This Remote Server Access Agreement (“Agreement”) is between GIGABIT HOSTING SDN BHD (“GIGABIT”) and “Customer” (individual or legal person)whom has acknowledged acceptance of GIGABIT ‘s service order and set up form (the “Order”) incorporated as an integral part of this Agreement by reference (“Customer”). This Agreement is effective as of the date of acceptance (“Effective Date”).
TERMS AND CONDITIONS
1. Definitions
For the purposes of this Agreement:
“Support” means an individual instance of paid technical support provided by TheGigabit via phone or email (a “Ticket”) or collections of individual instances sold as a group (“Support Package”), as defined on the TheGigabit web site.
“Product(s)” shall refer to software and related documentation developed and owned or resold by TheGigabit. Products include, without limitation, SmarterMail, SmarterStats, and SmarterTrack and their respective versions, editions, and levels.
2. Purpose
The purpose of this Agreement is to allow TheGigabit to access Your server or the administrative area of any Products installed on Your server in order to provide Support. This Agreement covers all Support performed on Products and all related devices and software related to Your request for Support. This Agreement covers all types and levels of Support, including installation, operation, maintenance, configuration and custom Support requests.
3. Company Rights and Obligations
You understand that this Agreement extends to all Support, paid or unpaid, that You request or consent to and that this Agreement is not associated with a specific dollar amount. Support is provided and charged to You on a case-by-case basis. You agree that all Support being performed is done at Your request, consent, and for Your benefit. TheGigabit strongly recommends that You perform a full backup of any server that will be accessed during or because of Your Support request(s). You agree that You are ultimately responsible for the retention and security of all data on Your devices.
4. Duties of TheGigabit
TheGigabit may need to access Your server or the administrative area of Products installed on Your server to provide Support. TheGigabit shall only work on data and attempt procedures related to your Support request(s).
5. Connection Details
You agree to allow TheGigabit to gather any relevant connection information necessary to connect to Your server(s), including, but not limited to, the server name, Web Interface URL, system administrator username and password and remote access IP address. All connection information provided to TheGigabit under the terms of this Agreement shall be encrypted and protected.
6. Relationship
The relationship between TheGigabit and Company shall in no case or instance be considered a legal partnership, joint venture, agency, or employee related to the other. Parties shall not have the right to bind the other to an agreement with any third party or to incur any obligation or liability to the other except as otherwise required by this Agreement.
7. Liability
TheGigabit provides Support on an AS-IS basis and HEREBY DISCLAIMS ALL WARRANTIES FOR PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Any projections or other representations on the part of TheGigabit, either verbally or in writing, reflect opinions or estimates only and in no way guarantee the performance, success, or suitability of Products and/or Support.
You acknowledge that You will not hold TheGigabit liable nor does TheGigabit make any claim of responsibility for any direct or indirect damage, loss of data, or other problems caused by or associated with Your Support request(s). TheGigabit is not responsible for any subsequent Support after a request is completed.
Your sole remedy for any breach of this Agreement shall be termination of the Agreement and in no event shall TheGigabit’ liability for any breach of this Agreement exceed the purchase price of any Support paid to TheGigabit. TheGigabit may, in its sole discretion, replace offer additional Support in an amount equivalent to Support previously purchased instead of refunding the purchase price paid to TheGigabit.
Company will indemnify, defend, and hold TheGigabit and TheGigabit Affiliates harmless from any claim by any third party relating to this Agreement, including but not limited to claims by third parties of infringement of intellectual property rights as a result of bundling Products or Support with any other software, hardware, product, or service. In no event will TheGigabit be liable for any incidental, consequential, or punitive damages or attorneys fees of Company, Licensees, or third parties. Additional limitations and indemnifications may exist in the End User License Agreement (EULA) included with each installation of Product.
8. Term and Termination
This Agreement will remain in effect and apply to all Support provided to You by TheGigabit until canceled. You may cancel this agreement at any time by closing the ticket related to this agreement.
MUTUAL NON-DISCLOSURE
As part of accessing Your server or the administrative area of any Products installed on Your server in order to provide Support, each party may be exposed to important business and/or technical information, which is the property of the other. Much of this information is the result of substantial expenditures by both TheGigabit and You of time, money and technical expertise, and is considered confidential and/or trade secret by the party owning it. The unauthorized use or disclosure of this information could cause significant harm to the business of the owner of the information. For this reason and in consideration of the mutual covenants contained in this Agreement and the mutual disclosure of confidential information to each other, the parties agree as follows:
1. Confidential Information
(a) The term “Confidential Information” as used in this Agreement means non-public information that the disclosing party (“Disclosing Party”) designates as being proprietary and/or confidential or which, due to its nature or the circumstances under which it is disclosed to the receiving party (“Receiving Party”), in using reasonable business judgment, the Receiving Party should know to treat the information as confidential. The term “Confidential Information” includes, but is not limited to, (i) know-how, trade secrets, tools, methods, methodologies, techniques, designs, specifications, computer source code, company organization and structure, customer lists, customer information, marketing plans, personnel information, financial information, business strategies, and information relating to released or unreleased software, hardware or technology; (ii) information received by the Disclosing Party from third parties under confidential conditions which information is identified by the Disclosing Party as being subject to such conditions, and (iii) the Disclosing Party’s “Trade Secrets” which means information which (A) derives economic value, actual or potential, from not being generally known to, or readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and which is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, or (B) is otherwise a trade secret as defined by the applicable state law. Confidential Information disclosed to the Receiving Party by any Disclosing Party subsidiary, affiliate and/or agents are covered by this Agreement.
(b) The term “Confidential Information” shall not include any information that: (i) is or subsequently becomes publicly available without the Receiving Party’s breach of any obligation owed the Disclosing Party; (ii) became known to the Receiving Party prior to the Disclosing Party’s disclosure of such information to the Receiving Party; (iii) became known to the Receiving Party from a source other than the Disclosing Party other than by the breach of an obligation of confidentiality owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party as evidenced by its written records.
2. Obligations
Subject to the exception stated in Section 3 below:
(a) Gigabit Hosting Sdn. Bhd. and You (either as Receiving Party or Disclosing Party) agree and acknowledge that they shall each keep in confidence all Confidential Information disclosed to either of them by the other and will use such Confidential Information only for the mutually agreed upon objectives of the discussions between the parties.
(b) The Receiving Party shall exercise reasonable care to prevent the disclosure of Confidential Information to any third party, and in any event not less than the same precautions used by the Receiving Party to protect its own confidential information. Further, at no time shall the Receiving Party use security precautions, in protecting the Disclosing Party’s Confidential Information, that are below commercially reasonable standards. The Receiving Party agrees not to make copies of any Confidential Information without the prior written approval of the Disclosing Party. Internal dissemination of Confidential Information shall be limited to those employees whose duties justify their need to know such information and then only on the basis of a clear understanding by these employees of their obligation to maintain the confidential status of the information and to restrict the use of the information solely to the use granted under this Agreement.
(c) All Confidential Information, including all tangible embodiments, copies, reproductions and summaries thereof, and any other information and materials provided by the Disclosing Party to the Receiving Party shall remain the sole and exclusive property of the Disclosing Party.
(d) The Receiving Party shall immediately report to the Disclosing Party any attempt by the Receiving Party’s employees or any other person of which the Receiving Party has knowledge to use or disclose any portion of the Confidential Information without authorization from the Disclosing Party, and will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use.
(e) The Receiving Party may not reverse engineer, decompile or disassemble any software, hardware or technology disclosed to the Receiving Party.
(f) The Receiving Party shall return all originals, copies, reproductions and summaries of Confidential Information at the Disclosing Party’s request, or at the Disclosing Party’s option, certify destruction these materials.
3. Exception
The obligations of confidentiality imposed by this Agreement do not apply to any Confidential Information which is required to be disclosed pursuant to operation of law or legal process, governmental regulation or court order, provided that the party receiving such legal demand or order promptly will inform the Disclosing Party thereof and cooperate with the Disclosing Party in contesting such request or order and in obtaining appropriate protection orders, subject to the payment by the Disclosing Party of all out-of-pocket expenses incurred by the party providing such cooperation at the request of the Disclosing Party.
4. Duration
The restrictions on use and disclosure of Confidential Information shall survive for a period of five (5) years after the date hereof However, with respect to Confidential Information that constitutes a Trade Secret, the restrictions set forth in this Agreement shall continue in effect for so long as such information remains a trade secret.
I/We Consent
By providing the username and password in support ticket, you have agreed and consented this Agreement and You will become legally bound to this contract just as if You were signing a legal document by hand. If You are entering into this Agreement on behalf of a Company, You agree and acknowledge that you have the legal authority to make such decisions for a Company.