This Services Agreement (the “Agreement”) contains the complete terms and conditions which govern your subscription of Web hosting, Dedicated Servers, e-commerce, Domain Registrations, Colocation and other Internet-related services provided by Exa Bytes Network Sdn Bhd (the “Services”). As used in this Agreement, “Exa-Bytes Network” means Exa Bytes Network Sdn Bhd and “Client”, “you”, or “your” means you. By clicking on the “Submit Order” button, you acknowledge that you have read the Agreement, and you agree to its terms and conditions and all policies posted on the Exa-Bytes Network site. As referred to in this Agreement, “Site” refers to a World Wide Web site and “Exa-Bytes Network Site” refers to the Site located at the URL http://www.exa-bytes.com, http://www.exabytes.com or any other successor Sites owned or maintained by Exa-Bytes Network.
In addition to the following, the Acceptable Use Policies provide more detailed information regarding what is acceptable use of our products and services.
Appropriate Use of the Services
Exa-Bytes Network provides the Services exclusively and makes no effort to edit, control, monitor or restrict the content of data other than as necessary to provide such 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 Exa-Bytes Network server in connection with Client’s use of the Services which:
- violate any state, federal or foreign laws or regulations;
- infringe on any intellectual property rights (e.g. copyright, trademark, patent or other proprietary rights) of Exa-Bytes Network or any third party;
- are defamatory, slanderous or trade libelous;
- are threatening or harassing;
- are discriminatory based on gender, race, age or promotes hate violate any Exa-Bytes Network policy posted on the Exa-Bytes Network site including but not limited to those listed in our Terms of Service (TOS).
- contain viruses or other computer programming defects which result in damage to Exa-Bytes Network or any third party.
Virtual, Reseller, and Bulk Reseller Accounts: Client may occupy only the amount of disk space on the Exa-Bytes Network Server that is allotted by Exa-Bytes Network. Additional fees, specified in the hosting plans, will be charged for exceeding the disk space. Disk space measurement includes all customer content and generated content from their web site and includes but is not limited to MySQL data, Mailing List data and data in /home/user directories for virtual accounts. Exa-Bytes Network is not responsible for measurements provided by individual control panel software, which is 3rd party software not controlled by Exa-Bytes Network, which may or may not include all of the customer data in their measurements.
Virtual Private Servers and Dedicated Servers: The Disk Drive and/or Disk Space Quota for these accounts is hard quota based and clients have full access and rights to the disk space. Available disk space for the Client excludes the space required for the Operating System, Control Panel and other Services that come with the server set up which is selected by the client. Client has full control of all disk space for these accounts and may remove, delete and/or alter the installed files and configurations. However, removing, altering or deleting the files and base configurations installed by Exa-Bytes Network and/or in the case of the Control Panels, is not part of the 3rd party software released packages, patches, fixes and or upgrades, places all software support for that account/server into a fee based category. Refer to our Support Policy for details regarding free versus fee based support.
Virtual Private Server (VPS), Dedicated and Colocation Accounts are limited only to port speed. Default port setting is 1 Meg. Additional fees, specified in the account plan will be charged for exceeding the network bandwidth allowance of your selected plan/server.
Licensed Software Only
Client agrees to use only properly licensed third party software in connection with Client’s use of the services.
Back-up Files and Processing
Virtual/Shared Hosting Clients will have the ability to reinstate files which are automatically archived by Exa-Bytes Network upon request for a minimal fee; however, Exa-Bytes Network 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. The accuracy and quality of backup processes provided by 3rd party software, such as the individual 3rd party control panels, is not guaranteed by Exa-Bytes Network.
On Dedicated Servers with the on-board backup option, they are paying for the additional disk drive only. Exa-Bytes Network will provide and install the backup script for our clients upon request, but the running of cron jobs and services is the responsibility of the server owner. The backup script can be set up to generate a daily email with results to assist Client in monitoring. For mission critical data, Exa-Bytes Network highly recommends higher quality off-server backup services than what an on-board backup drive can provide. Doing periodic local backups is also highly recommended and prudent business practice.
Exa-Bytes Network reserves the right to refuse service to anyone. Exa-Bytes Network, 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 .
By the Tenth (10th) of each month, Exa-Bytes Network shall either (i) debit Client’s credit card (where such information is provided by Client) or (ii) deliver by e-mail an invoice to Client in accordance with the applicable Services fees for services rendered for the current month. Where an invoice is delivered to Client, Client shall remit payment to Exa-Bytes Network by no later than 7 days after the specified payment due date. Exa-Bytes Network shall be entitled to immediately terminate this Agreement for Client’s failure to make timely payments to Exa-Bytes Network. Certain services carry a set-up fee charged by Exa-Bytes Network 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 Exa-Bytes Network and agrees to pay any and all fees incurred by Client. Because the Services are provided on a monthly basis, unless a contract is in place, Client will be responsible for Service fees incurred each month regardless of when Client provides notice of termination. Thus, for example, if Client provides notice to terminate on the 15th of a particular month, Client will still owe fees for the entire month and such fees will not be pro-rated or refunded. If Client has retained the Services for one (1) year and has pre-paid Exa-Bytes Network for such Services, only 70% refunds will be issued for any unused full month month portions less one month of the Services upon Clients request. Therefore, if Client’s account is canceled at any point during the one (1) year term, Client will be entitled to a refund for all but one of the full months remaining after notice given by the 25th of the preceding month.
Any payment not received within twenty (20) days of the invoice date, will be assessed a late fee of one and one-half percent (1 1/2%) per month or the highest rate allowed by applicable law, whichever is lower, with minimum of a USD $5.00 fee. Customer also shall pay to Exa-Bytes Network all expenses incurred by Exa-Bytes Network in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Customer, including, but not limited to, reasonable attorneys’ fees and the fees of any collection agency retained by Exa-Bytes Network. Late Fees will continue to accrue as long as there is an outstanding balance.
Returned Item Fee.
Accounts with returned checks and/or e-checks will be assessed a USD $15.00 returned item fee.
Customer will be responsible for and will pay in full, any taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services.
If Client chooses to register a domain name(s) through Exa-Bytes Network, Client acknowledges and agrees that Client will pay a registration fee(s) to register the domain name(s) with the applicable domain name registrar. Exa-Bytes Network does not offer refunds for domain name registrations for any reason, including misspelling of the domain name.
Client Liability and Indemnification
The parties agree that in no event shall Exa-Bytes Network 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. Client agrees to defend, indemnify and hold harmless Exa-Bytes Network 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.
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 month-to-month 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 notice to the other party. If Client is terminating this Agreement, Client must follow instructions for cancellation provided on the Server Cancellation Information page. All cancellation requests must be received by the 25th of the respective month of cancellation. 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 Exa-Bytes Network suspends a virtual account for non-payment, Client shall be allowed to re-instate Client’s use of the Services within Five (5) business days of cancellation upon approval from Exa-Bytes Network and full payment of balances due. A reinstatement fee of $15.00 will be applied.
If Exa-Bytes Network disconnects a Dedicated Server or Colocation server for non-payment, the Client shall pay a fee of Fifty Dollars ($50) prior to any re-instatement of Client’s server. Once payment has been received, Client’s account will be activated within Forty-eight (48) business hours. Exa-Bytes Network will maintain an archival copy of Client’s data files for (5) days after Exa-Bytes Network disconnects the server.
If a Client terminates their account, Exa-Bytes Network will disable the server/account the day the client specifies the account is canceled. Exa-Bytes Network will not maintain an archival copy of the Clients Web site or files. It is the responsibility of the Client to remove any data off the server prior to the date provided in their cancellation notice.
Client will pay and indemnify and hold Exa-Bytes Network 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.
Disclaimer of Warranty
THE SERVICES, THE EXA-BYTES NETWORK SITE, INCLUDING WITHOUT LIMITATION, ALL PRODUCTS AND SERVICES DISPLAYED OR OFFERED ON THE Exa-Bytes Network SITE, AND ALL TEXT, GRAPHICS, LINKS AND APPLICATIONS ARE PROVIDED TO CLIENT ON AN ‘AS IS’ BASIS AND WITHOUT WARRANTY OF ANY KIND. EXA-BYTES NETWORK 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, EXA-BYTES NETWORK 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.
Limitation of Liability
IN NO EVENT SHALL EXA-BYTES NETWORK BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, PROFITS, USE OF THE EXA-BYTES NETWORK SITE OR ANY EXA-BYTES NETWORK 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. IN NO EVENT SHALL EXA-BYTES NETWORK CUMULATIVE LIABILITY EXCEED AN AMOUNT GREATER THAN FIVE HUNDRED DOLLARS ($500 US).
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 Exa Bytes Network Sdn Bhd:
Exa Bytes Network Sdn Bhd
1-18-8, Suntech @ Penang Cybercity
Lintang Mayang Pasir 3, 11950
Bayan Baru, Penang.
If to Client:
Name and address provided for account setup.
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 Exa-Bytes Network. 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 the United States of America, except with regard to it’s conflict of law rules. This Agreement and Exa-Bytes Networks policies are subject to change by Exa-Bytes Network without notice. Continued usage of the Services after a change to this Agreement by Exa-Bytes Network or after a new policy is implemented and posted on the Exa-Bytes Network Site constitutes your acceptance of such change or policy. We encourage you to regularly check the Exa-Bytes Network Site for any changes or additions.
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