1 GENERAL
1.1 **READ THIS AGREEMENT CAREFULLY BEFORE USING ANY STRATUS TECHNOLOGIES SERVICE. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN CUSTOMER (referred to herein as “CUSTOMER“) AND STRATUS TECHNOLOGIES SDN BHD (hereinafter referred to as “STRATUS TECHNOLOGIES“).**
1.2 This agreement is subject to change, and it is CUSTOMER’s responsibility to regularly check for modifications.
1.3 STRATUS TECHNOLOGIES reserves the right to terminate or refuse service to anyone, at any time and for any reason, including but not limited to violation of STRATUS TECHNOLOGIES’s Acceptable Use Policy (AUP) or laws of Malaysia. Should STRATUS TECHNOLOGIES terminate CUSTOMER’s service for a reason other than violation of the Acceptable Use Policy, STRATUS TECHNOLOGIES will issue CUSTOMER a refund for the remaining paid period of service. Under no circumstances is STRATUS TECHNOLOGIES responsible for any damages resulting from termination of service. STRATUS TECHNOLOGIES reserves the right to refuse service to particular individuals or entities, at its sole discretion, with or without cause.
2 SERVICES
Customer hereby agrees to subscribe to services from STRATUS TECHNOLOGIES for the Subscription Term stated in the order. During the Subscription Term, Customer will receive a nonexclusive, non-assignable, worldwide right to access and use the STRATUS TECHNOLOGIES’s services solely for Customer’s internal business operations upon the terms and subject to the conditions set forth in this Agreement.
3 TERMINATION
3.1 **Term of this Agreement**. The term of this Agreement shall begin on the Effective Date and shall continue until terminated by either party as outlined in this Clause.
3.2 **Termination**. Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach. STRATUS TECHNOLOGIES may, in addition, terminate this Agreement WITHOUT CAUSE by providing Customer ninety (90) days’ written notice of termination.
3.3 **Suspension for Non-Payment**. STRATUS TECHNOLOGIES reserves the right to suspend delivery of the STRATUS TECHNOLOGIES’s services if Customer fails to timely pay any undisputed amounts due to STRATUS TECHNOLOGIES under this Agreement, but only after STRATUS TECHNOLOGIES notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension of the STRATUS TECHNOLOGIES’s services shall not release Customer of its payment obligations under this Agreement. Customer agrees that STRATUS TECHNOLOGIES shall not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to suspension of the STRATUS TECHNOLOGIES’s services resulting from Customer’s nonpayment.
3.4 **Suspension for Ongoing Harm**. STRATUS TECHNOLOGIES reserves the right to suspend delivery of the STRATUS TECHNOLOGIES’s services if STRATUS TECHNOLOGIES reasonably concludes that Customer’s or an Authorized User’s use of STRATUS TECHNOLOGIES’s services:
(a) is causing immediate and ongoing harm to STRATUS TECHNOLOGIES or others;
(b) has or will subject STRATUS TECHNOLOGIES to civil or criminal liability;
(c) is gaining unauthorized access to a third party’s computer system, i.e., ‘hacking’; or
(d) has breached any other terms and conditions of this Agreement.
In the extraordinary case that STRATUS TECHNOLOGIES must suspend delivery of the STRATUS TECHNOLOGIES’s services, STRATUS TECHNOLOGIES shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. STRATUS TECHNOLOGIES shall not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to any suspension of STRATUS TECHNOLOGIES’s services.
4 CUSTOMER DATA
4.1 The Customer Data belongs to Customer, and STRATUS TECHNOLOGIES makes no claim to any right of ownership in it.
4.2 STRATUS TECHNOLOGIES shall keep the Customer Data confidential in accordance with laws in Malaysia applicable to STRATUS TECHNOLOGIES in respect of STRATUS TECHNOLOGIES’s Services provided.
4.3 The Customer hereby consents and authorizes STRATUS TECHNOLOGIES to use the Customer Data for the following:
(a) observing and reporting back to Customer on Customer’s usage of STRATUS TECHNOLOGIES’s Services, and making recommendations for improved usage of STRATUS TECHNOLOGIES’s Services;
(b) identifying trends of usage and publishing reports on its findings, provided such reports shall not identify the user.
4.4 STRATUS TECHNOLOGIES must take reasonable technical and organizational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure, or access; and must deal with the information only in accordance with Customer’s instructions, provided they are reasonable and lawful.
4.5 STRATUS TECHNOLOGIES warrants that STRATUS TECHNOLOGIES’s Services comply with the Personal Data Protection Act 2010.
4.6 STRATUS TECHNOLOGIES will ensure that the data center containing the Customer Data meets the following physical and electronic security requirements:
(i) single point of entry;
(ii) main access monitored with additional access for emergency purposes only;
(iii) surveillance cameras in the facility;
(iv) access validation with identity check;
(v) access only to persons on STRATUS TECHNOLOGIES-approved access list;
(vi) log-in validation;
(vii) creation of accounts only as verified by STRATUS TECHNOLOGIES or subcontracted hosting provider;
(viii) access to servers via encrypted means; and
(ix) servers running behind a secure firewall.
Here is the continuation of the document with “PROGENET” replaced by “STRATUS TECHNOLOGIES” throughout:
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5 WARRANTIES AND DISCLAIMERS
5.1 **Customer Warranties**. Customer warrants that it has the legal power and authority to enter into this Agreement. Customer further warrants that it will not use the STRATUS TECHNOLOGIES services to conduct any illegal activity.
5.2 **STRATUS TECHNOLOGIES Warranties**. STRATUS TECHNOLOGIES warrants that it has the legal power and authority to enter into this Agreement and that it will provide the STRATUS TECHNOLOGIES services in a manner consistent with general industry standards reasonably applicable to the provision thereof. STRATUS TECHNOLOGIES further warrants that the STRATUS TECHNOLOGIES services will perform materially in accordance with the online STRATUS TECHNOLOGIES Help Documentation under normal use and circumstances.
5.3 **Disclaimer of Warranties**. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, STRATUS TECHNOLOGIES MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. STRATUS TECHNOLOGIES SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6 LIMITATION OF LIABILITY
6.1 **Limitation of Liability**. STRATUS TECHNOLOGIES’s liability to Customer for any reason and upon any cause of action, regardless of the form in which the legal or equitable action may be brought, whether in contract, tort (including negligence), or otherwise, shall be limited to direct damages only and shall not exceed the amount paid by Customer to STRATUS TECHNOLOGIES in the twelve (12) months preceding the date of the claim.
6.2 **Exclusion of Consequential and Related Damages**. IN NO EVENT SHALL STRATUS TECHNOLOGIES HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7 INDEMNIFICATION
7.1 **Indemnification by STRATUS TECHNOLOGIES**. STRATUS TECHNOLOGIES shall defend, indemnify, and hold harmless Customer from and against any loss, damage, liability, or cost arising from a claim brought by a third party against Customer alleging that Customer’s use of the STRATUS TECHNOLOGIES services in accordance with this Agreement infringes or misappropriates the intellectual property rights of a third party, provided that STRATUS TECHNOLOGIES is promptly notified in writing of the claim, given the right to control the defense and settlement, and provided with full cooperation in defending the claim.
7.2 **Indemnification by Customer**. Customer shall defend, indemnify, and hold harmless STRATUS TECHNOLOGIES from and against any loss, damage, liability, or cost arising from a claim brought by a third party against STRATUS TECHNOLOGIES alleging that Customer Data, or Customer’s use of the STRATUS TECHNOLOGIES services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party, or violates applicable law, provided that Customer is promptly notified in writing of the claim, given the right to control the defense and settlement, and provided with full cooperation in defending the claim.
8 GENERAL PROVISIONS
8.1 **Force Majeure**. STRATUS TECHNOLOGIES shall not be liable for any failure to perform its obligations hereunder where the failure results from any cause beyond STRATUS TECHNOLOGIES’s reasonable control, including, but not limited to, mechanical, electronic, or communications failure or degradation.
8.2 **Governing Law**. This Agreement shall be governed by and construed in accordance with the laws of Malaysia, without regard to its conflict of law principles.
8.3 **Dispute Resolution**. Any dispute arising out of or in connection with this Agreement shall be resolved through amicable negotiation between the parties. If the dispute cannot be resolved within thirty (30) days of negotiation, it shall be referred to and finally resolved by arbitration in Malaysia, in the English language, in accordance with the rules of the Asian International Arbitration Centre (AIAC).
8.4 **Assignment**. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
8.5 **Entire Agreement**. This Agreement, including all referenced exhibits and attachments, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.
8.6 **Severability**. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
8.7 **Notice**. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon:
(i) personal delivery;
(ii) the second business day after mailing;
(iii) the second business day after sending by confirmed facsimile; or
(iv) the first business day after sending by email.
All notices shall be sent to the addresses provided by each party to the other.
8.8 **Relationship of the Parties**. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
8.9 **Waiver**. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.