Terms & Conditions Agreement

GIGABIT HOSTING SDN BHD

  1. Services
  2. Term
  3. Payments
  4. AUP
  5. Customer Information
  6. Disclaimer of Warranties
  7. Limitation of Damages
  8. Suspension/Termination
  9. Request for Customer Information
  10. Back Up Copy
  11. Changes to GIGABIT HOSTING SDN BHD’S Network
  12. Notices
  13. Force Majeure
  14. Miscellaneous
  15. Hardware Property
  16. Hardware Ownership Transfer

 

  1. Services:Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Customer’s credit approval requirements, GIGABIT  agrees to provide the services as prescribed in the Order for the fees as stated in the Order.

 

  1. Term:The initial service term of the Agreement shall begin on the date which GIGABIT  generates an e-mail message to Customer announcing the activation of the Customer’s account and shall continue for the duration of subscription as stated in the Order (12 MONTHS CONTRACT), until expiry. Upon expiration of the Initial Term, this Agreement shall not be automatically renewed upon expiry except unless and customers notify GIGABIT of their intention to renew 60 days before the expiry date, any cancellation of subscription shall require customer to provide a written notification of cancellation at least sixty (60) days prior to the cancellation date. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”

 

  1. Payments:
  • Fees

Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be on a monthly or annually basis as indicated on the Order form. Under GIGABIT’s   policy customer are require to make payment for the first billing cycle before beginning of the initial service being rendered. If the Order provides for credit/debit card billing, Customer shall authorize GIGABIT to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle; otherwise GIGABIT   will invoice and send the invoice to Customer via electronic mail under the Primary Customer Contact listed as stated in the Order. Invoice will be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day from the date of invoice.

Payments shall be made in RINGGIT MALAYSIA.  In the event of any changes of credit cards information or billing address, the Customer is responsible for providing GIGABIT   with the latest information to avoid any non-delivery or non-chargeable of billing cycles.  GIGABIT shall have the right to charge up to 3% p/a interest on overdue amounts or percentage which are permitted under the law. GIGABIT   may suspend the service without notice in the event that Customer failed to settle the outstanding sum due past 14 days.   GIGABIT shall impose an administration fee for   reinstatement following a suspension of service for non-payment, and shall be liable for any incidental cost incurred by GIGABIT     resulting from the non-payment, including collection agency fees, legal fees.

  • Early Termination

Customer acknowledged that an early termination could results with a penalty charge imposed against Customer and   failure of the Customer to settle the early termination penalty shall result to GIGABIT having the right to hold Customer’s content in the server until the payment is duly settled or being waived. Customer also acknowledge GIGABIT’s policy of non-refund for pre-mature cancellation or termination of services.

 

  1. AUP:Customer agrees to use the service in compliance with applicable laws and GIGABIT ’s Acceptable Use Policy as indicated on printed documents, which   are incorporated by reference in this Agreement. Customer agrees that GIGABIT   may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time based on industry recommendations to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP are effective by way of GIGABIT ’s notice to existing Customer of the changes made, or the first day of any Renewal Term that begins subsequent to the amendment. In the event of any breach or violation of the terms of the AUP, Customer agrees to extend a full cooperate with GIGABIT’s investigation. In the event of a dispute between GIGABIT   and Customer regarding the interpretation of the AUP’s commercially reasonable interpretation of the AUP shall be the main interpretation.

 

  1. Customer InformationCustomer represents and warrants to GIGABIT  that the information he, she or they have provided and will be providing   is for purposes of establishing and maintaining the service is true and accurate. If Customer is an individual, Customer represents and warrants to GIGABIT   that he or she is at least 18 years of age. GIGABIT   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.

 

  1. Disclaimer of Warranties

GIGABIT   DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECUREBUT SHALL PROVIDE ITS SERVICES EQUIVALENT TO ANY STANDARD INDUSTRY PRACTICE TO THE EXTENT PERMITTED BY APPLICABLE LAW.  GIGABIT   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 WHERE IT IS” BASIS.

 

  1. Limitation of Damages
    NEITHER PARTY SHALL BE LIABLE TO EACH 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, ANY ADVISESHALL BE TAKEN AT THEIR OWN RISK. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF GIGABIT SHALL NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

 

  1. Suspension/Termination:
  • Suspension of Service

Customer agrees that GIGABIT   may suspend services to Customer without notice and without liability if: (i) GIGABIT   reasonably believes that the services are being used in breached of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected breach of the AUP; (iii) GIGABIT   reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by any law enforcement or regulatory agency. Customer shall be liable to pay GIGABIT   a reinstatement fee in the event that the service is reinstituted following a suspension of service under this subsection.

  •   Termination

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   fails to provide the service in accordance with the terms of the Agreement and failure to rectify within ten (10) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by GIGABIT   prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) ten (10) days upon issuance of notice of overdue and  Customer fails or refused to settle the overdue. ; (ii) Customer has materially breached any other provision of the Agreement, including the AUP, and fails to cure the breach within seven (7) days of a written notice issued by  GIGABIT describing the breach in reasonable detail; or (iii)  one (1) days after receiving of  notice of breached of a material term of the AUP more than once. GIGABIT   may terminate this agreement  upon issuance of a ten (10) days advance notice in the event that  customer admits of impending insolvency process, 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.

Kindly take notice, GIGABIT practice a non-refund policy in the event of any pre-mature cancellation or termination.

 

  1. Requests for Customer Information:

Customer agrees that GIGABIT   may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users where GIGABIT   believes violates applicable laws, and (ii) provide any information   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.

 

  1. Back Up Copy:

It is the Customer’s obligation to maintain a current copy of all its content as a backup copy hosted by GIGABIT notwithstanding any agreement by GIGABIT to provide backup services.

 

  1. Changes to GIGABIT HOSTING SDN BHD’s Network: 

Upgrades and other changes in GIGABIT ’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   reserves the right to change its network in its commercially reasonable discretion, and GIGABIT   shall not be held liable for any inconveniences or loss of data as a result of the upgrading or changes exercises.

 

  1. Notices:

Any notices for GIGABIT   shall be send via electronic mail to customer support at http://secure.thegigabit.com and vice versa, all notification to Customer shall be delivered through email address indicated as primary contact by Customer.  Notices are deemed received on the day of transmission or if that day is not a business day, it will be considered as delivered on the following day. It is Customer’s responsibility to notify GIGABIT of any change of primary contact information.

 

  1. Force Majeure: 

GIGABIT HOSTING shall not be liable for any default or breach of  obligation   to perform  in the event of happenings of events which are  beyond the control of GIGABIT , 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.

 

  1. Miscellaneous: 

Each party acknowledges and agrees that the other party retains its exclusive ownership and rights for 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 relationship between the Parties are not intended to be a partnership, joint venture, or employer/employee. Neither party shall represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other party howsoever. This Agreement may be amended only by a formal written consent by both parties. The terms on Customer’s purchase order or other business forms are not binding on GIGABIT unless they are expressly incorporated into a formal written agreement executed 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.  The captions in the Agreement are not part of the Agreement, but for the purpose of 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 shall not transfer or assign the Agreement without GIGABIT ’s prior written consent.   GIGABIT   may assign the Agreement in whole or in part.

 

  1. Hardware Property: 

Each party acknowledges and agrees that the hardware   and rights of ownership belongs only to GIGABIT and Customer have no absolute rights to transfer the ownership to a 3rd party, safe and except written consent by GIGABIT agreeing to transfer its properties.

This Agreement together with the Order and AUP combined shall constitutes the complete and exclusive agreement between the parties   and shall supersedes and replace any prior agreement, understanding or c ommunication, written or oral.

 

  1. Hardware Ownership Transfer (Applicable to Dedicated Server packages ONLY): 

Any customer who have subscribed for a minimum of 60 months service contract with GIGABIT   will be given an option for ownership of the said hardware (Based on the dedicated server subscription) itself with applicable Terms and Conditions . However, this offer is only available on request and it is not a privilege as of right whatsoever. In the event that customer failed to request for the hardware ownership within 14 days from the date of the execution of the 60 months of subscription service, it shall be deemed that customer is not interested and waived its right for this ownership program. Any requested for extension of time shall not be entertain.  The hardware ownership program on a basis of while stocks last and GIGABIT   shall have the right to reject any request for hardware ownership as of right without notice. In the event Customer’s request has been approved, and if Customer required the hardware to be delivered to their premise and installation required, customer shall bear the cost of transportation and installation charges.