to this Schedule are referred to as the “Colocation Product.”
We have designed the Space to accommodate the location, installation and maintenance of standard Equipment to interconnect with our network.
You may not sublet or assign your rights under this contract, or rent, sell, transfer or otherwise allow others to use the Space or any equipment located therein without our prior written authorization, which consent may be withheld by us in our sole discretion.
We encourage you to inspect the Space and ensure that it meets your needs. It is provided as-is. We make no representations or warranties as to the fitness of the Space for your intended use. You are responsible for all hardware, software, cabling, services and components not provided by us which are required for you to use the Space (Customer Equipment). We are not responsible for Customer Equipment. If the Customer Equipment is not compatible with the Space, or our equipment and/or network, you will still be bound by your contract(s) with us. You are required at your expense to adequately secure, mount and otherwise ensure that the Customer Equipment does not present a danger and is installed pursuant to EVERWORKS’s specifications.
Upon notice from us that the Customer Equipment causes, or is likely to cause, a hazard, interference or obstruction of the Colocation Product, you shall remove the Customer Equipment, or portion of it, causing the interference, and we may disconnect the Colocation Product until the interference ceases.
We will make available to you all of the services provided by the landlord of the Space as they are made available to us. We are not responsible for the operations of the Space, other than as set out herein. You agree to look solely to the landlord of the Space for any damages, claims or losses caused by the operation of the Space. You are responsible for the installation, maintenance and connectivity of the Customer Equipment within your Space, and agree that you will conduct your operations, access the Space and operate the Customer Equipment in a safe and workmanlike manner in accordance with the industry standard for those activities.
Neither you, nor your agents or contractors, shall make any alterations or improvements to the Space prior to submitting plans and specifications for such improvements to us and receiving our prior written consent. Once these alterations or improvements are made, they will be considered fixtures, and may not be removed by you – unless you are directed to remove them by us. Upon termination, expiration or cancellation of the Order Form governed by this Section, you shall return the Space to the manner in which it existed upon commencement of the contract. If you do not remove Customer Equipment, you will be liable for the cost of removal, disposal and restoration of the Space to its original condition.
Upon our notice to you, you will take all actions reasonably necessary to comply with the requirements of any underlying agreement or instrument related to, or encumbering, the Space. In the event that any underlying agreement or instrument terminates, the Order Form governed by this Schedule shall automatically terminate. We shall not be liable for any damages related or caused by such a termination.
You, your employees, agents and contractors shall abide by all applicable laws, regulations, tariffs, rules and policies related to the Space. We have the right to limit your access to the Space if necessary to carry out our business. If we determine, in our sole and exclusive discretion, that your employees or agents are acting in a way that impairs our business, or that of our other customers, we may restrict their access to the Space.
Access to the Space must be pre-arranged and escorted.
We may, upon reasonable notice to you, require you to relocate to another space; provided, however that such other space shall afford reasonably comparable access, environmental conditions and facilities.
To secure the payment of the Fees, you grant to us a continuing security interest in, and lien upon, the Customer Equipment. In the event that you fail to pay us any undisputed amounts owed to us under any contract or Order Form with us, you agree that, upon delivery of written notice to you, and a reasonable period to cure, we may (i) restrict your physical access to the Space and Customer Equipment; and/or (ii) take possession of the Customer Equipment and store it, at your expense, and exercise all remedies available under the law applicable to the particular Order Form, all without being liable for prosecution or for damages.
Billing Terms & IP Transit/Bandwidth
Fees for the Colocation Product accrue upon the earlier of (a) your use of the Colocation Product; (b) provision of the Colocation Product to your interface; or (c) your acceptance of the Colocation Product (each a “Service Commencement Date”). You are responsible for all Fees associated with transmissions from your Colocation Product, regardless of whether they originated from you. Invoicing for the Monthly Recurring Charge (MRC) will be monthly in advance for fixed and committed bandwidth. The MRC shall begin on the Service Commencement Date. Burstable bandwidth is an option on top of the purchased Colocation Product which can be subscribed from your Account Manager. The burstable portion of the service is billed on a usage basis in arrears (Burst Usage). Burst Usage shall be calculated as follows:
Bandwidth is measured (sampled) from the switch every 5 minutes. At the end of the day, the samples are sorted from highest to lowest, and the top 5% (which equal to approximately 72 minutes of a 1-day billing cycle) of data is thrown away. The next highest measurement becomes the “billable utilization” for the day – the 95th percentile amount. You will be billed the standard overage rates for any Mb/s (Megabits per second) in excess of your service included bandwidth amount daily.
Statistics are available in your MRTG control panel at http://mrtg.everworks.net
In the event of a Customer Equipment failure, the contracted bandwidth is still available and therefore continues to be chargeable as set out in this contract.
We work under the Asia-Pacific Network Information Centre (APNIC) policy of allocation of IP address space and may only provide IP addresses to customers if they adhere to APNIC ‘s terms and conditions.
Service Level Guarantee/Qualified Service Outage
A Qualified Service Outage is an outage that is set out in our SLA. Please review our colocation SLA to learn more about SLA credits and how to request them.
This is our sole responsibility and your sole remedy for a Qualified Service Outage. Outage Credits may not: exceed one month’s Fees; be aggregated; be applied to delinquent accounts; or Fees due third parties.
Except in the case of emergencies we will attempt to notify you no less than 24 hours prior to any scheduled service, maintenance or alteration of the network which would in our judgment affect you. Wherever reasonable and practical, we will endeavor to perform these activities in such a way as to minimize any interruption of service. Our routine network maintenance window is 11:00 PM to 5:00 AM local time at the data center.
Limitation of Liability
We provide only access to the Space and the Colocation Product. We have no liability for anything outside of these items, and our liability for the Space and the Colocation Product is limited by this contract.
In addition to the specific limitations of liability set forth in other paragraphs in this contract, or in our colocation rules, we shall not in any case be liable for any of the following: (i) any act or omission of any other party furnishing services and/or products, or the installation and/or removal of any and all equipment or supplies; (ii) your acts, or the acts of your customers, End Users, employees, agents or invitees and/or (iii) the acts of other lessors of Space from us or any other entity.
We shall only be liable for damages to or theft of Customer Equipment or property located in the space proximately caused by the gross negligence or intentional acts of us, our agents or employees.
The limitations of liability set out in this paragraph are in addition to, and not in lieu of, limitations of liability and other similar paragraphs set out in our contract.
Without prior approval, you may not use the Space to interconnect with telecommunications service provided by parties other than us. We may charge an interconnection or cross-connect fee for such a service.
We agree to undertake and complete the tasks set out in the SOW in accordance with, and on, the schedule set out therein (Services). We also agree to provide the Goods set out in the SOW. In some cases these Goods will be licensed to you, rather than sold. You agree to be bound by the terms of any license agreement covering these Goods.
We will devote reasonable time and effort, skill and attention to the performance of the Services. Provided, however, that we will not be required to perform Services above and beyond those set out in the SOW unless agreed upon in writing. We are not responsible for the failure to provide Service(s) set out in the SOW due to technical limitations or configurations or failure by you to provide accurate information necessary to perform the Service(s). You will be billed only for hours of work completed.
The Services shall be performed by us as an independent contractor. If set out in the SOW, we shall be your agent solely for the purpose of purchasing, and if necessary entering into license agreements for, the Goods. Other than the specific acts set out in the previous sentence, we shall not have the power to bind or represent you for any other purpose.
You will furnish us with all the data and information required by us to perform the Services, as well as reasonable access to key personnel who have the requisite knowledge and experience to provide material assistance to us.
You will promptly obtain, and upon our request provide to us confirmation that you have received all “Required Consents.” “Required Consents” means any consents or approvals required to give us, and if necessary, our subcontractors the right or license to access, use and/or modify, the hardware, software and other products, data and content that you provide to us to perform the Services, or that we require to perform the Services. If you fail to provide us with the Required Consents, and we are unable to perform the Services as a result, you will remain responsible for the full amount of the Fees.
Term and Termination.
The Effective Date of this Agreement is the date on which we accept the SOW. The term of this Agreement shall begin on the Effective Date. It shall continue until we deliver to you a statement that the milestones set out on the SOW are completed or this Agreement is terminated as otherwise set out herein.
Either party will have the right to terminate this Agreement in the event that the other party fails to cure any material breach within thirty days after receipt of notice from the other party. A material breach shall be determined from the perspective of a reasonable business person with significant experience conducting business on the Internet. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action.
Fees and Expenses.
You will pay to us the fees set out in the SOW (Fees). Prior to commencement of any work, the payment for it must be received in full. If the SOW is split into multiple sections and/or milestones, prior to commencement of work on any section or milestone, payment for that section or milestone must be received in full. You will make all payments under this Agreement upon receipt of our invoice. Should you fail to make a timely payment, we will charge you a finance charge equal to the lesser of 1.5% per month or the maximum rate permissible under law.
Should you dispute any of the charges set out on an invoice, you shall notify us within ten days of your receipt of such an invoice. Your notice shall set out in sufficient detail the basis for your dispute. We shall have thirty days from the date of such a notice of dispute to reply. The dispute shall be valid only if the invoice has been paid within ten days of issue; should an invoice not be paid, or be only partially paid, then you waive all rights of dispute and confirm that it is correct and valid.
You will reimburse us for all of our reasonable out-of-pocket expenses in connection with the performance of this Agreement. Any reasonable expenses, such as media, materials, component procurement, product inventory, license fees and other related expenses required by us to perform our obligations under this Agreement will be billed to you at actual cost. Any out of pocket expenses greater than RM100 must be approved by you.
Our Warranty. We represent and warrant that we will use commercially reasonable efforts to perform the Services in a professional and workmanlike manner. Your sole and exclusive remedy for our breach of our warranty will be for us to reperform the Services, or, at our option, refund the Fees you have already paid to us for the Services that could not be performed.
Your Warranty. You represent and warrant that you have sufficient authority to enter into this Agreement and to authorize us to perform our obligations hereunder and to provide us with any consents and/or licenses required in this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THE SECTION ENTITLED “OUR WARRANTY” THE SERVICES AND/OR GOODS ARE PROVIDED ON AN “AS IS” BASIS AND WE SPECIFICALLY DISCLAIM ALL WARRANTIES AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING.
Limitation of Liability.
WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, MULTIPLE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR ON ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL APPLY TO US, OUR SUBSIDIARIES, AFFILIATES, EMPLOYEES, CONTRACTORS, AGENTS AND MEMBERS OF ANY OF OUR GOVERNING BOARDS. IF ANY APPLICABLE AUTHORITY DOES NOT ALLOW THE DISCLAIMER OR LIMITATION OF LIABILITY STATED HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (EXCEPT FOR THE FEES PAYABLE BY YOU TO US UNDER THIS AGREEMENT) IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIM OF LIABILITY UNDER THIS AGREEMENT FOR AN AMOUNT GREATER THAN THE FEES PAID BY YOU TO US DURING THE THREE MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY.
Each party shall indemnify and hold the other harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against the other party so far as it is based on a claim that a Good or Service supplied hereunder infringes any Malaysia patent, copyright, or registered trademark, or that a Required Consent has not been procured. This paragraph will be conditioned on the party seeking indemnification notifying the other party promptly in writing of the claim and giving the indemnitor full authority, information, and assistance for the defense and settlement thereof. The party seeking indemnification shall have the right to participate in the defense of the claim at their expense. If, in our case, such claim has occurred, or in is likely to occur, you agree to permit us, at our option and expense, either to: (a) procure for you the right to continue using the Good or Service; (b) replace with a product or service, regardless of manufacturer, performing the same or similar function as the infringing Good or Service, or modify the same so that it becomes non-infringing; or (c) if neither of the foregoing alternatives is reasonably available, immediately terminate our obligations (and your rights) under this Agreement with regard to such Good or Service.
Inventions and Other Information
[Unless set out in the Statement of Work, the Services will be “works made for hire” and/or you shall own all right title and interest in the Services – to the limited extent that such right, title and interest is capable of copyright or patent (Invention/Idea). Subject to any reservation of rights set out in the SOW, we hereby assign to you our entire right, title and interest (throughout the Malaysia and in all foreign countries), free and clear of all liens and encumbrances, other than a lien for any unpaid Fees, in and to each Invention/Idea, which shall be your sole property. This expressly excludes any open-source or commercial software or scripts used, that are owned by their respective publishers.
We agree to assist you at any time, and not just during the Term, in consummating, evidencing or otherwise effecting the assignment of each Invention/Idea as provided herein (which shall include any application for or registration or recordation of any patent or copyright), in any and all countries, which assistance shall include the execution of documents and any assignments to you.]
Certain elements of the Services may be based on our prior work. We warrant that we currently have a license or other right to use these elements as part of the Services. You expressly understand and agree that certain intellectual property incorporated into the Services may have been used by us in other projects, and will be used by us in subsequent projects (Template Services). You shall have no intellectual property interest in the Template Services, other than a right to use them as incorporated into the Services. You grant to us unlimited, royalty-free, non-exclusive right to use, distribute, license, sub-license, sell and/or create derivative uses of the Template Services, regardless of the fact that they have been incorporated into the Services.
If set out in the SOW, we will jointly own any intellectual property that is jointly developed. If this is the case, we each agree to cooperate to facilitate securing our respective rights in the resulting intellectual property. In addition, we each grant to the other unlimited, royalty-free, non-exclusive rights to use, distribute, license, sub-license, sell and/or create derivative uses of the intellectual property.
Relationship of the Parties.
Each party is, shall be, and shall act as, an independent contractor. Other than as set out in paragraph [1.3] above, neither party shall represent or hold itself out as the agent of the other.
Each party agrees that during the Term, and for a period of two years following termination or expiration, that it will not, directly or indirectly, induce or attempt to induce any employee of the other, or any of its subcontractors, to terminate or abandon his employment, or engagement, with the other for any purpose whatsoever.
We each agree that the clients, customers, vendors and other entities or individuals with whom we have similar relationships are proprietary relationships. Neither of us shall directly or indirectly, call on, service, solicit or otherwise do business with any customer or vendor of the other.
This Agreement may not be assigned by either party without the express written consent of the other. Notwithstanding this paragraph, you understand that we may delegate all or part of our obligations to subcontractors. However, we agree to remain responsible for the overall completion of the Services.
The terms of this Agreement, including the SOW, are intended by the Parties to be the final expression of their agreement with respect to its subject matter and this Agreement may not be contradicted by evidence of any prior or contemporaneous agreement, except as expressly set forth herein. The parties further intend that this Agreement, including the SOW, shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding involving this Agreement.
This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instrument in writing executed by the parties.
If any provision of this Agreement, or the application thereof to any person, place, or circumstance, shall be held by an arbitrator or a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect, and such provision shall be enforced to fullest extent consistent with applicable law.
All disputes shall be brought before the equivalent of Malaysia court. The parties agree that this court shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this contract or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this contract shall be governed by the substantive law of the State of Hawaii, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of this Agreement.
Neither party will be in default if its failure to perform any obligation hereunder, other than its obligation to pay the Fees, is caused by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, interruptions of telecommunications providers, strikes, vandalism or “hacker” attacks, or governmental demands or requirements.
This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
The provisions of paragraphs 6, 7, 8, 9, 11, 12.2, 12.4, 12.5, 12.6, 12.8, and 12.9 will survive the expiration of this Agreement or its termination for any reason.