THIS AGREEMENT (“Agreement”) is made and effective as of the date of acceptance, by and between you (“Client”) and SITEGIANT (“SiteGiant Sdn. Bhd.”). As referred to in this Agreement, “Site” refers to a World Wide Web site and “SITEGIANT Site” refers to the Site located at the URL //www.sitegiant.my or any other successor Sites owned or maintained by SITEGIANT. WHEREAS, SITEGIANT owns, distributes and provides various products and services for conducting business on the Internet including: web hosting, domain registration, e-commerce solutions and the SITEGIANT family of services (hereinafter collectively referred to as the “Services”). WHEREAS, Client desires to utilize some or all of the Services to develop, enhance or maintain Client’s business and/or presence on the Internet. NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
1. SITEGIANT SERVICES
2. PAYMENT, INVOICING AND REFUND
2.1 In consideration of the performance of the Services, Client shall pay SITEGIANT yearly in advance the amount set forth in SITEGIANT’s customer database as such records are amended from time to time for the Services during the term of this Agreement.
2.2 Client shall receive a confirmation letter via e-mail at the time Client contracts for the Services, which shall confirm the fees payable to SITEGIANT. Thereafter, Client shall receive a yearly billing statement for the upcoming month. The yearly billing statement shall indicate any changes in fees, which fees shall become effective upon thirty (30) days’ notice as set forth in Section 2.4 herein.
2.3 Client is responsible for all activities and charges resulting from Client’s use of the Services. Client agrees to pay all fees, bandwidth charges, connect time charges, surcharges, and other charges incurred by Client and set forth in the yearly billing statement. Client acknowledges that no refunds will be given by SITEGIANT in the event that Client’s account is terminated by SITEGIANT or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the Services until Client notifies Sitegiant by sending an e-mail with account information email@example.com.
2.4 Current rates for using the Services may be obtained on our web site at www.sitegiant.my. SITEGIANT reserves the right to change fees, surcharges, yearly membership fees or to institute new fees at any time. In addition, SITEGIANT may institute special trial offers, from time to time, that shall be reflected in the confirmation letter sent to Client upon sign up. If SITEGIANT does not receive the full amount of Client’s Service account balance within thirty (30) days of invoice date, a late charge equal to 1.5% per month or highest amount allowed by law per month will be added to Client’s bill and shall be due and payable. Client shall also be responsible for all attorney and collection fees arising from SITEGIANT’s efforts to collect any unpaid balance of Client’s account(s), and SITEGIANT may terminate Client’s account immediately without further notice to Client.
2.5.1 Domain registration/transferring/renewal services is not refundable once sold.
2.5.2. Ecommerce package (UniCart Starter, Basic, Plus, Pro and Premium) are entitled for 14 days money back guarantee. All refund will have to deduct domain fee (if applicable any). After 14 days, UniCart Ecommerce package are not refundable once sold.
2.5.3. Product or services that are not mentioning in above are not refundable once sold.
3. RESPONSIBILITIES AND RIGHTS OF SITEGIANT
3.1 Means of Performance. SITEGIANT shall provide Client with the SITEGIANT hosting services, as described at www.SITEGIANT.my hereto. SITEGIANT has the right to control and direct the means, manner, and method by which the host services are performed.
3.2 Support. SITEGIANT shall provide a reasonable level of technical support to Client via email or Web page for the term of this Agreement.
3.3 Other Work. SITEGIANT has the right to perform and license products to others during the term of this Agreement. SITEGIANT may elect to electronically monitor the host services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate host services and protect its Clients. SITEGIANT reserves the right to block any site hosted by SITEGIANT that contains any content that SITEGIANT deems in its sole discretion to be unacceptable or undesirable.
4. RESPONSIBILITIES AND RIGHTS OF CLIENT
4.1 Client. Client represents and warrants that (i) Client is at least eighteen (18) years of age, (ii) Client possesses the legal right and ability to enter into this Agreement, and (iii) the performance of Client’s obligations and use of the Services by Client, its customers and users, will not violate any applicable laws, regulations or the rules and regulations or cause a breach of any agreement with any third parties or unreasonably interfere with other SITEGIANT Clients’ use of Services. Client assumes all risks related to processing of transactions related to electronic commerce. Client agrees to provide SITEGIANT with accurate, complete and updated information required by the registration of the SITEGIANT host service (Client Registration Data), including Client’s legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). Client agrees to notify SITEGIANT within thirty (30) days of any changes in Client’s Registration Data.
4.2 Breach of Warranties. In the event of the breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, SITEGIANT will have the right, in its sole discretion, to suspend or terminate immediately any Services.
4.3 Fees and Expenses. Client shall be responsible for payment of all costs, fees and expenses assessed by third parties in the course of being provided Services. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and a third-party domain name registrar.
4.4 Third-Party Software. Third-party software available through the Services may be governed by separate end user licenses. By using the Services and the third-party software, Client agrees to be bound by the terms of such end user licenses regarding the applicable third-party software. Client consents and authorizes SITEGIANT to delegate the authorizations Client provides to SITEGIANT to its third party service provider(s) as SITEGIANT deems necessary or desirable to provide the applicable Services. Client agrees that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such third party service providers and such third party service providers are deemed to be third party beneficiaries of the Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. Client also agrees that all reference to “SITEGIANT” within this Agreement and any incorporated terms are also deemed to include, where applicable, SITEGIANT’s agents, such as the third party service providers.
4.5 Advertising, Solicitation, and Client Name Harvesting. Client may not use the Services to send unsolicited advertising, promotional materials, or other forms of solicitation to the SITEGIANT clients or other Internet users unless Client receives the express permission of such individuals. Client may not use the means of unsolicited advertising to advertise a site hosted on the SITEGIANT network. Client may not use the Services to collect or “harvest” user-names of SITEGIANT clients or other Internet users without the expressed prior permission of the member. SITEGIANT reserves the right to block or filter mass email solicitations sent from sites hosted on the SITEGIANT network.
4.6 Management of Site. Client shall be solely responsible for all content available on or through its site, and shall at all times be subject to the terms of this Agreement, SITEGIANT’s then-standard Terms of Service (“TOS”) and any generally applicable guidelines and service standards published by SITEGIANT. Client warrants that its site hosted on the SITEGIANT network (i) will conform to the SITEGIANT TOS attached hereto as Exhibit A; (ii) will not infringe and will not contain any content that infringes on or violates any copyright, U.S. patent or any other third-party right; and (iii) will not contain any content which violates any applicable law, rule or regulation. SITEGIANT shall have no obligations with respect to the content available on or through any site hosted on the SITEGIANT network, including, but not limited to, any duty to review or monitor any such content. SITEGIANT reserves the right to block any site that violates any of the above-stated terms, or which in SITEGIANT’s sole discretion, SITEGIANT deems objectionable or offensive, or otherwise violates a law or SITEGIANT policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.
4.7 Compliance Laws. Client agrees that it will use the Services only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations and the TOS, as updated by SITEGIANT from time to time. The TOS are incorporated herein and made a part hereof by this reference. SITEGIANT may change the TOS, with notice, which notice may be provided by posting such new TOS at the SITEGIANT Site. Client may request a current copy of the TOS by sending or faxing a request to SITEGIANT. Client agrees that it has received, read and understands the current version of the TOS.
4.8 Proprietary Rights. Unless otherwise specified, all work performed hereunder, is the property of SITEGIANT, and all title and interest therein shall vest in SITEGIANT. To the extent that title to any such works may not, by operation of law, vest in SITEGIANT all rights, title and interest therein are hereby irrevocably assigned to SITEGIANT. All such materials shall belong exclusively to SITEGIANT, and SITEGIANT shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give SITEGIANT and any person designated by SITEGIANT such reasonable assistance, at SITEGIANT’s expense, as is required to perfect the rights defined in this paragraph.
4.9 Marketing Rights. Client agrees that SITEGIANT may refer to Client, or Client’s business in SITEGIANT marketing materials, the SITEGIANT website, and communication to SITEGIANT’s current and prospective clients. Client grants SITEGIANT a limited license and permission to use any Client trade name and/or trademark for such, and only for such, purposes.
5. LIMITATION OF LIABILITY, NO OTHER WARRANTY AND DISCLAIMER
5.1 Limitation. In the event that any limited guarantees are provided by SITEGIANT, such limited guarantees are null and void if Client fails to follow SITEGIANT’s TOS and other policies or otherwise breaches this Agreement in any respect.
5.2 No Other Warranty. SITEGIANT does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the Services or any information that may be obtained there from is at Client’s own risk. The Services are provided on an “as is” basis, and Client’s use of the Services is at its own risk. Except as provided in the order form(s), SITEGIANT does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. SITEGIANT does not represent or warrant that the Services will be uninterrupted, error-free, or completely secure. SITEGIANT does not warrant that the quality of any products, services, information, other material purchased, or any errors in the Service will be corrected.
In no event shall SITEGIANT or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with our site, our services or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, SITEGIANT partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
5.3 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. SITEGIANT does not and cannot control the flow of information to or from SITEGIANT’s network and other portions of the Internet. Such flow depends in large part on the performance of the Internet services provided or controlled by third parties. At times, actions or inactions of such third parties may impair or disrupt Client’s connections to the Internet (or portions thereof). SITEGIANT cannot guarantee that such events will not occur. Accordingly, SITEGIANT disclaims any and all liability resulting from or related to such events.
6. Intellectual Property and Customer Content
Images displayed in the templates by SITEGIANT are solely for illustration purposes and the copyright belongs to the respective owners. SiteGiant does not claim any intellectual property rights over the illustration images in the templates by SITEGIANT and the material you provide to the SITEGIANT service. All material you upload remains yours. You can remove your SITEGIANT store at any time by deleting your Account.
By uploading Store Content, you agree: (a) to allow other internet users to view your Store Content; (b) to allow SITEGIANT to display and store your Store Content; and (c) that SITEGIANT can, at any time, review all the Store Content submitted by you to its Service.
You retain ownership over all Store Content that you upload to a SITEGIANT store; however, by making your store public, you agree to allow others to view your Store Content. You are responsible for compliance of Store Content with any applicable laws or regulations.
We will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any materials or information provided by you to us which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
SITEGIANT shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your store to promote the Service.
Client agrees to indemnify, defend and hold SITEGIANT and its affiliates, agents, employees, and licensors (including the third party service providers) harmless from any and all claim, demand, loss, costs or expense, including attorneys’ fees, made by any person arising out of Client’s violation of this Agreement, State or Federal Securities laws or regulations, or any other person’s rights including but not limited to infringement of any copyright or violation of any proprietary or privacy right.Under no circumstances, including but not limited to a negligent act, will SITEGIANT or its affiliates, agents, employees, or licensors (including third party service providers) be liable for any damages of any kind that result from the use of, or the inability to use, Services, even if any such party has been advised of the possibility of such damages.
In no event will SITEGIANT or its third party service providers be liable to Client or any third Party for any tort, contract or any other liability arising in connection with the use of the Services, or reliance on any information or services provided by SITEGIANT. SITEGIANT and its third party service providers will under no circumstances be liable to Client and/or any third party, regardless of the form of action, for any loss of profits, goodwill, use, data or other intangible losses, or any direct, indirect, special, consequential, incidental or punitive damages whatsoever, even if SITEGIANT or its third party service providers has been advised of the possibility of such damages, resulting from: (i) the use of the inability to use the Services; (ii) the timeliness, deletion, misdelivery, or failure to store any user date, communications or personalization settings; (iii) the cost of getting substitute goods and services resulting from any products, data, information or services purchases or obtained or messages received or transactions entered into, through or from the Services; (iv) statements or conduct of anyone on the Services; (vi) the use, inability to use, unauthorized use, performance or non-performance of any third party, even if the third party has been advised previously of the possibility of such damages; or (vii) any other matter relating to the Services. Client agrees that Client will not in any way hold SITEGIANT responsible for any selection or retention of, or the acts or omissions of, third parties (including third party service providers) in connection with the Client Services.
Because some states prohibit the limitation of liability for consequential or incidental damages, in such states the limitation of liability only with respect to consequential or incidental damages may not apply to Client, and the respective liability of SITEGIANT and its third party service providers, employees, distributors and agents is limited to the greatest extent allowable under applicable law in those states.
In the event that a court or arbitration panel, as the case may be, should hold that the limitations of liability or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of Client’s remedies under this Agreement fail, then Client expressly agrees that under no circumstances will the total, aggregate liability of SITEGIANT and its third party service providers, employees, distributors, agents or affiliates, to Client or any party claiming by or through Client for any cause whatsoever exceed $100 (U.S.), regardless of the form of action and whether in contract, statute, tort or otherwise.
8. TERMINATION (EXIT PLAN)
8.1 Without Cause. This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than five (5) days’ prior written notice of termination. No matter which party terminates the Agreement pursuant to this Section 7.1, any and all payment obligations of Client under this Agreement for Service(s) provided through the date of termination will immediately become due, and Client shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such five (5) day period.
8.2 For Cause. In addition to any other rights it may have under this Agreement or applicable law, SITEGIANT may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a default in payment, or (ii) Client’s breach or failure to comply with the TOS or other policies of SITEGIANT. Client may terminate this Agreement if SITEGIANT breaches any material term or written notice of same. If this Agreement is terminated by SITEGIANT under this Section 7.2, all balance of the then current term shall immediately become due and payable. In addition to the foregoing, SITEGIANT reserves the right to prohibit any conduct or to remove any materials or content in violation of the TOS or which SITEGIANT believes in its sole discretion to be illegal or potentially harmful to others or may expose SITEGIANT to harm or liability.
8.3 No Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Services of this Agreement in accordance with its terms.
8.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Section 4, 5, 6, 7, and 8.
8.5 IP Address. Upon expiration, cancellation or termination of this Agreement, Client shall relinquish any Internet protocol (“IP”) numbers, address or address blocks assigned to Client by SITEGIANT or its network services supplier (but not the URL or top level domain connected therewith). SITEGIANT reserves, in its sole discretion, the right to change or remove any and all such IP numbers, addresses or address blocks.
8.6 Certain data that stored in SiteGiant can be migrated out personally such Customers, Products & Orders can be exported out via CSV File Format. Besides, Images and email data can be migrated out in raw format upon request.
8.7 Data will be removed after 2 months’ period of plan expiration. Within the 2 months’ period of plan expiration, client may contact SiteGiant team for renewal the eCommerce Plan. Client reserved the right to request SiteGiant team to perform immediate data removal at any time.
8.8 Client own the ownership of domain name that registered through SiteGiant. You have the right to transfer the domain name to other services provider before 30 days of the domain expiration date or you may continue to renew the domain through SiteGiant even though you cease the eCommerce plan subscription.
8.9 if a domain name expired and falls under suspension status, It can’t be renew. Unless a certain penalty fee to be paid for renewal.
8.10 SiteGiant eCommerce engine, software, coding structure and cart systems cannot be transferred or migrated out from our server. Due it’s SiteGiant intellectual property.
8.11 Any customization functions or additional add on services that purchased for SiteGiant eCommerce usage cannot be migrated out or request for refund when you stop your subscription with SiteGiant service. *Exclude SSL Certificate
9. PERSONAL DATA PROTECTION ACT 2010
9.1 SiteGiant collect Client’s name, company name, address, email address(s), phone number(s) and payment details. The purpose of us collecting such information is to provide you with services.
9.1.1 For the purpose of this section:-
“Services” includes all forms of action performed by SiteGiant for Client’s best interest. Examples of services are such as confirm Client’s identity, contact you about SiteGiant products and updates, sending invoices and providing support and customer services. SiteGiant will also use Client’s data to make sure that SiteGiant comply with legal requirements.
9.2 SiteGiant will generally keep Client’s data protected and confidential, however there are circumstances where SiteGiant need to disclose Client’s data.
9.2.1 Personal data may be shared with a company that acquires SiteGiant business, whether through merger, acquisition, bankruptcy, dissolution, reorganization or any other similar conducts. In case that this happens, SiteGiant will make prior notice before personal data was being shared.
9.2.2 SiteGiant may share Client’s data as well if it is necessary to exercise or perform any right or obligation which is conferred or imposed by law.
9.2.3 SiteGiant will also share Client’s data if it is required for the administration of justice.
9.2.4 SiteGiant will only share Client’s information to third parties when you give us the consent to do so.
10.1 Assignment. Client may not assign this Agreement or any of Client’s rights or obligations hereunder without the prior written consent of SITEGIANT, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties’ respective successors and permitted assigns.
10.2 Notices. Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party, or a representative of the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by postal mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile.
If to SiteGiant Sdn. Bhd.:
1-2-45, Elit Avenue, Jalan Mayang Pasir 3,
11950 Bayan Baru, Penang.
If to Client:
To Client address provided at account set-up.
10.3 Governing Law. This Agreement, and all future agreements Client may enter into with SITEGIANT, unless otherwise indicated on such other agreement, will be governed by the laws of the Malaysia, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business with SITEGIANT in Malaysia or elsewhere. If any part of the Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions. This Agreement and SITEGIANT policies are subject to change by SITEGIANT without notice. Continued usage of the Services after a change to this Agreement by SITEGIANT or after a new policy is implemented and posted on the SITEGIANT Site constitutes your acceptance of such change or policy. We encourage you to regularly check the SITEGIANT Site for any changes or additions.
10.4 Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any exhibit hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
10.5 Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
10.6 Severability. In the event any one or more of the provisions of the Agreement or any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
10.7 Force Majeure. SITEGIANT and its affiliates, agents, employees, or licensors (including third party service providers) shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure to transport, accident, ware, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty and without further notice.
10.8 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
10.9 Terms of Services. Client agrees to be bound by SITEGIANT’s TOS for all Services and products used by Client. The current TOS can be found on SITEGIANT’s website at www.sitegiant.my. Should Client disagree with any updates to SITEGIANT’s TOS, it is Client’s responsibility to notify SITEGIANT of Client’s desire to terminate their Services immediately.
10.10 Implied Agreement. CONTINUED USE OF THE SERVICES AND/OR PRODUCTS CONSTITUTES IMPLIED AGREEMENT WITH THIS AGREEMENT AND SITEGIANT’S TOS IN THEIR ENTIRETY. BY USING THE SERVICES, CLIENT AGREES TO BE BOUND BY ALL TERMS ASSOCIATED WITH SAID SERVICES, INCLUDING THIS AGREMEENT AND THE TOS.
CLIENT’S ONLY RECOURSE IN THE EVENT OF A DISAGREEMENT IS TO TERMINATE THIS CONTRACT IMMEDIATELY IN ACCORDANCE WITH SECTION 7 HEREIN.
10.11 Entire Agreement. This Agreement, and the exhibits reference herein, sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which are different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.
10.12 No Party Deemed Drafter. In the event that any provision hereof is construed by a court of law or equity or an arbitrator, no provision herein shall be construed more harshly against either party as drafter.
Any questions regarding this agreement should be sent to SITEGIANT’s Sales Department prior to signing up for service.