These Terms of Service (the “Terms”) cover your use of and access to the sites, templates, products, applications, tools and features (collectively, the “Services”) provided by PENANGLANG, Inc. (“we” “our” “us” or “PENANGLANG”). The Services include, but are not limited to, any free trials for which you may have registered, the website and associated domains of www.penanglang.com (our “Website”) and our web and mobile applications (“PENANGLANG Apps”).
PENANGLANG provides the Services to enable its customers to easily create engaging web and mobile apps without designing or coding. To the extent you have contacted us regarding the Services, created a user account or otherwise contacted us through the Services (including by using or accessing the PENANGLANG Apps), the Terms will refer to you as a “Customer.” Apps built with our Services by Customers are called “Customer Apps.” To the extent you use or access a Customer App (for instance, to register for or obtain information about an event) the Terms will refer to you as an “End User.” It is possible to be both a Customer and an End User. Parts of the Terms that do not specify whether they are referring to a Customer or End User refer to both.
Please read this Agreement carefully. It includes important information about your legal rights, and covers areas such as automatic subscription renewals, warranty disclaimers, limitation of liability the resolution of disputes by arbitration and a class action waiver. Please note that some of these terms may not apply to you and you may be entitled to specific rights under the mandatory laws of the jurisdiction in which you live.
ACCESSING THE SERVICES
To use many of the Services, you are required to create a user account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. We may need to use this information to contact you regarding the Services.
Becoming a Customer
For the purposes of this Agreement, you can become a Customer in different ways, including: (1) contacting us regarding the Services, (2) creating an Account or (3) otherwise contacting PENANGLANG through the Services (including by using or accessing the PENANGLANG Apps). If you do any of these things as a representative of or on behalf of an organization (e.g. by using a corporate email address), your organization is the Customer. If you inquire about the Services or create an Account using a personal email address and for personal purposes, you are the Customer.
Corporate Account Control
If you created an Account on behalf of an organization, the organization, as the Customer, can modify and control the Account and otherwise exercise its rights under this Agreement. If the Customer elects to replace you as the representative with ultimate authority for the account, we will provide you with notice following such election and you agree to take any actions reasonably requested by us or the Customer to facilitate the transfer of authority to a new representative of the Customer.
You agree to safeguard your Account and to make sure that others do not have access to your Account or password. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us if you know or have any reason to suspect that your Account has been accessed without your authorization or that your Account or password has been stolen, misappropriated or otherwise compromised.
Minimum Age Requirements
You must be at least 18 years old to create an Account. By creating an Account, you represent and warrant that you are at least 18 years old. Furthermore no part of the Services is directed to persons under the age of 13. If you are under 13 years of age, you may not access the Services at any time or in any manner.
Accessing or using PENANGLANG Services may be prohibited or restricted in certain countries. If you access or use PENANGLANG Services from outside of Malaysia, you are responsible for complying with the laws and regulations of the country, territory or jurisdiction from which you access or use PENANGLANG Services. By accessing or using PENANGLANG Services, you represent and warrant that you are not located in, under the control of, or a national or resident of, as the case may be, any person, organization or country which Malaysia has (i) identified as a “Specially Designated National,” (ii) placed on the Commerce Department’s Table of Deny Orders or (iii) specified as the target of a commercial embargo.
You Own Your Content
Customers may upload or provide content to their own Customer Apps or to other parts of the Services. Such content includes, without limitation, text, photos, images, audio, video, code and any other materials (“Customer Content“). You own your Customer Content, except for the limited rights that enable us to provide, improve, promote and protect the Services as described in this Agreement.
PENANGLANG License to Your Content
When you upload or provide Customer Content to the Services, you grant PENANGLANG (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that Customer Content works better with the Services), communicate, publish, publicly display, publicly perform and distribute Customer Content for the limited purposes of allowing us to provide, improve, promote and protect the Services. This Section does not affect any rights you may have under applicable data protection laws.
Featuring Your App
We may choose to feature Customer Apps or names, trademarks, service marks or logos included on Customer Apps. You grant us a perpetual, worldwide, royalty-free, non-exclusive right and license to use any version of your Customer App, or any portion of your Customer App, including without limitation names, trademarks, service marks or logos on your Customer App, for the limited purpose of PENANGLANG marketing and promotional activities. For example, we may feature your Customer App on our Website or on our social media accounts. You waive any claims against us relating to any moral rights, artists’ rights or any other similar rights worldwide that you may have in or to your Customer App or names, trademarks, service marks or logos on your Customer App and any right of inspection or approval of any such use. You can opt out of being featured through your Account by sending a message to email@example.com. This Section does not affect any rights you may have under applicable data protection laws.
You represent and warrant that your use of the Services is not contrary to law, including, without limitation, applicable privacy laws, export or import controls and sanctions. You may not use the Services where prohibited by law.
Unowned or Unlicensed Content
You represent and warrant that you own all rights to your Customer Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your Customer Content via the Services and in the manner required by this Agreement. If we use your Customer Content in the ways described in this Agreement, you represent and warrant that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights, trade secrets or any other intellectual property or proprietary rights. Other content on the Services may be protected by others’ intellectual property, trade secret or other rights. You shall not copy, upload, download or share content unless you have the right to do so.
Interfering with the Services
You agree not to interfere with or disrupt the Services or servers, networks or devices connected to the Services, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You shall not inject content or code or otherwise alter or interfere with the way any of the Services are rendered or displayed in a user’s browser or device. In addition, you agree not to:
- probe, scan or test the vulnerability of any system or network;
- breach or otherwise bypass any security or authentication measures;
- access, tamper with or use non-public areas or parts of the Services, or shared areas of the Services that PENANGLANG has not invited you to access;
- take apart, decompile or reverse engineer any part of the Services in an effort to access things such as source code or algorithms;
- access, search or create accounts for the Services by any means (for example, scraping, spidering or crawling) other than our publicly supported interfaces;
- take action that imposes an unreasonable load on our infrastructure or that of our third party providers (where PENANGLANG reserves the right to determine what is reasonable or unreasonable); and
- provide your password to any other person, use any other person’s username and password, or otherwise manage the Services through shared credentials (unless such management explicitly approved by PENANGLANG).
Spamming and Phishing
You agree not to use our Services to send spam, emails that violate The CAN-SPAM Act or other laws, emails to people who have not explicitly consented (where such consent is required) or other unsolicited communications (bulk or otherwise), promotions or advertisements. We reserve the right to determine what constitutes spam.
You also agree not to send altered, deceptive or false source-identifying information (including any misleading or incorrect names, email addresses or subject lines), including, without limitation, phishing or spoofing.
Deceptive, Fraudulent and Criminal Behavior
You agree not to: (1) use the Services to act in a way that is false, fraudulent, inaccurate or deceiving; (2) impersonate another person, company or entity; or (3) engage in misleading or unethical marketing or advertising.
You agree not to: (1) use unauthorized credit cards, debit cards or other unauthorized payment devices on the Services; (2) promote or advertise products or services other than your own without appropriate authorization; (3) sell the Services unless specifically authorized to do so by PENANGLANG or (4) publish or use the Services on any network or system other than those provided by PENANGLANG unless previously authorized to do so by PENANGLANG.
You agree not to infringe or misappropriate anyone’s copyright, trademark or other intellectual property rights or to violate anyone’s privacy or publicity rights.
You agree not to: (1) threaten, harass or abuse any individuals; (2) incite violence; (3) publish sexually explicit or obscene material; (4) condone or promote self-harm; (5) condone or promote violence against any person or group based on race, ethnicity, nationality, religion, gender, gender identity, sexual preference, age or disability; or (6) violate any laws through your use of the Services, including, without limitation, all local laws regarding online conduct and acceptable content.
Consequences of Prohibited Use
If we conclude, at our sole discretion, that you have misused the Services, we may take action against your Account or your Customer Apps. We do our best to ensure fair outcomes, but in all cases, we reserve their right to remove any content or suspend or terminate your Account or your Customer Apps without any refund of any amounts paid for the Services, without liability or notice to you, at any time and for any reason (except where prohibited by applicable law).
You may report violations of these guidelines directly to PENANGLANG by emailing legal@PenangLang.com.
End User Status
To the extent you are accessing or using a Customer App that you have not created using your own Account, you are classified as an End User. You are an End User, for instance, if a Customer has invited you to use a Customer App to learn about, register for, or purchase tickets for an event.
End User Data
In the course of using or accessing a Customer App, you may submit content or information such as messages, files or contact details to the Services (“End User Data”). You acknowledge and agree that any such End User Data belongs to the Customer owning the Customer App through which you submitted the End User Data. The Customer has control over the End User Data. For instance, the Customer may allow or disable access to his/her/its Customer Apps, enable or disable third party integrations or manage certain permissions. These and other Customer privileges granted under this Agreement may result in the access, use, disclosure, modification or deletion of certain or all End User Data.
Customer’s Responsibility to End Users
Your Customer Apps may have their own visitors, customers and users, called “End Users.” You understand and agree that your Customer Apps and End Users are your responsibility and you are solely responsible for compliance with any laws or regulations related to your Customer Apps and End Users. PENANGLANG is not liable for, and will not provide you with any legal advice regarding, your Customer Apps and End Users. This paragraph does not limit or affect any liability we may have to the Customer separately for any breach of the other provisions of this Agreement.
Relationship Between PENANGLANG, Customer and End User
AS BETWEEN US AND CUSTOMER, YOU, AS AN END USER, AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (1) INFORM YOU AND ANY OTHER END USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF END USER DATA; (2) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ANY END USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF END USER DATA AND THE OPERATION OF THE SERVICES; (3) ENSURE THAT THE TRANSFER AND PROCESSING OF END USER DATA UNDER THIS AGREEMENT IS LAWFUL; AND (4) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ANY END USER RELATING TO OR BASED ON END USER DATA, OR THE SERVICE’S OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS. PENANGLANG MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICES, WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “ AS AVAILABLE” BASIS.
End User Access
Your access as an End User to a particular Customer App can be terminated by Customer or us. Please contact the Customer if you, at any time and for any reason, wish to terminate your own access to a particular Customer App.
THIRD PARTY SERVICES, SITES AND CONTENT
Third Party Services
The Services are integrated with various third party services and applications (collectively, “Third Party Services”) that may allow you to access their content and products. Examples of Third Party Services include social media platforms, eCommerce payment processors and other integration partners and service providers. These Third Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We do not control Third Party Services, and we are not liable for the actions of any Third Party Services or for any transaction you may enter into with them. Your security when using Third Party Services is your responsibility. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We are not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result (except where prohibited by applicable law).
Third Party Sites
The Services may contain links to third party sites. When you access third party sites, you do so at your own risk. We do not control and are not liable for any part of those sites or any actions of such third parties.
Third Party Content
The Services or apps created using the Services may contain content: (1) that is offensive or objectionable; (2) that contains errors; (3) that violates intellectual property, trade secret, privacy, publicity or other rights or the good name of you or third parties; (4) that is harmful to your or others’ computers or networks; (6) that is unlawful or illegal; or (6) the downloading, copying or use of which is subject to additional terms and policies of third parties or is protected by intellectual property, trade secret, privacy or other laws. We do not represent or warrant that we endorse End User or Customer Content, or that we believe such content to be accurate, useful, lawful or non-harmful. We are not a publisher of, and we are not liable for, any End User or Customer Content uploaded, posted, published or otherwise made available via the Services by you or anyone else. You are responsible for taking precautions to protect yourself, and your computer or network, from End User and Customer Content accessed via the Services.
PENANG LANG’S INTELLECTUAL PROPERTY
PENANGLANG owns and hereby retains all proprietary rights in the Services. The Services are protected by copyright, trademark and other US and foreign laws. This Agreement does not grant you any right, title or interest in the Services, our trademarks, logos or other brand features or intellectual property or trade secrets or others’ content in the Services. You agree not to change, translate or otherwise create derivative works of the Services or others’ content.
PENANGLANG Can Use Your Feedback
To the extent that you give us feedback, comments, or suggestions concerning the Service (collectively, “Feedback”), you acknowledge and agree that all Feedback is Penang Lang’s sole and exclusive property. You agree to irrevocably assign and transfer to us, and hereby do assign and transfer to us all of your right, title, and interest in and to the Feedback, including all intellectual property rights therein. To the extent that the foregoing assignment is ineffective for whatever reason, you agree to grant and hereby grant to PENANGLANG a non-exclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback without restriction. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us in acquiring, perfecting and maintaining our intellectual property rights in and other legal protections for the Feedback.
RESERVATION OF RIGHTS
We reserve the following rights, which we may exercise at any time and in our sole discretion, and without liability or notice to you (except where prohibited by applicable law): (1) we may change parts or all of the Services and their functionality; (2) we may suspend or discontinue parts or all of the Services; (3) we may terminate, suspend, restrict or disable your access to or use of parts or all of the Services; (4) we may terminate, suspend, restrict or disable access to your Account or parts, some or all of Your Sites; and (5) we may change our eligibility criteria to use the Services (and if such eligibility criteria changes are prohibited by law where you live, we may revoke your right to use the Services in that jurisdiction).
Any future release, update or other addition to the Services shall be subject to this Agreement. PENANGLANG reserves all rights not explicitly granted in this Agreement.
Data Processing Addendum
Our Data Processing Addendum forms part of this Agreement. The Data Processing Addendum applies to citizens of countries within the European Union or other countries within the European Economic Area. By using PENANGLANG Services, you agree to the terms specified in the Data Processing Addendum.
Compliance with Privacy Laws
DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
Reporting Claims of Copyright Infringement
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible the Services infringe your copyright, you may request removal of those materials (or removal access to them) from the Services by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (the “DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- Your physical or electronic signature.
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works.
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive DMCA Notices is:
Attn: Copyright Compliance Department
Success Prestige Solutions
3A-1-13, Straits Quay,
Jalan Seri Tanjung Pinang Tanjung Tokong,
10470 George Town, Pulau Pinang
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
Counter Notification Procedures
If you believe that material you posted on the Services was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter-Notice must include substantially the following:
- Your physical or electronic signature.
- An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
- A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside Malaysia for any judicial district in which the Services may be found) and that you will accept service from the person (or an agent of that person) who provided us with the complaint at issue.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the Accounts of users who are repeat infringers.
PAID SERVICES AND FEES
Certain portions of the Services can only be accessed by paying a fee (such portions of the Services are called “Paid Services”). A listing of Penang Lang’s Paid Services and associated fees can be found on our Website at https://www.penanglang.com/pricing. Additional fees may also apply to certain transactions, but we shall notify you of any fees before charging you.
For Customers that purchase Paid Services through our Website, our fees are specified on the checkout page of your online shopping cart. Payment obligations are non-cancelable, fees must be paid in advance, and, unless otherwise stated in this Agreement, fees are non-refundable. The default payment method is credit card. However, if you wish to pay for your Subscription by wire transfer, check or other alternative form of payment, we will charge an additional $50 processing fee.
We may change our fees at any time. We will provide you with advance notice of these fee changes via the Services. New fees will not apply retroactively. If you do not agree with any fee changes, you have the right to reject the change by canceling the applicable Paid Service before your next payment date.
Fees are stated exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes and all other charges incidental to purchasing Paid Services, except for those taxes based on Penang Lang’s net income. If any payments for Paid Services are subject to withholding tax by any government, you agree to reimburse us for such withholding tax. Where PENANGLANG does not have a legal obligation to pay or collect indirect Taxes on a sale of Paid Services to you, you may be required to self-assess those Taxes under the applicable laws of the country where you are established, have a permanent address or usually reside.
You must provide PENANGLANG with valid payment information in connection with your purchase of Paid Services. By providing PENANGLANG with your payment information, you agree that (i) PENANGLANG is authorized to immediately invoice your account for all fees due and payable to PENANGLANG hereunder, (ii) PENANGLANG is authorized to share any payment information and instructions required to complete the payment transactions with its third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services), and (iii) no additional notice or consent is required for the foregoing authorizations. You agree to immediately notify PENANGLANG of any change in your payment information. PENANGLANG reserves the right at any time to change its prices and billing methods with prior notice. However, any pricing changes for your Paid Services will not take effect until your next payment date. If payment cannot be charged to your credit card or your payment is returned for any reason, PENANGLANG reserves the right to either suspend or terminate your account and your access to the Paid Services.
In order to provide you with uninterrupted Service, we will automatically renew your subscription to certain Paid Services. We will notify you in advance if you are using a Paid Service that includes automatic renewal. Your renewal period will be equal to the term of your current subscription. For instance, if you have an annual subscription, your renewal period will be one (1) year. We will automatically charge you the applicable amount using the payment method you have on file with us. If you do not want to renew automatically, you can disable auto-renew on your Account page https://www.penanglang.com/account/plans at any time or by contacting us at firstname.lastname@example.org. However, you must turn off the auto renew feature at least one (1) day prior to your next payment date in order to cancel the renewal and avoid being charged for a subsequent renewal period.
Returns and Cancellations
We do not grant refunds at this time, and you will not be eligible for any prorated refunds for amounts already paid. If you believe that your credit card has been charged in error please contact us at email@example.com. You may cancel your subscription to Paid Services at any time by going to your Account page https://www.penanglang.com/plans and turning auto-renew off which will cancel your plan at the end of your current subscription period. Any such cancellation must be done at least one (1) day prior to your next payment date. If you cancel, the Paid Services will be available until the end of period for which you have already paid. Cancellation of your Paid Services subscription will disable your access to the Paid Services and may make some or all of your User Apps inaccessible after the end of your current subscription term. PENANGLANG reserves the right to deny or cancel subscriptions to Paid Services, and PENANGLANG may, in its sole discretion, terminate or suspend accounts due to a violation of this Agreement. In such an event, products and services purchased in accordance with these Terms may be forfeited without any refund.
If you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to us (“Chargeback”), we may automatically terminate your Account. If you have questions about a payment made to us, we encourage you to contact our customer service department at firstname.lastname@example.org before filing a Chargeback. We reserve our right to dispute any Chargeback.
Upgrading Paid Services
You may upgrade your Paid Services to a higher level of subscription or add features to your current subscription by going to the Account settings page on our Website or app and selecting “Change Plan.” You will be charged for this new level of service pro-rata to the remainder of the time in your original contract period minus the pro-rata amount for any remaining time in your previous paid service plan.
Our Payment Processor
Third Party Services
Third Party Services purchased via the Services may be subject to different refund policies that those Third Party Services determine, and they may be non-refundable. The purchase terms and conditions for such Third Party Services may be displayed during the purchase process, such as through a link to the purchase terms and conditions. It’s your responsibility to verify your ability to purchase, cancel or obtain a refund for a Third Party Service. Unless otherwise stated in this Agreement, we don’t offer refunds for purchases of Third Party Services.
CONDUCTING eCOMMERCE ON THE SERVICES
Sole Responsibility of the Customer
The Services include features that enable Customers to provide or sell products and services to, or otherwise collect payments from, their End Users (such activities, “Customer eCommerce”). You agree, whether as a Customer OR an End User, that Yap is not a party to, and PENANGLANG is not liable for, Customer eCommerce. The Customer is solely responsible for Customer eCommerce, and compliance with any laws or regulations related to it, including without limitation: (1) all taxes and fees associated with Customer eCommerce; (2) fulfillment and delivery of Customer’s products and services to End Users; (3) any warranties that Customer makes regarding their products or services; (4) any claims made by End Users against the Customer; (5) handling any comments, complaints or other customer service related to Customer eCommerce; and (6) compliance with any consumer, eCommerce and related laws.
The Customer may not offer or sell any products or services which, in our sole discretion: (1) we consider hazardous, counterfeit, stolen, fraudulent, abusive or adverse to our interests or reputation; (2) are prohibited for sale, distribution or use; or (3) otherwise fail to comply with any applicable laws or regulations, including without limitation with respect to intellectual property, trade secrets, privacy or publicity rights, consumer protection, product safety or trade regulations or export controls, regulations or sanctions.
TERM AND TERMINATION
This Agreement will remain in effect until terminated by either you or us. You may terminate this Agreement at any time via the Services. We reserve the right to change, suspend or discontinue, or terminate, restrict or disable your use of or access to, parts or all of the Services or their functionality at any time at our sole discretion and without notice. For example, we may suspend or terminate your use of part or all of the Services if you are violating this Agreement. Without limiting our rights hereunder, we will endeavor to provide you reasonable notice upon suspending or terminating part or all of the Services.
All sections of this Agreement that by their nature should survive termination shall survive termination, including without limitation Your Content, Penang Lang’s Intellectual Property, Digital Millennium Copyright Act Notice, Warranty Disclaimers, Limitation of Liability, Indemnification, Dispute Resolution and Additional Terms.
DISCLAIMER OF WARRANTY
PENANGLANG SERVICES, INCLUDING, WITHOUT LIMITATION, PENANGLANG CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER PENANGLANG NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE “PENANGLANG PARTIES”) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (1) THE SERVICE; (2) THE CONTENT; (3) USER CONTENT; OR (4) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO PENANGLANG OR VIA THE SERVICE. IN ADDITION, THE PENANGLANG PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE PENANGLANG PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE PENANGLANG PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE PENANGLANG PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE PENANGLANG PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THIS AGREEMENT.
BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
THE PENANGLANG PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
LIMITATION OF LIABILITY; WAIVER
UNDER NO CIRCUMSTANCES WILL THE PENANGLANG PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (1) THE SERVICE; (2) PENANGLANG CONTENT; (3) END USER CONTENT; (4) CUSTOMER CONTENT; (5) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (6) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE PENANGLANG PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICE; (7) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (8) ANY ERRORS OR OMISSIONS IN THE SERVICE’S OPERATION; OR (9) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. SUCH LOSS OR DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE PENANGLANG PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE PENANGLANG PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE PENANGLANG PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED FIVE HUNDRED MALAYSIAN RINGGIT (MYR500.00).
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF PENANG LANG’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE PENANGLANG PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE PENANGLANG PARTIES.
BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
PENANGLANG IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
You agree to defend (at PENANGLANG’ request), indemnify and hold harmless PENANGLANG, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your content or your access to or use of the Service; (ii) your breach or alleged breach of this Agreement; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by PENANGLANG in the defense of any claim. PENANGLANG reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of PENANGLANG.
ALTERNATIVE DISPUTE RESOLUTION
This section applies only to our users who are: (1) US citizens, (2) non-US citizens who are not EU residents and (3) EU residents who bring any claim against PENANGLANG in the US.
You agree to attempt to resolve any claims directly with PENANGLANG prior to filing such claims or initiating a formal proceeding with any court, governmental agency or other third party. To work with PENANGLANG directly, please email email@example.com with a description of your claim. We will try to resolve the dispute directly via email, phone or other methods. If we cannot resolve the claim or dispute within thirty (30) days of our receipt of your first email, you or PENANGLANG may then bring a formal proceeding.
You agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial or other Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
No Class Actions
You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class actions, class arbitrations, private attorney general actions and consolidation with other arbitrations are not allowed under this Agreement.
TIME LIMITATION ON CLAIMS
You agree that any claim you may have arising out of or related to your relationship with PENANGLANG must be filed within one (1) year after you first know, or reasonably should have known of the act, omission or default giving rise to the claim; otherwise, your claim is permanently barred. If applicable law prohibits a one (1) year limitation, any claim must be asserted within the shortest time period permitted by applicable law.
Third Party Rights
This Agreement does not confer any third-party beneficiary rights.
You will not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of PENANGLANG. Any purported assignment or delegation by you without the appropriate prior written consent of PENANGLANG will be null and void. PENANGLANG may assign this Agreement or any rights hereunder without your consent. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement.
Waiver and Severability
No waiver by PENANGLANG of any term or condition set out in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of PENANGLANG to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
We may modify this Agreement from time to time, and will always post the most current version on our site. If a modification meaningfully reduces your rights, we will notify you (by, for example, sending you an email or displaying a prominent notice within the Services). The notice will designate the date on which the modifications become effective. Modifications will never apply retroactively. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Agreement, including any price changes. If you disagree with our changes, then you should stop using the Services and cancel all Paid Services.
Events Beyond Penang Lang’s Control
We are not in breach of this Agreement or liable to you if there is any total or partial failure of performance of the Services resulting from any act, circumstance, event or matter beyond our reasonable control. This may include where such results from any act of God, fire, act of government or state or regulation, war, civil commotion, terrorism, insurrection, inability to communicate with third parties for whatever reason, failure of any computer dealing or necessary system, failure or delay in transmission of communications, failure of any internet service provider, strike, industrial action or lock-out or any other reason beyond our reasonable control.
Governing Law; Venue
You agree that this Agreement, the Services and any dispute arising out of or relating to this Agreement will be governed by the laws of the State of New York (without giving effect to its conflicts of law principles). You acknowledge and agree that any violation of this Agreement may cause PENANGLANG irreparable harm, and therefore agree that PENANGLANG will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that PENANGLANG may have for a breach of this Agreement.
This Agreement was originally written in English. We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control except where prohibited by applicable law.