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Trillionbytes' Service Agreement for Server Co-location

Last Updated: 15 Jan 2006

This Agreement defines the terms and conditions between Trillionbytes Systems Sdn. Bhd. (693034-D) ("Trillionbytes") and You ("Customer"). Trillionbytes and Customer may each be referred to herein as a "Party" and collectively as the "Parties" for the provision of co-location services and related products and services to the Customer.

1. PURPOSE OF AGREEMENT

Trillionbytes Systems Sdn. Bhd. provides Internet connectivity services (the “Bandwidth”), space in its business premises to store and operate such Hardware (“Rack Space”) and together comprising a server co-location package (together, the “Services”). Trillionbytes desires to provide Services to the Customer, and the Customer desires to receive and compensate Trillionbytes for such Services.

2. DURATION

The term of this agreement is for the Minimum Term of 6-month and shall automatically renew bi-yearly thereafter unless either party notifies the other in writing at least one (1) Month prior to the end of the current term, of their intention not to renew this Agreement.

3. SERVICE ORDERS

The provisions of Services shall be initiated by this Agreement issued by the Customer describing the service plan and cost. Each Agreement will contain the prices, initial terms of Services and other information designated in the Service Order form. The Customer shall use the then current version of the Agreement as designated by Trillionbytes. No Agreement shall be effective until accepted by Trillionbytes. The terms of this Agreement shall control Services to the Customer.

  1. All contract terms

    are based on a minimum 6-months unless otherwise stated in the Server Order. The Customer may terminate any Agreement by giving Trillionbytes at least thirty (30) days written notice prior to the end of the Contract Term when the Customer desires Services to cease. If the Customer decided to terminate the Server Order before the contract term, all amounts due from the Customer remaining contract terms for the account to which the Agreement relates must be paid in order for the Customer to terminate an Agreement. Trillionbytes may terminate any Agreement by giving at least thirty (30) days prior written notice of the date of termination of Services.

  2. IP Addresses.

    Trillionbytes may designate for the Customer use on a temporary basis the number of Internet Protocol Addresses (“IP Addresses”) specified on the Agreement from the address space assigned to Trillionbytes. Customer acknowledges that the IP Addresses are the sole property of Trillionbytes, and are temporarily designated for the Customer use as part of the Services, and are not transferable. Trillionbytes reserves the right to change the IP Address designations at any time. Trillionbytes shall use reasonable efforts to minimize inconvenience to the Customer resulting from such changes, and shall give the Customer reasonable notice of changes. The Customer agrees that it will have no right to use IP Addresses assigned to Trillionbytes upon termination of this Agreement, and that any change in IP Addresses the Customer may need to make after termination of this Agreement shall be the sole responsibility of the Customer.

  3. Maintenance.

    From time to time, Trillionbytes may conduct routine tests, maintenance, upgrade or repair on any part of the System, and Trillionbytes shall give the Customer prior notice thereof.  The Customer acknowledges that there may be instances where it is not practicable for Trillionbytes to give advance notice of a disruption, for example, in the event of an emergency, and Trillionbytes shall be entitled to disrupt the Services to conduct restoration and remedial works without prior notice.

  4. Control Rights.

    The Customer, and not Trillionbytes, has the sole and exclusive control over the Data.  The Customer acknowledges and Trillionbytes agrees that in the provision of the Services hereunder Trillionbytes is not provided, either directly or indirectly, with or access to the Data that would allow Trillionbytes to exercise any control over the Data. Trillionbytes accepts no responsibility for the Data passing through the System.

4. SERVER EQUIPMENT AND ACCESS TO FACILITY

  1. The Customer shall be responsible for the re-configuration and testing of the Server Equipment upon the installation of the Server Equipment into the Space.

  2. The Customer agrees to immediately remove or render non-infringing, at the Customer's sole expense, any Server Equipment alleged to infringe any patent, trademark, copyright, or any other intellectual property rights.

  3. Overall responsibility for the Server Equipment maintenance and repair shall remain with the Customer.  The Customer shall be responsible for contacting and coordinating with their maintenance contractors and supervise their performing corrective maintenance on the Server Equipment.

  4. The Customer shall provide the Server Equipment and the Customer shall appoint authorized personnel to deliver the Server Equipment to the Facility and install the same anytime after the Commencement Date.

5. SERVICE INTERRUPTIONS

Trillionbytes shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.

6. CUSTOMER CONTENT AND RESPONSIBILITIES

The Customer is solely responsible for the content of any postings, data or transmissions using the Services (the “Content”), or any other use of the Services by the Customer or by any person entity the Customer permits to access the Services (a “User”). The Customer represents and warrants that neither it nor any User will use the services for unlawful purposes (including, without limitation, infringement of copyright or trademark, misappropriation of trade secrets, wire fraud, invasion of privacy, illegal pornography, obscenity, defamation, and illegal use, transportation or sale of tobacco, controlled substances and firearms), or to interfere with, or disrupt, other network users, network services, or network equipment. Disruptions include, without limitation, distribution of unsolicited advertising or chain letters, repeated harassment of other network users, wrongly impersonating another user, falsifying one’s network identity for improper or illegal purposes, sending unsolicited mass e-mailings, propagation of computer viruses, using the network to make unauthorized entry to any other machine accessible location, via the network, and distributing of tools designed for compromising security (i.e. including, but not limited to, password guessing programs, cracking tools or network probing tools). Trillionbytes may suspend or terminate the Services immediately, without prior notice to the Customer, if Trillionbytes believes, in good faith, that the Customer or a User is utilizing the Services for any such illegal or disruptive purpose. The Customer shall defend, indemnify, and hold harmless Trillionbytes from and against all liabilities, judgments, claims, damages, settlements, expenses and costs (including reasonable attorneys’ fees and litigation expenses) arising out of or relating to any and all claims by any person relating to use of the Services, including, but not limited to, use of the Services without consent of the Customer.

To maintain the quality of our bandwidth, Trillionbytes discourage the use of heavy bandwidth intensive web sites like video, game servers and music files for all shared hosting, dedicated servers and co-location customers. Such usage are determined under Trillionbytes' sole discretion.

7. PRICING AND PAYMENT TERMS

  1. Payment Terms.

    The full amount of the Initial Fee as reflected in the Agreement, which includes any set-up fees and charges for the first payment term of Services, are due and payable to Trillionbytes Systems Sdn. Bhd. upon the acceptance of the Agreement. Thereafter, the Customer will pay in advance charges for each payment term. The recurring billing date shall be established by the date that the server release notification is e-mailed or faxed to the Customer and shall recur based on the Payment Term specified on the Agreement. Accounts that pay by cheque will be sent an invoice at least fifteen (15) days prior to the recurring billing date and payment is due on or before the recurring billing date. Trillionbytes will impose an RM25.00 charge for any cheque that is returned for any reason by a financial institution. Trillionbytes reserves the right to charge the Customer any sales, use, excise, and gross receipts, or any other tax or fees now or imposed, directly or indirectly, by any governmental authority or agency with respect to the Services.

  2. Pricing Disputes.

    The Customer must notify Trillionbytes in writing of any disputed charges within 7 days of the date of the billing for such charges. If the Customer does not notify Trillionbytes within that time period, the Customer has waived any right to dispute such amounts, either directly or indirectly or as a set-off, or defense in any action or efforts to collect amounts due to Trillionbytes.

  3. Collection.

    All accounts more than 30 days past due will be charged interest from the due date of the lesser of (i) 2% per month on the past due amount; or (ii) the highest legal rate of interest. Trillionbytes may also suspend, interrupt, or terminate Services on any account that is past due by more than thirty (30) calendar days, by disabling telnet/ftp access and/or disabling the connection to the server. In the event of disconnection, the Customer must pay Trillionbytes a reconnection fee of RM100.00 as a condition of reactivation of the Services, in addition to full payment of the balance due on the account. Reactivation of services will only be performed during Trillionbytes regular business hours (Monday through Friday, 9:00 a.m. – 6:00 p.m. Malaysia Time). Trillionbytes may send all accounts that have not been paid in full to a collection agency. The Customer is responsible for paying all costs of collection, including, but not limited to, reasonable attorney’s fee and, where lawful, collection agency fees. All accounting issues should be addressed to Trillionbytes at billing@trillionbytes.com

  4. Price Increases.

    Trillionbytes offers a price-freeze guarantee to its the Customer. Trillionbytes will not increase the cost of services for the Customer as indicated on the Agreement as long as The Customer’s account is with Trillionbytes and provided the Customer’s account does not become delinquent.

8. MAINTENANCE AND SUPPORT

  1. Ordering Maintenance and Support Services.

    Trillionbytes shall provide the Customer with maintenance and support services for the Hardware or Software, if such services are specified in the Agreement.

  2. Exclusions.

    Maintenance and support services shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than Trillionbytes or its authorized representatives; or (b) programs or hardware supplied by the Customer.

  3. Customer's Duties

    The Customer shall appoint at least 1 representative that will be from time to time, allowed into Facility. Advanced notice must be given prior visitation. The Customer must register with the duty officer in charge of any visitation.

  4. Passwords.

    Each Trillionbytes' Customer is responsible for the equipment security of his or her passwords. Generally, secure passwords are between 6 and 8 characters long, contain letters of mixed case and non-letter characters, and cannot be found in whole or part, in normal or reverse order, in any dictionary of words or names in any language. The Customer is responsible for changing his or her password regularly.

9. TERM AND TERMINATION

  1. Term.

    The term of this Agreement shall commence on the Effective Date and continue until terminated in accordance with this Agreement. The term of an Agreement shall be as indicated therein. The term of an Agreement shall automatically renew unless either party provides the other with written notice of termination at least thirty (30) days prior to the renewal date as established by the Contract Term reflected in the Agreement.

  2. Termination Upon Default.

    Trillionbytes may immediately terminate this Agreement and any or all Agreements, within its sole discretion, if the Customer fails to pay (and Trillionbytes has not actually received) any amounts due within sixty (30) days after the due date. For other breaches of this Agreement, either party may terminate this Agreement, and Agreement, as applicable, if the breaching party fails to correct the default within thirty (30) days after the written notice.

  3. Effect of Termination.

    Notwithstanding termination of this Agreement and Agreement, Trillionbytes shall be entitled to full contract payment of all amounts that may be due to it from the Customer.

10. CONFIDENTIAL INFORMATION

Confidential Information shall mean all information identified by a party (“Disclosing Party”) to the other party (“Receiving Party), which, if in writing labeled as confidential, or if disclosed orally, is reduced to writing within fifteen (15) days, and labeled as confidential. Confidential Information shall remain the sole property of the Disclosing Party. Except for the specific rights granted by this Agreement, the Receiving Party shall not use any Confidential Information of Disclosing Party for its own benefit or for the benefit of others. Receiving Party shall not disclose Confidential Information to any third party without written consent of Disclosing Party (except to consultants who are bound by a written agreement with Receiving Party to maintain confidentiality). Confidential Information shall exclude information (i) available to the public other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach of an obligation of confidentiality; (iii) independently developed by Receiving Party without access to Confidential Information; (iv) known to Receiving Party at the time of disclosure; or (v) produced in compliance with a court order. Receiving Party shall give reasonable notice to Disclosing Party that Confidential Information is being sought by a third person, so as to afford the opportunity to limit or prevent such disclosure. Receiving Party agrees to cease using all Confidential Information, and to promptly return such Confidential Information to Disclosing Party upon request. Notwithstanding the foregoing, the Customer consents to Trillionbytes’ disclosure of account information to credit reporting agencies, credit bureaus, private credit reporting associations, or to other providers of communications services.

11. LIMITATION OF LIABILITY

Trillionbytes’ liability (including, for purposed of this paragraph only, and of its employees, agents, or representatives), to the Customer (either directly or as a third party defendant in any action or proceeding) for any claim arising out of or relating to this Agreement or Agreement or the provision of any Services under Agreement (including, without limitation, maintenance and support) shall be limited to the amount of fees paid by the Customer to Trillionbytes under this Agreement within one year preceding the date the Customer contends its claim arose. In no event shall Trillionbytes be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages, however caused and regardless of theory of liability. This limitation will apply even if Trillionbytes has been advised of, or is aware of, the possibility of such damages.

12. DISCLAIMER OF WARRANTIES

Trillionbytes specifically disclaims all implies warranties, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Except as otherwise provided in this Agreement, any written materials by Trillionbytes, or information on Trillionbytes‘ company web site, shall be for informational purposes only and, whether delivered or disseminated before or after the date of this Agreement, shall not create any express or implied warranties, guaranty of performance, or contractual obligations.

13. MISCELLANEOUS

  1. Independent Contractor.

    The relationship of Trillionbytes and the Customer under this Agreement is that of independent contractors and not partners, joint ventures, or co-owners as participants. Neither party has authority to contract or bind the other.

  2. Notices.

    Any notice hereunder shall be in writing and shall be given by registered or express mail, or reliable courier addressed to the addresses in this Agreement, or by facsimile. Notice shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid. Either party may change its address for notice by means of notice to the other party given in accordance with this Section.

  3. Assignment.

    The Customer may not assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be void and a default of this Agreement.
    4. /

  4. Advertising.

    Trillionbytes may include the Customer’s name and contact information in directories of Trillionbytes service subscribers for the purpose of promoting the use of the Services by the Customer s generally. Trillionbytes will not use the Customer’s name or other identifying information in any other advertising or promotional materials, without the prior written consent of the Customer, which may not be unreasonably withheld.

  5. Indemnification.

    The Customer shall defend, indemnify, and hold harmless Trillionbytes from and against all liabilities, judgments, claims, damages, settlements, expenses and costs (including reasonable attorneys’ fees and litigation expenses) arising out of or relating to any breach of this Agreement or Agreement by the Customer. The Customer and Trillionbytes will promptly notify each other upon receipt of any third party claim or legal action arising out of or relating to this Agreement or Agreement.

  6. Entire Agreement and Waiver.

    This Agreement and the Agreement constitute the entire agreement between Trillionbytes and the Customer with respect to the subject matter hereof. All prior agreements, representations, and statements with respect to such subject matter are superseded. Any failure of either party to exercise or enforce its rights under this Agreement or Agreement shall not act as a waiver of subsequent breaches. Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, the Customer shall not solicit or hire the services of any employee or subcontractor of Trillionbytes without the prior written consent of Trillionbytes .

  7. Release of Information.

    Trillionbytes reserves the right to release the contact information of the Customer s involved in violations of system security to system administrators at other sites, in order to assist them in resolving security incidents. Trillionbytes will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.



TRILLIONBYTES SERVER CO-LOCATION AGREEMENT

THIS SERVER CO-LOCATION AGREEMENT (the "Agreement") is entered into this ___ day of ____________, 200_ ("Effective Date") by and between Trillionbytes Systems Sdn. Bhd.(693034-D), ("Trillionbytes") and ___________________________________ ("Customer"). Trillionbytes and Customer may each be referred to herein as a "Party" and collectively as the "Parties".

 

IN WITNESS WHEREOF, the Parties hereto have signed and sealed this Agreement on the date first set forth above.


Signature: __________________________________


Print Name: _________________________________

 

Title: ______________________________________


Company Name/Stamp: _______________________


Company Address: ____________________________

_____________________________


Contact Number / Email: _________________________

Please circle ( 1U  /  2U  /  Mini Tower  /  Full Tower) No. of Unit(s)________

 

Monthly Fee RM_____________   Refundable Deposit RM_____________


Duration (  3 months  /  6 months  /  12 months) *

 

Effective Date: _______________________


Trillionbytes Systems Sdn. Bhd. (693034-D)


Signature: __________________________________


Print Name: _________________________________


Company Stamp: _____________________________


* add 20% premium to the stated price for 3 months contract
* 10% discount for 12 months contract, paid in advance
* 5% discount for 12 months contract, paid monthly
* 5% discount for 1/2 year contract, paid in advance

INSTRUCTIONS

Please print the last page of this agreement, signed and fax or email to Trillionbytes Systems Sdn. Bhd. or mail original to Trillionbytes at address below.

Trillionbytes Systems Sdn. Bhd. (693034-D)
Suite 33-01, Level 33
203 Jalan Bukit Bintang
55100 Kuala Lumpur
Malaysia

Email: trillionbytes@trillionbytes.com
Fax: 603 2116 5684
Phone: 603 2116 5674

This Agreement constitutes the entire understanding of the parties. Any changes or modifications to this Contract thereto are agreed to by the both parties upon renewal of services.

All contents of the Trillionbytes Web Sites are Copyright © 2005 Trillionbytes Systems Sdn. Bhd. All rights reserved.

Trillionbytes, Trillionbytes web sites, Trillionbytes logo, and/or other Trillionbytes products and services referenced herein may also be either trademarks or registered trademarks of Trillionbytes in Malaysia and/or other countries.
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