General Terms of Service
for
Hermos Software and Services
This Agreement ("Agreement") is by and between Hermos Sdn. Bhd. ("Hermos") a Malaysian company and You, Your heirs, agents, successors and assigns ("You"), and is made effective as of the date of its electronic execution. This Agreement sets forth the terms and conditions of Your use of Hermos software (“Software”) and services (“Services”) and explains Hermos's obligations to You and Your obligations to Hermos in relation to the Software and Services You purchase.
This Agreement as well as any additional Hermos policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and Hermos concerning Your use of Hermos's Software and Services, and supersede and govern all prior proposals, agreements, or other communications. All Hermos policies and agreements specific to particular Software and Service are incorporated herein and made part of this Agreement by reference, including the dispute policy at http://www.icann.org/udrp/udrp-policy-24oct99.htm (“UDRP”). By purchasing Hermos's Software or Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which Hermos may establish from time to time, and any agreements that Hermos is currently bound by or will be bound by in the future.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You have established with Hermos, whether or not the transactions were in Your behalf. You acknowledge that Hermos's acceptance of any application made by You for Services provided by Hermos will take place at the accredited registrar's offices for Internet Corporation for Assigned Names and Numbers ("ICANN") or MyNIC Berhad or any other relevant domain name registrar.
The General Terms in Section A apply to all customers of Hermos. The Software and Services Specific Agreements incorporated in Section B apply only to customers who have purchased those referenced Services.
A. GENERAL TERMS APPLICABLE TO ALL SOFTWARE AND SERVICES
1. TERM OF AGREEMENT; MODIFICATIONS
You agree that Hermos may modify this Agreement and the Services from time to time. You agree to be bound by any changes Hermos may reasonably make to this Agreement when such changes are made. If You have purchased Services or Software from Hermos, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Software or Services. In the event You terminate Your usage, Hermos will not refund any amounts You have paid. You agree that Hermos shall not be bound by any representations made by third parties who You may use to purchase Services from Hermos, and that any statement of a general nature, which may be posted on Hermos's Web site or contained in Hermos's promotional materials, will not bind Hermos. Hermos may, at times, offer certain promotions with different charges and features.
You agree that You will be responsible for notifying Hermos should You desire to terminate Your use of Hermos's Services. Notification of Your intent to terminate must be provided to Hermos no earlier than 10 days prior to Your billing date but no later than three days prior to Your billing date.
2. ACCURATE INFORMATION
You agree to maintain accurate information by providing updates to Hermos, as needed, while You are using Hermos’s Services. You agree You will notify Hermos within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by Hermos to determine the validity of information provided by You will constitute a material breach of this Agreement.
You agree that Hermos may use and rely on any such information provided by You for all purposes in connection with Your Services, subject to Hermos's Privacy Policy. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if Hermos has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, Go Daddy has the absolute right, in its sole discretion, to terminate its Services and close Your account.
3. PRIVACY
You can view Hermos’s Privacy Policy online at www.hermos.com.my/privacy-policy, which is incorporated herein by reference, as it is applicable to all of Hermos's Software and Services. The Privacy Policy provides Your rights and Hermos's responsibilities with regard to Your personal information. Hermos will not use Your information in any way inconsistent with the purposes and limitations provided in the Privacy Policy.
4. ACCOUNT SECURITY
You agree You are entirely responsible for maintaining the confidentiality of Your customer number / login, password, credit card number, and shopper PIN (collectively, the "Account Access Information"). You agree You are entirely responsible for any and all activities that occur under Your account. You agree to notify Hermos immediately of any unauthorised use of Your account or any other breach of security. You agree Hermos will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by Hermos or another party due to someone else using Your Account Access Information. For security purposes, You should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that You will be responsible for all activity in Your account, whether initiated by You, or by others on Your behalf, or by any other means. Hermos specifically disclaims liability for any activity in Your account, whether authorised by You or not.
5. NO UNLAWFUL CONDUCT OR IMPROPER USE
As a condition of Your use of Hermos’s Software and Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to Hermos if, for any reason, Hermos takes corrective action with respect to Your improper or illegal use of its Services.
Hermos reserves the right at all times to disclose any information as Hermos deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Hermos's sole discretion.
If You have purchased Services, Hermos has no obligation to monitor Your use of the Services. Hermos reserves the right to review Your use of the Services and to cancel the Services in its sole discretion. Hermos reserves the right to terminate Your access to the Services at any time, without notice, for any reason whatsoever.
Hermos reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against Hermos or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. Hermos may review every account for excessive space and bandwidth utilisation and to terminate or apply additional fees to those accounts that exceed allowed levels.
Except as set forth below, Hermos may also cancel Your use of the Services, after thirty (30) days, if You are using the Services, as determined by Hermos in its sole discretion, in association with spam or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of Malaysia and/or foreign territories in which You conduct business; activities designed to encourage unlawful behaviour by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; and activities designed to harm or use unethically minors in any way. Notwithstanding anything to the contrary herein, in the event Hermos cancels Your Services during the first thirty (30) days after You purchase the Services, You will receive a refund of any fees paid to Hermos in connection with the Services being cancelled. In the event Hermos deletes Your Services because they are being used in association with spam or morally objectionable activities, no refund will be issued. You agree You will not be entitled to a refund of any fees paid to Hermos if, for any reason, Hermos takes corrective action with respect to Your improper or illegal use of its Services.
6. NO SPAM; LIQUIDATED DAMAGES
You agree Hermos may immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay Hermos liquidated damages of RM1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your account, otherwise You agree to pay Hermos's actual damages. You acknowledge You have read and understand and agree to be bound by the terms and conditions of Hermos’s Anti-spam Policy, available at http://www.hermos.com.my/anti-spam-policy Such terms and conditions are applicable to the use of all Hermos Software and Services and are incorporated herein.
7. INTELLECTUAL PROPERTY
You agree that Hermos or its licensor holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such Services or Software.
You understand and agree that all content and materials contained in this Agreement, other policies, the Hermos Web site, and any affiliated Web sites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of Malaysia, as well as any other applicable proprietary rights and laws, and that Hermos or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of Hermos or its licensor. No licence or right under any copyright, patent, trademark, service mark or other proprietary right or licence is granted to You or conferred upon You by this Agreement or otherwise.
8. USE OF HERMOS SOFTWARE
If You have licensed software from Hermos, Hermos grants You a limited, non-exclusive, non-transferable and non-assignable licence to use the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time.
You agree to not alter or modify the Software. You agree You are not authorised to combine the Software with any other software program, create derivative works based upon the Software, nor are You authorised to integrate any plug-in or enhancement which uses or relies upon the Software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.
Hermos reserves all rights to the Software. The Software and any copies You are authorised to make are the intellectual property of Hermos. The source code and its organisation are the exclusive property of Hermos and the Software is protected by copyright, including Malaysian Copyright Law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the Software and all rights are reserved by Hermos.
Hermos provides this Software “as is” without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.
9. FEES AND PAYMENT
As consideration for the Software or Services purchased by You and provided to You by Hermos, You agree to pay Hermos at the time You order. All fees are due immediately and are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. Hermos expressly reserves the right to modify pricing through email notification and/or notice on its Web site. Payment may be made by You by bank transfer, or a personal cheque (collectively, the "Payment Method").
Hermos will automatically renew Your Services when they come up for renewal and you must make payment in accordance with the Payment Method You have on file with Hermos, at Hermos's then current rates.
If for any reason Hermos does not receive the full amount owed to Hermos for the Services provided, or if Hermos is charged a penalty for any fee it previously charged to Your Payment Method, You agree that Hermos may pursue all available remedies in order to obtain payment. You agree that among the remedies Hermos may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any domain names or Services registered or renewed on Your behalf. Hermos reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular Services, including additional costs that it may incur in providing the Services and pass along to You. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties You have elected to use as payment methods and disputes that require legal services. These charges will be billed to the Payment Method we have on file for You. You may change Your Payment Method at any time by giving not less than 14 days' prior notice in writing to Hermos.
You agree that You are solely liable for arranging that Your Services are renewed, and that Hermos shall not be liable to You or any third party if it is unable to charge Your Payment Method in order to renew Your Services.
Unless Hermos in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in Malaysia will be billed in Malaysian Ringgits and subject to Malaysian payment terms and pricing schemes ("Malaysian Customers"); and (ii) all other entities will be billed in U.S. dollars, Euros or local currency and be subject to either Malaysian or non-Malaysian payment terms and pricing schemes at the discretion of Hermos ("Non-Malaysian Customers"). In addition, you may be charged VAT, sales tax, service tax or similar taxes and duties, based on the country indicated in Your billing address section.
If You are paying by cheque, Your chequing account must be at a financial institution in Malaysia, and the cheque must be payable in Malaysian Ringgits.
It is Your responsibility to keep Your chequing account current, and to have available funds in it. You agree that Hermos will not be responsible for payments that fail to go through as a result of Your chequing account no longer existing, or holding insufficient funds. If for any reason Your personal cheque is not honoured in full, You agree that Hermos may pursue all available remedies in order to obtain payment. You agree that if the personal cheque is returned unpaid, You will pay a service charge of RM100.00 or the maximum amount allowed by law.
The cheque may not be for less than the full amount required at that time. All personal cheques may be delayed up to fourteen (14) days until the money is credited, which may delay Your usage of the Software or Services.
10. REPRESENTATIONS AND WARRANTIES
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are 18 years of age or older, or that You have an agent authorised by law to represent You who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name.
Hermos expressly reserves the right to deny, cancel or transfer any domain name registration that it deems necessary, in its discretion, to protect the integrity and stability of the registry, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of Hermos, as well as its affiliates, subsidiaries, officers, directors and employees. Hermos also reserves the right to freeze a domain name during resolution of a dispute.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL HERMOS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLDUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF HERMOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some jurisdictions may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, Hermos’s liability is limited to the full extent permitted by law. You agree that in no event shall Hermos’s maximum aggregate liability exceed the total amount paid by You for the particular Software or Service in dispute purchased from Hermos.
12. DISCLAIMER OF WARRANTIES
Hermos expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Services are provided on an "As Is" and "As Available" basis. Hermos makes no warranty that its services will meet your requirements, or that the services will be uninterrupted, timely, secure, or error free, or that defects will be corrected. Hermos does not warrant, nor make any representations regarding the use, or results of, any of the services it provides, in terms of their correctness, accuracy, reliability, or otherwise.
Some jurisdictions do not allow the disclaimer of implied warranties, in which event that foregoing disclaimer may not apply to You.
13. INDEMNIFICATION
You agree to defend, indemnify and hold harmless Go Daddy and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including legal cost on a full indemnity basis, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with Hermos whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from Hermos or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold Hermos harmless from any loss, liability, damages or expense, including legal cost on a full indemnity basis, arising out of any breach of any representation or warranty provided herein, any negligence or wilful misconduct by You, or any allegation that Your account infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should Hermos be notified of a pending law suit, or receive notice of the filing of a law suit, Hermos may seek a written confirmation from You concerning Your obligation to indemnify Hermos. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Hermos shall have the right to participate in the defence of any such claim through solicitors of its own choosing. You agree to notify Hermos of any such claim promptly in writing and to allow Hermos to control the proceedings. You agree to cooperate fully with Hermos during such proceedings.
You agree to cooperate fully with Hermos during such proceedings. You agree You will not be entitled to a refund of any fees paid to Hermos if, for any reason, Hermos takes corrective action with respect to Your improper or illegal use of its services. You also agree that if Hermos is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a Traffic Facts account of Yours with Hermos, that Hermos, in its sole discretion, may take whatever action Hermos deems necessary regarding further modification, assignment of and/or control of your account to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
14. GOVERNING LAW, VENUE
This agreement shall be deemed entered into in Malaysia. Except for disputes concerning the user of a domain name registered with Hermos, You agree that the laws of Malaysia, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Malaysia. For the adjudication of disputes concerning the use of any domain name registered with Hermos, You agree to submit to jurisdiction and venue in Malaysia.
15. NOTICES
You agree that all notices (except for notices concerning breach of this Agreement) from Hermos to You may be posted on our Web site. Notices concerning breach will be sent either to the email or postal address You have on file with Go Daddy. In either case, delivery shall be deemed to have been made five (5) days after the date sent.
Notices from You to Hermos shall be made either by email, sent to the address provided on the Hermos Web site, or first class mail to Hermos’s address at:
Hermos Sdn. Bhd., Suite 20.05, Level 20, Plaza 138, No. 138 Jalan Ampang, 50450 Kuala Lumpur, Malaysia. Attn: Chief Executive Officer.
16. HEADINGS
The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.
17. ENTIRE AGREEMENT
You agree that this Agreement including the policies and agreements it refers to (i.e. our Dispute Resolution Policy, etc.) constitute the complete and only Agreement between You and Hermos regarding the Services contemplated herein.
18. SEVERABILITY
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
19. WAIVER
The failure of Hermos to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of Hermos thereafter to enforce such provisions.
20. FORCE MAJEURE
Hermos will make every effort to keep its Web site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold Hermos liable for any of the consequences of such interruptions.
21. SURVIVAL
Sections 1, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 shall survive any termination or cancellation of this Agreement.
22. NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
B. SOFTWARE AND SERVICES SPECIFIC AGREEMENTS
If You purchase Services from Hermos, the following Software and Services specific agreements shall apply and are incorporated within this Agreement in addition to Sections 1-22
Software and Services –
FIS# Sales Force Automation Service Agreement
FIS# Server Hosting Service Agreement
Policies –
Privacy Policy
ICANN Transfer Dispute Resolution Policy
(Version dated 17 June 2008)
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