Aegis Cloud Endpoint Backup Terms and Conditions

             AEGIS CLOUD ENDPOINT BACKUP (CEB) SERVICE AGREEMENT

• THIS AEGIS ENDPOINT BACKUP (CEB) SERVICE AGREEMENT is a binding agreement between you (hereinafter referred to as the “Customer”) and INFINITY CONSULTING TECHNOLOGY SDN BHD (Company No. 200501010602 (687649-U)) (hereinafter referred to as “ICT”), a company incorporated in Malaysia and having its registered office at A-06-03, Empire Tower, Empire Subang, Jalan SS16/1, Subang Jaya 47500, Selangor, Malaysia (ICT and the Customer shall be collectively referred to as the “Parties” and individually as the “Party”.)

• This Agreement governs and regulates the Customer’s use of the Aegis Cloud Endpoint Backup (CEB) Service (the “Aegis CEB Service”) to be provided by ICT to the Customer upon the subscription by the Customer of the Aegis CEB Service via this link https://www.aegis.com.my/ceb-signup-form/

• By clicking “submit”, the Customer unconditionally acknowledges and agrees that:

1. it has read and understood this Agreement;
2. (if the Customer is an individual) he is of legal age to enter into a binding agreement; and
3. it is legally bound by this Agreement.  

• Please read and understand this Agreement carefully before continuing to use the Aegis CEB If the Customer does not understand this Agreement, or any services that ICT provides or offer, the Customer should contact ICT before placing any order for subscription, filling any forms and/or sending ICT any information.

• ICT reserves the right, in its sole and absolute discretion, to modify, vary, amend, change and/or update this Agreement, and any checklists or agreements which are incorporated herein at any time as it deems fit and with reasonable notice to the Customer, for example, by emailing the updated Agreement to the Customer. Such modifications, variations, amendments, changes and/or updates to this Agreement shall be effective upon the posting of an updated version via email. The Customer agrees that it shall be its responsibility to review this Agreement regularly to ensure its understanding of this Agreement is current and understand the terms and conditions that apply to its subscription and use of the Aegis CEB   

• The Customer’s non-termination or continued use of the Aegis CEB Service after the effective date of any modifications, variations, amendments, changes and/or updates constitutes the Customer’s acceptance of, and agreement to be bound by, the revised Agreement.  

• If the Customer does not agree to this Agreement or with any subsequent modifications, variations, amendments, changes and/or updates, the Customer may terminate this Agreement in accordance with Clause 7 of this Agreement. If the Customer have any question regarding this Agreement, the Customer is advised to consult its professional lawyer.  

1. INTERPRETATION AND DEFINITIONS.

In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings respectively.

• “Aegis CEB Service” means the Aegis Cloud Endpoint Backup (CEB) Service to be provided by ICT to backup, recover and restore the Customer’s endpoint data and protects endpoint data from accidental deletion, security threats and retention policy gaps.
• “Business Days” means a day on which banks are open for business in Selangor Darul Ehsan and Federal Territory of Malaysia, not being a Saturday, Sunday or public holidays.
• “Confidential Information” means all communications between ICT and the Customer and all information and other material supplied to or received, by either of the Party, from the other Party which is either marked “confidential” or is by its nature intended to be exclusively for the knowledge of the recipient alone, or to be used by the recipient only for the benefit of this Agreement.
• “Contract Period” shall commence from the Effective Date (as defined below) and expiring on the last day of the Contract Period, which for the avoidance of doubt shall be a period of not less than twelve (12) months.
• “Customer’s Account” means the registration account of the Customer in the System.
• “Effective Date” means the ‘Service Start Date’, which refers to the date that the Aegis CEB Service activation code is sent via email to the Customer.
• “Hardware” means any computer server(s), located at ICT data centre that have been purchased, leased or rented by ICT explicitly for the sole purpose of running the Software. For the avoidance of any doubt, Hardware shall exclude computer server(s) located at any places other than ICT data centre which is used to run the Software, irrespective of whether those servers have been purchased, leased or rented by or from ICT.
• “Software” means the various software applications, related documentation and all modules, data transfer programs, updates, revisions, derivative works, upgrades and modifications thereto developed by the respective software developer, which are used by ICT to provide the Aegis CEB Service to the Customer, as the same may be amended, modified, rectified, changed, added, removed and/or replaced from time to time by ICT.
• “System” means the Hardware and the Software provided, licensed or used by ICT for the provision of the Aegis CEB Service to the Customer. For the avoidance of doubt, the System shall exclude existing systems belonging to or being used by the Customer which may or may not be originally purchased from ICT.
• “Support” means the assistance provided by ICT’s personnel to the Customer for the System, via telephone, email and/or remote access. Such Support also includes the provision of product manufacturer supplier support, such as software patches, hot fixes, service packs and upgrades for the System, but excludes troubleshooting of the Customer’s software applications.
• “IP address” means the number that identifies computers on a network and is automatically assigned to the Customer’s computer whenever the Customer is surfing the Web.
• “Registration Information” means all the information provided by the Customer to ICT when subscribing for the Aegis CEB Service, together with any and all updates provided by the Customer to ICT from time to time.
• “Agreement” means this Aegis Cloud Endpoint Backup (CEB) Service Agreement.
• Words importing the singular shall include the plural and vice versa; and words importing a gender shall include every other gender.
• References to person(s) include any individual, corporated or unincorporated bodies, partnership, association, limited liability company, trust, governmental or quasi-governmental authority or body or other entity or organisation (whether or not having a separate legal personality) and shall include its successors in title.
• References to any statute in this Agreement is a reference to that statute as modified, amended or re-enacted from time to time.
• Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
• Clause headings in this Agreement are for convenience only and do not affect the interpretation of any provision.

2. DESCRIPTION OF AEGIS CEB SERVICE.

• For the duration of the Contract Period and subject to the Customer’s payment obligations, ICT will make available the Software and other resources necessary to provide the Aegis CEB Service to the Customer.
• ICT will provide the Customer with a login account (i.e. the Customer’s Account) to the System, with which the Customer can gain access to the Aegis CEB Service.
• ICT may make changes or updates to the System, such as infrastructure, security, technical configurations, application features, etc., from time to time during the Contract Period, including to reflect changes in technology, industry practices, patterns of System use, remedial maintenance and standard upgrades. The intent of any modification will be to (a) improve or clarify existing commitments; (b) maintain alignment to current adopted standards and applicable laws; and/or (c) provide additional features and functionality in respect of the Aegis CEB Service. Any modifications by ICT will not degrade the security or data protection or functionality of the System.
• A set of user ID and password is unique to the Customer’s Account, and the Customer shall take all necessary steps to ensure that its user ID and password for the Customer’s Account are kept confidential and secure at all times from third parties, including but not limited to, not disclosing or cause to be disclosed its user ID and password through any means, and by restricting access to any device(s) linked to the Customer’s Account, including but not limited to, computers, laptops and any mobile devices and tablets owned by the Customer or any third party. The Customer shall ensure to log out from the Customer’s Account at the end of each session on the System. Further, the Customer shall inform ICT immediately if it has any reason to believe that its user ID or password for the Customer’s Account has become inadvertently known to anyone else, or if the password is being, or is likely to be, used in an unauthorised manner.   
• The Customer shall be responsible for all activities occur under the Customer’s Account, including any activities carried out by any authorised agent, officer, employee, subcontractor or consultant of the Customer, regardless of whether it is the one who undertakes such activities. This includes any unauthorised access and/or use of the Customer’s Account.  
• The Customer further agrees that in case of its failure to maintain the security of the Customer’s Account, ICT shall not be liable for any losses or damages arising from such a breach and shall have the right to suspend or terminate the Customer’s Account and/or take any other actions as ICT may deem necessary or appropriate in its sole discretion.

3. SUPPORT AND MAINTENANCE SERVICES.

• In addition to the Aegis CEB Service, ICT agrees to provide ongoing support and maintenance services (“Support and Maintenance Services”) in respect of the System to the Customer with no extra charge.
• The Support and Maintenance Services shall include the following:
  1. Investigation into any defects or bugs in the System reported by the Customer.
  2. Investigation of any error messages prompted by the System.
  3. Installation, testing and implementation of standard corrections, updates, new versions and new releases of the System, if required for the provision to the Customer of a properly functioning System.
  4. Provision of a temporary by-pass solution or substitution of equivalent components when such by-pass solution or substitution is required by the Customer to minimize the impact on the System’s proper operations and performance, wherever technically and economically feasible.
  5. ICT will make reasonable efforts to assist the Customer with the recovery of lost data, restoration and repair of damaged data, and the correction of erroneous data to the extent possible, provided such damaged or corrupted or erroneous data was caused by a bug, fault, or failure of the System.
  6. Rendering assistance to the Customer to ensure the normal operation or performance of the System, excluding managing and troubleshooting the Customer’s software applications.
  7. Reinstallation and reconfiguration of the System when necessary upon the System failure.
• For the avoidance of any doubt, the following services are specifically excluded from this Agreement:
  1. The storage or safe-guarding, on behalf of the Customer, of any passwords or encryption keys.
  2. Reinstallation of any component of the System except where such reinstallation is required to address any bug, fault or failure of the System.
  3. Formal training on the use of the System other than the initial training done when the System was first purchased, provided that such initial training is part of a package deal offered by ICT and purchased by the Customer. Any additional formal training will be subject to a separate training fee depending on the courses taken by the Customer.
  4. Assistance with problems or issues that arise due to the changes in the operating environment of the System.
  5. Maintenance, support, testing and configuration of any hardware not purchased, leased or rented by the Customer from ICT.
  6. Assistance with errors or problems that arise from any modifications to the System’s configuration made by any person other than ICT, its approved subcontractors, or without ICT’s prior agreement.
  7. Assistance with errors or problems that arise from incorrect use of the System or operator error.
  8. Assistance with errors or problems that arise from accidents or negligence or abuse not attributable to ICT’s fault, or acts of God.
  9. Assistance with errors or problems that arise from virus, worm and denial-of service attack, unauthorized intrusion, or hacking on the Customer’s System.
  10. Assistance with errors or problems that arise from the Customer’s software applications which is not part of the Software.
• The excluded services under Clause 3 is subject to additional charges to be agreed between the Parties.

4. CONDITIONS OF USE.

• The Customer is solely responsible for the content of all data the Customer stores or retrieves from, or attempts to store or retrieve from the System and for all transmissions by the Customer of the data from and to the System.
• The Customer’s use of the Aegis CEB Service is subject to the laws of Malaysia, the jurisdiction where ICT is incorporated.
• ICT shall be entitled to deny the Customer’s access to any data or files stored in the System in the event that such data or files contravenes with Clause 4 below, provided that prior written notification is given by ICT to the Customer.
• The Customer shall use its best effort to ensure that it shall:
  1. not use the Aegis CEB Service for any illegal, unlawful, obscene, offensive, fraudulent purposes or activity, such as interfering or violating the integrity or security of a network or system;
  2. not intentionally use the Aegis CeB Service to store, retrieve, transmit or view any file, data, image or program that contains:
     • any illegal pictures, materials or information;
     • any harassing, defamatory, insulting, racist, discriminatory, libellous, abusive, threatening, harmful, vulgar, pornographic, obscene or otherwise objectionable material of any kind or nature;
     • any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation;
     • any code or material that violates and/or infringes the rights of third parties, including the intellectual property rights, copyrights, trademark rights and portrait rights of others;
     • anything that would constitute a violation of the privacy of third parties, including the distribution of personal data of third parties without permission; and
     • any malicious content, viruses, worms, “Trojan horses”, timebombs, keystroke loggers, spyware or any other similar contaminating or destructive features or piracy or programming routines that may damage or interfere with the System.
  3. comply with the laws of Malaysia regarding the exportation and re-exportation of any data or other materials from Malaysia or other jurisdictions through the System;
  4. not use the System for any spamming, chain letters or other use that may disrupt the Aegis CEB Service or the networks through which the Customer accesses and uses the Aegis CEB Service.
  5. comply with all laws and regulations, policies and procedures of networks through which the Customer accesses and uses the System;
  6. not access or attempt to access any account for which the Customer has no legal access or authorization and not duplicate, modify, distribute or display any of the data or files from any such account;
  7. not use the sharing features (if any) in a way that amounts to ‘publishing’ and shall avoid the use of sharing features to share data between friends, colleagues and business partners, except as provided for in this Agreement;
  8. not use the System to sell digital content to others; the System is not a media for dissemination of digital content for commercial purposes;
  9. not assign or resell the System and/or offer or share the access to the System with any other third party whether for monetary consideration or otherwise EXCEPT with ICT’s prior written authorisation to do so;
  10. ensure that the content contain or stored in or transmitting through the System shall not infringe any applicable laws, third party rights or laws relating to public safety;
  11. not use the System for network attacks, including DoS and or DDoS attacks, or any use that affects the proper functioning of the Systems;
  12. not allow unauthorized access to Aegis CEB Service;
  13. not use the Aegis CEB Service for purposes of unsolicited commercial, charitable or idealistic communication;
  14. not do anything that will result in the repeated harassment of third parties with undesirable communication;
  15. not reverse engineer any portion of the System; and
  16. not combine the System with the Customer’s value add to create a commercially available solution that the Customer markets to its end customers.
• The Customer acknowledges that no part of the System may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording or other means.

5. CHARGE & PAYMENT.

• The Customer shall pay ICT or the reseller (in the event where a reseller is appointed, in which case the invoice will be issued by the reseller on behalf of ICT) the subscription charges for the Aegis CEB Service as specified on the invoices to be issued by ICT or the reseller and in accordance with the payment terms as set out on Aegis CEB Service’ quotation.
• Where the Customer chooses to pay the subscription charges for the Aegis CEB Service by way of monthly payment, the Customer shall make an advance fee payment equivalent to two (2) months of the subscription charges for the Aegis CEB Service to ICT or the reseller (in the event where a reseller is appointed, in which case the invoice will be issued by the reseller on behalf of ICT) in the sum as stipulated on the quotation to be issued by ICT or the reseller. For the avoidance of doubt, no advance fee payment is required to be paid to ICT where the Customer chooses to pay the subscription charges for the Aegis CEB Service by way of advance yearly payment.  
• Each invoice shall be due and payable by the Customer within thirty (30) days of the invoice date. For the avoidance of doubt, all payments shall be made in Malaysian Ringgit.  
• Subject to Clause 3.a), if ICT or the reseller (if applicable) has not received payment of the subscription charges within forty (40) days after the due date, without prejudice to any other rights or remedies of ICT:
  1. ICT shall be entitled to suspend and is under no obligation to provide the Aegis CEB Service to the Customer pursuant to this Agreement while the invoice(s) concerned remain unpaid; and
  2. the Customer shall pay interest on the overdue amount at the rate of 1.5% per month. Such interest shall accrue on a daily basis from the due date of the invoice issued by ICT or the reseller (if applicable) until the actual payment of the overdue amount to ICT or the reseller (if applicable), whether before or after judgment. The Customer shall pay the interest together with the overdue amount to ICT or the reseller (if applicable).
• If the Customer disputes any invoice or other statement of monies due, the Customer shall within thirty (30) days of the date of the invoice notify ICT or the reseller (if applicable) in writing. The Parties shall negotiate in good faith to attempt to resolve the dispute amicably and promptly. If the Parties have not resolved the dispute within 30 days of the Customer giving notice to ICT or the reseller (if applicable), the dispute shall be resolved in accordance with Clause 3. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as set out in Clause 5.2.
• In relation to payments disputed in good faith, interest under Clause 4.b) is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
• Unless the Customer disputes any amount invoiced within thirty (30) days of the date of the invoice, the Customer is deemed to have accepted that the amount is payable to ICT or the reseller (if applicable).
• If the Customer has more than one account with ICT, ICT or the reseller (if applicable) may upon written notice to the Customer transfer any credit balance under one account to settle outstanding amounts due under another account.
• In the event the Customer request for an upgrade in the Aegis CEB Service during the Contract Period, such upgrade shall take effect on the commencement of the next calendar month and any additional fees payable in respect of any such upgrade shall be agreed between ICT and the Customer and shall be notified to the reseller (if applicable) and pro-rated on a daily basis based on a three hundred and sixty-five (365) day year having regard to the remaining period of the Contract Period.   
• The subscription charges quoted and specified on the Website shall be inclusive of Sales and Services Tax (SST), which shall be reflected in ICT’s or the reseller’s (if applicable) invoice at the appropriate rates imposed by the relevant tax authority from time to time.

6. ICT’S RESPONSIBILITIES

• ICT shall inform the Customer, as soon as practicable, of any security breach which may potentially disrupt the Aegis CEB Service and/or compromise the Customer’s data.
• ICT undertakes to take reasonable measures to maintain in good working order the System that it uses in the supply of the Aegis CEB Service, but ICT does not represent or make any commitment that the operation of any such System shall be uninterrupted or error-free.
• This Agreement will not prevent ICT from entering into any similar agreement(s) with anyone else.
• For the avoidance of any doubt, ICT shall not be required to review, inspect, edit or monitor any content, data or files stored by the Customer and/or the Customer’s users in the System, including any viruses, worms, “Trojan horses” or any other similar contaminating or destructive features.

7. CUSTOMER’S RESPONSIBILITIES.

• The Customer shall:
  1. ensure uninterrupted electricity supply and Internet connectivity for the provision of the Aegis CEB Service;
  2. be solely responsible for all necessary security arrangement appropriate to its use of the Aegis CEB Service including passwords, pass codes, audit controls, the creation of backup files and the implementation of operating methods and procedures;
  3. be solely responsible for any consequences arising out of the Customer’s act, failure or omission to maintain the confidentiality of the Customer’s password required to access the Customer’s Account;
  4. promptly notify ICT of any unauthorised use or any other breach in security of the Customer’s Account after the Customer learns of the same;
  5. be solely responsible for access to the Customer’s Account by unauthorised persons due to password fraud and the like;
  6. ensure that all the Customer’s passwords are kept confidential, and shall be issued to and used by authorised persons only;
  7. provide ICT, its agents, subcontractors, consultants and employees reasonable access to the Customer’s Account, as and when required by ICT to render the Aegis CEB Service;
  8. co-operate with ICT’s personnel in the diagnosis, investigation and correction of any fault or misuse of the System;
  9. make available all information, data, facilities or services reasonably required by ICT in order to perform the Aegis CEB Service;
  10. not make any modification to the System without ICT’s prior written consent save and except for creation of new backup sets;
  11. not request or permit anyone other than ICT to provide any maintenance services in respect of the System unless ICT is unable to fulfil its duties in accordance with this Agreement or the prior written agreement of ICT is obtained;
  12. use the System at all times in a proper, professional and responsible manner and by competently trained and skilled employees only or by persons under their supervision;
  13. not attempt to adjust, repair or maintain the System nor request, permit or authorize any person, other than ICT or persons approved by ICT to carry out adjustment, repair or maintenance of the System;
  14. promptly notify ICT if the System as a whole requires maintenance or is not operating correctly;
  15. not alter, modify or adapt the System in any way nor permit the System to be combined with any other programs in a manner unsuitable or undefined by the product manufacturer except where approved by ICT;
  16. always choose a strong password for the Customer’s Account, and safe-keep and manage any passwords and encryption keys used by the Customer in the System in accordance with good computing and security practices; and
  17. if the Customer holds the password(s), rights, or authorities to the operating system, hardware or domain, and such password(s), rights or authorities are necessary for timely troubleshooting of the System, then the Customer shall make available one of its authorized staff to enter the password(s) or grant such permissions as is necessary to allow an ICT engineer to carry out the Support duties under this Agreement.
  18. allow ICT to upgrade the Software to the most current release of the Software if doing so allows ICT to fulfil its obligations under this Agreement that could not otherwise be fulfilled in a timely or economic manner without such upgrade. The Customer acknowledges and agrees that ICT shall not be responsible to remedy or respond to bugs or failures of the Software, if such bugs or failures would not have appeared had the Customer upgraded to a newer version of the Software. For the avoidance of doubt, the Customer acknowledges and agrees that ICT is entitled not to install certain updates or patches to the System if, in in ICT’s opinion, such updates or patches do not benefit the provision of the Aegis CEB Service.;
  19. co-operate with ICT in all matters relating to the Aegis CEB Service;
  20. provide ICT in a timely manner all documents, information, items and material in any form (whether owned by the Customer or third party) required by ICT for the Aegis CEB Service and ensure that they are accurate and complete;
  21. without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
  22. carry out all other Customer’s responsibilities set out in this Agreement in a timely and efficient manner;
  23. while using or accessing the System, ensure that all relevant personnel and contractors of the Customer will, comply with ICT’s guidelines, policies and procedures at all time;
  24. use and operate the System only for business continuity purposes and in a proper manner and in the ordinary course of its business;
  25. be responsible for identifying and authenticating all users, for approving access by such users to the System, for controlling against unauthorised access by users, and the Customer shall be responsible for all actions arising from the use of the System by all users authorised by the Customer and the Customer shall make sure that all the terms and conditions described herein are adhered to by such users. The Customer agrees that ICT has the right to treat all actions as undertaken from the Customer’s Account as undertaken pursuant to the direction and supervision of the Customer;
  26. supply all storage media;
  27. ensure the adequacy, accuracy and security of all storage media and data it brings, processes, generates and/or uses;
  28. be solely responsible for all software and other proprietary materials that do not form part of the System (including ensuring that they are appropriately licensed);
  29. be responsible for the supply, operation, control and support of all other resources not included within the Aegis CEB Service;
  30. be solely responsible for risk of loss or damage to any such data, storage media, Software, proprietary materials or other resources (whether and howsoever in transit to or from or at the System);
  31. be solely responsible for all results it obtains from the Aegis CEB Service;
  32. be solely responsible for their own access to the System;
  33. in the event the login details to the Customer’s Account is lost or leaked, immediately take all measures to prevent any further misuse of the Customer’s Account, including changing the password to the Customer’s Account. Further, the Customer shall promptly report to ICT in respect of such misuse so that additional measures can be taken by ICT to prevent any future misuse of the Customer’s Account; and
  34. be solely responsible for payment of all telephone, internet and/or other fees associated with such access to the System.

• The Customer shall indemnify ICT for any and all losses, damages, costs and expenses suffered by ICT in so far as such losses, damages, costs and expenses arise, wholly or in part, out of the act, default, omission and/or negligence of the Customer.

8. CONFIDENTIALITY

• Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. Each Party shall hold the other Party’s Confidential Information in confidence and shall not, without the prior written approval of the other Party, disclose Confidential Information belonging to the other Party to any person, or use such Confidential Information for any purpose other than the implementation of this Agreement.
• For the purposes of this Clause 8, Confidential Information does not include information that:
  1. is or becomes publicly known other than through any act or omission of the receiving Party or by breach of this Agreement;
  2. was in the other Party’s lawful possession before the disclosure;
  3. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
  4. is independently developed by the receiving Party, which independent development can be shown by written evidence; or
  5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
• Where a Party is required to disclose the Confidential Information pursuant to Clause 2.e) above, the Party must use reasonable effort to promptly notify the other Party of the reason for such disclosure so that an appropriate protective order and/or other action can be taken by the other Party, if possible to limit the disclosure of the Confidential Information to the extent permitted by law.
• Each Party shall take all reasonable steps to ensure that its employees, agents and/ or sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information to which it has access to any third party in violation of the terms of this Agreement.
• Notwithstanding any other provision of this clause, the Parties may disclose the terms of this Agreement to its related companies, solicitors, auditors, insurers and accountants, provided that prior written consent of the other Party is obtained.
• This clause shall survive the termination of this Agreement.

9. DATA OWNERSHIP

• ICT acknowledges and agrees that the data and the content that the Customer stores in the System belongs to the Customer. ICT has no right or license, including the intellectual property rights to such data and content. ICT may access and use the data and the content solely for the purpose of providing and managing the Aegis CEB
• ICT shall ensure compliance with the relevant privacy laws, including the Personal Data Protection Act 2010 (“PDPA”). In this respect, ICT shall ensure that the Customer’s Confidential Information relating to personal data is collected stored, retained, processed, used or otherwise dealt with solely for the purpose of this Agreement.
• The Customer will ensure that it has all necessary appropriate consents and notices in place to enable the lawful transfer of the personal data to ICT for the duration and purposes of this Agreement so that ICT may lawfully collect, store, retain, process, use and transfer the personal data in accordance with this Agreement on the Customer’s behalf.
• By using the Aegis CEB Service, the Customer accepts responsibility for the use of the Aegis CEB Service, and acknowledges that it meets the Customer’s requirements and processing instructions to enable compliance with applicable laws.
• The Parties agree that the Customer’s data will be stored within the jurisdiction of Malaysia only. Subject to PDPA and this Agreement, ICT shall not transfer any of the Customer’s data to any jurisdiction outside of Malaysia, unless the Customer provides a written consent to do so.
• For the avoidance of doubt, ICT and its affiliates may use data that the Customer provides to ICT to enable the Customer’s use of the Aegis CEB Service or that ICT collects using tracking technologies, such as cookies and web beacons, regarding the Customer’s use of the Aegis CEB Service, to enable product features, administer use, personalise experience and otherwise support or improve use of the Aegis CEB

10. USE OF IP ADDRESSES.

• The System may collect and obtain the IP addresses of the Customer for the purposes of system administration, security, and audit of the use of the System.
• ICT may at its sole and absolute discretion use the IP addresses to identify a user as and when it deems necessary to enforce compliance with the terms and conditions of this Agreement or to protect the System, the Customer and/ or any other third parties.

11. REPRESENTATIONS AND WARRANTIES.

• The Customer warrants and represents to ICT that:
  1. it has the full power and authority to accept, perform and observe this Agreement;
  2. this Agreement will, when accepted, constitute legally valid and binding obligations on it, enforceable in accordance with their respective terms;
  3. it has conducted and is conducting its business and operations in compliance with all applicable laws, regulations and all directives of governmental authorities; and
  4. it shall comply with all applicable laws, rules and statutory requirements from time to time.
• ICT warrants that it will perform the Aegis CEB Service in all material respects as described in this Agreement and with commercially reasonable care and skill. For the purposes of this Agreement, ICT does not warrant:
  1. uninterrupted or error-free operation of the Aegis CEB Service or that ICT will correct all Aegis CEB Service errors;
  2. that the System will operate in combination with the Customer’s content or applications, or with any other hardware, software, systems or data not provided by ICT; and
  3. that the Aegis CEB Service will meet the Customer’s requirements, specifications or expectations.
• The above warranties are exclusive warranties from ICT and replace all other warranties, including implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose. ICT’s warranties will not apply if there has been misuse, modification, damages not caused by ICT, or failure to comply with instructions of ICT.
• Each party acknowledges that the other party is entering into this Agreement in reliance upon each of the warranties in Clauses 1 and 11.2.

12. LIMITATIONS OF LIABILITY

• In no event shall ICT, the reseller (if applicable) or its advertisers or suppliers have any obligation or liability to the Customer for any indirect, incidental, special, exemplary, consequential damages, pure economic loss (including any loss of data, revenue or profits or loss resulting from business interruption) or other pecuniary loss arising out of the Customer’s use or inability to use the Customer’s Account or the Aegis CEB Service or the Customer’s loss of data or files stored therein.
• ICT shall have no responsibility or legal liability whatsoever for any of the things for which the Customer has agreed that it shall have sole responsibility under this Agreement.
• ICT shall have no responsibility for claims based on non-ICT products and services, items not provided by ICT, or any violation of law or third party rights caused by the Customer’s data, content, materials, designs or specifications.
• Save and except as expressly and specifically provided in this Agreement:
  1. the Customer assumes sole responsibility for results obtained from the use of the Aegis CEB Service by the Customer;
  2. ICT disclaims all responsibilities and consequences arising from the Customer’s use of the Aegis CEB Service, save and except for gross negligence, act of omission, fraud and/or wilful misconduct on the part of ICT;
  3. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
• ICT shall not be responsible for failures to provide the Aegis CEB Service if the following exclusions exist: (a) problems caused by resources on the Customer’s network that interfere with the Aegis CEB Service; (b) changes made to the Customer’s network not communicated to ICT; (c) loss of internet connectivity to the Customer’s site for any reason; (d) Aegis CEB Service failure that result from any actions or inactions of the Customer contrary to ICT’s recommendations; and (e) all planned outages.
• Without limitation to the foregoing, in any event the total aggregate liability that ICT has towards the Customer in contract (including in respect of indemnity at Clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising out of or in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Aegis CEB Service during the 12 months preceding the date on which the claim arose.
• The Customer acknowledges that ICT does not control the transfer of data over communications facilities, including the internet, and that the Aegis CEB Service may be subject to limitations, delays and other problems inherent in the use of such communication facilities. ICT is not responsible for any delays, delivery failures or other damage resulting from such problems.

• The Customer shall defend, indemnify and hold harmless ICT from and against any claims, actions, proceedings, losses, damages, expenses and costs (including legal fees on a solicitor and customer basis) arising out of or in connection with the Customer’s use of the System and the Aegis CEB Service, provided that ICT provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense.
• ICT shall defend, indemnify and hold the Customer harmless from any claim or demand, costs and expenses (including legal fees on a solicitor and customer basis), due to or arising out of any claim or demand that any Software forming part of the System infringes any patent, copyright, database right or right of confidentiality, provided that:
  1. ICT is given prompt notice of any such claim;
  2. the Customer provides information, authority and co-operation to ICT in the defence and settlement of such claim, at ICT’s expense; and
  3. ICT is given sole authority to defend or settle the claim.
• In the defence or settlement of the claim, ICT may obtain for the Customer the right to continue using the software referred to in Clause 13.2, replace or modify it so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement without liability to the Customer. ICT shall have no liability if the alleged infringement is based on:
  1. modification of such Software by anyone other than ICT;
  2. the Customer’s use of such Software in a manner contrary to the instructions given to the Customer by ICT; or
  3. the Customer’s use of such Software after notice of the alleged or actual infringement from ICT or any appropriate authority.
• The foregoing Clause 3 states the Customer’s sole and exclusive rights and remedies, and ICT’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

14. DURATION AND TERMINATION.

• Unless terminated earlier in accordance with this Clause 14, this Agreement shall commence on the Effective Date and shall continue for the Contract Period.
• Upon the expiry of the Contract Period, ICT will send a notification to the Customer to notify the Customer of the expiry of the Contract Period via email. If the Customer wishes to renew the Aegis CEB Service for a further term of not less than 12 months, the Customer shall accept the terms of this Agreement (as may be modified, varied, amended, changed, and/or updated for the time being) by clicking/selecting a box indicating acceptance to this Agreement at the time the Customer signs up for Aegis CEB Service.
• Without prejudice to any other rights or remedies available to ICT, in the event that:
  1. any undisputed amount payable by the Customer under this Agreement is in arrears for thirty (30) days after the due date, and such payment is not made within a further thirty (30) days period from the date of receipt of a written notice from ICT or the Reseller (if applicable) to do so; or
  2. the Customer commits a breach of any of the term of this Agreement which is irremediable or in the case of a breach which is in ICT’s opinion capable of being remedied, fails to remedy such breach within fourteen (14) days of a written notice by ICT requiring such remedy,

ICT shall be entitled, at its sole and absolute discretion, to terminate this Agreement immediately by notice in writing to the Customer and upon such termination the Customer’s Account shall be suspended and ICT shall be under no obligation to provide the Aegis CEB Service to the Customer.     

• The Customer may terminate this Agreement by giving thirty (30) days prior notice in writing to ICT if ICT commits a material breach of any term of this Agreement which is irremediable or in the case of a breach which is capable of being remedied, fails to remedy such breach within thirty (30) days of a written notice by the Customer requiring such breach to be remedied.  
• In the event this Agreement is terminated in accordance with Clause 3, without prejudice to any other rights or remedies which ICT may have against the Customer in respect of any breach of this Agreement, any monies or fees paid in advance by the Customer shall be absolutely forfeited to ICT and the Customer shall be liable to pay to ICT the remaining fees for the unexpired Contract Period, which fees shall become due and payable to ICT or the reseller (in the event where a reseller is appointed, in which case the invoice will be issued by the reseller on behalf of ICT) immediately upon the termination of this Agreement. The Customer hereby confirms and agrees that the amount stipulated as payable under this Clause is a genuine pre-estimate of damages to ICT and not a penalty.
• In the event this Agreement is terminated in accordance with Clause 4, any monies or fees paid in advance by the Customer shall, be pro-rated and refunded by ICT to the Customer within thirty (30) days upon termination of this Agreement or upon the expiration of the Contract Period.
• Notwithstanding anything to the contrary, either Party may terminate the Agreement at any time by giving thirty (30) days prior written notice to other Party of its intention. For the avoidance of doubt, in the event the Customer terminates this Agreement at any time during the Contract Period, the Customer shall be liable to pay to ICT the remaining fees for the unexpired Contract Period, which fees shall become due and payable to ICT or the reseller (in the event where a reseller is appointed, in which case the invoice will be issued by the reseller on behalf of ICT) immediately upon the termination of this Agreement.
• On the expiry of the Contract Period or the earlier determination of this Agreement, as the case may be, all rights and licences granted under this Agreement shall immediately terminate.
• Any termination of this Agreement, however occasioned, shall not affect or prejudice the accrued rights or liabilities of either Party as at termination, nor shall any remedy which any Party have against the other Party for breach of this Agreement be affected.
• The termination of this Agreement shall not affect or prejudice the continuation after termination of any provision expressly stated to survive or implicitly surviving termination.

15. RESELLER (if applicable)
    • The Customer acknowledges that the appointment of reseller for the Customer shall be at the absolute and sole discretion of ICT.
    • The Customer is prohibited from requesting the Company to change the reseller prior to the expiry of the Contract Period. The Customer may, if it wishes, negotiate the replacement of the reseller with ICT when exercising its option to renew under Clause 2.
    • The Parties agree that the reseller will not have access to the System, and the access to the System is solely limited to the users authorised by the Customer.

16. • Any notice under this Agreement given by ICT to the Customer shall be deemed to be properly given if sent by email to the Customer’s email address as set forth in the Registration Information, or by written communication mailed by ordinary post to the Customer’s address on record in the Registration Information. The Customer agrees that it shall be its obligation to maintain with ICT a correct, working and up-to-date address and email address, failing which the delivery of notice by ICT to the Customer’s last known address and/or email address shall be deemed to be sufficiently served on the Customer.
    • Any notice under this Agreement given by the Customer to ICT shall be deemed to be properly given if received by email sent to ICT’s Customer Service at [email protected], save and except for notices relating to cancellation or termination of the Customer’s Account and/or the Aegis CEB Service, whereupon such notice shall be served to ICT by way of written notification to ICT’s address as stipulated on the website. Any notices sent by ordinary mail shall be deemed delivered after five (5) Business Days of posting and/or if sent by email, upon confirmation from the recipient server that the message has been successfully delivered.

17. • This Agreement shall be enforced to the fullest extent permitted by the laws of Malaysia. If for any reason any provision or part-provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable law, then such provision or part-provision shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
    • If any provision or part-provision of this Agreement is deemed deleted under Clause 1 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

18. INTELLECTUAL PROPERTY RIGHTS.

The Customer acknowledges and agrees that ICT and/or its licensors own all intellectual property rights in the System. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the System, “ICT”, “Aegis”, the Aegis CEB Service or any related documentation.

19. FORCE MAJEURE.
    • Neither Party shall be in breach of this Agreement nor be liable for delay in performing, or for any failure to perform its obligations under this Agreement, if such delay or failure results from events, circumstances or causes that are beyond the reasonable control of either Party (“Force Majeure”).
    • For purposes of this Agreement, Force Majeure shall include acts of God, riot, malicious damage, lock-outs, civil or military authority, civil disturbances, wars, strikes, fire, flood, storm or other catastrophes, failure of a utility service or transport or telecommunications network, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, default of suppliers or sub-contractors. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if any Force Majeure event shall continue for a period exceeding one (1) month from the date of notice of Force Majeure, the Party affected shall then provide an alternative solution agreeable to the other Party, failing which the Party not affected may opt to terminate this Agreement by giving thirty (30) days written notice to the other Party without any penalties and the Customer shall be entitled to a refund of all monies which have been paid by the Customer in advance.

20. MISCELLANEOUS
    • Either Party’s failure to insist upon or enforce strict performance of any provision or right of this Agreement shall not be construed as a waiver of any provision or right.
    • No failure on the part of any Party to exercise and no delay on the part of any Party in exercising any right hereunder will operate as a release or waiver thereof, nor will any single or partial exercise of any right under this Agreement preclude any other or further exercise of it.
    • This Agreement shall be governed by the laws of Malaysia and the Parties agree to submit to the exclusive jurisdiction of the courts of Malaysia with regard to any claim arising under or otherwise occurring by reason of this Agreement or the Customer’s use of the Aegis CEB Service or the Customer’s Account.
    • This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous understandings and agreements.
    • ICT is an independent contractor, not the Customer’s agent, joint venture, partner, or fiduciary, and does not undertake to perform any of the Customer’s regulatory obligations or assume any responsibility for the Customer’s business or operations.
    • Any directions, suggested usage or guidance provided by ICT does not constitute professional advice to the Customer. The Customer and its authorised users are responsible for the use of the Aegis CEB Service and should obtain their own independent expert advice. The Customer is responsible for its use of ICT and non-ICT products and service.
    • Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party.