By using the website hosting services (hereinafter, the “Service” or “Services” or “Server”), you signify your agreement to the terms and conditions contained in this Hosting Agreement (hereinafter, the “Agreement”), which govern your subscription of Web Hosting, E-Commerce and other Internet-related services provided by the website hosting service provider XGEN Technologies Sdn Bhd (13980-H), (“XGENTECH.COM”). This Agreement is between you, your organization (if you are entering into this Agreement on behalf of an organization), collectively referred to herein as “you” or “your” or “Client” (and appropriate formatives), and XGEN Technologies Sdn Bhd. These terms and conditions may be modified from time to time.
As referred to in this Agreement, “Site” refers to a World Wide Web site and “XGENTECH.COM website” refers to the Site located at the URL http://www.xgentech.com, or any other successor Sites owned or maintained by XGEN Technologies Sdn Bhd. By subscribing to XGEN Technologies Sdn Bhd Services, you acknowledge that you have read the Agreement, and you agree to its terms and conditions and all policies posted on the XGENTECH.COM website.
The Services consist of the website hosting package with the specific configuration which you selected or are going to select through the Order Form, available online and/or downloadable from XGENTECH.COM website. You acknowledge and understand that important service limitations (including bandwidth limitations and other capacity matrices), pricing (including pricing for optional Services, such as automatic capacity upgrade in the event of overage), the term of the Service, payment terms, and other conditions relating to the Services are conveyed through the Order Form and are hereby incorporated into this Agreement.
You are hereby informed that, if you use a credit card to pay for the Services, that the charge for the Services may appear under a name other than the name of XGEN Technologies Sdn Bhd (the name being generally descriptive of the Services) and that, prior to contacting your credit card company in relation to such charges, that you will first contact XGEN Technologies Sdn Bhd to verify the charges and the manner of billing. You agree that any chargeback of a charge related to the Services, for whatever reason, is a material breach of this Agreement and is grounds for termination.
1. THE SERVICES
XGEN Technologies Sdn Bhd provides the Services with no effort to edit,
control, monitor or restrict the your content other than as necessary to
provide such Services under the policies posted on the XGENTECH.COM
Client agrees and warrant that it is lawfully entitled to use, display, posses, or access the data uploaded, linked to, framed, or otherwise posted on its website by Client and/or by the users of Client’s website. Client further represent and warrant that Client will not allow any unauthorized third party to access the account which Client use to access the Services. 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 XGEN Technologies Sdn Bhd server in connection with Client’s use of the Services which:
a) Violate any Malaysian or foreign laws or regulations
b) Infringe on any intellectual property rights (e.g., copyright, trademark, patent or other proprietary rights) of XGEN Technologies Sdn Bhdtech.com or any third party
c) Are defamatory, slanderous or trade libelous
d) Are threatening or harassing
e) Are discriminatory based on gender, race, age or promotes hate
f) Violate any XGEN Technologies Sdn Bhd policy posted on the XGENTECH.COM website including, but not limited to, XGEN Technologies Sdn Bhd’s Proper Use Policy, SPAM Policy, and Abuse Policy.
g) Contain viruses or other computer programming defects which result in damage to XGEN Technologies Sdn Bhd’s capacity to provide the Services,or any third party.
Client may occupy only the amount of disk space on the XGEN Technologies Sdn Bhd Server and utilize no more than the network bandwidth that is allotted by XGEN Technologies Sdn Bhd. Additional fees, specified in the Order Form, will be charged for exceeding the disk space and/or network bandwidth allowance of your selected plan.
The Services are provided through an infrastructure which is shared by all users of the Services. Your use of the Services may be throttled or suspended indefinitely if your use of the Services degrades the ability of XGEN Technologies Sdn Bhd to provide the Services to other users of the Services.
Client shall not use the Services for chain letters, junk mail, spamming, or any use of distribution lists to any person who has not given specific permission to be included in such a process. Client also shall not engage in any unsolicited email practices using the Service, or otherwise, that mentions or reference any domain hosted with XGEN Technologies Sdn Bhd servers or parked on XGEN Technologies Sdn Bhd DNS servers.
NOTE: THIS POLICY APPLIES TO VIRTUAL SERVER ACCOUNTS, RESELLERS AND THEIR RESOLD ACCOUNTS, AND ALL DOMAINS, NAMES SERVERS AND PARKED DOMAINS HOSTED ON THE SERVER.
Client agrees to use only properly licensed third party software in connection with Client’s use of the Services.
Client will have the ability to reinstate files which are automatically archived by XGEN Technologies Sdn Bhd; however, XGEN Technologies Sdn Bhd does not guarantee the existence, accuracy, or regularity of its backup services and, therefore, Client is responsible for making back-up files in connection with its use of the Services. Backup capability is available through FTP (File Transfer Protocol) or the Client’s Control Panel on certain Services.
XGEN Technologies Sdn Bhd reserves the right to refuse service to anyone. XGEN Technologies Sdn Bhd, in its sole discretion, may immediately terminate this Agreement if Client engages in any of the foregoing. To report any unacceptable behavior by a third party using the Services, please contact firstname.lastname@example.org
2. PAYMENT OBLIGATIONS
XGEN Technologies Sdn Bhd shall either:
a) Debit Client’s credit card (where such information is provided by Client) or
b) deliver by e-mail or regular mail an invoice to Client in accordance with the applicable Services fees for services rendered for the current month or year depending on the Service.
Where an invoice is delivered to Client, Client shall remit payment to XGEN Technologies Sdn Bhd by no later than the specified payment due date. XGEN Technologies Sdn Bhd shall be entitled to immediately terminate this Agreement for Client’s failure to make timely payments to XGEN Technologies Sdn Bhd. Certain services carry a set-up fee charged by XGEN Technologies Sdn Bhd to Client that must be paid by Client in order to have use of the Services. If Client terminates this Agreement in accordance with Section 4 hereunder, Client shall be responsible for any outstanding fees owed to XGEN Technologies Sdn Bhd and agrees to pay any and all fees incurred by Client. Because the Services are provided on a yearly basis, Client will be responsible for Service fees incurred each year regardless of when Client provides notice of termination. Thus, for example, if Client provides notice to terminate on the 5th month of a particular year, Client will still owe fees for the entire year and such fees will not be pro-rated or refunded.
If Client chooses to register a domain name(s) through XGEN Technologies Sdn Bhd, Client acknowledges and agrees that Client will pay a registration fee(s) to register the domain name(s) with the applicable domain name registrar. XGEN Technologies Sdn Bhd does not offer refunds for domain name registrations for any reason, including misspelling of the domain name.
3. CLIENT LIABILITY AND INDEMNIFICATION
The parties agree that in no event shall XGEN Technologies Sdn Bhd be liable to any third party for Client’s breach or alleged breach of any of the terms and conditions set forth in this Agreement and all policies posted on the XGENTECH.COM website. Client agrees to defend, indemnify and hold harmless XGEN Technologies Sdn Bhd from any and all expenses, losses, liabilities, damages or third party claims resulting from Client’s breach or alleged breach of any Client obligations set forth hereunder.
You acknowledge that any loss or corruption of data which occurs due to an interruption in the Services, regardless of the cause of the interruption, shall not be the responsibility of XGEN Technologies Sdn Bhd and that you may, following an interruption in the Services, be required to upload the data to the servers and other equipment which provide the Services.
4. TERM, TERMINATION & REINSTATEMENT
Subject to the terms and conditions hereof, this Agreement shall be effective on the date you register for the Services, and shall continue in effect on a year-to-year basis unless otherwise specified by separate agreement (the “Term”) unless terminated earlier pursuant to the provisions of this Section 4. Either party will have the right to terminate this Agreement upon 30 days notice to the other party. If Client is terminating this Agreement, Client must SUBMIT BY FAX the Notice Of Service Termination (Form downloadable from XGENTECH.COM website or on demand via email to email@example.com). Any other attempt by Client to cancel this Agreement by written or e-mail notice shall be void. Sections 3 – 8 shall survive termination or expiration of this Agreement.
If Client terminates its account, Client shall be allowed to re-instate Client’s use of the Services within Seven (7) business days of cancellation. Client shall pay a fee of Fifty Malaysian Ringgit (RM 50) prior to any re-instatement of Client’s account. Once payment has been received, Client’s account will be activated within Forty-Eight (48) business hours.
If Client terminates its account, Client shall be solely responsible for the backup of Client content hosted on XGEN Technologies Sdn Bhd Servers. Client acknowledge that XGEN Technologies Sdn Bhd is not obligated to return any data to Client upon termination of this Agreement. XGEN Technologies Sdn Bhd will maintain an archival copy of Client’s Web site for Seven (7) days after XGEN Technologies Sdn Bhd receives notice of cancellation. Thereafter, Client will need to place a new order if it wishes to subscribe to the Services.
Client will pay and indemnify and hold XGEN Technologies Sdn Bhd harmless from any and all taxes associated with or arising from Client’s use of the Services, including any penalties and interest and any costs associated with the collection or withholding thereof.
6. DISCLAIMER OF WARRANTY
THE SERVICES, THE XGENTECH.COM website, INCLUDING WITHOUT LIMITATION, ALL PRODUCTS AND SERVICES DISPLAYED OR OFFERED ON THE XGENTECH.COM website, AND ALL TEXT, GRAPHICS, LINKS AND APPLICATIONS ARE PROVIDED TO CLIENT ON AN ‘AS IS’ BASIS AND WITHOUT WARRANTY OF ANY KIND. XGEN Technologies Sdn Bhd DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO EACH OF THE FOREGOING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, XGEN Technologies Sdn Bhd SPECIFICALLY DISCLAIMS ANY WARRANTY THAT (1)THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (2) DEFECTS WILL BE CORRECTED; (3) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS; AND (4) THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL XGEN Technologies Sdn Bhd BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, PROFITS, USE OF THE XGENTECH.COM website OR ANY XGEN Technologies Sdn Bhd PRODUCTS OR SERVICES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER.
Notices and Communication:
Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication:
a) On the delivery date if delivered personally to the party, or a representative of the party;
b) One (1) business day after deposit with a commercial overnight carrier, with written verification of receipt;
c) Five (5) business days after the mailing date, whether or not received, if sent by postal mail, return receipt requested;
d) On the delivery date if transmitted by facsimile/fax.
You acknowledge that email and/or online communication systems (chat, account notices, etc.) will be the primary means of communication between yourself and XGEN Technologies Sdn Bhd. You acknowledge that it is your responsibility to maintain a current email address and physical mailing address in your contact information. You further agree that you will regularly login to your account to obtain any notices emailed to you from XGEN Technologies Sdn Bhd, or posted through the XGENTECH.COM website. You agree that your failure to respond to a communication from XGEN Technologies Sdn Bhd may result in suspension or cancellation of Services without any refund of pre-paid fees, if any.
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted. This Agreement (including the Exhibits, attachments and/or addenda, if any,) represents the entire agreement of the parties with respect of the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral between the parties with respect to the subject matter hereof. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by Client, but may be so transferred, assigned or delegated by XGEN Technologies Sdn Bhd. Any waiver or any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right. In any legal proceeding between the parties under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorneys’ fees. This Agreement is made under and shall be governed by the laws of Malaysia, except with regard to it’s conflict of law rules. This Agreement and XGEN Technologies Sdn Bhd’s policies are subject to change by XGEN Technologies Sdn Bhd without notice. Continued usage of the Services after a change to this Agreement by XGEN Technologies Sdn Bhd or after a new policy is implemented and posted on the XGENTECH.COM website constitutes your acceptance of such change or policy. We encourage you to regularly check the XGENTECH.COM website (http://www.xgentech.com) for any changes or additions.