General Terms & Conditions
Spanlogic Network Sdn. Bhd. General Terms and Conditions of Service
BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS OFFERED
BY Spanlogic Network Sdn. Bhd. YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
THESE TERMS & CONDITIONS SUPERSEDE ALL EARLIER VERSIONS AND REQUIRE MANDATORY ARBITATION
OF DISPUTES. Please carefully read these terms and conditions as they describe your
legal rights and obligations. This agreement shall become come effective as of the
date of (1) your electronic signature on or acceptance of this agreement, (2) the
activation of your account or (3) your receipt of an e-mail from Spanlogic confirming
your order, whichever happens first.
1. DEFINITIONS.
For the purposes of this Agreement:
1.1. "Spanlogic's Equipment" shall mean computer and telecommunications
device, Internet access and/or transmission rights owned, operated, and/or maintained
by Spanlogic and/or Spanlogic's agents or assigns which function to provide the
Spanlogic Services.
1.2. "Spanlogic" "us," "we, "our" and grammatical variants thereof
shall collectively refer to Spanlogic Network Sdn. Bhd. (Private Limited Company
Registration # 509706-W), incorporated and existing under the laws of Malaysia located
at 27B, Jalan Perai Jaya 3, Bandar Perai Jaya, 13600 Perai, Penang, Malaysia, and
its assigns and successors in interest.
1.3. "Spanlogic Services" shall mean the products and services
provided by Spanlogic at any given time, including but not limited to web hosting,
e-mail, domain registration, and any associated support services, which services
may be changed, amended, and/or otherwise altered at any time in Spanlogic's sole
discretion.
1.4. "Spanlogic Software" shall mean any software provided by Spanlogic
at any given time, whether downloaded to your computer, provided to you on CD or
another form of removable media, or utilized online as part of the Spanlogic Services.
The Spanlogic Software includes the program and any and all copies or portions thereof,
whether standing alone or in combination with other programs, as well as the documentation
and other materials delivered in connection with the software, if any.
1.5. "Bandwidth" shall refer to the rate of data transmission in
bits per second using Spanlogic's Equipment.
1.6. "Content" shall mean the downloadable files which are interpreted
by a client web browser for display with or without plug-ins.
1.7. "Customer Service" shall refer to communication from us to
you dealing with problems or questions relating to services provided by us to you.
1.8. "Fee" shall mean monies and other consideration you are obligated
to pay to Spanlogic for the right to use the Spanlogic Services and Bandwidth subject
to the terms and conditions of this Agreement and of the particular Spanlogic Services
for which you have registered, as outlined on the then-current schedule of fees.
Fees may be changed at any time on thirty days notice.
1.9. " Fee Schedule" shall mean the fees for the Spanlogic Services
as published on the Spanlogic website, which may be modified at any time in Spanlogic's
sole discretion pursuant to the provisions of 24.1.
1.10. "Parties" shall collectively refer to Spanlogic and you.
1.11. "Suspend" or "Suspension" shall include the disabling of
your domain name and the cessation of transmission of data to or from Your Web Site
or via Your Services.
1.12. "Technical Support" shall refer to communications from us
to you dealing with problems or questions relating to technical matters involving
software or services provided by us to you.
1.13. "Web Site Space" shall mean a quantity of computer memory
allocation, as outlined in the program description for Your Services, generally
located on one or more computer storage devices and measured in units of megabytes
(MBs) wherein data comprising Your Web Site is stored and is accessible by Spanlogic's
web server equipment.
1.14. "You", "your" and grammatical variants thereof shall mean
you, any other entity which has an ownership or other beneficial interest in you,
or any other entity in which you have an ownership or other beneficial interest.
1.15. "Your Web Site" shall mean data transmittable via the Internet
by Spanlogic which is stored in Web Site Space.
1.16. "Your Services" shall mean the specific Spanlogic Services
for which you have contracted, subject to the limitations and specifications of
the particular service effective as of the date of contract and to the fees for
that pursuant to the current Fee Schedule.
2. DESCRIPTION
Subject to and conditioned upon Spanlogic's retained rights and all other terms
and conditions set forth in this Agreement, Spanlogic offers the Spanlogic Services
as soon as practicable after registration for and payment of any and all fees due.
You will receive a password, account and instructions upon completion of the registration
process. You are responsible for maintaining the confidentiality of both your password
and your account and are fully responsible for all activities that occur under your
password and your account. You agree to immediately notify Spanlogic of any unauthorized
uses of the account or any other breaches of security. Spanlogic cannot and will
not be liable for any loss or damage from your failure to comply with this security
obligation. You acknowledge and agree that under no circumstances will Spanlogic
be liable, in any way, for any acts or omissions by you, including any damages of
any kind incurred as a result of such acts or omissions. The Spanlogic Services
are subject to the following conditions and restrictions:
2.1. Web Hosting Services
2.1.1. Spanlogic shall provide to you a non-exclusive and limited
license to use the amount of Web Site Space allocated to Your Services for your
non-exclusive use for the exclusive purpose of storing Your Web Site data and disseminating
said data via the Internet through the use of Spanlogic's Equipment for purposes
consistent with this Agreement.
2.1.2. Spanlogic, either directly or through its assignee or licensee,
shall provide Customer Service relating to Your Web Site consisting of replying
to customer questions or complaints regarding services provided by us to you relating
to Your Web Site. Spanlogic is not obligated to provide any Customer Service except
as specified in this Section 2. Any and all requests for additional Customer Service
may be refused by Spanlogic with or without reason. Any additional Customer Service
which Spanlogic may subsequently agree to provide to you shall be at Spanlogic's
sole discretion and once commenced, may be terminated at any time by Spanlogic without
notice to you and without any liability to Spanlogic. Notwithstanding the foregoing,
Spanlogic at its sole discretion may at any time alter or cease providing the Customer
Service which it has agreed to provide to you relating to Your Web Site pursuant
to this Agreement without any liability to Spanlogic.
2.1.3. Spanlogic, either directly or through its assignee or licensee,
shall provide Technical Support relating to Your Web Site consisting of replying
to communications from and to end users dealing with problems or questions relating
to technical matters involving software or services provided by us to you. While
Spanlogic is not obligated to provide any Technical Support except as specified
in this Section 2, you may contact us to request additional Technical Support on
a fee for service basis to be arranged between Spanlogic and you. Any and all requests
for additional Technical Support may be refused by Spanlogic with or without reason,
in its sole discretion. Any additional Technical Support which Spanlogic may subsequently
agree to provide to you shall be at Spanlogic's sole discretion and once commenced,
may be terminated at any time by Spanlogic without notice to you and without any
liability to Spanlogic. Notwithstanding the foregoing, Spanlogic at its sole discretion
may at any time alter or cease providing the Technical Support which it has agreed
to provide to you relating to Your Web Site pursuant to this Agreement without any
liability to Spanlogic.
2.1.4. All use of Web Site Space and provision of services to you
by Spanlogic shall be subject to all terms and conditions set forth herein. You
may not attempt to expand or alter these rights or Spanlogic's services by entering
into multiple agreements.
2.1.5. Unless provided otherwise in the specifications for your
Services, Bandwidth use, including but not limited to data retrieval from your Web
Site, e-mail traffic, and downloads, shall not exceed five gigabytes per month.
Your combined Mailbox use shall not exceed ten gigabytes per month. You are responsible
for monitoring your Bandwidth and Mailbox use, and agree to check your e-mail and
download or delete your e-mail on a regular basis in order to ensure compliance
with this paragraph. Should you exceed your Mailbox use limits Spanlogic may return
any and all e-mails sent to you to the originating sender without liability to you.
You agree that Spanlogic may debit your credit card for usage in excess of permitted
amounts at the rates set forth in the then-current Fee Schedule.
2.1.6. Spanlogic offers a service uptime guarantee for the Spanlogic
Services, which provides for a credit to You in the event the total availability
of Spanlogic hosted web pages falls below 99.9% ("Uptime"). If You can demonstrate
to Spanlogic's satisfaction, in Spanlogic's sole discretion, that Spanlogic has
failed to maintain the Uptime, You may contact Spanlogic and request a credit for
that month proportional to the amount of downtime, to be put towards the purchase
of future Spanlogic Services. Credits cannot be redeemed for cash, and are exclusive
of any applicable taxes. The credit does not apply to service interruptions caused
by (i) periodic scheduled maintenance or repairs undertaken by Spanlogic from time
to time; (ii) downtime caused by You; (iii) outages that do not limit browser access
to Your web (for example, interruptions to your ftp service or e-mail) site; (iv)
suspension of Your account due to legal action taken or threatened against You or
Your Services; or (v) causes beyond the control of Spanlogic or that are not reasonably
foreseeable by Spanlogic.
2.1.7. Spanlogic may suspend performance under or terminate this
Agreement, cease transmission of data associated with your domain name immediately
and without notice, and take any other actions it deems necessary, in its sole discretion,
to comply with the relevant laws if it is informed or otherwise believes, in its
sole discretion, that your domain name violates the intellectual property rights
of any third party or is otherwise the subject of a dispute. As more completely
set forth in Sections 5, 6, and 9, you waive any and all clams you may have, now
and forever, against Spanlogic relating to the content, use, and operation of Your
Web Site and agree to indemnify and hold harmless Spanlogic from and against any
such claims.
2.1.8. To the extent Your Services are subject to the terms and
conditions of Spanlogic's Marketing Center (the "T&C Marketing Center"), they
are incorporated herein by reference.
2.2. Domain Name Registration
2.2.1. Should you choose to register a domain name through Spanlogic,
Spanlogic will register a second level domain name on your behalf, provided such
domain name is available for registration. Spanlogic acts only as an intermediary
between you and the organization providing the domain name, and has no influence
over the assignment of domain names. The registration of your domain name is subject
to the terms and conditions of those third-party registrars, and is also subject
to the terms of the Uniform Domain Name Dispute Resolution Policy ("UDRP"). Spanlogic
assumes no liability in the event the domain name is unavailable or otherwise not
assigned to you, and does not warrant or guarantee that assigned domain names do
not infringe the rights of third parties, or that you will retain the rights to
that domain name for any period of time. Spanlogic shall not own or otherwise legally
control any domain name registered on your behalf. You agree that you are responsible
for any and all fees and costs related to the registration of your domain name,
and you authorize Spanlogic to debit your credit card for any such fees and costs.
2.2.2. You acknowledge and agree that Spanlogic or its agents,
assignees or licensees may, upon registration of your domain name, associate any
data of any kind, in Spanlogic's sole discretion, with the Domain Name registered
in association with Your Web Site or any URL incorporating said Domain Name until
you replace such data with the Web Site. This paragraph shall apply to any and all
web pages generated by Spanlogic, wether in connection with HTML standard response
codes or otherwise, including but not limited to 404 error pages.
2.2.3. You represent and warrant that your domain name does not
infringe the copyright, trademark, or any other intellectual property rights of
any person or company and that your domain name is otherwise in compliance with
the terms of this agreement, in particular the provisions of Section 7.
2.2.4. You shall inform Spanlogic of any claim or potential claim
against your domain name, including but not limited to the initiation of a dispute
under the UDRP, within five days of notification of same. You shall provide Spanlogic
of notice of any negotiations with third parties with respect to the ownership and/or
intellectual property rights to your domain within five days of the commencement
of such negotiations. Should you lose your right to use a domain name which is used
in connection with the Spanlogic Services, whether through expiration of the domain
name, judicial decree, administrative decisions of the UDRP or otherwise, you agree
to inform Spanlogic immediately of the party to whom the domain name is to be transferred
and you authorize Spanlogic to take any and all action necessary to effect such
transfer.
2.2.5. Spanlogic will accept the transfer of domain names from
other registrars, provided however, that you will be required to pay for an initial
year of registration fees upon transfer. Domain names which have been prepaid for
a period of more than one year but with fewer than nine years remaining may also
be transferred, subject to the payment of an initial year of registration fees.
An additional year will be added on to the remaining term of any transferred domain.
Domain names with more than nine years remaining on the registration period may
not be transferred. Upon the expiration of the one-year extension you will be charged
an annual renewal fee for any subsequent renewal period. By requesting the transfer
of your domain name you authorize Spanlogic to debit your credit card for the one-year
registration fee and any related fees or charges.
2.2.6. The Private Domain Registration Services offered by Spanlogic
are subject to the terms and conditions of Spanlogic's Private Registration Service
(the "T&C Private Domain Registration"), which are incorporated herein by reference.
2.2.7. Spanlogic may suspend performance under or terminate this
Agreement, cease transmission of data associated with your domain name immediately
and without notice, and take any other actions it deems necessary, in its sole discretion,
to comply with the UDRP or relevant laws if it is informed or otherwise believes,
in its sole discretion, that your domain name violates the intellectual property
rights of any third party or is otherwise the subject of a dispute. As more completely
set forth in Sections 5, 6, and 9, you waive any and all clams you may have, now
and forever, against Spanlogic relating to the registration, use, and subsequent
transfers of your domain name and agree to indemnify and hold harmless Spanlogic
from and against any such claims.
2.3. Software
2.3.1. Spanlogic may, in its sole discretion, provide you with
Spanlogic Software in combination with Your Services. Upon payment of all fees due
and owing to Spanlogic under this Agreement, Spanlogic hereby grants, and you hereby
accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license
to use the Spanlogic Software and all related documentation for your own personal
or business use during the term of this Agreement. Any rights not expressly granted
herein shall be reserved for Spanlogic. Source code or other information pertaining
to the logic design of the Spanlogic Software is specifically excluded from the
license granted hereunder.
2.3.2. Although the Spanlogic Software is generally provided free
of charge, Spanlogic reserves the right to charge for the Spanlogic Software or
any upgrades therefor at any time.
2.3.3. You recognize that the Spanlogic Software and all related
information, including but not limited to any and all updates, improvements, modifications,
enhancements, and information related to installation of the Spanlogic Software
at your home or office, are proprietary, and that all rights thereto, including
copyright, are owned by Spanlogic. You further acknowledge that you have been advised
that the Spanlogic Software, including updates, improvements, modifications, enhancements,
and information related to installation, constitutes a trade secret of Spanlogic,
is protected by civil and criminal law, and by the law of copyright, is valuable
and confidential to Spanlogic, and that its use and disclosure must be carefully
and continuously controlled.
2.3.4. Spanlogic shall at all times retain title to all the Spanlogic
Software and all related information, including all updates, improvements, modifications
and enhancements, furnished to you hereunder.
2.3.5. Unless provided otherwise in the specifications for Your
Services, the Spanlogic Software supplied hereunder is for the your personal or
business use. You shall not permit any third party to use the Spanlogic Software
or allow access to the Spanlogic Software from sites outside of your home or business
premises except as specifically authorized in writing by Spanlogic. The Spanlogic
Software is to be used only for the purposes specified in this Agreement and specifically
as restricted in the following three subparagraphs of this Section 2.
2.3.6. While this Agreement is in effect, or while you have custody
or possession of any of the Software, you will not: (i) reproduce, copy or publicly
display, or permit anyone else to reproduce, copy or publicly display, any of the
Spanlogic Software, whether such Spanlogic Software is in written, magnetic or any
other form, except pursuant to reasonable backup procedures, or for use in Your
Web Site pursuant to this Agreement, nor; (ii) provide or make the Spanlogic Software
available to any person or entity other than your employees or agents who have a
need to know consistent with your use thereof under this Agreement, nor; (iii) create
or attempt to create, or permit others to create or attempt to create, by disassembling,
reverse engineering or otherwise, the source programs or any part thereof from the
object program or from other information (whether oral, written, tangible or intangible)
made available to you under this Agreement, nor; (iv) copy for your own use or the
use of others operator manuals, system reference guides, training materials and
other user-oriented materials without the prior written consent of Spanlogic. In
order to protect Spanlogic's trade secrets and copyrights in the Spanlogic Software,
you agree to reproduce and incorporate Spanlogic's trade secrets or copyright notice
in any copies, modifications or partial copies.
2.3.7. You agree to notify Spanlogic forthwith if you obtain information
as to any unauthorized possession, use or disclosure of any Spanlogic Software by
any person or entity, and further agree to cooperate with Spanlogic at Spanlogic's
expense, in protecting Spanlogic's proprietary rights.
2.3.8. Unless agreed otherwise in writing by Spanlogic, the Spanlogic
Software may be used only on a single computer or workstation. Spanlogic software
designed for use on portable workstations may be installed on both a portable and
a stationary computer but may not be used on both simultaneously. You may not install
the Spanlogic Software on a network except to facilitate permissible installation
of the Spanlogic Software on computers attached to the network. You warrant and
guarantee that all users of the software shall be aware of and comply with the terms
of this license.
2.3.9. Certain Spanlogic Software is provided for online use as
part of the Spanlogic Services (the "Spanlogic Online Software"), and the use of
such software may be subject to fees as outlined in the current Fee Schedule in
accordance with this Agreement. The Spanlogic Online Software is hosted software
which runs directly on Spanlogic's servers, and you may not download, install, store
or make any copies of the Spanlogic Online Software, nor may you sublicense the
Spanlogic Online Software. You agree not in any way to translate, decompile, reverse
engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute,
market or otherwise dispose of any portion of the Spanlogic Online Software or any
copies thereof and not to assist any third party in doing so. The Spanlogic Online
Software is designed to be used through the Spanlogic user interface and, as such,
may be utilized by any authorized user from any computer or workstation. This license
is automatically revoked upon termination of this Agreement. Spanlogic reserves
the right to modify or discontinue the Spanlogic Online Software at any time without
notice.
2.3.10. Spanlogic provides its customers with the ability to order
certain third-party software (the "Third Party Software"), depending on the hosting
package ordered. Such Third Party Software is delivered to Spanlogic Customers by
mail and may be ordered via customer's control panel for a period of six months
after the commencement of the Spanlogic Services. The license conditions governing
the use of the Third Party Software may differ from Spanlogic's own software licenses.
Customers of Spanlogic are bound by the conditions of all licenses pertaining to
such Third Party Software and should make themselves familiar with their terms and
conditions. THE PROVISION AND OFFERING OF SUCH THIRD PARTY SOFTWARE BY Spanlogic
DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN Spanlogic
MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH
THIRD PARTY SOFTWARE.
2.3.11. In the event of termination of this Agreement, or upon
any act which shall give rise to Spanlogic's right to terminate, or upon the expiration
of the license for Spanlogic Software which is subject to a limited-duration license,
any and all licenses granted under this Section 2.3 shall terminate automatically,
and you will remove, erase or destroy the Spanlogic Software and documentation and
all copies thereof, wherever located, without demand or notice.
3. FEES
3.1. Certain Spanlogic Services are subject to set-up, service,
and domain service fees, pursuant to the Fee Schedule, and by registering for such
Spanlogic Services you authorize Spanlogic to debit your credit card for any and
all such fees.
3.2. Spanlogic agrees to host Your Web Site in exchange for your
payment to Spanlogic of a monthly Fee for service in any given month, not later
than the first of that month. In the event that Spanlogic determines that the services
of a collection agency are necessary or appropriate to collect amounts due under
this paragraph, which determination shall be made in Spanlogic's sole and unfettered
discretion, any and all collection agency fees and other costs of collection shall
be added to the amount due under this provision.
3.3. All Fees must be paid by major credit card in United States
Dollars in advance of the provision of services. Spanlogic will charge the monthly
fee and any additional fees to the credit card account provided by you upon registration
unless specifically provided otherwise. You also agree that Spanlogic may automatically
charge your credit card for any subsequent renewal term, additional services, and
any related Fees or expenses applicable to Your Services or Your Website, including
but not limited to fees for excessive bandwidth use or other surcharges for services
in excess of those included within Your Services or Your Web Site, without further
authorization from you. If payment in full is not received by Spanlogic from your
credit card issuer or its agents, you agree to pay all amounts due from you for
Your Services upon demand by Spanlogic.
3.4. Spanlogic may offer subsequent promotional rates or special
offers, the terms of which may or may not be more favorable than the terms and conditions
for Your Services. Any such promotions or modifications shall not effect your obligations
under this Agreement. Promotional fees may be subject to additional terms and conditions
which, to the extent they conflict with the terms of this Agreement , shall govern.
Promotional fees and special offers may not be combined.
3.5. To the extent Your Services are subject to the terms and conditions
of Spanlogic's Money Back Guarantee (the "T&C Money Back Guarantee"), they are
incorporated herein by reference.
3.6. You shall pay all costs of collection, including reasonable
attorney's fees and costs, in the event any invoice requires collection efforts.
All accounts referred to a collection agency shall be subject to an additional fee
of $25, which must be paid in full before the account is reactivated.
3.7. Upon cancellation of this Agreement you will receive a prorated
refund of any pre-paid, refundable fees for the remainder of any term. Fees for
certain services, including but not limited to domain name registration and maintenance,
set up fees, shipping and handling, SSL certificate fees, and etc., are not refundable
unless provided otherwise by applicable local law. Spanlogic may, in its sole discretion,
refund other amounts as it deems necessary or advisable.
4. NO EXPRESS OR IMPLIED AGREEMENT TO DISSEMINATE MATERIALS WHICH ARE INCONSISTENT
WITH YOUR WARRANTIES.
Receipt by Spanlogic of data for storage in Web Site Space and/or transmission via
Spanlogic's Equipment which are inconsistent with your warranties set forth in Section
7 herein shall not constitute an agreement by Spanlogic to allow the Spanlogic Services
or the Spanlogic Equipment to be used to disseminate such information or data in
whole or in part, by any means, or if once disseminated via the use of Spanlogic's
Services or Equipment, to continue to disseminate such data.
5. NO WARRANTIES BY SPANLOGIC.
THE SPANLOGIC SERVICE AND SPANLOGIC SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE
SERVICE IS AT YOUR SOLE RISK. SPANLOGIC DOES NOT WARRANT THAT THE SPANLOGIC SERVICES
WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES SPANLOGIC MAKE ANY WARRANTY AS TO
ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SPANLOGIC SERVICES. NO WARRANTY IS
MADE BY SPANLOGIC REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH
OR IN CONNECTION WITH THIS AGREEMENT, AND SPANLOGIC HEREBY EXPRESSLY DISCLAIMS ANY
AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY,
QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO YOU HEREUNDER, INCLUDING
BUT NOT LIMITED TO YOUR SERVICES AND YOUR WEB SITE; AND (2) ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. SPANLOGIC DOES NOT GUARANTEE THAT ANY CONTENT,
INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE SPANLOGIC SERVICES
WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS.
YOU AGREE AND ACKNOWLEDGE THAT NO REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO
YOU REGARDING THE POTENTIAL VOLUME OF PATRONAGE OF YOUR WEB SITE OR ANY OTHER PERSON'S
OR ENTITY'S WEB SITE OR WEB PAGE.
6. SPANLOGIC'S LIMITED LIABILITY.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE
OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL SPANLOGIC, ITS DIRECTORS,
OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR
USE OF OR OTHERWISE RELATING TO THE SPANLOGIC SERVICES. SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES. IN SUCH JURISDICTIONS, SPANLOGIC'S LIABILITY SHALL BE LIMITED TO THE EXTENT
PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE
OR IN THIS AGREEMENT, SPANLOGIC DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY
PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE SPANLOGIC SERVICES, AND
SPANLOGIC WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY
TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE SPANLOGIC FROM
ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS.
THE TOTAL LIABILITY OF SPANLOGIC FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT,
NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT
SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO SPANLOGIC IN THE SIX MONTHS
PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $500.
7. YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES.
7.1. You agree and warrant that the contact information you have
provided to Spanlogic is complete and accurate, and you further agree to notify
Spanlogic within fifteen days of a change to any such contact information. Contact
information includes your name, e-mail address, and mailing address and the name,
mailing address, telephone number, facsimile number, and e-mail address of the technical
and administrative contacts for your domain, if any.
7.2. You agree to provide Spanlogic notice of any changes in the
primary or secondary DNS address of your name servers, to the extent you have installed
and are operating those name servers or to the extent your domain name is held by
another registrar and points to a website hosted by Spanlogic.
7.3. You agree and warrant that your use of the Spanlogic Services
and Spanlogic's Equipment, and all sales and distributions, by any and all means,
of any type(s) of Content including, but not limited to, executable files (such
as .EXE), digitized audio/visual files (such as MP3), or archived copies of copyrighted
works (such as .ZIP); goods, including, but not limited to, videotapes and CD-ROM
products, and any type of services by you, which are advertised and/or promoted
by, or are in any other way directly or indirectly associated with your use of the
Spanlogic Services or Spanlogic Equipment, shall at all times comply with all applicable
laws, including, but not limited to, all federal, state and local laws throughout
Malaysia.
7.4. You agree and warrant that you will neither store on nor allow
to be transmitted by Spanlogic's Equipment any data or other matter which constitutes,
contains or links to pornography or which involves depictions of nudity or sexuality.
7.5. You agree and warrant that all data, visual materials, advertising
and other matter you store on or allow to be transmitted by Spanlogic's Equipment
shall be solely for business, entertainment and/or educational purposes and that
you shall assume the sole responsibility and duty to ensure that all such data,
visual materials, advertising and other matter shall be transmitted exclusively
to willing adults and only to places in which such materials comply with contemporary
community standards.
7.6. You agree and warrant that all data, visual materials, advertising
and other matter you store on or allow to be transmitted by Spanlogic's Equipment
shall not violate any state or federal laws concerning obscenity and shall not contain
any depictions of bestiality, incest, rape, sexual assault, actual physical violence,
torture or disfigurement, or other content deemed objectionable by Spanlogic, in
its sole discretion.
7.7. You agree that you shall install and maintain appropriate
and effective screening devices and/or procedures on Your Web Site to avoid access
to, or communication of, any harmful matter or indecent communications to minors.
7.8. You agree that if, in Spanlogic's sole and exclusive judgment,
Spanlogic concludes that Your Web Site displays, contains or links to any harmful
matter or indecent materials or communications which are available to, or accessible
by, minors, or displays or contains any material that consists of child pornography
or which could otherwise result in harm to minors; then Spanlogic may, without prior
notice to you and in Spanlogic's sole and exclusive discretion, either remove and
erase the material from Your Web Site, and/or disable public access to the material
on Your Web Site, and/or cease hosting Your Web Site, without any liability of any
kind to Spanlogic from either you or any third party.
7.9. You agree that in the event that Spanlogic is informed by
any party that your domain name or any material on Your Web Site infringes the copyright
of any party, or violates the right of publicity or privacy of any party, or consists
of any other claim or violation of intellectual property rights of any kind, then
Spanlogic may, without prior notice to you and in Spanlogic's sole and exclusive
discretion, either remove the material from Your Web Site, and/or disable public
access to your domain name or the material on Your Web Site, and/or terminate this
Agreement, without any liability of any kind to Spanlogic from either you or any
third party. As more completely set forth in Sections 5, 6 and 9, you waive any
and all claims you may have, now and forever, against Spanlogic relating to any
action taken in response to the claim that you have infringed the intellectual property
rights of a third party, and agree to indemnify and hold harmless Spanlogic from
and against any such claims.
7.10. You affirmatively represent, agree and warrant that you have
and at all times shall have all necessary intellectual property rights, including,
but not limited to, all copyrights, trademark and service mark rights and rights
of publicity, both in the United States and throughout the world, to reproduce and
disseminate, via the Internet, all data which you store in Web Site Space or which
you otherwise promote, advertise, disseminate and/or distribute to anyone by your
direct or indirect use of the Spanlogic Services or Spanlogic's Equipment, including,
without limitation, all advertising and promotional materials, prior to and at all
times during the time such materials are promoted, advertised, disseminated or distributed
through any direct or indirect use of the Spanlogic Services or Spanlogic's Equipment.
7.11. You agree and warrant that no data or other matter you store
on or allow to be transmitted by Spanlogic's Equipment shall constitute or contain
or link to material which is libelous, slanderous, defamatory, or which will violate
or infringe upon or will otherwise give rise to any adverse claim with respect to
any common law or other right of any person or other entity, including, without
limitation, privacy rights and all other personal and proprietary rights. You agree
not to collect the personally identifiable data of any person without that person's
consent, records of which shall be maintained throughout the term of this Agreement
and for three years afterward. If you collect this data through Your Web Site you
shall do so only pursuant to a posted privacy policy disclosing any and all uses
of such identifiable data and in compliance with applicable law.
7.12. You agree and warrant that no data or other matter you store
on or allow to be transmitted by Spanlogic's Equipment shall contain or link to
any material which is harmful, violent, threatening, abusive or hateful.
7.13. You agree and warrant that any and all material(s) of every
kind which you store in Web Site Space or transmit using Spanlogic's Services or
Equipment shall at all times be free from any and all damaging software defects,
including, but not limited to, software "viruses", "worms", "Trojan Horses," and
other source code anomalies, which may cause software or hardware disruption or
failure, reduced computer operating speed, or compromise any security system. You
agree that you will not attempt to access the Spanlogic Equipment or Web Site or
another customer's Web Site without authorization.
7.14. You agree and warrant that you shall not use any form of
mass unsolicited electronic mail solicitations, news group postings, IRC posting
or any other form of "spamming" or "mail bombing," and Spanlogic reserves the right
to block mail from any source which Spanlogic believes, in its sole discretion,
is being used to send such unsolicited e-mail, including but not limited to open
mail relays.
7.15. You agree and warrant that you shall not engage in any false,
deceptive or fraudulent activities in association with your use of the Spanlogic
Services or Spanlogic's Equipment
7.16. You shall at all times use Web Site Space exclusively as
a conventional Web Site. All use of Web Site Space and Spanlogic's Services and
Equipment shall at all times be in a manner consistent with this Agreement and shall
not in any way impair the functioning or operation of Spanlogic's Equipment or network.
Should your use of the Spanlogic Services result in an overly high load on the Spanlogic
Equipment, in Spanlogic's sole discretion, Spanlogic may suspend your account until
the cause of any such overload is determined and resolved.
7.17. You agree and warrant that all applicable taxes have been
paid or will be paid in full by you when due regarding all businesses and employees
associated with your use of the Spanlogic Services and that no taxing authorities
shall have any claim against Spanlogic or any persons affiliated therewith for the
payment of such taxes.
7.18. You represent and warrant that you are over twenty-one years
of age and are fully competent to enter into this Agreement.
7.19. You agree to comply with all local rules regarding online
conduct and acceptable Content. Specifically, you agree to comply with all applicable
laws regarding the transmission of technical data exported from Malaysia or the
country in which you reside.
7.20. You agree not to use your IMAP account for the storage of
files other than in the course of normal e-mail usage.
7.21. You shall not operate a chat room using the Spanlogic Services
unless expressly permitted by the terms and conditions of Your Services.
8. CONFIDENTIALITY, TRADEMARK, AND COPYRIGHT
8.1. During the course of this Agreement you may gain access to
certain confidential, proprietary and trade secret business or technical information
belonging to Spanlogic in connection with Spanlogic's performance of the Spanlogic
Services ("Confidential Information"). You agree to preserve the confidentiality
of all Confidential Information that is provided in connection with the Agreement,
and shall not, without the prior written consent of Spanlogic, disclose or make
available to any person, or use for your own or any other person's benefit, other
than as necessary in performance of your obligations under this Agreement, any Confidential
Information of Spanlogic. Spanlogic retains all right and title to such Confidential
Information.
8.2. Spanlogic is a service mark of Spanlogic Network Sdn. Bhd.
All rights reserved. The trademarks, logos, and service marks displayed on this
Web Site (collectively, the "Marks") belong Spanlogic and/or its affiliates or third
parties which have licensed those rights to Spanlogic ("Partners"); Spanlogic and
Partners retain all rights to the Marks and nothing in this Agreement grants you
or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce,
or display any Marks without their owner's prior written consent. All other trademarks,
product names, and company names and logos appearing on Spanlogic's Web Site are
the property of their respective owners.
8.3. Unless expressly stated otherwise on the Spanlogic Web Site,
you should assume that all content, images, and materials appearing on this Web
Site (collectively the "Spanlogic Content") are the sole property of Spanlogic.
Both Malaysia and international copyright laws and treaties protect such Spanlogic
Content. You may not use, reproduce, display, or sell any Spanlogic Content without
Spanlogic's prior written consent. You may not link to any page within Spanlogic's
Web Site or frame any portion of the site without Spanlogic's prior written consent.
9. YOUR INDEMNIFICATION OF SPANLOGIC.
You agree that you shall fully defend and indemnify Spanlogic, including its officers,
directors, owners, managing agents, attorneys, shareholders, related entities, heirs,
and assigns, from any and all claims, demands, actions, suits, losses, liabilities,
damages, injuries, fines penalties, costs and expenses, attorneys' fees, arbitration
fees, mediation fees, expert expenses, and all other consequences of every kind,
directly or indirectly resulting from any and all failure(s) of you or your agent(s)
to fully comply with all duties, obligations and other provisions set forth in this
Agreement, including, but not limited to, your warranties set forth in Section 7
or your violation of a third party's intellectual property rights. You further agree
to defend, indemnify and hold harmless Spanlogic, including its officers, directors,
owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns,
from and against any and all claims, demands, actions, suits, loses, liabilities,
damages, injuries, fines, penalties, costs and expenses, including, without limitation,
reasonable attorneys' fees, arising out of any property damage or recoverable economic
loss incurred by a third party, to the extent such damage or loss is caused by any
act or omission of you or your agents in connection with the performance of this
Agreement. You agree that Spanlogic shall have the right to participate in the defense
of any such claim through counsel of its own choosing at your expense.
10. NO JOINT VENTURE OR PARTNERSHIP
Nothing in this Agreement is intended by the Parties to create or constitute an
agency, joint or collaborative venture, or partnership of any kind between Spanlogic
and you, nor shall anything in this Agreement be construed as constituting or creating
any such agency, joint or collaborative venture, or partnership between Spanlogic
and you. Spanlogic shall have no control or ownership interests of any kind in your
business. Spanlogic shall have no direct financial or other interest in, nor in
any way "own" any online "store" or other online venture pertaining to your use
of the Spanlogic Services or Spanlogic's Equipment. Spanlogic's relationship to
you shall be restricted to matters pertaining to the provision of the Spanlogic
Services as set forth in this agreement.
11. SPANLOGIC HAS MADE NO REPRESENTATIONS REGARDING SUCCESS, MARKETS OR PROFITABILITY
11.1. You confirm that you have unilaterally decided to enter the
online and/or Web Site service business and that these are high risk businesses.
You further confirm, understand, acknowledge and expressly agree that neither Spanlogic,
any agent or representative of Spanlogic, nor any other person is currently representing
or otherwise directly or indirectly communicating in any manner herein or otherwise,
nor has at any time in the past, represented to you or has otherwise directly or
indirectly communicated in any manner to you any guarantee, reassurance or any other
communication of any kind regarding:
11.1.1. the potential profitability or likelihood of success of
your endeavors through the use of the Spanlogic Services or Spanlogic's Equipment
as set forth herein or otherwise;
11.1.2. the possibility or likelihood that use of any products
and/or services provided by Spanlogic pursuant to this Agreement can or will result
in the recoupment of any funds expended by you for any purpose; or
11.1.3. the existence, nonexistence, size or any other characteristics
of any market for any products or services which involve your use, in any manner,
of the Spanlogic Services or Spanlogic's Equipment pursuant to this Agreement.
11.2. You expressly acknowledge and agree that the success of any
business endeavors which involve your use, in any manner, of the Spanlogic Services
and/or Spanlogic's Equipment pursuant to this Agreement, like any other business
endeavor, is subject to numerous factors, such as the effectiveness of its advertising
and promotion, your administrative capabilities, etc., and that the ultimate success
or failure of your business rests with you and not Spanlogic. You further expressly
agree not to raise any claim of any kind against Spanlogic and to hold Spanlogic
harmless from any claim of financial investment loss to you directly or indirectly
resulting from your decision to use the Spanlogic Services and/or Spanlogic's Equipment
pursuant to this Agreement.
12. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS.
Any and all services which are or may be provided to you by Spanlogic pursuant to
this Agreement, including the licensure of rights herein, are not exclusive and
nothing in this Agreement shall limit or restrict Spanlogic from providing similar
services and granting similar licenses to third parties regardless of whether such
third parties are competitors of you. Nothing in this Agreement shall limit or restrict
Spanlogic from engaging in any activities similar to yours or in competition with
you.
13. NO EDITORIAL CONTROL BY SPANLOGIC.
Spanlogic and you agree that, consistent with the strict policy of Spanlogic, and
in reliance on your express warranties regarding the substantive content of data,
advertisements, communications, messages and other materials which you shall store
in Web Site Space, and/or otherwise disseminate via the use of Spanlogic's Services
or Equipment, Spanlogic shall neither have nor exert any editorial or other subjective
control over the substantive content of such data, advertisements, communications,
message or other materials. Spanlogic shall not engage in any monitoring of the
substantive content comprising Your Web Site or Web Site Space. Spanlogic exercises
no control over information which is found on the internet, except for its own Web
Site, and cannot be held responsible for the accuracy, correctness, or legality
of such information. You are solely responsible for the content of Your Web Site
and for verifying the accuracy and suitability of information and services you obtain
from third parties via the internet.
14. TERM AND TERMINATION.
14.1. Unless sooner terminated pursuant to other terms of this
Agreement, and except as otherwise provided in this Agreement, this Agreement shall
be for an initial term of one month and shall be automatically renewed each month
for additional one month periods unless and until sooner terminated pursuant to
the provisions of this Section 14. Spanlogic may accept prepayment for services
to be provided under this Agreement, but such acceptance shall not modify or extend
the term of this Agreement.
14.2. Notwithstanding the provisions of Paragraph 14.1. to the
contrary, Spanlogic offers certain Server Hosting Packages for which the initial
term of this Agreement shall be twenty-four months (the "24-Month Server Packages"),
at the end of which this Agreement shall renew automatically on a month-to-month
basis pursuant to the terms of Section 14.1. Any and all service fees for the 24-Month
Server Packages are due and payable for the entire initial term thereof, and should
you terminate, attempt to terminate, or otherwise default on this Agreement prior
to the end of the initial term you authorize Spanlogic to charge your credit card
for all such fees and charges for the remainder of such initial term. For the purposes
of this Section, any modification of the server package shall be deemed a termination
and shall entitle Spanlogic to the fees owing on the 24-Month Server Package. Fees
paid for the 24-Month Server Packages are not refundable unless this Agreement is
terminated by Spanlogic without cause pursuant to Section 14.3. or as otherwise
agreed to in writing by Spanlogic in its sole discretion.
14.3. You or Spanlogic may terminate this Agreement at any time
for any reason, with or without cause, upon thirty days' written notice. Spanlogic
may suspend performance under or terminate this Agreement and cease transmission
of data associated with Your Web Site immediately and without notice:
14.3.1. if Spanlogic, in its sole discretion, deems that you have
breached any part of this Agreement, including, without limitation, any warranty
or obligation set forth in Section 7,
14.3.2. if your credit card issuer refuses payment of fees or charges
or you refuse authorization for same, or
14.3.3. if payment for the Spanlogic Services is more than fifteen
days overdue.
14.4. You further agree that in the event that Spanlogic believes,
in its sole discretion, that you have breached any provision(s) of Section 7 of
this Agreement, or any of its subparts, by storing or allowing material such as
that described in the aforementioned Section 7, or any of its subparagraphs, to
be transmitted by Spanlogic's Equipment, that Spanlogic may without any liability
to you, and in addition to any other remedies, erase or purge such materials from
Spanlogic's Equipment without prior notice to you.
14.5. After termination, you will no longer have access to your
account and all information or content, including but not limited to e-mails, web
pages, CGI scripts, log files, databases, or other data files associated with your
account may be deleted. Spanlogic accepts no liability for such deleted information
or content. Spanlogic may, in its sole discretion, make such information or content
available to you to the extent it has not been deleted.
14.6. You acknowledge and agree that Spanlogic or its agents, assignees
or licensees may, upon termination for any reason, associate any data of any kind,
in Spanlogic's sole discretion, with the Domain Name registered in association with
Your Web Site as long as Spanlogic or Spanlogic's agent, assignee or licensee continue
to be listed as the hosting entity with InterNIC or another domain name registry
used to register Your Web Site's domain name.
15. PRIVACY.
15.1. It is Spanlogic's policy to respect your privacy. Spanlogic
will not monitor, edit, or disclose any personal information about you or your account,
including its contents, without your prior consent unless Spanlogic deems it necessary,
in its sole discretion, to:
15.1.1. comply with legal process or other legal requirements,
including but not limited to responding to subpoenas or other requests for information
from law enforcement officials;
15.1.2. protect and defend the rights or property of Spanlogic
or its officers, agents, affiliates, and licensees;
15.1.3. enforce this Agreement; or
15.1.4. protect the interests of other Spanlogic customers.
15.2. SPANLOGIC RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL
LAW), IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED
TO THE USE OF A USER'S MAIN ACCOUNT AND ANY SUB-ACCOUNTS, FOR THE PURPOSE OF INVESTIGATING
VIOLATIONS OF THIS AGREEMENT OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS.
15.3. Your IP address is transmitted and recorded with each message
you send using the Spanlogic Services. Spanlogic does provide certain information
in aggregate form collected from and relating to you to third persons such as advertisers.
For a more detailed description of the types and uses of personal information collected
from you, please read the Spanlogic Privacy Policy.
16. SEVERABILITY.
In case any one or more of the provisions contained in this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable
provision(s) had never been included. The invalidity or unenforceability of any
provision(s) of this Agreement shall not affect the validity or enforceability of
any other provision.
17. NON-ENFORCEMENT DOES NOT CONSTITUTE WAIVER.
Failure of Spanlogic at any time to enforce any of the specific provisions of this
Agreement shall not preclude any other or further enforcement of such provision(s)
or the exercise of any other right hereunder. No waiver of a breach of this Agreement
shall be valid unless made in writing and signed by duly authorized representative
of Spanlogic.
18. NOTICES.
18.1. Spanlogic may provide notice to you via e-mail sent to the
e-mail address provided by you upon registration or as subsequently provided by
you to Spanlogic. Such notice is deemed effective whether you receive it or not.
18.2. You may provide notice to Spanlogic in one of the following
ways:
18.2.1. by personal delivery;
18.2.2. by addressing the notice as indicated below and depositing
the same by registered or certified mail, postage prepaid, in the Malaysian mail,
Spanlogic Network Sdn. Bhd.
27B, Jalan Perai Jaya 3
Bandar Perai Jaya
13600 Perai
Penang, MALAYSIA
18.2.3. by Federal Express;
18.2.4. by facsimile transmission; or
18.2.5. by e-mail and registered or certified mail.
18.3. Such notice, statement or other document so delivered to
Spanlogic, except as this Agreement expressly provides otherwise, shall be conclusively
deemed to have been given when first personally delivered, on the date of delivery
or on the first date of receipt. Notice by e-mail to Spanlogic shall be deemed ineffective,
null and void unless a copy of such notice is also sent by registered or certified
mail, and postmarked not more than five days subsequent to the giving of e-mail
notice. Any such e-mail notice to Spanlogic shall be deemed effective as of the
date on which Spanlogic receives the certified or registered mail notice.
19. FORCE MAJEURE.
19.1. In the event of "force majeure" (as defined below), Spanlogic
may terminate this Agreement without liability to you. For purposes of the Agreement,
"force majeure" shall mean circumstances or occurrences beyond Spanlogic's reasonable
control, whether or not foreseeable at the time of entering into the Agreement,
in consequence of which Spanlogic cannot reasonably be required to perform its obligations
hereunder or otherwise perform its obligations under the Agreement. Such circumstances
or occurrences include, but are not limited to: acts of God, war, civil war, insurrection,
fires, floods, labor disputes, epidemics, governmental regulations and/or similar
acts, embargoes, termination or temporary unavailability of any computer hardware
or software, server, or network on which the Spanlogic Services are located or maintained
or through which the Spanlogic Services are provided, and nonavailability of any
permits, licenses and/or authorizations required by governmental authority.
19.2. Spanlogic reserves the right at any time and from time to
time to modify or discontinue, temporarily or permanently, the Spanlogic Services
(or any part thereof) with or without notice, including the right to cease all business
operations in Malaysia. You agree that Spanlogic shall not be liable to you or to
any third party for any modification, suspension or discontinuance of the Spanlogic
Services.
20. NO ASSIGNMENT BY YOU; ASSIGNMENT BY SPANLOGIC.
This Agreement and the rights pertaining hereto may not be assigned, resold, or
otherwise transferred in whole or in part by you without Spanlogic's prior written
consent. In particular, you may not sell accounts or subaccounts to third parties.
Notwithstanding the above, this Agreement shall be binding upon your successors
and assigns, if any. Spanlogic may assign or license any or all of its rights and/or
obligations hereunder in its free, sole, and unfettered discretion.
21. ARBITRATION AND WAIVER OF JURY TRIAL.
21.1. Any and all disputes as to the interpretation or performance
of this Agreement, and/or which arise out of or in any way relate to this Agreement,
shall be determined by binding arbitration in Georgetown, Penang, Malaysia. Any
award arising out of such arbitration shall be subject to entry as a judgment by
any court of competent jurisdiction in Malaysia. Any action to confirm or vacate
such an award must be brought in Sessions Court in Georgetown, Penang, Malaysia.
You consent to personal jurisdiction and venue in such courts and you waive any
challenge to personal jurisdiction or venue in such courts. You further agree that
Spanlogic shall be entitled to collect its attorneys' fees, costs and other expenses
in the event that Spanlogic acts to enforce this arbitration and forum selection
clause, regardless of whether Spanlogic prevails in the underlying action. YOU AGREE
TO NEGOTIATE WITH SPANLOGIC IN GOOD FAITH TO RESOLVE OR SETTLE ANY CLAIM OR DISPUTE
IN ANY WAY RELATING TO OR CONCERNING THIS AGREEMENT. ANY AND ALL DISPUTES AS TO
THE INTERPRETATION OF OR ANY PERFORMANCE UNDER THIS AGREEMENT WHICH ARE NOT FIRST
RESOLVED INFORMALLY, SHALL BE DETERMINED BY BINDING ARBITRATION IN GEORGETOWN, PENANG,
MALAYSIA. The final award in any such arbitration proceeding shall be subject to
entry as a judgment by any court of competent jurisdiction, provided that such judgment
does not conflict with the terms and provisions hereof. The jurisdiction of the
arbiter (or arbiters) with respect to legal matters shall be limited only by the
statutory and common law of Malaysia.
21.2. Notwithstanding the provisions of Section 21.1, Spanlogic,
if you fail to timely pay amounts due Spanlogic may assign your account for collection
and the collections agency may pursue such claims in court limited strictly to the
collection of the past due debt and any interest or cost of collection permitted
by law or this Agreement.
21.3. Nothing in this Section 21.13 shall preclude Spanlogic from
seeking and obtaining any injunctive relief or attachment and expedited discovery.or
other equitable relief to enforce the terms of this Agreement or to remedy a breach
thereof. This is the only exception to the mandatory arbitration provisions set
forth in section 21.1. Any action to obtain such relief must be brought in Sessions
Court in Georgetown, Penang, Malaysia.
21.4. In addition to the foregoing, YOU HEREBY AGREE THAT AS A
PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY
JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND SPANLOGIC THAT IS IN ANY WAY RELATED
TO THE SUBJECT MATTER OF THIS AGREEMENT, and that such waiver shall be enforceable
up to and including the day that trial is to start, and even if the arbitration
provisions of this paragraph are waived. Should any legal fees, costs, or other
expenses be incurred by any party with regard to enforcement of this arbitration
and jury waiver provision, Spanlogic shall be entitled to recover such legal fees,
costs, or other expenses without regard to whether Spanlogic prevails in the underlying
case.
21.5. Neither you nor Spanlogic may be a representative of other
potential claimants or a class of potential claimants in any dispute concerning
or relating to this Agreement, nor may two or more individuals' disputes be consolidated
or otherwise determined in one proceeding. YOU AND SPANLOGIC ACKNOWLEDGE THAT THIS
SECTION 21.5 WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER
IN ANY CLASS ACTION
21.6. This Agreement shall be interpreted according to the laws
of Malaysia and, where applicable, federal law, without regard to conflicts of law
principles.
22. CHOICE OF LAW; VENUE, SUCCESSORS AND ASSIGNS.
This agreement is binding upon the parties and their respective successors and assigns.This
Agreement shall be construed in accordance with the laws of Malaysia governing contracts
executed and performed therein and the laws of Malaysia, and shall be binding upon
and inure to the benefit of the Parties' respective heirs, personal representatives,
executors, administrators, successors and assigns. The Parties agree that the Georgetown,
Penang, Malaysia shall be the proper place of jurisdiction for the determination
of any disputes arising from this Agreement, and the Parties irrevocably consent
to jurisdiction of the courts located in Georgetown, Penang, Malaysia. Should any
legal fees, costs, or other expenses be incurred by Spanlogic in attempting to enforce
this choice of venue, Spanlogic shall be entitled to recover such legal fees, costs,
or other expenses without regard to whether Spanlogic prevails in the underlying
case.
23. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the Parties with respect to the
subject matter hereof, and supersedes and cancels all other prior agreements, discussion,
or representations, whether written or oral. No officer, employee or representative
of Spanlogic or you has any authority to make any representation or promise in connection
with this Agreement or the subject matter thereof which is not contained expressly
in this Agreement, and Spanlogic and you hereby acknowledge and agree that neither
Spanlogic nor you have executed this Agreement in reliance upon any such representation
or promise.
24. MODIFICATION.
24.1. This Agreement may be materially altered by Spanlogic by
posting the new version of the Agreement at www.spanlogic.net and if posted in this
manner, shall be effective immediately upon posting such notice. In the event that
Spanlogic does materially change the terms of this Agreement, you accept and shall
be bound by such changed terms unless you opt to terminate the Agreement within
thirty days of receipt of notice of such change.
24.2. You may not modify this Agreement, in whole or in part, and
any such modification or attempt to modify shall not be enforceable unless reduced
to writing and signed by a duly authorized representative of Spanlogic. No additional
or conflicting term in any other document used by you will have any legal effect.
25. STATUTE OF LIMITATIONS.
You agree that regardless of any statute or law to the contrary, any claim or cause
of action arising out of or related to use of the Service or this Agreement must
be filed within one year after such claim or cause of action arose or be forever
barred.
|