This document is to clarify the rights and responsibilities as a customer/user of all Big Band Sdn Bhd Services. All Users are required to comply with this document and all applicable laws and regulations in full, in addition to all terms and conditions of applicable agreements, and any additional policies that may be applicable to any services offered by Big Band Sdn Bhd from time to time. This Agreement shall be read together collectively as part an integral of the Quotation and/or proposal issued by Big Band Sdn Bhd.
In this Agreement, unless the context otherwise requires: -
In this Contract, unless expressly indicated otherwise:-
Each Party represents and warrants to the other Party that all information furnished by the Party under this Agreement are correct and are not misleading without requiring or obliging to verify such information. And each Party acknowledges that the other Party has entered into this Agreement in reliance of the representations under this Clause 2. The Party represents to the other Party that as at the execution date:
Each Party, undertakes and covenants, that during the Service Term it will:
Each Party, represents and warrants, to the other Party that the Party, during the Service Term, has and shall continue to have, the right to use the Hardware it supplies and Customer shall provide to THE HOST proof of such legal rights.
Customer represents and warrants to THE HOST that, Customer or End User:
THE HOST, represents and warrants, to Customer that except for those Services which require the Customer to enter into agreements directly with third party service providers, THE HOST:
Each Party, represents and warrants, to the other Party that the Party shall, insure and keep insured, the Hardware that it supplied under this Agreement against all risks (including, the risk of fire, flood, theft or damage) with a reputable insurer up to the replacement value of the Hardware as well as to any consequential losses deemed necessary by the Party. The Party shall cause its insurer to waive all rights of subrogation against the other Party.
Customer covenants with THE HOST that:
THE HOST shall provide Customer the Services during the Service Term in consideration of the Customer paying THE HOST the Fees. Until such payments are made, THE HOST will not be obliged to, execute or commence, any, preparatory or installation, works or commence provision of Services.
The Customer (a) accepts that some of these Services may involve using the services of third party service providers and (b) agrees that it shall abide by any such third party service provider’s, terms and conditions, as amended from time to time, either (i) under the agreement between Customer and the third party service provider which is independent of this Agreement or (ii) as notified from time to time to the Customer by THE HOST.
The Customer shall also abide by the, Data Center’s House Rules, Data Center’s Acceptable Use Policy or BIG BAND’S Acceptable Use Policy (if any) , as amended and notified, from time to time to the Customer by THE HOST. In the event there is any discrepancy between the requirements of such rules or policy(s) or with the remainder of the, terms and conditions, of the Agreement, then the Customer shall give a written notice to THE HOST of the discrepancy and THE HOST shall issue an instruction in regard thereto.
Customer also, acknowledges and agrees, that THE HOST from time to time may reasonably amend, the General Terms or the Specific Terms, and that the Customer’s continued use of Services after such amendment shall constitute an acceptance of the amended terms.
This Agreement is effective from the Agreement Date and until its termination or the expiry of the Service Term.
Customer shall pay the, Fees, Service Deposit, late payment charges and applicable, levy, tax or surcharge, to the foregoing, according to the payment term specified in Schedule A without any, set-off, counterclaim, deductions or withholding, for any reason whatsoever, notwithstanding any dispute between the Parties including in relation to quality of service
THE HOST shall arrange and carry out all necessary tests to verify that Services accords to those subscribed by the Customer under Schedule A and the Customer shall, execute all works and render all assistance required for the testing.
In the event the subscription in Schedule A requires the Customer to witness, the testing or inspect the finished installation, then THE HOST shall give Customer one week’s notice of the intended time for said witnessing. If the Customer does not attend the witnessing, then any tests or inspections carried out by THE HOST at the invited time will be deemed to have been made in the Customer’s presence.
Upon the successful completion of the testing and inspection, THE HOST shall certify the Service Date and billing shall commence except when Customer within five (5) Business Days of receipt of said certification notifies THE HOST that the Services are not functioning satisfactorily, requiring THE HOST to, remedy the deficiency, retest and reissue a revised Service Date. In the event Customer does not notify its dissatisfaction within the aforementioned time frame, then it shall be deemed that the Customer accepts the, provided Services and Service Date.
Customer grants and shall procure from End Users to grant, THE HOST a worldwide, royalty free, license to, copy, modify, display, use or transmit, Content in connection with THE HOST's, performance or enforcement, of this Agreement. In the event, Customer or End User, makes, any suggestions or submits Content, to THE HOST, then Customer, agrees and shall ensure that End User agrees, that all, rights, title and interests, to the, suggestions or Content, even if marked as, proprietary or confidential, is assigned by, Customer or End User, to THE HOST, at no cost to THE HOST. For the avoidance of doubt submission of Content arising from, Customer’s or End User’s, usage of Services, does not constitute submission of Content to THE HOST.
Customer grants its consent to THE HOST’s, collection and processing, of Customer’s personal information in accordance with THE HOST’s Personal Data Protection Policy in Schedule B.
Save for all, rights, title or interests, of third party services which vest with the third party, all other, Intellectual Property Rights, rights, title or interests, in Services (“THE HOST’s Property”) vest with THE HOST. THE HOST only grants Customer a, limited, revocable, non-exclusive, non-sub-licensable and non-transferable, right to use, THE HOST’s Property and its associated material, until the earlier, expiry or termination, of this Agreement. Customer will not, and Customer shall ensure that End User will not, use Services other than as allowed by this Agreement.
THE HOST shall use commercially reasonable efforts to provide the Services. When, however, unforeseen circumstances beyond the control of THE HOST which affects the Services occur including any:
Customer shall be solely responsible for:
THE HOST shall at all times provide a helpdesk for, fault or general, reporting, or, maintenance and support request, by the Customer (relayed by email, facsimile or telephone, to the contact person designated by THE HOST under the reporting procedures as then currently in place and amended from time to time).
THE HOST shall ensure that its technician responds to the Customer’s, report or request, within reasonable time frame of standard industry practices (unless specifically termed as a conditions of this Agreement) from the time the Customer contacts THE HOST’s helpdesk. In the event that THE HOST does not respond to Customer within 2 hours, the Customer should presume that its communication was not received by THE HOST and the Customer should transmit the communication again including by communicating to an alternate THE HOST contact.
THE HOST, shall solve the problem reported by Customer, PROVIDED the problem is not caused by the Customer’s Hardware. THE HOST, shall solve such problem within the Mean Time to Repair within standard industry practices PROVIDED it is not prevented and the problem is material.
"Uptime" and "Downtime" is the duration the Services, not including during Service Unavailability under Clause (9) of this Agreement, are available or unavailable respectively depending the terms of this Agreement with the Customer, as measured solely by THE HOST's internal monitoring systems (if any).
The Customer agrees that from time to time THE HOST may disrupt the Service whilst conducting, routine tests, maintenance, upgrade or repair, to any part of the system used for the Service PROVIDED THE HOST gives the Customer not less than 3 days prior notice of such action. The Customer shall permit THE HOST its servants, representatives, agents or contractors, access to the Space to enable THE HOST to undertake the aforementioned works.
The Customer agrees that when an unforeseen event affects the system used for the Service, including, critical unforeseen maintenance, it is not practicable for THE HOST to give advance notice of a Service disruption and that THE HOST in such instances shall be entitled to disrupt the Services to conduct remedial works, with or without, prior notice.
Customer shall be responsible for, the actions (act, omission or default) of End Users as if they are Customer’s actions and for any support to End Users. In the event an action (act, omission or default) by the End User causes the Customer to violate its obligations under this Agreement or the End User fails to observe the requirements expected of it under this Agreement, then Customer shall terminate the End User’s access to Content immediately upon receipt of notice of the violation. Save for as provided under this Agreement, Customer will not resell, sub-license or transfer, any rights granted to Customer under this Agreement.
Customer represents and warrants to THE HOST, that Customer will not and that Customer shall ensure in Customer’s agreement with End User that End User agrees that it will not, directly or indirectly, engage in or, promote, provide aid to or facilitate, any party in:
Customer agrees that Customer at all times shall be, entirely and solely, responsible for and shall bear the full risk of;
Customer shall, indemnify and keep indemnified, hold harmless and defend, THE HOST and its, directors, officers, employees and agents, from and against, any and all, claims, damages, losses, suits, proceedings (whether legal or administrative), costs or expenses incurred (including, reasonable legal fees or costs incurred, in responding and for the time spent in responding), arising out of or relating to, any of, Customer’s or End User’s or, Customer’s or End User’s, representative’s, unauthorized use of Services or, acts or omissions, or violation of the provisions in this Agreement, the Data Center’s House Rules, Data Centre’s Acceptable User Policy, THE HOST’s Acceptable User Policy, terms of third party service providers, any instructions or notices issued by, THE HOST or appropriate authorities, infringement or alleged infringement or misappropriation, of any third party rights including, any Intellectual Property Rights, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, libel or defamation or injury to reputation, injuries or death, to persons or damage to, business, property or the Data Centre or equipment therein or THE HOST’s infrastructure or equipment, arising from the Customer’s Hardware, Customer’s or End user’s Content, breach of, law or regulation, or disputes between Customer and any End User, and Customer agrees to, release and discharge, those indemnified from any such, claims, actions, demands or proceedings. Customer may settle any such, claims, actions, demands or proceedings, PROVIDED, Customer protects THE HOST’s interests and Customer obtains THE HOST’s consent before entering any settlement.
THE HOST or the licensors of any of the Services, will not be liable to, Customer or End User, for any, compensation, reimbursement, damages, losses or expenses, arising from, Customer’s or End User’s, (1) inability to use the Services (including by, (i) termination or suspension, of this Agreement, (ii) discontinuation, change or deprecation, of the Services, in part or whole, (iii) Downtime (save for Downtime Credits (if any)) or (iv) Service Unavailability), (2) procurement of alternative services to replace Services during the period of inability to use Services and (3) investments made in order to use Services.
The Parties shall not be liable to the other Party in contract, tort or otherwise for any other claims, direct or indirect damages, losses, consequential losses including, loss of profit, loss of use, loss of data, loss of production, loss of customers, third party claims, damage to reputation or goodwill or interest cost. For avoidance of doubt, THE HOST shall not be liable to End Users for any losses or damages sustained.
In the event that THE HOST causes, loss, damage or destruction of, Content on THE HOST’s systems or servers, then Customer agrees that Customer will not seek compensation for such loss save for requiring THE HOST to reasonably endeavour in good faith to restore such lost Content.
[Without limiting the generality of the foregoing, in no event will THE HOST’s liability for any, claims, damages, losses, causes of actions (whether legal or administrative) or expenses (including reasonable legal fees), suffered by Customer whether in, contract or tort (including, negligence or otherwise), exceed the lesser of the amount paid by Customer for the Services during the contract period pro-rated from the date the, damage or loss, arose up to the expiry of the contract period or date the, damage or loss, ceased whichever is earlier.]
[The Customer also agrees that the aggregate liability of THE HOST shall not exceed the Fees, received or due, from the Customer for the respective Services for the 12 months period prior to the date of the liability.]
Except in cases of fraud, the remedies under this Agreement are a Party’s sole and exclusive remedy.
Save for obligations under this Contract which should have been fully performed prior to a Force Majeure Event, the Parties are excused from performing whatever obligations under this Contract which are affected by a Force Majeure Event and neither Party will be liable to the other Party for any failure or delay in performing its obligations as a result of a Force Majeure Event PROVIDED:
THE HOST does not control content passing through the Data Centre. As such, Services are provided “as is” and its use is at the Customer’s own risk. THE HOST provides no representations or warranties of any kind. To the extent permitted by law, THE HOST disclaims all warranties including, implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, quiet enjoyment and non-infringement, or any implied warranties arising from, course of dealing or usage of trade. Without limiting the generality of the foregoing, THE HOST specifically does not warrant for the security of Content (against, loss or damage or unauthorized access) or that the services will meet the requirements of, Customer or End User, or that Service will be, accurate, uninterrupted, free of error or free of harmful components.
THE HOST shall be entitled to without notice suspend, Customer’s or End User’s, access to Services, in part or whole, at Customer’s cost and, Customer’s and End User’s, risk, without compensating, Customer or End User, for any, loss or damages or expenses, which, Customer or End User, may incur arising from the suspension, in the event;
Either Party may immediately terminate this Agreement in the event the other Party: becomes bankrupt or suffers the presentation of a petition for, liquidation or winding-up; enters into any scheme of arrangement with its creditors; has execution proceedings levied against, it and its assets; or infringes any legal requirement and which is not remedied within the time fixed by the relevant authority. Or this agreement may be terminated by either Party by giving at least a one (1) month written notice to that effect to the other Party at its address stated in the Agreement.
In the event, Customer or the End User, is in breach of, Clause (14) or any other material provision of this Agreement, Data Center’s House Rules, Data Centre’s Acceptable User Policy, THE HOST’s Acceptable User Policy or of an agreement with a third party service provider and which breach is not cured within fourteen (14) days from the receipt of a written notice requiring the cure or Customer fails to settle THE HOST’s invoice within seven (7) days from its due date or as may be required by, law or the government or any authorities, Customer agrees that THE HOST may without notice terminate this Agreement forthwith at Customer’s cost and, Customer’s and End User’s, risk, without compensating, Customer or End User, for any, loss or damages or expenses, which, Customer or End User, may incur arising from the termination.
Upon the expiry or termination of the Agreement, (1) all Customer’s rights will terminate, (2) Customer shall promptly pay all outstanding, Fees, charges, costs or expenses, incurred and Liquidated Damages, due for Services rendered, (3) Customer will return to THE HOST all its materials without retention of copies and (4) THE HOST reserves the right to refer any debts owed by Customer to THE HOST under this Agreement to a third party collection agency to collect the payment of such debts from Customer and Customer agrees that all expenses arising shall be borne by Customer.
In the event, this Agreement or Customer’s use of the Services, expires or is terminated, then Customer agrees that THE HOST will not transfer Content to another party and that within seven (7) days of the, expiry or termination: Customer shall, copy and securely delete, Content stored on the THE HOST servers; THE HOST may disable, Customer’s or End User’s, access to, Content or Services, or, modify or remove, Content from all THE HOST’s, Hardware or system, or reformat such server space holding Content; Customer shall at Customer’s cost remove Customer’s Hardware from Data Center and make good any damages caused to the Data Center to THE HOST’s satisfaction; and, save for the obligations to be carried out by a Party in the foregoing, Parties shall destroy the other Party’s confidential information in its possession except for such information that is to be retained by Law.
In the event Customer does not, pay outstanding sums due or remove Customer’s Hardware, as required above, THE HOST, without being obliged to, may at Customer’s, cost and risk, dismantle, remove and keep such Hardware in a store of its choice until Customer makes payments of all Fees, costs and expenses due to THE HOST or for a duration of one month. In the event the Customer fails to make such payment within the foregoing month, then the Customer agrees that without notice to the Customer, THE HOST may dispose Customer’s Hardware in any manner it deems suitable at its sole discretion and defray any, payments or moneys, due to THE HOST out of the proceeds of this sale and hold the surplus, if any, in trust for the Customer without accrual of interest. For avoidance of doubt, THE HOST shall not be liable to Customer for any loss or damage arising by, disconnection, dismantling, removal, storage or sale, of the Customer’s Hardware.
Further or in the alternative, to the foregoing, THE HOST reserves its rights to institute legal proceedings for unpaid outstanding, Fees or other moneys, due from the Customer and all, losses, expenses, costs or damages, suffered by THE HOST and the Customer shall, indemnify and pay, THE HOST for all, legal or administrative, costs or expenses, arising from such legal proceedings.
In the event this Agreement is terminated under Clause 22, then Customer shall pay THE HOST: (i) any Fees, costs or expenses due for Services rendered up to the date of termination; (ii) Fees for the remainder duration of the Agreement from the date of termination as agreed liquidated damages; (iii) any termination charges (under the provisions of this Agreement and ; (iv) all fees, costs, expenses or termination charges, in respect of any third party contracted, commissioned or engaged by THE HOST for the purposes of the Services under this Agreement; and (v) all applicable taxes, levies or surcharges to any payments.
In the event Customer, terminates or reduces its subscription, of any, Services or its component packages, then, within thirty (30) days from its notice in respect of the same, Customer shall pay THE HOST the Fees in proportion to the reduced subscription for the duration from the date the subscription is to be reduced until the expiry of the Service Term as agreed liquidated damages. In the event Customer, terminates or reduces its subscription, of any, Services or its component packages, then notwithstanding such, termination or reduced subscription, (i) Customer shall continue to pay THE HOST Fees in full for the Services for the remainder duration of the Agreement from the date the notice in respect of the same becomes effective, as agreed liquidated damages, as if there was no reduction to the subscribed Services; (ii) any termination charges; and (iii) all applicable, taxes, levies or surcharges to any payments.
In the event Customer, terminates or reduces its subscription, of any, Services or its component packages, prior to the Services’ commencement, then THE HOST shall forfeit such proportion of the Deposit pro-rated to such reduction in subscription and Customer shall pay THE HOST, within 30 days from its notice in respect of the same, all costs incurred with the cancelled installation required for the provision of the Services, inclusive of all applicable, taxes, levies or surcharges to any payments.
Each Party shall bear its own legal, costs and expenses, in the, preparation and execution, of this Agreement and in performing its obligations under this Agreement.
Any provision of this Agreement held invalid or unenforceable under the law shall be read down but only so far as required to be valid and enforceable and if that is not possible, such provision shall be severed from this Agreement to the extent of the, invalidity or unenforceability, without affecting the other remaining provisions of this Agreement.
RELATIONSHIP OF PARTIES
This Agreement does not form a, partnership, joint venture, agency, or any relationship of employment or franchise, between the Parties. Neither Party shall bind the other Party in any other agreements.
THIRD PARTY BENEFICIARY RIGHTS
The Parties agree that this Agreement does not confer any third party beneficiary rights.
Obligations that continue after the, expiry or termination, of this Agreement shall continue without condition.
This Agreement shall benefit, THE HOST’S assigns and Customer’s permitted assigns, and shall be binding upon the Parties’, heirs, personal representatives or successors-in-title.
NO DISCLOSURE IN PUBLIC STATEMENTS
Each Party undertakes that it will not use the other Party’s Intellectual Property or otherwise identify the other Party in any, public statement, press release or marketing materials, in any medium without the other Party’s written consent.
All notices, invoices or any other communications, made pursuant to this Agreement, shall be issued in writing. Such notices, invoices, communications or any other documents to be served (including documents to be used in legal proceedings), shall be served by, hand or post or courier, to the, registered address or last known address, of the Parties or to the Parties’, e-mail or facsimile, and shall be deemed effective:
TIME IS OF THE ESSENCE
Time shall be of the essence in this Contract.
The Customer shall pay the associated stamp duty for this Agreement.
Any evidence furnished by THE HOST from its system records in relation to the use of Services shall be conclusive.
The validity, construction and performance of this Agreement shall be governed by the Laws of Malaysia and in an event of a dispute arising between the Parties, the Parties shall agree to attempt to settle the dispute amicably and if no settlement is reached within 2 weeks of a Party notifying the other of the dispute, the Parties agree to appoint a professional mediator to mediate the dispute. In the event that the dispute could not be settled, within 4 weeks of a Party notifying the other of the dispute, the Parties irrevocably and unconditionally submit to the exclusive jurisdiction of the High Court of Malaya.
On entering into this Agreement, Customer shall pay THE HOST a sum equivalent to two (2) months of the Fees as, deposit and security, for its due performance under this Agreement’s provisions (the “Security Deposit”) in addition to any Fees due. For the avoidance of doubt, the Security Deposit is not payment of Fees and this Security Deposit shall be maintained throughout the Service Term.
In the event the Fees are revised, Customer shall pay THE HOST such sums as required so as to maintain its Security Deposit (at a sum equivalent to two (2) months of the prevailing Fees).
In the event Customer, its representatives, servants, agents, contractors, licensees or invitees, fails to comply with any of the provisions under this Agreement, THE HOST may, but shall not be obliged to, appropriate and utilize, the Security Deposit in, part or whole, as compensation for any, costs, loss, expenses or damages, suffered arising from such failure. Thereafter, within two weeks, Customer shall pay THE HOST such utilized sums so as to maintain its Security Deposit. Any such, appropriation and utilization, is not a waiver of the Customer’s non-compliance and such, appropriation and utilization, shall not prejudice any of THE HOST’s other right’s.
Within 30 days of the, expiry or termination, of this Agreement, THE HOST shall refund Customer the Security Deposit (without interest) less any, Fees or monies, due and owing by Customer under this Agreement.
On entering into this Agreement, Customer shall bear and pay THE HOST, the Security Deposit and the Fees for the first two months (and, if applicable, with the Fees being pro-rated for the number of days Services is to be provided), as described in THE HOST’s first invoice.
For the provision of Services in the following month, THE HOST shall on the first day of every month invoice Customer for the, due and payable, following month’s Fees (and, if applicable, with the Fees being, pro-rated for the number of days Services is to be provided for the last month of the Service Term), and as may be adjusted and aggregated, by the previous month’s, Downtime credit, cooling or electricity or bandwidth utilization, charges for use over the allocated Customer’s usage limits in the previous month and charges for Customer’s other subscribed services.
The Customer shall ensure that it has received such invoices. In the event Customer does not receive such invoice on the first day of the month, Customer shall immediately request THE HOST by e-mail and facsimile for such invoice.
Customer shall pay THE HOST the following month’s invoiced sum within seven (7) days of the date of the invoice.
For the provision of Services final month, THE HOST shall within one (1) month of the expiry of the Service Term invoice Customer for the, due and payable, any outstanding payment and as may be adjusted and aggregated, by the final months, Downtime credit, cooling or electricity or bandwidth utilization, charges for use over the allocated Customer’s usage limits in the final month and charges for Customer’s other subscribed services.
The Customer shall ensure that it has received such invoice. In the event Customer does not receive such invoice within one (1) month from the expiry of the Service Term, Customer shall immediately request THE HOST by e-mail and facsimile for such invoice.
Customer shall pay THE HOST the final month’s invoiced sum within seven (7) days of the date of the invoice.
Customer shall also, bear and pay, all, taxes (including Goods and Services Tax), levies, surcharges, other similar charges or penalties, imposed by any government authority in relation to the provision of, Services or any required ancillary service or in relation to the operation of this Agreement, as described in the invoices.
In the event Customer has to deduct any, levies, surcharges, other similar charges, penalties, or taxes (including withholding tax), from the amount invoiced as Fees by THE HOST, then Customer shall pay THE HOST additional amounts such that after deduction THE HOST receives its invoiced Fees in full.
For the avoidance of doubt, Customer agrees to promptly pay the invoiced sum notwithstanding its failure to, ascertain or understand, the Services it used or the Services’ associated charges.
Customer shall make the aforementioned payments to the account designated, or such other account as THE HOST may instruct the Customer in writing, from time to time.
Customer agrees that Fees may be reasonably adjusted from time to time in the event price of, utilities or third party service providers of any aspect of Services, are increased. For the avoidance of doubt, increase to Fees arising from any other reasons shall be mutually agreed by the Parties in writing.
The Customer shall pay THE HOST the Fees by the due date failing which in addition to the Fees due, Customer shall pay THE HOST (1) interest at the rate of 1.5% per month from such date for payment until payment has been made and (2) all costs incurred in collecting the overdue payments.
An invoice is deemed correct except:
(i) for manifest errors in the invoice; or
(ii) when the invoice is disputed by the Customer and provided Customer issues THE HOST a notice in writing before the fifteenth (15) day of the month which states the amount disputed, the reason for the dispute and includes evidence in support of the Customer’s contention.
The Parties shall promptly take steps to resolve the dispute and THE HOST shall investigate the dispute. The findings of THE HOST in such investigation shall be, final and binding, provided it is supported by records.
In the event an error is discovered in the invoice, such error shall be accounted in the subsequent invoice. For avoidance of doubt, Customer shall pay THE HOST the invoiced sum notwithstanding Customer’s dispute.
THIS AGREEMET IS MADE ON THIS DAY OF 2018 between the person or company named in the 1st column (“BBSB”) and the person or company named in the 2nd column (“Customer”) as stated in schedule A.
This Agreement, including the Schedule of Equipment and the Service Level Agreement attached hereto (collectively, “Terms and Conditions”) is made a part of the document entitled, “SERVICE ORDER FORM” (the “SOF”) entered into and executed by and between BIG BANG SDN BHD (“BIG BAND”) and the Customer identified in the Service Order Form as stated in Appendix A.
The term “Agreement” collectively shall mean these Terms and Conditions, the SOF and the Acceptable Use Policy. These Terms and Conditions are incorporated by reference into the SOF as if fully set forth therein. BIG BAND and Customer acknowledge and agree that upon execution of the SOF, they shall be legally bound by the Agreement. Further, capitalized terms not defined in these Terms and Conditions shall have the same meaning as in the SOF.
1. BIG BAND has a long-term lease with a number of different Data center location (“Data Center”) to provide colocation services to its Customers and the particular site for this Agreement is clearly identified on the SOF. Pursuant to the Lease, BIG BAND has the right to execute and enter into this Agreement for the Space in the Premises located and designated within the Building. The Customer is not a party to or a beneficiary under the Lease and has no rights thereunder.
2. In furtherance to the Lease, BIG BAND has granted a license to Customer and allow Customer to use it premise to store Customer’s computers and related hardware (“Equipment”) as described in the schedule of Equipment attached hereto as Exhibit “A” and incorporated herein by reference. Such license granted to Customer does not gives right of beneficiary interest over the said premise.
3. Subject to Clause 2 and the terms of this Agreement, BIG BAND hereby grant Customer the right and non-exclusive license (“License”) to install and operate the Equipment in the specific space or spaces (“Space”) located in the premises (“Premises”) in the Building, for the purpose set forth specifically below in the Agreement and for no other purposes. Notwithstanding the foregoing, BIG BAND reserves the right to relocate, change or otherwise substitute replacement space in the Premises (only if and when necessary) with a Space which is equivalent configuration to the original Space.
4. The tenure of the Agreement shall commence on the Effective Date set forth in the SOF and shall each automatically renew for successive terms equal to the initial term unless cancelled by either party in writing at least thirty (30) days before the expiration of the current term (the “Term”). Provided, however, the Term shall terminate prior to the scheduled date of termination if subject to the default clause and remedy of default clauses below.
5. Customer has the right to use the Space solely for the purpose of (i) installation of the Equipment in the Space, (ii) maintaining the Equipment, (iii) operating the Equipment, and (iv) removing the Equipment (the “Permitted Uses”). Unless otherwise agreed by BIG BAND in writing, Customer shall perform the Permitted Uses at its sole cost and expense. Customer shall not use or allow or permit the use of the Space for any use or purpose other than a Permitted Use.
6. Permitted Uses of the Space does not grant Customer an interest in the property and Customer represent, warrants, covenant, acknowledges and agrees that it does not have any or being granted any beneficial interest and or privileges of such nature over the property, the building and the Space allocated to Customer in this Agreement.
7. The fees and or charge shall be due to BIG BAND upon the execution of the SOF and the Agreement and Customer agrees to pay to BIG BAND that amount which is equal to the sum of (a) the cost to install the racks, cabinets, cages, custom space, electrical circuits, fiber optic connections, cable, panels and other items necessary for the Equipment to function in the Space (“Expense Component”), plus (b) a prepayment equal to the number of month’s recurring fees as prescribed in the SOF (the “Fees”) (hereinafter collectively, the “Initial Fees”). An additional Expense (“Expenses”) shall be applied by BIG BAND to pay the costs and expenses referenced in the SOF. The Expense is not refundable to Customer and shall be deemed an expense incurred by BIG BAND upon receipt. All Fees & Expenses are considered to be an advanced prepayment to BIG BAND due from the Customer for the first month or months of the Term. The Fees & Expenses are not refundable to Customer.
8. BIG BAND shall have the right to increase the license Fees with a rate which commensurate with the industry practice between 2%-5% depending on geographical location of the Center and/or proportion to increase of electricity cost prior to the expiry of the tenure terms by service a notice to Customer.
9. Customer shall have the right to purchase additional Services offered by BIG BAND from time to time on terms and conditions to be agreed in writing as an add on services with additional Fees or Charges.
10. BIG BAND agrees to provide the Services in accordance with and pursuant to the terms and conditions set forth in the Service Level Agreement attached hereto as Exhibit “B” and incorporated herein by reference.
11. Customer agrees to pay the price per megabit per second (mbps) for the contracted amount of bandwidth defined in the Internet Access Quantity on the SOF, and the rate stated in the SOF for any additional mbps over such contracted amount.
12. All Fees and other sums which are or may hereafter be owed to BIG BAND by the Customer under this Agreement (including without limitation Default Interest, Late Charges and attorney’s fees and other costs of collection are called the “Obligations”). In order to secure the payment and performance of the Obligations, the Customer hereby agrees and acknowledge that BIG BAND shall have a lien (“security”) in all Equipment, cable, wiring, connecting lines and other installations, equipment or property of the Customer now or hereafter installed or placed in the Space or Premises.
13. On or before the seventh (7th) day of each and every month during the Term hereof (“Due Date”), Customer agrees to and shall pay the Fees to BIG BAND, in advance, for the Services to be rendered by BIG BAND to Customer during said upcoming month, without offset, deduction or credit of any kind and in good and drawable funds. If Customer for any reason fails to pay the Fees by the Due Date of any month during the Term hereof, Customer will be assessed an administrative charge in the amount which is equal to 1.5% per month as late interest until paid in full.
14. In the event that the Customer failed or refused to settle the overdues on time, BIG BAND shall have the rights to suspend the Services rendered without notice until all dues including late interest are fully settled and the Customer shall be liable for any cost incurred including reconnection fees and legal fees and expenses incurred to recover such debt from Customer. Customer obligation to pay the Fees, Default Interest and Late Charges shall survive the expiration or earlier termination of the Agreement.
15. BIG BAND may suspend or otherwise cease performing any or all Services to Customer if payment for any Service is not timely paid in full. Such suspension shall include, without limitation, denying Customer access to the Space or Premises and changing locks and access codes. Time is of the essence with respect to Customer’s performance and the making of payments hereunder. A connection fee equal to Two Hundred Fifty (RM250.00) will be assessed for suspended Services and must be collected with the overdue Fees for the account to be reinstated.
16. Fees/invoices not disputed within sixty (60) days of due date are conclusively deemed accurate and all Services subject to those undisputed Fees shall be deemed fully accepted and by BIG BAND and in full compliance with this Agreement.
17. Each Party shall be responsible for reporting of its own taxes and GST to the relevant statutory body and each party shall indemnify the Party of any fine, penalty, cost and/or damages incurred for failure to report its tax on a timely manner to the relevant statutory body.
18. Customer agrees to and shall abide by to the usage of such Space prescribed and shall at any time during the tenure keep, store and/or transmit any data, information which is deemed illegal activities and confidential both commercially and personal and infringement of 3rd party’s intellectual property rights.
19. In the event BIG BAND received notification of breach of obligation which are deemed against the law of Malaysia or infringement of intellectual Property by Customer, BIG BAND shall thereon without delay nor notification to Customer suspend all service pending further instruction and investigation. In the event of such suspension enforced, Customer shall not have any claims against BIG BAND for any losses incurred due to the suspension of services.
20. Customer agrees to and shall maintain in force and effect during the Term of this Agreement an insurance coverage policy for fire, burglary and damages on equipment’s by 3rd party negligent and Customer shall forward a copy of the cover note policy to BIG BAND for its record.
21. Customer shall notify BOG BAND in the event there is variation to the terms of coverage and/or in the event of change of insurer.
22. BIG BAND shall maintain a Master Insurance Coverage to cover for fire, burglary and negligent of 3rd party for the premise under the lease.
23. Each Party shall indemnify the other Party from any 3rd Party claims for losses, damages or injuries of another, the Customer shall continue to indemnify BIG BAND and shall hold harmless and continue to hold harmless against BIG BAND for any direct or indirect activities conducted by Customer which shall be deemed beyond the responsibilities of BIG BAND towards this Agreement. Customers agrees that in the event of a claims to be made against BIG BAND, the maximum compensation amount shall not exceed the value of this Agreement.
24. BIG BAND shall comply with the protection of personal details and data under the PDPA 2012 and Customer is encouraged to visit BIG BAND website to review its Privacy Notice carefully on the obligations and what and how data is collected, storage and disposal of data. Customer can contact BIG BAND customers services for any further inquiry on it Privacy Notice.
25. Notwithstanding the commitment to Customer under PDPA 2012, in the event that there is a request from any enforcement agency, BIG BAND obligation shall be responsible and comply with the request from enforcement agency prior to notifying Customer of its action.
26. THIS AGREEMENT PROVIDES LICENSES AND SERVICES AND IS NOT A SALE OF GOODS.BIG BAND PROVIDES THE SPACE AND THE SERVICES ON AN “AS IS WHERE-IS” BASIS AND WITH “ALL FAULTS” AND MAKES NO WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, THE SPACE, THE PREMISES, THE BUILDING, THE LICENSE, OR ANY OTHER RIGHTS, OBLIGATIONS OR PERFORMANCE UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE ALL HEREBY DISCLAIMED. BIG BANDSHALL NOT BE RESPONSIBLE FOR ANY DELAYS OF ANY KIND, REGARDLESS OF CAUSE.
In the event of any breach of this Agreement by BIG BAND, Customer’s sole and exclusive remedy shall be as follows: upon delivery of written notice to BIG BAND of the breach, BIG BAND shall, in its sole discretion, re-perform or correct any Services or other breaches, or provide to Customer a refund or credit in accordance with the terms and conditions of the Service Level Agreement attached hereto as Exhibit B and in the event of any claims for losses or damages Clause 26 shall be applicable. THE FOREGOING OBLIGATIONS AND REMEDIES SET FORTH IN THE PRECEDING SENTENCE SHALL CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT, WHICH REMEDIES SHALL APPLY EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
27. In the event of occurrence of any one or more of the following shall constitute an “Event of Default” by Customer under this Agreement: (a) on or after the seventh (7th) calendar day of each month during the Term hereof, Customer for any reason fails to pay to BIG BAND any Fees, Obligations or any other amount due hereunder, or (b) on or after the 7th day after the date when due, Customer fails to pay to any other person or entity to whom Customer is required by the Agreement to make payment of any amount required by the Agreement to be paid; or (c) Customer fails to perform any obligation or covenant set forth in this Agreement and is not cured within seven (7) business days following receipt of written notice thereof. BIG BAND shall have the right and remedies granted to BIG BAND in the Agreement and available under applicable law, (including, but not limited to, the right to charge and collect Late Charges), upon the occurrence of an Event of Default by Customer, all obligations of BIG BAND to provide to Customer the Services and use of or access to the Space under this Agreement shall immediately and automatically terminate without further notice to Customer and BIG BAND shall have the right to: (i) cease providing the Services to Customer and cease providing access to or use of the Space and Premises and change locks and access codes, without notice to Customer, and (ii) remove the Equipment from the Space and Premises without notice to Customer ; and (iii) terminate this Agreement, subject to the continuing rights of BIG BAND under this Agreement to require payment of the Obligations and to exercise its right as a lien holder over the equipment and to be disposed accordingly for the purpose of recovery of debts.
28. In the event non-renewal Agreement and/or termination of Agreement and upon settlement of all outstanding fees, charges, late interest imposed , Customer shall within Five (5) working days from the date of full settlement promptly remove or have removed, at Customer’s sole cost and expense, all Equipment and all cable, wiring, connecting lines, and other installations, equipment or property installed or placed by or for Customer in the Space or Premises and restore those portions of the Space and Premises damaged by such removal to their original condition as it existed immediately prior to the installation or placement of such items. In the event that Customer after receiving the 5 working day notice to remove all equipment failed and/or refused to do so, BIG BAND shall thereafter issue a 2nd and final notice with a additional 5 days period to act promptly and in the event that Customer failed to comply with the notice after the expiry of the 2nd notice, BIG BAND shall assumed that such equipment(s) are therefore treated as being abandon by Customer and BIG BAND shall have the right to dispose or remove the equipment(s) as off right from the premise without further notice and BIG BAND shall not be held responsible for any loss incurred due to the removal and disposal of such equipment.
29. In the event that Customer fails to promptly make full payment to BIG BAND of all Obligations and fails to remove any Equipment or other items, BIG BAND shall have the right to take and hold possession of the Equipment as Lien holder and as stated above in Clause 27, with respect to the Equipment and all other collateral for the Obligations. BIG BAND may, at Customer’s expense: (i) remove and store such Equipment and items; (ii) delete and remove all software, information data and other stored items from the Equipment without retaining any copies or backups; and (iii) restore those portions of the Space and Premises damaged by such removal to their original condition as it existed immediately prior to the installation or placement of such items. BIG BAND may, unless all outstanding Obligations are paid to BIG BAND within seven (7) days after written notice to the Customer, dispose of the Equipment and other collateral for the Obligations at public or private sale, in the manner permitted under the law, and may exercise any other remedy available to BIG BAND at law or in equity.
30. In the event failure by BIG BAND to perform any obligation or covenant set forth in this Agreement, if the same is not cured within ten (10) business days following receipt of written notice thereof, shall constitute an “Event of Default” by BIG BAND. Upon the occurrence of such Event of Default, Customer may terminate the Agreement upon not less than seven (7) business days’ written notice to BIG BAND.
31. Customer shall not assign, sub license or transfer this Agreement or the Space or License in whole or in part, whether by contract, merger, reorganization or the sale of all or substantially all of the stock, equity or control of Customer, and Customer will not allow any other person or entity to use the Space or License for any reason, without first obtaining the prior written consent of BIG BAND, which consent may be granted or withheld at BIG BAND’s sole and absolute discretion. Any purported assignment or delegation without the required consent shall be null and void and of no legal force or effect.
32. The Agreement and all documents and instruments executed in connection therewith or herewith shall be governed by and interpreted in accordance with the substantive laws of Malaysia.
33. The failure of either party at any time to enforce any right or remedy available to it under the Agreement or under any other document or instrument executed in connection herewith or therewith shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by either party.
34. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW: (I) THE TOTAL AND AGGREGATE LIABILITY OF BIG BANDTO CUSTOMER FOR ANY REASON WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LICENSE, THE SERVICES, PREMISES OR SPACE SHALL NOT IN ANY EVENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO BIG BAND BY CUSTOMER UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; AND (II) IN NO EVENT SHALL BIG BANDBE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, INJURY TO BUSINESS OR REPUTATION, LOST DATA, BUSINESS OR CUSTOMERS, THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR COMMITMENTS INCURRED IN CONNECTION WITH CUSTOMER’S BUSINESS, WHICH RESULT FROM ANY OUTAGES OF THE SERVICES OR ANY OTHER FAILURE OF CONNECTIVITY OR ANY OTHER FAILURES.
35. BIG BAND SHALL NOT IN ANY CASE BE LIABLE FOR ANY OF THE FOLLOWING: (I) THE CONTENT OF THE INFORMATION PASSING OVER BIG BAND’S NETWORK; (II) UNAUTHORIZED ACCESS OR DAMAGE TO, ALTERATION, THEFT, DESTRUCTION OR LOSS OF, EQUIPMENT, CUSTOMER’S RECORDS, INFORMATION, FILES OR DATA; (III) CLAIMS FOR DAMAGES CAUSED BY CUSTOMER; (IV) CLAIMS AGAINST CUSTOMER BY ANY OTHER PARTY; OR (V) ANY ACT OR OMISSION OF ANY OTHER PARTY FURNISHING SERVICES AND/OR PRODUCTS, OR THE INSTALLATION AND/OR REMOVAL OF ANY AND ALL EQUIPMENT OR SUPPLIES (VI) INFRIGNMENT OF INTELLECTUAL PROPERTY BY CUSTOMER OR ITS USERS
36. CUSTOMER AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES ASSUME ALL RISK, INCLUDING, WITHOUT LIMITATION, FALLS AND ELECTRIC SHOCKS, AND RELEASES BIG BAND AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES FROM ANY LIABILITY WHATSOEVER ARISING OUT OF ANY DAMAGE, LOSS OR INJURY TO PERSON AND/OR PROPERTY, EVEN IF CAUSED BY BIG BAND’S OWN NEGLIGENCE.
37. ALL OF THE LIMITATIONS IN THIS SECTION SHALL APPLY EVEN IF BIG BAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER ANY CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILTY, PRODUCT LIABILITY OR OTHERWISE.
38. All notices and demands shall be in writing and shall be served by personal service or by mail at the Customer’s business or registered address and/or by any electronic means and shall be addressed to the Parties henceforth stated in Schedule A.
39. In the event of any dispute arises , Parties agrees to settle any dispute amicably and should the Parties fails to settle, the Parties agrees that a 3rd Party Mediator shall be appointed to mediate the matter and only to resort to the Courts in the event that the Mediator fails to settle the dispute by way of alternative dispute settlement.
40. Save for obligations under this Contract which should have been fully performed prior to a Force Majeure Event, the Parties are excused from performing whatever obligations under this Contract which are affected by a Force Majeure Event and neither Party will be liable to the other Party for any failure or delay in performing its obligations as a result of a Force Majeure Event PROVIDED:
42. Any provision of this Agreement held invalid or unenforceable under the law shall be read down but only so far as required to be valid and enforceable and if that is not possible, such provision shall be severed from this Agreement to the extent of the, invalidity or unenforceability, without affecting the other remaining provisions of this Agreement.
43. This Agreement does not form a, partnership, joint venture, agency, or any relationship of employment or franchise, between the Parties. Neither Party shall bind the other Party in any other agreements.
44. The Parties agree that this Agreement does not confer any third party beneficiary rights.
45. Obligations that continue after the, expiry or termination, of this Agreement shall continue without condition.
46. This Agreement shall benefit, BIG BAND’s assigns and Customer’s permitted assigns, and shall be binding upon the Parties’, heirs, personal representatives or successors-in-title.
47. Each Party undertakes that it will not use the other Party’s Intellectual Property or otherwise identify the other Party in any, public statement, press release or marketing materials, in any medium without the other Party’s written consent.
48. Time shall be of the essence in this Contract.
49. The Customer shall pay the associated stamp duty for this Agreement.
50. Any evidence furnished by THE HOST from its system records in relation to the use of Services shall be conclusive.
51. Each party for itself, its agents, employees and representatives agrees that it will not divulge any confidential or proprietary information it receives from the other party, except as may be required by law. The terms and conditions of this Contract shall be considered confidential or proprietary information under this paragraph. Neither party shall use the other party’s name in marketing materials including, but not limited to press releases, without the prior written consent of the other party. The obligations of confidentiality and indemnification stated herein shall survive the termination of any applicable License or Contract.
BIG BAND agrees to and shall provide the Services to the Equipment in the Space in accordance with this Service Level Agreement. Capitalized terms not defined herein shall have the same meaning as in the SOF and the Agreement:
Cyberjaya1 offers the highest quality in facilities and infrastructure. Customers are ensured with a Service Level Availability of 99.9% for critical power and air-conditioning in the data center.
The Data Centre is equipped with a Centralized Building Automation System and has a 24 x 7 Network Operation Centre (NOC) monitoring system.
1.1 Power supply availability: 99.9% (less than 45 minutes of downtime in a month)
|Severity / Problem Level||Mean Time to Response||Mean Time to Repair|
|1.||Critical Outage (entire data center down; power outage resulting in loss of power to Customer’s Space or Area)||15 minutes||2 hours|
|2.||Major Outage (entire air-conditioning outage and/or one or two power supply outage)||30 minutes||4 hours|
|3.||Minor Outage (loss of redundancy in power supply or air-conditioning; redundant device down; management access outage)||2 hours||Next Business Day|
|4.||Important Event (condition being monitored; resolved awaiting parts)||4 hours||Second Business Day|
|5.||Informational Event (request for documentation)||Next Business Day||Second Business Day|
BIG BAND intention is to provide uninterrupted power to the Equipment in the Space; however, events occur from time to time that may interrupt the power delivered to the Equipment in the Space. If Customer experiences an interruption in power delivery to the Equipment in the Space (a “Power Interruption”“Power Interrupt Percentage Credit”). Notwithstanding the foregoing, if a Power Interruption is caused by one or more events of Force Majeure or by the Customer exceeding 80% of a circuit breaker’s rating under continuous load, the Customer shall not be entitled to a Power Interrupt Percentage Credit. The Power Interrupt Percentage Credit shall be based on the following schedule:
"Network Uptime" (only applicable when BIG BAND provides Internet Access) BIG BAND guarantees that the network will be available 100% of the time in a given month excluding scheduled maintenance. In the event of interruption of internet excess, BIG BAND shall compensate by way of credit hours against the lost due to downtime (up to 100% of Customer’s monthly Internet Access fee). Network uptime includes functioning of all network infrastructure including router, switches and cabling. Network downtime exists when a particular customer is unable to transmit and receive data and BIG BAND records such failure in the BIG BAND system.
“Mean Time To Response” shall mean the elapsed time from the time trouble is reported (by email, facsimile or telephone, to the contact person designated by Big Band) and to the time Big Band’s staff acknowledge receipt of the trouble report.
“Mean Time To Repair” shall mean the elapsed time from the time trouble was reported by Customer to the time trouble was eliminated, provided that (a) the trouble is with a third party outside of Big Band’s control; and (b) Big Band is making its best efforts to expedite the repair, then such time to repair the trouble will not be included in the mean time to repair.
|Service Descriptions||Maintenance Frequency|
|Power System||Generator System||Yearly|
|Cooling System||Common area air-conditioning & ventilation fan||Every 2 Months|
|Precision Air Conditioner||Every 2 Months|
|Fire Fighting||HSSD System||Yearly|
|Fire Fighting System||Yearly|
|NAFSIII Gas Suppression System||Yearly|
|Security System||Card Access||Half Yearly|
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