Version 2.12 | Last update: 14 September 2010
Flow through agreements
Your contract consists of this Terms of Service, its schedules, our Privacy Policy, our Service Level Agreement (SLA) and any agreements with third parties which are “flowed down” to you through this Terms of Service. Each of these agreements are incorporated into this Terms of Service by reference, and collectively referred to as the “contract.” Our Privacy Policy may be found on our web site, https://www.everworks.com/privacy-policy/. Third party agreements flowed down to you by our vendors through this contract will be provided on request. However, you are bound by them. These policies may change from time-to-time.
Additional Terms
Configuration and support
Service modifications
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.
Back-up
Technical Support
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.
Cooperation
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.
Credit cards
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:
By You
You may terminate the Services through EVERWORKS™ helpdesk system at http://support.everworks.com. 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™ helpdesk system at http://support.everworks.com, alternate acceptable methods of Terminating Service (Alternate Termination Request) include registered mail or fax to:
EVERWORKS Solutions (M) SDN BHD
A-1-9, A-2-9 & A-3-9 ENDAH PROMENANDE,
No.5, JALAN 3/149E, TAMAN SRI PETALING,
57000 KUALA LUMPUR.
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™ helpdesk system at http://support.everworks.com. 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.
By Us
Reciprocal Warranties
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.
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:
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.
UBE and UCE
Definitions
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
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™ services may not be used to send UBE and UCE (a.k.a. spam).
EVERWORKS™ 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™.
Bulk Mailing Through EVERWORKS™
EVERWORKS™ 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™ sole discretion.
Mail Bombing
Mail Bombing is sending more than 10 substantively similar e-mails to the same recipient in any 24-hour period. EVERWORKS™ systems may not be used to engage in Mail Bombing.
Usenet Usenet is a distributed hierarchy of publicly accessible forums primarily defined by RFC1036.
Usenet Spam
Cross-Posting
Cross-posting is posting a single Usenet message that is marked as appearing in multiple newsgroups.
Multi-Posting
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).
Briedbart Index
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™ 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™.
Off-Topic Posts
Definitions
Charter
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.
Off-topic
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™ 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
IRC-related programs, including, but not limited to, clients, bots, and servers, may not be run using EVERWORKS™ Services. No connections to IRC or IRC-like servers or hosts may be made from EVERWORKS™ Services.
Multicast
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.
Open Proxies
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.
Consequences
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™ 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:
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™ 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 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.
Denial of Service
Under no circumstances may EVERWORKS™ 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™ 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.
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.
Governing Law
This Agreement shall be governed and construed in accordance with the laws of Malaysia.
Probes and Scans
Definitions
Probe
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.
Port-Scan
A port-scan is making multiple attempts to connect to a computer on different ports in order to determine the services it provides.
Sweep
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
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.
Notices
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
A-1-9, A-2-9 & A-3-9 ENDAH PROMENANDE,
No.5, JALAN 3/149E, TAMAN SRI PETALING,
57000 KUALA LUMPUR.
FAX: +60 (3) 7806 5586
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”.
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:
This Section incorporates by reference the Product Page entitled “VPS Accounts.”
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
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.
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.”
Colocation Product
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:
Service Level Guarantee/Qualified Service Outage
Network Maintenance
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
Interconnection
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.
Services
Your Responsibilities
Term and Termination.
Fees and Expenses.
Warranties.
Warranty Disclaimer.
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.
Indemnification.
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
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.
Non-solicitation
Miscellaneous.
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.