The following agreement is by and between EVERWORKS Solutions (M) Sdn. Bhd. (EVERWORKS) and you (the client).
WHEREAS, EVERWORKS is an Internet Solution Provider. EVERWORKS offers web and e-mail hosting services over the Internet by allowing access to its Web and Mail Servers;
WHEREAS, you as the client seeks to utilize EVERWORKS server for its own purposes;
WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, EVERWORKS can make no guarantee that any given reader shall be able to access EVERWORKS server at any given time. EVERWORKS represents that it shall make every good faith effort to ensure that its server is available as widely as possible and with as little service interruption as possible;
NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows;
1. Financial Arrangements
Client agrees to a minimum one (1) year contract. Contract begins immediately upon payment received for the service(s) acquired.
First year's payment plus setup charges, if any, shall be due upon receipt of contract. The account cannot be transferred or used by anyone other than the subscriber
If no written cancellation notice received within 14 days prior to the renewal notice, the agreement will automatically be renewed for another one (1) year. Written cancellation notice maybe by postal, e-mail or fax.
2. Taxes
EVERWORKS shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client or EVERWORKS server. Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.
3. Responsibilities
EVERWORKS
EVERWORKS exercises no control whatsoever over the content of the information passing through the network.
EVERWORKS make no warranties or representations of any kind, whether expressed or implied for the service it is providing.
EVERWORKS also disclaims any warranty of merchant-ability or fitness for particular purpose and will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Client.
Use of any information obtained by way of EVERWORKS is at the Client's own risk and EVERWORKS specifically denies any responsibility for the accuracy or quality of information obtained through its services.
Connection speed represents the speed of a connection to and do not represent guarantees of available end-to-end bandwidth.
EVERWORKS specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
EVERWORKS will and may at anytime at its discretion, reject any material, if deemed not appropriate including but not limited to after it has been put on EVERWORKS' Server.
EVERWORKS agrees to notify Client immediately of its refusal of the material and afford Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of EVERWORKS. If the Client fails to modify the material, as directed by EVERWORKS, within a reasonable period of time, which shall be determined between the parties themselves, the Agreement shall be deemed to be terminated.
Clients
Client agrees that it will not distribute, electronically transmit or display any materials supplied by Client - or through Client by a third party - to any EVERWORKS server in connection with Client's use of the Services which:
violate any state, federal or foreign laws or regulations;
infringe on any intellectual property rights (e.g. copyright, trademark, patent or other proprietary rights) of EVERWORKS or any third party;
are defamatory, slanderous or trade libelous;
are threatening or harassing;
are discriminatory based on gender, race, age or promotes hate violate any EVERWORKS's policy posted on the EVERWORKS site including but not limited to those listed in our Terms of Service (TOS).
contain viruses or other computer programming defects which result in damage to EVERWORKS or any third party.
4. Trademarks & Copyrights
Client warrants that it has the right to use any applicable trademarks or copyrighted material used in connection with this service.
5. Age
The Customer certifies that he or she is at least 18 years of age.
6. Internet Etiquette
Electronic forums such as mail distribution lists all have expectations regarding subject area and appropriate etiquette for posting. Users of these forums should be considerate of the expectations and sensitivities of others on the network when posting material for electronic distribution. The network resources of EVERWORKS may not be used to impersonate another person or misrepresent authorization to act on behalf of others or EVERWORKS. All messages transmitted via EVERWORKS should correctly identify the sender; users may not alter the attribution of origin in electronic mail messages or posting. Users must not attempt to undermine the security or integrity of computing systems or networks and must not attempt to gain unauthorized access.
EVERWORKS does not permit the transmission of unsolicited e-mail. Complaints or allegations regarding the abuse of e-mail will be investigated. If it is found that the client has engaged in the intentional transmission of unsolicited e-mail, a warning to cease and desist will be issued. Subsequent violations will result in suspension and/or termination of the account.
Software items that result in denial of service are not fit for use. EVERWORKS reserves the right to delete those files.
Clients may not use the account as storage facility or as a download site for MP3, software, offer free emails, free websites, free banner exchange services or any large scale free services. Customer may also not run any kind of chat script or create any kind of chatting site using the hosting service.
7. Termination
Either party, without cause, may terminate this Agreement by giving the other party 14 days written notice. Notwithstanding the above, EVERWORKS may terminate service under this Agreement at any time, without penalty, if the Client fails to comply with the terms of this Agreement. No refund will be available if user terminated before contracted period.
At any time EVERWORKS believe that the service is being utilized by client causes any kind of network or server problem or disturbance, EVERWORKS may immediately terminate service without liability and without refund.
All data not limiting to web and email will be deleted immediately if the termination is due to breach of contract, otherwise to be deleted 30 days after the date of service expiry.
8. Limited Liabilities
Client expressly agrees that use of EVERWORKS' Server is at Client's sole risk. Neither EVERWORKS, its employees, affiliates, agents, third party information providers, merchants licensers or the like, warrant that EVERWORKS' Server service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Server service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the EVERWORKS Server service, unless otherwise expressly stated in this Agreement.
Under no circumstances, including negligence, shall EVERWORKS, its offices, agents or any one else involved in creating, producing or distributing EVERWORKS' Server service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the EVERWORKS Server service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to EVERWORKS' records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on EVERWORKS' Server service.
Notwithstanding the above, Client's exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement and any reasonable attorney's fee and court costs.
9. Indemnification
Client agrees that it shall defend, indemnify, save and hold EVERWORKS harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, ("Liabilities") asserted against EVERWORKS, its agents, its customers, servants officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless EVERWORKS against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with EVERWORKS' Server; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which Client sold on EVERWORKS Server.
10. Contract Revision
Revisions to this Contract will be applicable to previous Contracts. Revisions will be considered agreed to by the Client on renewal of EVERWORKS Services as specified in Section 1. Financial Arrangements.
11. Content Clause
Client agrees not to publish adult-related, pornographic, or otherwise publicly offensive material using EVERWORKS' server. All content is subject to denial at any time on the basis of controversial media. This Agreement constitutes the entire understanding of the parties. Any changes or modifications to this Contract thereto are agreed to by the both parties upon renewal of services. This Agreement shall be governed and construed in accordance with the Malaysian laws.
12. Reseller's Arrangement
Clients approved and authorized as EVERWORKS' resellers are allowed to resell the storage and transfer services provided by EVERWORKS as provided for in its standard product offering. Client agrees to handle and is responsible for all third-party client's content, support, set-up, maintenance and billing. Client agrees to have the necessary additional knowledge and skill level required. Client also agrees that they are responsible for all payments for accounts brought on by client under the reseller program.
