1.0 Agreement for the CUSTOMER
CUSTOMER will be responsible for all content stored on and distributed from the Service. In addition:
1.1 This Service Agreement does not include any additional services. Additional services, including but not limited to, HTML programming, gateway programming, system administration, CGI development, application installation or media streaming services, may be purchased from APPENGAGE and will not be performed without written approval of CUSTOMER. All service activations and/or changes must be accompanied by a signed written proposal;
Authorized Email access, Authorized TELNET access, Authorized SSH access or Authorized FTP access.
1.3 APPENGAGE does not support material on its network deemed to be either pornographic in nature, unsolicited email or spam, illegal in nature or fraudulent in nature. While non-exhaustive, the CUSTOMER shall be deemed to have read and understood APPENGAGE' policies available at the web resource site http://www.appengage.asia/privacy-policy. APPENGAGE reserves the right to terminate any account that breaches these limitations, or where the usage does not abide by the relevant laws of Malaysia.
- Warm rebooting of servers;
- Power cycling (turning on and off) equipment;
- Setting accessible dip switches;
- Securing cabling to connections, cable organization, ties or labelling;
- Observing, describing or reporting on indicator lights or display information on machines or consoles;
- Basic observation and reporting on local environment in APPENGAGE’ premise;
1.5 APPENGAGE provides basic network monitoring 24 hours a day and 7 days a week (24x7).
1.6 APPENGAGE provides system administration service called siteAdmin service, which is chargeable either on an adhoc request basis or on a prepaid support plan basis known as siteAdmin Service Packs.
- 1.6.1 siteAdmin adhoc service is chargeable at the rate of RM200per hour.
- 1.6.2 siteAdmin Service Packs is a one-time fee of RM2,000 which comprises of ten (10) hours of siteAdmin time. siteAdmin service is performed between 9 a.m. to 6 p.m. MYT(GMT+8) Monday to Friday.
- 1.6.3 Any siteAdmin service performed outside these hours is chargeable at RM300 per hour for siteAdmin adhoc service or double the usage hours in siteAdmin Service Packs service. For example, if one (1) hour of work is conducted outside office hours under siteAdmin Service Packs, it is chargeable for two (2) hours of siteAdmin Service Packs prepaid support time.
- 1.6.4 There is no expiry date for siteAdmin Service Packs except upon the cancellation of the CUSTOMER Service Agreement. siteAdmin Service Packs can be carried forward to the next Service Term along with the renewal of CUSTOMER Service Agreement.
- 1.6.5 The one-time fee paid for siteAdmin Service Packs is not exchangeable, nor refundable for cash under any circumstances. The minimum denomination in siteAdmin support time billed in any instance is one (1) hour.
The support time is calculated from the time an APPENGAGE engineer begins work on a Work Order through a Work Order Service Request form received online or signed and faxed by CUSTOMER until the completion of job specified. This will include time needed for troubleshooting problems, researching for the solutions and/or traveling to CUSTOMER premises.
1.7 APPENGAGE do not allow CUSTOMER to introduce additional power extension cords or make use of additional power sockets not otherwise agreed with in the Service Agreement. Should a customer be found with additional power sockets used, APPENGAGE reserves the right to charge the CUSTOTMER, RM200 setup and RM200 monthly per power socket used and it reserves the right to demand that the CUSTOMER remove any unauthorized power extension cords.
2.1 To the extent permitted by the applicable law, the express terms of this Service Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise.
2.2 The CUSTOMER acknowledges and agrees that APPENGAGE exercises no control over, and accepts no responsibility for, the content of the information passing through APPENGAGE’ host computers, network hubs and points of presence (the “APPENGAGE network”) or the Internet.
2.3 Notwithstanding any other oral or written communications between APPENGAGE and the CUSTOMER about or in connection with the Service, to the extent permitted by the applicable law, neither APPENGAGE, its employees, affiliates, agents, suppliers, sub-contractors, third-party information providers, merchants, licensors nor the like make any warranties of any kind to the CUSTOMER or any other person with respect to the Service or any equipment provided hereunder and disclaim all other warranties and conditions, express or implied, including without limitation warranties of error-free performance, quality, non-interruption of use, freedom from bugs or otherwise, and disclaim all implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, title and non-infringement, accuracy, reliability or content of any information services or merchandise contained in or provided through the Service, or otherwise.
2.4 While every care will be taken by APPENGAGE to provide the Service and ensure a high level of security, APPENGAGE disclaims all liability whatsoever for any loss, alteration, destruction or disclosure to any third party whomsoever, of any of the CUSTOMER’s data or other data howsoever caused or arising including without limitation, delays, interceptions, non-deliveries or misuse as a result of any interruption, suspension or termination of the Service. APPENGAGE cannot guarantee and does not warrant the accuracy of any data or report of the Service delivered to the CUSTOMER.
2.5 The CUSTOMER understands and agrees that APPENGAGE shall under no circumstances be held responsible or liable for situations where the CUSTOMER’s data is accessed by third parties through illegal or illicit means, including situations of access by exploitation of software security gaps, inherent flaws or weakness in any software, or the CUSTOMER’s own internal security procedures governing the use of the Service and the conduct of its users.
2.6 Where APPENGAGE assists the CUSTOMER by registering in the CUSTOMER’s name such domain name(s) selected by the CUSTOMER as part of the Service, the CUSTOMER undertakes to fully indemnify APPENGAGE in respect of any liability to a third party arising out of such a registration.
2.7 Subject to any service level agreements specifically referenced herein, the services and equipment provided under or associated with this Service Agreement are provided on an “as is” basis.
2.8 Neither APPENGAGE, its employees, affiliates, agents, suppliers, sub-contractors, third-party information providers, merchants, licensors or the like, warrant that the Service will not be interrupted or error free; nor do any of them make any warranty as to the results that may be obtained from the use of the Service or as to the accuracy, reliability or content of any information services or merchandise contained in or provided through the Service.
2.9 APPENGAGE is not liable for the content or loss of any data transferred either to or from the CUSTOMER or stored by the CUSTOMER or any of the CUSTOMER’s clients via the Service provided by APPENGAGE.
2.10 Where legislation implies in this Service Agreement any condition or warranty, and that legislation avoids or prohibits in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Service Agreement. However, the liability of APPENGAGE for any breach of such condition or warranty shall be limited, at the opinion of APPENGAGE, to one or more of the following: Where legislation implies in this Service Agreement any condition or warranty, and that legislation avoids or prohibits in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Service Agreement. However, the liability of APPENGAGE for any breach of such condition or warranty shall be limited, at the opinion of APPENGAGE, to one or more of the following:
- a. If the breach relates to goods:
- The replacement of the goods or the supply of equivalent goods;
- The repair of such goods;
- The payment of the cost of replacing the goods or of acquiring equivalent goods; or
- The payment of the cost of having the goods repaired; and
- b. If the breach relates to services:
- The supplying of the Service again; or
- The payment of the reasonable cost of having the Service supplied again.
Any additional service subject to this Service Agreement may, together with other details relating to such service, form the subject matter of an addendum (“Addendum”) that APPENGAGE reserves the right to annex to this Service Agreement. Any Addendum so annexed shall form part of this Service Agreement.
Payment for the Service in this Service Agreement is subject to the following conditions:
4.1 The First Payment or Addendum is due and payable upon signing of this Service Agreement. At the end of the Service Term, this Service Agreement is automatically renewed for the same period as the initial Service Term unless the Service Agreement is terminated with thirty (30) days’ notice in writing prior to expiration of the Service Term.
4.2 The Subsequent Monthly Payment is due on the first day of every service month or on the stipulated due date stated in the invoice, whichever is earlier.
4.3 In the event that CUSTOMER’s account becomes past due, APPENGAGE may, in its sole discretion, suspend, interrupt or disconnect the Service upon seven (7) days’ notice to CUSTOMER. This notice will be sent via email to the email address last notified by CUSTOMER according to APPENGAGE records.
4.4 In the event that CUSTOMER’s account becomes past due for thirty (30) days, APPENGAGE may assume that CUSTOMER wishes to discontinue the Service and APPENGAGE will terminate the Service to CUSTOMER unilaterally and immediately without any further consent from CUSTOMER. In this case, the Service Agreement Termination Clause under Clause 6 of these term of service is deemed to be invoked by CUSTOMER and termination penalty fee under Clause 6.3 shall apply immediately.
4.5 For the reinstatement of the Service suspended, a penalty of RM250.00 will be charged to CUSTOMER.
4.6 For Service suspended, APPENGAGE may require such other action of CUSTOMER as APPENGAGE reasonably determines is necessary under the circumstances, including letters of credit, banker guarantees, security deposit(s), restrictions on available credit or other action as APPENGAGE may require from time to time regardless of CUSTOMER’s then-current payment status on its account or its payment history on such account. Failure to satisfy APPENGAGE’ request for such action within timelines reasonably set by APPENGAGE may result in immediate termination of the Service without further notice. CUSTOMER may not withhold or offset any payment for any reason without APPENGAGE’ prior written consent.
4.7 APPENGAGE shall bear no liability for any loss or damage resulting from its suspension or termination of Service under Clauses 4.3 and 4.4.
4.8 CUSTOMER understands and agrees that APPENGAGE has the rights of lien over all equipment in their custody against unpaid debts plus interest accrued from the date of the invoice. Interest so charged will be levied at the rate of ten percent (10%)per annum.
4.9 CUSTOMER understands and agrees that this Service Agreement is automatically and fully activated and chargeable ten (10) working days past the date this Service Agreement is made regardless of whether CUSTOMER’s equipment is fully or partially installed at the APPENGAGE data centre.
4.10 The CUSTOMER hereby acknowledges that non-receipt of statement of account, bill of charges or any correspondence in relation to the Service is not a valid reason for the CUSTOMER to hold back or delay any outstanding payment due to APPENGAGE.
5.0 Price Changes:
APPENGAGE reserves the right to adjust the pricing for this Service Agreement, but only after thirty (30) days written notice has been given to CUSTOMER via email.
6.0 Services Agreement Termination
CUSTOMER or APPENGAGE may terminate all or any of the Service in this Service Agreement subject to the following conditions:
6.1 The Service or this Service Agreement may be terminated upon thirty (30) days advance written notice by the CUSTOMER after the First Payment has been paid in full, and subjected to any additional termination charges. Such notice must be submitted to APPENGAGE on official company letterhead signed by the signatory to this Service Agreement, or its authorized representative, together with the following information:
- CUSTOMER Name
- Effective Date of Intended Termination
- Server ID assigned by APPENGAGE
6.2 Unless otherwise specified in this Service Agreement, APPENGAGE will provide CUSTOMER at least thirty (30) days’ notice of any exercise by APPENGAGE of its right to terminate this Service Agreement. However, APPENGAGE reserves the right to act unilaterally if CUSTOMER server or web site is compromising the resources of APPENGAGE network or other hardware through excessive bandwidth utilization or otherwise. Such actions include but are not limited to immediate suspension or termination of CUSTOMER service with APPENGAGE without prior notification;
6.3 If the Service or this Service Agreement is terminated before the expiry of the first Service Term or any subsequent Service Term, CUSTOMER shall be liable for a termination fee of one hundred percent (100%) of the Total Monthly charge and all Addendum for each month remaining in the first Service Term or that subsequent Service Term;
6.4 CUSTOMER is required to settle all outstanding payment to APPENGAGE before any equipment belonging to them can be removed from the APPENGAGE data centre. All removal of such equipment must be scheduled on weekdays during the business hours from 9a.m. to 6p.m. MYT (GMT+8) Monday to Friday. A charge of RM200 per hour will be levied to CUSTOMER for any removal of equipment done outside this business hours.
6.5 APPENGAGE shall bear no liability for any loss or damage resulting from the termination of Service under this Service Agreement or removal of any equipment by the CUSTOMER from the APPENGAGE data centre.
6.6 CUSTOMER will be given without further notice three (3) working days from the last day of serviceto remove their own equipment from the APPENGAGE Data Centre. If CUSTOMER fails to do so, APPENGAGE will levy a storage charge of RM30 per rack unit per day. Any additional storage charge will be settled in cash before the equipment can be released from the APPENGAGE Data Centre. If the equipment is not removed after thirty (30) days from the last day of service, APPENGAGE will deemed the equipment to be unclaimed and will exercise its rights to dispose of this equipment in any way it deems fit, without further notice or any compensation or liability to the CUSTOMER. If the additional storage charge exceeds the valuation of the equipment to be disposed, CUSTOMER will pay the balance in cash to APPENGAGE.
7.0 Bandwidth Utilization
Bandwidth utilization and calculation is subject to the following terms and conditions:
7.1 Bandwidth Measurement:
- 7.1.1 The maximum throughput of port assigned to the CUSTOMER is 100Mbps via Fast Ethernet interface unless the CUSTOMER chooses to cap the bandwidth at a fixed level.
- 7.1.2 All traffic utilization for CUSTOMER is measured by using a software program known as Multi-Router Traffic Grapher (herein known as “MRTG”) at the port used by CUSTOMER. The MRTG at APPENGAGE is configured to monitor traffic passing through the switch as well as through the router. At the switch, the MRTG will monitor individual ports linked to each server to determine the traffic volume. Samplings are taken at 5-minute intervals and two samples are taken at each time: A sample to measure the data traffic from the switch to the server. And a sample to measure the data traffic from server to switch;
- 7.1.3 The MRTG can generate data traffic reports based on different time scales at 5-minute intervals, weekly 30-minute intervals and monthly 2-hour intervals. Bandwidth utilization is based upon the 95th percentile of the total bandwidth used. This figure is obtained as follows:
- Raw data is sorted in ascending order up to the maximum incoming or outgoing traffic rate;
- b. The 95th percentile is calculated using the formula: x=0.95n, where ‘n’ represents the total number of samples taken within the month;
- c. The figure obtained (‘x’) is rounded off to the nearest whole number;
- d. The figure that occupies the xth position in the data queue represents the 95th percentile. That is, if ‘x’ is 245, the 245th figure in the data table obtained in step (a) will represent the 95th percentile that will be used to calculate a client’s bandwidth utilization.
7.1.4 Excess bandwidth is deemed to be utilized when the 95th percentile reading at the end of the calendar month exceeds the Total Bandwidth Allocation. CUSTOMER will be billed for such excess bandwidth utilized at RM4.80 per Kbps. For example, if the 95th percentile reading at the end of the calendar month is 2.176Mbps and the CUSTOMER has contracted 1.024Mbps of bandwidth in this Service Agreement, the charge for excess bandwidth payable to APPENGAGE for that month shall be (1152*4.80) =RM5529.60.
7.1.5 Local Traffic and Bandwidth means IP traffic localized to APPENGAGE’ Network or IP traffic to APPENGAGE’ peering partners. For example, if an Internet Service Provider (ISP) has traffic that is routed to APPENGAGE via a non-peering link, this traffic is not considered local traffic. A peering link is defined as an Internet link where free exchange of traffic between ISP and APPENGAGE occurs.
8.2 Bandwidth Charges
8.2.1 APPENGAGE will cap the bandwidth purchased by the CUSTOMER as a default. This is the guaranteed bandwidth levels. CUSTOMER may choose to uncap the bandwidth to allow the bandwidth to burst above the guaranteed bandwidth level. However, CUSTOMER understands that by uncapping the bandwidth, excess bandwidth may be utilized for any particular month and as such this excess bandwidth is charged to the CUSTOMER at the end of each month.
8.2.2 When CUSTOMER chooses to uncap the bandwidth, CUSTOMER agrees to pay APPENGAGE for any excess bandwidth above the 95th Percentile, according to the rates as defined in Sub-Clause
8.2.3 The CUSTOMER will be responsible for monitoring their bandwidth usage from the online MRTG graphs provided by APPENGAGE. For the avoidance of doubt, MRTG graphs provided by APPENGAGE will be the final determination of bandwidth usage.
8.2.4 CUSTOMER agrees to pay for its bandwidth usage as determined by APPENGAGE’ MRTG Graphs in any circumstance including hacking or illegal use, which may result in increased use of bandwidth.
9.0 Service Level Guarantees (hereinafter known as “SLG”)
9.1 Definitions and Interpretations The definitions of this Service Level Guarantees in this Service Agreement is subjected to the following meanings:
9.1.1 "APPENGAGE Network" means all telecommunications and networking devices within each APPENGAGE Point-of-Presence (“POP”), all wiring within each APPENGAGE POP and all telephone circuits between APPENGAGE POP. The APPENGAGE Network does not include telecommunications and networking devices not owned or not directly controlled by APPENGAGE;
9.1.2 "Network Outage" means an outage that is contained within the APPENGAGE Network where CUSTOMER cannot connect to the server from their location, but does not include planned outages as notified by APPENGAGE, partial outages or degradation of service due to high packet loss or other similar network symptoms, which indicate a condition outside of APPENGAGE control. A Network Outage does not in any way include the failure of hardware or software used or owned by CUSTOMER;
9.1.3 "Sixty (60) Contiguous Minutes" means an unbroken sequence of sixty (60) minutes of network outage;
9.1.4 "One (1) Rebate" means only one credit paid in any calendar month into CUSTOMER’s account. The rebate amount is calculated as described in Clause 7.1.5, regardless of the number of Network Outage that may occur in the same calendar month;
9.1.5 "Eligible CUSTOMER" means any customer who has purchased a service from APPENGAGE, but excludes a customer who has a non-standard service or installation. In addition, CUSTOMER’s account must be up-to-date on all payment and in compliance with the terms in this Service Agreement;
9.1.6 "One (1) full week of credit" means a credit of seven (7) days, pro-rated on the basis of a thirty (30)-day month, calculated using the monthly rate owed by CUSTOMER for the month in which a Network Outage, Dedicated Server Hardware Outage, Backup and Restoration Process Failure or Firewall Hardware failure occurs, exclusive of any charges for traffic utilization, pass-through local loop and value-added services including but not limited to labour and taxes;
9.1.7 “R1Soft Backup Service” is a APPENGAGE service and it means the backup service defined and provided by APPENGAGE;
9.1.8 “Backup and Restoration Process Failure” means any situation in which APPENGAGE cannot restore a scheduled backup due to no fault of CUSTOMER and which results in a loss of data to CUSTOMER;
9.1.9 “Secure Managed Firewall Service” is a APPENGAGE service and it means the managed firewall service defined and provided by APPENGAGE;
9.1.11 “8 Hour Hardware Replacement Guarantee” means APPENGAGE guarantees to replace any failed server hardware components provided by APPENGAGE at no cost to the client within eight hours of problem identification. In the event that it takes APPENGAGE longer than eight hours to replace any failed hardware component after problem identification, APPENGAGE will refund the customer 5% of the monthly service fees for each 120 minutes of downtime up to 100% of client’s monthly service fees for the affected server.
9.2 Claim Policy and Process
All claims for breach of Service Levels under this Service Agreement shall be made in the following manner:
9.2.1 All claims under this policy must be submitted using a “Credit Note Application” form which shall be provided by APPENGAGE when the need arises with all details requested in the form filled in by CUSTOMER. This form must then be faxed to APPENGAGE within forty-eight (48) hours from the start of the Network Outage;
9.2.2 The information that would be included in the “Credit Note Application” form is but may not be limited to:
- CUSTOMER company name and registered business address;
- Server ID(s) assigned by APPENGAGE identifying the server(s) affected by the Network Outage;
- Date and Start/End times of the Network Outage;
- Description of any issue faced;
- Signature of CUSTOMER’s authorized representative
9.2.3 APPENGAGE will acknowledge all claims within two (2) business days and will review all claims within ten (10) business days of receipt of email. APPENGAGE account manager will advise CUSTOMER by email at the current address last notified by CUSTOMER according to APPENGAGE records. APPENGAGE will advise in the email whether the appropriate service credit will be issued on the next invoice or reject the claim by specifying the basis for rejection;
9.2.4 APPENGAGE reserves the right to change, amend, revise or revoke any one or more of the policies at any time of the Service Term;
9.2.5 In the event of a Network Outage which may result in any APPENGAGE services not made available to CUSTOMER under this Service Agreement, CUSTOMER may make one (1) such claim under the Network Performance Guarantee only and no others.
9.2.6 In the event of any outage howsoever arising and of whatsoever nature, in respect of, or arising from, this Service Agreement or the provision of services thereunder, the maximum claim CUSTOMER can make against APPENGAGE in any given month is 100% of CUSTOMER’s monthly fee (i.e. or one month’s worth) as stated in this Service Agreement.
10.1 CUSTOMER acknowledges that any hardware, software, and other equipment utilized by APPENGAGE to provide the Service or supplied by APPENGAGE to CUSTOMER for purposes of CUSTOMER receiving the Service (hereinafter collectively known as the “Equipment”) is and remains the property of APPENGAGE or its licensors, subject to purchase rights, if any, specifically granted to CUSTOMER under this Service Agreement. In the event that CUSTOMER exercises a purchase option for the Equipment, CUSTOMER acknowledges that any rights or remedies CUSTOMER may have regarding the performance or compliance of such purchased Equipment are limited to warranties, if any, extended by the manufacturer of such Equipment, to the extent that such warranties are assignable by APPENGAGE to CUSTOMER. CUSTOMER further acknowledges that APPENGAGE will have no responsibility for any other equipment utilized by CUSTOMER to receive the Service whether supplied by CUSTOMER or any Third Party (“Customer Equipment”). CUSTOMER is responsible for risk of loss or damage to any Equipment supplied by APPENGAGE to CUSTOMER to enable CUSTOMER to receive the Service and shall ensure that, during the term of this Service Agreement, such Equipment is insured for full replacement value with a reputable insurance company. CUSTOMER shall operate the Equipment supplied by APPENGAGE in accordance with APPENGAGE and manufacturer’s guidelines. CUSTOMER is entitled to use any Equipment supplied by APPENGAGE only in connection with CUSTOMER permitted use of the Service.
10.2 APPENGAGE reserves the right to substitute, change or modify the Equipment or any software utilized to provide the Service at any time. APPENGAGE shall not be responsible for any changes in the Service that cause CUSTOMER Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Service. However, if practicable (without an obligation to expend funds or incur additional costs), APPENGAGE will assist CUSTOMER in resolving any such Equipment problems over which APPENGAGE may have control.)
10.3 APPENGAGE may interrupt the Service at any time, without liability to CUSTOMER, to perform scheduled or emergency maintenance.
10.4 APPENGAGE may, in its sole discretion, take corrective action, including assessment of additional charges, disconnection or discontinuance of any and all Service, or termination of this Service Agreement, in the event CUSTOMER engages in or commits any of the following acts:
- Alter, modify or improperly use, including violations of APPENGAGE’ Acceptable Use Policy, any portion of the Equipment or software utilized to provide the Services;
- Perform or attempt to perform maintenance services on the Equipment unless specifically requested by APPENGAGE to do so;
- Attach devices or other equipment not approved by APPENGAGE [or the original manufacturer of the Equipment] to the Equipment;
- Alter or modify the CUSTOMER IP address space on any interface on the Equipment without prior communication to APPENGAGE.
10.5 In the event that APPENGAGE elects to take any corrective action, CUSTOMER shall not be entitled to a refund of any fees paid in advance prior to such corrective action. APPENGAGE shall bear no liability to CUSTOMER in the event CUSTOMER engages in or commits any of the foregoing acts nor shall APPENGAGE be liable to CUSTOMER for any corrective action taken.
11.0 Service Activation Date
The Service Activation Date is the date when the Service is activated.
This is the date:
- (a) when an email from APPENGAGE indicating the official release of the Service is sent to the contact person(s) provided by CUSTOMER in the Customer Information Form, or
- (b) specifically indicated in the Service Agreement as the Service Activation Date. The Service
Activation Date shall form the date when the billing for the Service will begin and the billing shall continue for the full-Service Term. This Service Agreement shall continue to be self-renewed on the last day of the Service Term for further length of service similar to the Service Term and shall remain subjected to the term of service and/or Addendum(s) hereto of this Service Agreement for the period of that new Service Term, unless the Service is terminated by CUSTOMER or APPENGAGE.
12.0 Service Level Support
APPENGAGE is not responsible for the repair of equipment, and/or the alteration of equipment, and/or the repair of unspecified accessories or peripherals attached to the equipment, made necessary by the actions of CUSTOMER. APPENGAGE shall not be held responsible or liable for any delay in furnishing or failure to furnish service where forces beyond the reasonable control of APPENGAGE caused such delay. Any warranty terms will terminate in the event the system or equipment is serviced or modified by any person other than authorized APPENGAGE staff.
13.0 Accounts, Passwords and Security
13.1 As information transmitted through the Internet in general is not confidential, APPENGAGE cannot and shall not guarantee the privacy or protection of any information transmitted through the Internet by CUSTOMER.
13.2 CUSTOMER shall take all such measures as may reasonably be necessary (including but not limited to changing its password from time to time) to protect the secrecy of its User Identification (hereinafter known as “UI”) and/or password and shall not reveal or share the same to any other unauthorised person(s), and shall ensure that the UI and Service are accessed and used only by authorised parties, and take all such steps as may be necessary to ensure its continue security and to prevent any unauthorized access or use.
13.3 APPENGAGE shall not be liable for any loss or damage incurred by CUSTOMER or third parties due to any wrongful use of CUSTOMER’s account by CUSTOMER or any wrongful or fraudulent use of CUSTOMER’s account by any other person.
13.4 Where a UI is necessary to access the services under the Service Agreement, CUSTOMER shall use only its own UI.
13.5 CUSTOMER shall be solely responsible for any activity conducted or any information transmitted through the use of the UI.
13.6 CUSTOMER shall co-operate with APPENGAGE in all such security investigations, indemnify and defend and hold harmless APPENGAGE for any liability or expense arising from such use or misuse.
13.7 CUSTOMER acquires no rights to any mailbox number, the UI, IP address, circuit reference and any codes assigned to it by APPENGAGE and APPENGAGE reserves the right to change or re-assign the same to CUSTOMER at its sole discretion without being liable to CUSTOMER for any damages or losses suffered therefrom.
13.8 APPENGAGE shall not be liable for any corruption of data in CUSTOMER’s systems resulting from an external security breach or any inappropriate handling of such data on CUSTOMER’s part even with sufficient security access.
13.9 If at any time CUSTOMER desires to and requests APPENGAGE to reset its password, CUSTOMER shall forthwith after ascertaining that its password has been reset change such password to a new password.
13.10 The parties agree to immediately notify each other of any unauthorized use of CUSTOMER’s account or of any other breach of security known to either of the parties or where either of the parties has reason to suspect that the same may have occurred.
13.11 CUSTOMER shall comply with all usage instructions and guidelines in respect of the use of the Service that may be published from time to time by APPENGAGE.
14.0 Limitations of Liability
14.1 With the exclusion of death or bodily injury directly caused by the fault or proven negligence of APPENGAGE, APPENGAGE' liability to the CUSTOMER for claims under and in connection with this Service Agreement irrespective of the form of action, whether for liability in contract, tort or otherwise shall be limited to the sum of the fees paid by the CUSTOMER to APPENGAGE under this Service Agreement in the Service Term prior to the date of the cause of action.
14.2 Under no circumstances, unless specifically made within the terms of this Service Agreement, shall APPENGAGE, its officers, agents or anyone else involved in creating, recreating, producing or distributing APPENGAGE service be liable whether in contract, tort (including negligence or breach of statutory duty) or otherwise for any direct, indirect, incidental, special or consequential loss or damages (including loss of revenue or profits) that result from the use of or inability to use of APPENGAGE service; nor shall liability be accepted for that which results from any mistakes, omissions, interruptions, deletion or loss of files, errors, defects, deficiencies, deterioration in quality, incompatibility, unsuitability, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, power failure, theft, destruction, deletion, corruption or unauthorized access to APPENGAGE records, equipment, programs or services. The CUSTOMER hereby acknowledges that this paragraph shall apply to all content on APPENGAGE service and is solely responsible for independent backup of data stored on APPENGAGE service. The limitation of liability provided herein reflects the allocation of risk and material inducement for APPENGAGE to enter into this Service Agreement. With the exception of non-payment, neither party may bring any action, regardless of form, arising out of this Service Agreement, more than one (1) year after the cause of action.
15.0 Force Majeure
APPENGAGE shall not be liable to the CUSTOMER for any delay or failure to perform its obligations pursuant to this Service Agreement, or breach of the terms and conditions herein arising from a circumstance beyond APPENGAGE' reasonable control including but not limited to
- acts of God, lightning strikes, shortage or interruption of power supply, earthquakes, floods, storms, subsidence, inclement weather, explosions, fires and any natural disaster;
- acts of war or military operations, national or local emergency, acts or omissions of Government or any competent authority, acts of public enemies, terrorism, riots, insurrection, civil commotion or disorder, malicious damage, sabotage and revolution;
- strikes, lockouts, labour troubles, insurrections, and other labour or industrial disputes (whether or not involving the employees of APPENGAGE); and (d) acts or omissions of persons or bodies for whom APPENGAGE is not responsible for or any other causes whether similar or dissimilar beyond the control of APPENGAGE so affected.
16.0 Best Efforts
Both CUSTOMER and APPENGAGE agree to use their best efforts to cooperate in the performance and execution of this Service Agreement.
Both CUSTOMER and APPENGAGE agree that this Service Agreement is not intended to create or imply any agency relationships of any kind. Both parties agree not to service any obligations in the name of the other party, and agree not to use each other’s credit in conducting any activities under this Service Agreement.
APPENGAGE may include the name of CUSTOMER, their trademarks, logos and/or contact information in directories of APPENGAGE service subscribers for the purpose of promoting the use of APPENGAGE services. CUSTOMER hereby grant APPENGAGE a non-exclusive, royalty free license to use, display and reproduce CUSTOMER trademarks, or service marks and logos (“Trademarks”) solely in connection with APPENGAGE marketing of the service. APPENGAGE shall use the Trademarks in accordance with policies as provided by CUSTOMER from time to time.
19.1 The parties acknowledge that in the course of their relationship with each other pursuant to the Service Agreement, one party will come into possession of Confidential Information belonging to the other party. The parties hereby agree and undertake that during the term of this Service Agreement, notwithstanding any suspension, termination or expiry of the Service Agreement, and for a period of one (1) year from the date of termination of this Service Agreement thereafter, all such Confidential Information shall be used only in connection with the performance of this Service Agreement and the undertaking of the obligations herein and not be used for any other purpose whatsoever, and shall not disclose such Confidential Information, whether directly or indirectly, to any other third party without prior written approval of the other party, PROVIDED THAT the such restriction on the use or disclosure of such Confidential Information SHALL NOT apply to Confidential Information:
- already known by the receiving party without an obligation of confidentiality other than pursuant to this Service Agreement;
- that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the receiving party;
- lawfully received from a third party without a breach of this Service Agreement;
- disclosed with the prior written approval of the disclosing party;
- independently developed without use of the disclosing party’s Confidential Information; or
- required to be disclosed pursuant to a lawful order of a court or government agency in compliance with the applicable laws, rules and regulations prevailing in Malaysia, provided the receiving party provides the disclosing party with written notice of such order prior to disclosure and within such time as to allow the disclosing party reasonable opportunity to oppose such disclosure before a court or agency of competent jurisdiction.
19.2 Without the prior written consent of the other party, each party will not in any manner whatsoever make public, disclose or communicate to any third party or to its employees, servants, agents, contractors or consultants, any Confidential Information for any purpose whatsoever except for the purposes which such information was supplied.
19.3 Each party agrees to use the same means it uses to protect its own Confidential Information, but in any event not less than reasonable means, to prevent the disclosure of such Confidential Information to outside parties.
19.4 CUSTOMER acknowledges and agrees that APPENGAGE or any of its agents, employees or sub-contractors may from time to time disclose any Confidential Information as is necessary to identify or resolve technical problems, to respond to service complaints, or in the provision or operation of the Service and any other service or procedure in connection with the Service.
19.5 Each party agrees and acknowledges that any breach or threatened breach by the receiving party of its covenants and agreements set forth in this Service Agreement will cause irreparable injury to the disclosing party for which monetary damages would be an inadequate remedy and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to obtain injunctive relief against the threatened breach of this Service Agreement or the continuation of any breach by the receiving party, without the necessity of proving actual damages.
20.1 CUSTOMER shall at all times indemnify and hold harmless APPENGAGE, its employees, affiliates, agents, suppliers, sub-contractors, third-party information providers, merchants, licensors and the like and pay any settlement amounts awarded by a court of final jurisdiction arising from and against any and all claims, losses, damages, liabilities, judgments, or settlements, including reasonable legal’ fees, costs, and other expenses incurred by APPENGAGE caused by:
- breach by CUSTOMER of its obligations under this Service Agreement;
- APPENGAGE possessing CUSTOMER’s data or related data, documentation or records;
- APPENGAGE delivering material or information to a party in accordance with the direction of a duly authorised law enforcement office or government representative;
- Any act, omission or negligence of CUSTOMER, its employees and agents; and
- Any activities conducted by CUSTOMER while using the Service.
20.2 As a separate and independent stipulation, in addition to and not in derogation of this Service Agreement, CUSTOMER hereby irrevocably and unconditionally undertakes to indemnify APPENGAGE and keep APPENGAGE indemnified fully and completely against all claims and demands, actions and proceedings, losses, damages, costs and expenses, including legal costs as between solicitor and client, and all other liabilities of whatsoever nature or description, which may be made, taken, incurred or suffered by APPENGAGE in enforcing this Service Agreement or otherwise in connection with or in any manner arising out of this Service Agreement.
20.3 Both parties agree to promptly notify each other upon receipt of any claim or legal action arising out of activities conducted pursuant to this Service Agreement.
20.4 The rights and responsibilities established in this paragraph shall survive indefinitely the termination of this Service Agreement.
20.5 FOR THE AVOIDANCE OF DOUBT, it is understood and agreed that APPENGAGE does not intend and will not be required to edit or review for accuracy or appropriateness of any of CUSTOMER’s content as delivered through the Service Agreement.
Either party’s waiver of, or failure to exercise, any right provided for in this Service Agreement shall not be deemed a waiver of any future right established within this Service Agreement.
Notices required by this Service Agreement shall be in writing and shall be delivered either by personal delivery, mail, email or facsimile. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested; with all postage and charges prepaid. All notices and other written communications under this Service Agreement shall be addressed to the individuals in the capacities indicated above, or as specified by subsequent written notice delivered by the party whose address has changed.
23.0 Entire Agreement
This Service Agreement supersedes all prior agreements, arrangements and understandings between the parties, whether in writing or orally, and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this Service Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorised representative of each of the parties.
Should one or more clauses or sub-clauses of this Service Agreement be held invalid under the laws of Malaysia, the remaining clauses or sub-clauses shall remain in effect as a whole and binding Service Agreement.