These terms of service (the “Terms of Service”) is entered into as of the date of payment made by you (“Customer”) to Envigeek Web Services (“Envigeek”), the Customer under this agreement for certain computer infrastructure and related services provided by Envigeek. BY PURCHASE ORDER OR REMITTANCE OF PAYMENT FOR THE WEB SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Our Services and Responsibilities
We deploy, operate and maintain computing infrastructure (“Web Services”). The Web Services shall be defined as the group of systems (servers, hardware, and associated software) that are responsible for delivering the internet-related services. The Web Services is not defined as including web-based user interfaces, server applications, update systems, or other Customer-accessible data access or manipulation methods. Our services include the provision of capacity on our Web Services infrastructure to you. You will rent capacity on our infrastructure, which you will access exclusively over the internet, and will use this capacity to store data and/or to run the Web Services. We also offer accompanying services, for example domain name registration and DNS hosting. The accompanying services which we offer may be subject to additional terms and conditions from us or third parties, such as domain name registrars, who are involved in their provision. We will notify you of these conditions, which you must also accept should you wish to use these accompanying services.
Unless otherwise agreed, Envigeek does not guarantee a deployment timeframe but will use reasonable endeavours to deploy the Web Services as described in your Purchase Order to Envigeek. The subscribed Web Services are deemed deployed as of the time that Envigeek sent an email message to you that includes the information needed to allow you use, run and/or transfer information to and from the Web Services.
You may not always be able to increase the amount of capacity that you use on our infrastructure, even when payment for this would be covered by your existing subscriptions or prepaid balance, since our infrastructure may be fully or nearly fully-utilized by other customers.
Envigeek does not own any of the Customer’s Data. Customer is solely responsible for the accuracy, integrity, and legality of Customer’s Data. Notwithstanding anything to the contrary in this agreement, Envigeek shall not be responsible or liable for the deletion, corruption, correction, destruction, damage, loss or failure to any of Customer’s Data.
We are committed to respecting and protecting the privacy of our customers. As Customer, you will provide Envigeek with contact and payment information. Contact information includes your name, email address, postal address and telephone number. Your information will only be used to support your customer relationship with Envigeek, and will never be passed to any third party unless this is necessary to provide services to you or where Envigeek are legally required to do so.
You also store and transmit data using Web Services. Unless you give us explicit permission, Envigeek will never inspect Customer’s stored data and will only measure the volume of your transmitted data for billing purposes or inspect your transmitted data to investigate suspected violations of our Acceptable Use Policy. Envigeek will never disclose your data to any third party unless we are required to do so by court or administrative order.
Service Level Agreement (SLA)
Envigeek agrees that it will use all commercially reasonable endeavours to make the Web Services available, avoid power and network downtime, and provide the level of support and professional services described in this terms of service. Envigeek will guarantee availability of the Web Services and ensure that the Web Services is available through the internet, provided that the Customer has established connectivity. Envigeek however cannot be held liable for problems caused by our upstream provider including but not limited to data centre operator, internet service provider and power supplier.
Should the Web Services fail to provide availability and/or connectivity, Envigeek will work with the customer and make all commercially reasonable endeavours to return the Web Services to a pre-failure state. Envigeek will use sole discretion to determine the extent by which any effort, assistance and/or support resources are utilised to recover the Web Services and any associated data.
Envigeek guarantee that your stored data and running services on our infrastructure will be available over the internet for 100% of the time in any given calendar month, except for periods of unavailability due to:
- Your payments not covering your use, including but not limited to when your subscriptions or prepaid balance run out.
- Acts or omissions of you or your users.
- Software running within your virtual servers.
- Scheduled maintenance which we have announced at least 24 hours in advance.
- Factors outside our control, including but not limited to any force majeure events; failures, acts or omissions of our upstream providers or failures of the internet.
- Actions of third parties, including but not limited to security compromises, denial of service attacks and viruses.
- Violations of our Acceptable Use Policy.
- Law enforcement activity.
Envigeek, in its sole discretion, shall determine whether an event will be considered an outage based upon its records and data.
Fees and Payment
All fees for the provision of the Web Services are due in advance of the first day of the relevant term. Envigeek reserves the right to charge interest on any amount due to us from you, on a daily basis at 2% above the Bank Negara Malaysia base rate. You will reimburse Envigeek all costs and expenses incurred in collection of overdue amounts, including Envigeek’s legal fees.
Envigeek may change, discontinue, add, modify, re-price or remove features or functionality from the Web Services upon notice to Customer sent via email and available at the URL of http://www.envigeek.com/legal/tos-managed-web-services. It is the Customer’s responsibility to review such notices in on specified URL on a frequent basis to get hold of the latest version of these Terms of Service. If Customer continues to use the Web Services following any such modification, such use will be deemed acceptance of such modification by Customer.
Envigeek’s liability under this Terms of Service will not exceed your bill for the Web Services use in the calendar month in which the incident occurred, and you will make no claim against Envigeek unless you notify Envigeek of the details of the claim within one month of the incident occurring and one month prior to making the claim.
Envigeek will not be liable for any losses or liabilities that you may incur as a result of any force majeure event or law enforcement activity. A force majeure event in the Terms of Service is an event that is outside our control and will include but not be limited to fire, flood, earthquake, storm, hurricane or other natural disasters, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or other utilities.
With the exception of losses with regard to fraud on our part and personal injury, we will not be liable for any consequential losses which you or your users may suffer as a result of our breach of these Terms of Service, such losses including but not limited to economic loss, loss of goodwill or reputation, and loss of or damage to data.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ENVIGEEK, WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ACCESS TO OR USE OF THE WEB SERVICES, EVEN IF SUCH PARTIES WERE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF CUSTOMER’S CLAIMS AGAINST ENVIGEEK ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE VALUE PAID FOR USE OF THE WEB SERVICES DURING THE 30-DAY PERIOD PRIOR TO THE DATE A CLAIM IS MADE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK.
Compliance with Law
You undertake that your use and your users’ use of our services does not and will not violate any applicable laws and that you will not permit any such violations by others.
Envigeek are not responsible for any use which you or your users make of Web Services, nor any charges that you or your users may incur with a third party. You will indemnify Envigeek against any liability for any action that you undertake that does or may breach any applicable laws and any costs (including Envigeek’s legal fees and a commercially reasonable additional charge for Envigeek’s time), claims, damages, expenses, losses and liabilities resulting from such breach.
No High Risk Use
You may not use the Web Services in any situation where failure or fault of the Web Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Web Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical life support devices.
Acceptable Use Policy
Envigeek do not permit the use of Web Services for actions or activities which, at our sole discretion, may be illegal, offensive, abusive or contrary to accepted internet norms or threaten the Infrastructure. We will take any actions necessary to enforce these prohibitions, including those listed under the Suspension and Termination section below. The uses which are not permitted include but are not limited to the following:
Envigeek prohibits all uses of Web Services which appear to us at our sole discretion to be illegal under any applicable laws. This includes but is not limited to:
- Storage or transfer of illegal material, including material which it is illegal to transmit over a public telecommunications network.
- Involvement in fraudulent activities.
- Misuse of our or other computer systems.
Envigeek prohibits use of Web Services which appear to us at our sole discretion to be offensive. This includes but is not limited to storing or transmitting any content or links to any content which we believe to be:
- Excessively violent, inciting violence or threatening violence.
- Harassing or inciting hate of any person or group of persons.
- Violating the privacy of any person or group of persons.
- Promoting or soliciting illegal activities under any applicable laws.
- Exposing trade secrets, infringing copyright, trademarks or patents or assisting others in doing so.
- Unfair or deceptive under consumer protection laws.
- Creating a risk to safety, health or national security.
Envigeek prohibits all uses of Web Services which appear to us at our sole discretion to be abusive or contrary to accepted internet norms. This includes but is not limited to:
- Sending of unsolicited bulk/commercial email (spam).
- Excessive posting on web forums, news groups, chat services or IRC.
- Publishing of websites or other material which are advertised by techniques (including but not limited to spam) which we would classify as abuse if they were carried out via Web Services.
- Distribution of viruses, adware or other malware.
- Fraudulent collection of personal or financial data (phishing).
- Unauthorized access to or misuse of data, computer systems or networks.
- Unauthorized probing, scanning or testing the vulnerability of computer systems or networks.
- Interference with service to other users of computer systems or networks, including denial of service attacks.
- Unauthorized interception or monitoring of network traffic.
- Transmitting fake or misleading network traffic, including forged IP packets or email headers.
- Any conduct likely to result in retaliation against us, including engaging in behaviour that results in a denial of service attack.
Envigeek prohibits all uses of the Web Services which appear to us at our sole discretion to threaten our infrastructure. This includes but is not limited to:
- Usage which imposes excessive load beyond that expected from a typical server. For example, continuous high CPU or I/O use.
- Virtual server configurations with inadequate security, allowing unauthorized third party access.
- Attempts to circumvent our mechanisms for controlling, monitoring or billing usage.
You will ensure that all use of the Web Services, whether by you or by any of your users, follows the Terms of Service. In addition, you will bind your users to an acceptable use policy containing all of the restrictions above.
Suspension and Termination
In the event that Envigeek wish to alter the Terms of Service or increase our prices, Envigeek will notify you by email thirty (30) calendar days before any alteration takes effect. Upon receipt of such notice, you will have the option either to terminate your account and receive a refund for the unused portion of your payments or to continue subject to the altered Terms of Service or increased prices. If you do not notify Envigeek of your wish to terminate your account within thirty (30) calendar days of receipt of such notice, then you will be deemed to have accepted the altered Terms of Service or increased prices.
Envigeek will not provide a refund for any unused payments unless you notify Envigeek in writing at our correspondence address that you wish to cancel your agreement within thirty (30) calendar days cancellation period.
Envigeek may at our sole discretion, immediately and without notice, terminate or suspend for a period of time all or part of the Web Services to you, including deleting your stored data, in the following situations:
- In the event that you or your users violate our Acceptable Use Policy, any other provision of the Terms of Service or any applicable laws. In the event of termination or suspension in this situation, you will not be entitled to any refund. In addition, Envigeek will have the right to recover from you any costs resulting from the violation, including Envigeek’s time which Envigeek and you agree will be charged at a rate of MYR 1,000 per day and which we and you agree is a genuine pre-estimate and commercially reasonable; any legal fees that Envigeek’s incur; and a commercially reasonable additional charge for the violation itself.
- In the event that your payments do not cover your use, including but not limited to when your subscriptions or prepaid balance run out.
You will ensure that your email address, postal address and other contact details provided to Envigeek are up to date at all times, particularly as we will send critical correspondence to you at your email address. Where necessary you will act on any correspondence sent to you within three (3) work days of when it is sent.
In the absence of evidence of earlier receipt, a notice or other communication is deemed given: if sent by email at one hour after the email has been sent; if delivered by hand, at the time of delivery; if sent by post (other than air mail), at midday on the second work day after posting it.
Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver.
These Terms of Service and all other legal relationships between you and us will be governed by and construed in accordance with Malaysian law. The courts of Malaysia are to have exclusive jurisdiction to settle any dispute arising out of or in connection with these Terms of Service and any proceedings will be brought in the Malaysian courts. We and you irrevocably submit and agree to submit to the jurisdiction of the Malaysian courts. We and you irrevocably waive any objection which we or you may at any time have to the Malaysian courts being so nominated and agree not to claim that the Malaysian courts are not a convenient or appropriate forum.
The illegality, invalidity or unenforceability of a provision of the Terms of Service under the law of any jurisdiction does not affect: the legality, validity or enforceability of any other provision of the Terms of Service in that jurisdiction; or the legality, validity or enforceability of that or any other provision of the Terms of Service under the law of any other jurisdiction.