Terms & Conditions Agreement
This Terms & Conditions Agreement is between GIGABIT HOSTING SDN BHD and “Customer”, and the person (individual or legal person) whose signs GIGABIT HOSTING SDN BHD’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of GIGABIT HOSTING SDN BHD’s service.
Table of Contents
- Customer Information
- Disclaimer of Warranties
- Limitation of Damage
- Suspension of Services/Termination
- Request for Customer Information
- Back Up Copy
- Changes to GIGABIT HOSTING SDN BHD’s Network
- Force Majeure
- Hardware Property
1. Services: Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Customer’s credit approval requirements, GIGABIT HOSTING SDN BHD agrees to provide the services described in the Order for the fees stated in the Order.
2. Term: The initial service term of the Agreement shall begin on the date that GIGABIT HOSTING SDN BHD generates an e-mail message to Customer announcing the activation of the Customer’s account and shall continue for the number of months stated in the Order (12 MONTHS CONTRACT). Upon expiration of the Initial Term, this Agreement shall not be renew but any cancellation of Order requires customer to provide the other with written notice of non-renewal at least sixty (60) days prior. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly or annually as indicated on the Order, beginning on the Service Commencement Date. GIGABIT HOSTING SDN BHD may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes GIGABIT HOSTING SDN BHD to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise GIGABIT HOSTING SDN BHD will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in RINGGIT MALAYSIA. Customer is responsible for providing GIGABIT HOSTING SDN BHD with changes to billing information (such as credit card expiration, change in billing address. GIGABIT HOSTING SDN BHD may charge interest on overdue amounts of 3% per month or the maximum non-usurious rate under applicable law. GIGABIT HOSTING SDN BHD may suspend the service without notice if payment for the service is overdue 14 DAYS. Customer agrees to pay GIGABIT HOSTING SDN BHD’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay GIGABIT HOSTING SDN BHD’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
b. Early Termination
Customer acknowledges that early termination will results a penalty charge from remaining period months according to the ORDER. Failure to do so, GIGABIT HOSTING SDN BHD reserves the right to hold Customer’s content in the server.
4. AUP Customer agrees to use the service in compliance with applicable law and GIGABIT HOSTING SDN BHD’s Acceptable Use Policy posted at the printed documents, which is hereby incorporated by reference in this Agreement. Customer agrees that GIGABIT HOSTING SDN BHD may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP are effective on the earlier of GIGABIT HOSTING SDN BHD’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with GIGABIT HOSTING SDN BHD’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between GIGABIT HOSTING SDN BHD and Customer regarding the interpretation of the AUP, GIGABIT HOSTING SDN BHD’s commercially reasonable interpretation of the AUP shall govern.
5. Customer Information Customer represents and warrants to GIGABIT HOSTING SDN BHD that the information he, she or it has provided and will provide to GIGABIT HOSTING SDN BHD for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to GIGABIT HOSTING SDN BHD that he or she is at least 18 years of age. GIGABIT HOSTING SDN BHD may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.
6. Disclaimer of Warranties
GIGABIT HOSTING SDN BHD DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW GIGABIT HOSTING SDN BHD DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
7.Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF GIGABIT HOSTING SDN BHD AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
a. Suspension of Service
Customer agrees that GIGABIT HOSTING SDN BHD may suspend services to Customer without notice and without liability if: (i) GIGABIT HOSTING SDN BHD reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) GIGABIT HOSTING SDN BHD reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay GIGABIT HOSTING SDN BHD’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if GIGABIT HOSTING SDN BHD fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by GIGABIT HOSTING SDN BHD prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within seven (7) days of a written notice GIGABIT HOSTING SDN BHD describing the violation in reasonable detail; or (iii) upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once. GIGABIT HOSTING SDN BHD may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed overall or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
9. Requests for Customer Information:
Customer agrees that GIGABIT HOSTING SDN BHD may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that GIGABIT HOSTING SDN BHD believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
10. Back Up Copy:
Customer agrees to maintain a current copy of all content hosted by GIGABIT HOSTING SDN BHD notwithstanding any agreement by GIGABIT HOSTING SDN BHD to provide backup services.
11. Changes to GIGABIT HOSTING SDN BHD’s Network:
Upgrades and other changes in GIGABIT HOSTING SDN BHD’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. GIGABIT HOSTING SDN BHD reserves the right to change its network in its commercially reasonable discretion, and GIGABIT HOSTING SDN BHD shall not be liable for any resulting harm to Customer.
Notices to GIGABIT HOSTING SDN BHD under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://secure.thegigabit.com. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
13. Force Majeure:
GIGABIT HOSTING SDN BHD shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond GIGABIT HOSTING SDN BHD’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer’s purchase order or other business forms are not binding on GIGABIT HOSTING SDN BHD unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without GIGABIT HOSTING SDN BHD’s prior written consent. GIGABIT HOSTING SDN BHD’s approval for assignment is contingent on the assignee meeting GIGABIT HOSTING SDN BHD’s credit approval criteria. GIGABIT HOSTING SDN BHD may assign the Agreement in whole or in part.
15. Hardware Property:
Each party acknowledges and agrees that the hardware ownership and rights belong to GIGABIT HOSTING SDN BHD and may not transfer to any other ownership. Prior to this event, the ownership transferring is only bound to subject where GIGABIT HOSTING SDN BHD agrees to transfer its properties; HARDWARE.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.