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: –
a. “Business Day” means any day other than, Saturdays, Sundays or public holidays gazette for Kuala Lumpur.
b. “Confidential Information” means any information, including, data or material, of any nature, in relation to this Agreement marked as confidential and, disclosed, furnished or made available by a Party to the other Party directly or indirectly and if released prejudices the Party’s interest.
c. “Content” means, Customer’s or End User’s, files, web pages, data, works, information or materials, on, within, displayed, linked or transmitted, including any, trademarks, service marks, images, photographs, illustrations, graphics, audio clips, video clips, email, messages, meta tags, domain names, software or text, in any content or resources, which is, located on or used, from or through, the server space on, THE HOST’s system allocated to Customer or Customer’s Hardware.
d. “Data Centre” means the premises located and used by THE HOST for the provision of Services.
e. “End User” means any third party, as permitted under this Agreement, who uses Customer’s Content.
f. “Force Majeure Events” means any event or circumstance, which,
i. is beyond a Party’s reasonable control,
ii. could not be addressed by a reasonable person before entering this Agreement,
iii. having arisen, could not reasonably be overcome, and
iv. materially disrupts the performance of this Agreement, and subject to the foregoing being satisfied, a Force Majeure Event includes, inclement weather beyond the norm, lightning strikes, natural disaster, damage to facilities, supplier’s, default or failure, the conduct of third parties, acts of God, war, riot, malicious acts of damage, civil commotion, labour, strike, lockout or industrial dispute (other than those by the employees, representatives or agents of the Party claiming the Force Majeure Event), commercial power failure, fire, other casualties, orders of any authorities or orders of any persons acting for such authorities PROVIDED THAT a Force Majeure Event shall not include the financial inability of a Party to perform its payment obligations under this Agreement or, death or personal injury, suffered by a Party, its representatives, servants, agents, contractors, licensees or invitees, in the Data Centre.
g. “Fees” means the prevailing fees as prescribed under Schedule A or as amended from time to time.
h. “General Terms” means this General Terms and Conditions.
i. “Hardware” means server, router, switches, hub, console, terminal, uninterrupted power supplies, printer, modem, solid state storage devices, network attached storage, virtual tape libraries or other related peripheral equipment installed at the Data Centre.
j. “Intellectual Property” means copyright and related rights, brand, trade name, logos, registered and unregistered trademark, service marks, other proprietary identifying symbols, get-up or trade dress, patent, know how, confidential information, trade secret, industrial design, registered and unregistered design, utility model, circuit layout, domain names, computer programs (including source code and executable codes), database, inventions, processes and including other intellectual property.
k. “Intellectual Property Rights” means: rights to inventions; right to sue for passing off; all Intellectual Property: rights; benefits; title; proprietary rights; interest in licenses; permits; and any other intellectual property rights; for any of the foregoing anywhere in the world (whether registered or not and including all applications, right to apply, renewals or extensions in the same).
l. “THE HOST’s Property” shall have the meaning ascribed to it in Clause (8).
m. “Mean Time to Respond” means the duration indicated as Mean Time to Respond associated with the problem reported by the Customer with reference to Schedule [ ] ,
n. “Mean Time to Repair” means the duration indicated as Mean Time to Repair in associated with the problem reported by Customer with reference to Schedule [ ] ,
o. “Services” means the Services subscribed by the Customer (which Services THE HOST from time to time may, in part or whole, change, deprecate or discontinue, at its sole discretion, including, any application programming interface) with reference to Schedule [ ].
p. “Service Date” means:
the date THE HOST notifies the Customer that the Services are ready for use provided Customer installs its hardware within a month of been given uninterrupted access to the Space or it does not supply any Hardware.
the 30th day after the Customer was given uninterrupted access to the Space to install its Hardware when the Customer does not install its Hardware within a month of such access provided THE HOST supplies Services within two (2) weeks after the Customer installs its Hardware, failing which the Service Date is the date THE HOST notifies the Customer that the Services are ready for use.
q. “Service Term” means the period of the Subscribed Term in which commences on the Service Date with reference to Schedule [ ] .
r. “Service Unavailability” shall have the meaning ascribed to it in Clause (9).
s. “Specific Terms” means the Specific Terms and Conditions.
In this Contract, unless expressly indicated otherwise:-
a. any references to, Clauses, Schedules, Appendices or Exhibits, in a document means, Clauses, Schedules, Appendices or Exhibits, of that document;
b. headings do not affect the interpretation of this Contract;
c. words in the singular include the plural and vice-versa;
d. words denoting a gender includes all genders;
e. the meaning of a defined expression extends to the expression’s other grammatical forms;
f. “in writing” means a, printed or written document, signed by an authorized representative;
g. a reference to any Law includes that Law as, modified or replaced;
h. a reference to “person” means, an individual, incorporated or unincorporated body, joint venture, association, firm, sole proprietorship, partnership, trust or other legal entity
i. a reference to “include” means include but not limited to;
j. a reference to a time by which an act must be done includes any other period agreed by the Parties;
k. “day”, “month” and “year” means day, month and year respectively in accordance with a Gregorian calendar; “Business Day” means a day that banks in KL are open for business; “Normal Working Hours” means 9am to 6pm;
l. the date by which an act must be done commences from the date specified;
m. if the date by which an act must be done is not a Business Day, the act must be done before the next Business Day;
n. any act to be performed on or before a particular day means on or before the end of Normal Working Hours of that day;
o. unless the context requires otherwise, references to “day” refers to a 24 hour period;
p. in the event of any inconsistency between provisions in a Contract Document, later provisions prevail over earlier provisions;
q. technical terms, unless otherwise defined, shall have its general meaning in Malaysia;
r. concurrence, approvals, consents, directions and instructions, must be in writing;
s. any, consent or approval, by a Party shall:
i. not be unreasonably withheld or delayed;
ii. not constitute as waivers of the other Party’s, duties, responsibilities, obligations or liabilities, under this Agreement; and
iii. relate only to the specific event for which it was given.
2. Representations and Warranties
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:
a. the Party is duly organized or registered in the jurisdiction of its formation;
b. the Party has all necessary regulatory authorizations to, carry on its business and perform the obligations under this Agreement;
c. the Party, has the full right or the corporate power to enter into this Agreement to, carry on its business as contemplated under this Agreement;
d. this Agreement is legal, valid, binding and enforceable, against the other Party under the terms and conditions of this Agreement.
e. the Party has, no claims against it or to its knowledge no claims threatened against it, which will materially affect its performance of this Agreement.
Each Party, undertakes and covenants, that during the Service Term it will:
a. comply with all requirements regulating its, conduct or business or carrying out of obligations under this Agreement, and bear the cost incurred thereby;
b. ensure that its employees comply with the Law; and
c. provide its fullest cooperation to the, other Party or relevant authorities, and provide such information as reasonably required in connection with the, provision or use, of Services.
Legal Right to use Hardware:
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.
Legal Right to use Intellectual Property Rights:
Customer represents and warrants to THE HOST that, Customer or End User:
a. owns all, Intellectual Property and Intellectual Property Rights; or
b. has express written authorization to use any Intellectual Property Rights in third party content (including, copying, transmitting, distributing, displaying or modifying such content) Content or its Hardware, and that, Customer and End User, has the right to grant THE HOST these rights under Clause (7).
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:
a. owns all, Intellectual Property and Intellectual Property Rights; or
b. has express written authorization to use any Intellectual Property Rights from its owner (including, copying, transmitting, distributing, displaying or modifying such content) in relation to the Services provided by 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:
a. THE HOST possesses the expertise to perform the obligations under the Agreement and that it shall ensure that the third party service providers it employs to provide any Services also possess the expertise to perform these obligations.
b. THE HOST shall use standard equipment for the Hardware employed under this Agreement.
c. THE HOST will permit Customer’s servants, employees, representatives, agents or contractors, access to the Data Centre as may be allowed under Data Centre’s House Rules, Data Centre’s Acceptable User Policy or
d. THE HOST’s Acceptable User Policy, or for the, installation or removal, of Customer’s Hardware.
e. THE HOST will assist Customer to identify as to whether disruption to Services arises from a failure of the Customer’s Hardware within the Mean Time to Respond.
3. Description of Service
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.
5. Payment 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
6. Testing and Acceptance
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.
7. Use of Customer’s Content
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.
8. Use of THE HOST’s Property
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.
9. Availability of Services
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:
a. equipment malfunction;
b. routine tests, maintenance, upgrade or repairs (excepting repairs when carried out beyond Mean Time to Repair), which THE HOST may undertake from time to time;
c. periods Customer or End User, upgrade, downgrade or maintain, Content which prevents the use of Services;
d. acts or omissions, by Customer, Customer’s, employees or agents, or End Users, resulting in Downtime;
e. Domain name system (“DNS”) problems outside of THE HOST’s control, issues with Customer’s internet access including any, problems with Customer’s internet service provider, interruption by or failure of, telecommunication or digital transmission links, hostile network attacks, network congestion, faulty web browsers, or caching that might make it appear the Services are unavailable even though others can still access THE HOST’s servers;
f. any negligence, willful misconduct or use of the Services in breach of Clause 4 of this Agreement; or
g. Force Majeure Events, (collectively “Service Unavailability”), Customer agrees that THE HOST would not be required to provide Services.
10. Customer’s or its End User’s Content
Customer shall be solely responsible for:
a. providing, developing, uploading, downloading, updating, operating, maintaining, backing up or archiving, Content;
b. ensuring that Content is compatible for use with Services;
c. all Content;
d. domain names provided by Customer or domain names registered by THE HOST on behalf of Customer.
11. Support Services
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.
12. Uptime and Downtime
“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.
14. Customer’s Obligations
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:
a. access or use, of Services by unauthorized, means to avoid incurring costs or to increase Customer’s quota;
b. using, THE HOST’s, system or Services, in connection with any, fraudulent or illegal, activity;
c. introducing on THE HOST’s system any Content that actually or potentially, violate any law or regulation or infringe any rights of any person including, proprietary rights or Intellectual Property Rights;
d. using THE HOST’s system including to the space occupied by Customer on THE HOST’s servers as, a source, an intermediary, a reply to address, or a destination address, for, mail bombs, Internet packet flooding, packet corruption, denial of service, broadcast attacks or abusive activities;
e. hacking or perpetrating security breaches, of any servers including servers belonging to THE HOST;
f. using the, Services or space occupied by Customer on THE HOST’s servers, as an anonymous gateway or in restricting other users from using the Internet
g. using the Services to, disseminate or transmit, unreasonably large volumes of email (more than THE HOST’s standard SMTP relay limit without THE HOST’s consent made in its sole discretion), unsolicited messages, chain letters or spam (commercial email or advertising or informational announcements);
h. using the Services to, disseminate, transmit, store or otherwise make available, any material which, is associated with gambling or is to a reasonable person may be deemed as, abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious;
i. using the Services to, disseminate, transmit, store or otherwise make available, files, graphics, software, material, data or work, that actually or potentially, infringe Intellectual Property Rights of any person;
j. using the Services to, create a false identity or to otherwise attempt to mislead any person, as to the, identity, source or origin, of any communication, including falsifying TCP-IP headers, e-mail headers or to the, origin or route, of any transmission;
k. using the Services to, export, re-export or permit downloading of, any message or content, in violation of any law, regulation or restriction, of Malaysia or as prescribed by the Government of Malaysia, its agencies or authorities, or without all required approvals, licenses or exemptions;
l. using the Services to, interfere, disrupt, attempt to gain unauthorized access to, make connections to, probe, monitor (data or traffic), crawl, test the security vulnerability to or breach any security measures to, any or part of a, computer system or communication system, server, network, software, device, hosts or users, belonging to or operated by, THE HOST or another party, for which Customer does not have authorization to access;
m. using the Services to, disseminate, transmit, store, or otherwise make available, virus, trojan horse, worms, or malicious, harmful or disabling, time bombs, bots, data, work, code or program, which, interferes with or intercepts, any program, data, system or network;
n. using the Services or Customer’s SMTP server, as an, open proxy, open recursive domain name or “Open Relay” (such that it allows anyone on the Internet, other than Customer, to send e-mails through the server) or similar purposes.
o. using the Services to, interfere with or disrupt, the Services or its associated connected hardware (including, servers or networks), or disobey any, requirements, procedures, policies or regulations, of networks connected to the Service;
p. reverse engineering or disassembling, any software provided under Services;
q. modifying, server, network, software, device, hosts or users, associated with Services (save for as expressly permitted by, law or agreement with the party in whom, title or the Intellectual Property Rights, of such item vests);
r. using the Services to in violation of any, law, regulation or restriction, of Malaysia or as prescribed by the Government of Malaysia, its agencies or authorities, THE HOST policies (as, amended or reasonably introduced, from time to time) or without all required approvals, licenses or exemptions;
s. using the Services to carry out, fraudulent, rogue or deceptive, activities including, phishing or pharming;
t. using the Services to carry out activities that is harmful to THE HOST’s, operation or reputation;
u. using the Services to, collect or store, personal information about other users in connection with, invasion of privacy or the prohibited, conduct and activities, set forth in the paragraphs above;
v. using the Services to collecting messages from others which violate the unacceptable use under this, Agreement or of the service provider from which the message was transmitted.
Customer agrees that THE HOST is entitled to modify the aforementioned list of unacceptable use of the Services (as may be, posted on THE HOST’s site or notified to Customer) and that Customer shall comply with the requirements under this Clause for such modified list.
The Customer agrees that Clause 14 (a) – (v) shall be mirrored and shall be applicable to Customer’s End User use of Service as of right under this Agreement.
In the event that Customer becomes aware of any unacceptable use of the Service, Customer shall notify THE HOST of such use and Customer shall extend all assistance as may be reasonably required by THE HOST to remedy the situation.
Customer agrees that at Customer’s cost and, Customer’s and End User’s, risk, THE HOST may, remove Content from THE HOSTs servers that contain, information about any of the aforementioned prohibited activities or links to information about any of the aforementioned prohibited activities, or remove Content from its servers if THE HOST is the recipient of activities that threaten the stability of its network, without notice to Customer. Customer agrees that it will not seek any compensation for the removal of the aforementioned Content and Customer shall indemnify THE HOST against any claims from End User arising from the removal of the aforementioned Content.
Customer agrees that THE HOST may, but is not obliged to, investigate any violation of, Customer’s or End Users’, unacceptable use or misuse, of the Services under this Agreement. In the event THE HOST suspects that such violation infringes any, law or regulation, or in the event a, competent regulator or authority having jurisdiction, requests for particulars in connection with, Customer, End User or Content, then, Customer agrees and in Customer’s agreement with End User Customer shall ensure that End User agrees, that THE HOST may without informing, Customer or End User, disclose any such associated information including, any of, Customer’s or End User’s, confidential information to the appropriate authority(s) (for onward investigation and prosecution).
15. Storage and Security
Customer agrees that Customer at all times shall be, entirely and solely, responsible for and shall bear the full risk of; maintaining the confidentiality of, Customer’s password and Customer’s hosting account information; any access to, Content or Customer’s account, regardless that such access by whomsoever was unauthorized by, Customer or End User; ensuring that, Customer’s password and Customer’s hosting account information, is not sold, sublicensed or transferred, to any other party; all, acts, omissions, use or charges incurred, under Customer’s hosting account or in connection with the Content displayed, linked, transmitted through or stored, on the server space occupied by Customer on THE HOST’s servers; any, claims or loss or damage or expenses, arising from, Content or under Customer’s account; handling any notices sent by any party in relation to, Content or activity under Customer’s account. properly configuring Content for Customer’s use with Services; preventing any, loss or damage, to Content; maintaining independent archival and backup copies, of Content; ensuring the, security, confidentiality and integrity, of Content.
THE HOST shall have no liability to, Customer or any other person, for loss, damage, destruction or loss of confidentiality, of Content, unless such loss, damage, destruction or loss of confidentiality was as a result of THE HOST’s, its servant’s or agent’s, act, omission or negligence. In the event that damage(s) is a result of THE HOST’s negligence, this will be limited to the extent stated in Clauses (18) and (19) of this Agreement.
Customer shall notify THE HOST immediately of, any suspicious activity under Customer’s account or suspicion that, Customer’s password and Customer’s hosting account information, has been compromised (lost, stolen or breached).
Due to the continuance development of the Industry, THE HOST has deployed minimum Anti DDoS security to Customer, however, there is no guarantee that minimum Anti DDoS shall provide the necessary security for any attack as demanded by Customer, the onus is on Customer to subscribed for the full Anti DDoS security system offered by THE HOST. THE HOST shall not be liable for any damages, loss of data or content in the event of an attack happens and the security system deployed or subscribed is unable to notify THE HOST of such attack.
16. Confidential Information
a. The Parties shall not without consent of the other Party divulge Confidential Information or this Contract to a third party except where the disclosure to the extent required is for the third party needing to know the information that relates to the Party:
(i) raising finance to perform this Agreement;
(ii) obtaining advise from advisors, consultants or auditors;
(iii) communicating to a government or enforcement authority(ies) as necessary by Law;
(iv) performing this Agreement;
(v) complying with the head agreement between the THE HOST and its counterparty.
b. The Party disclosing the information under Clause 16(a) to a third party shall obtain an undertaking form such third party that it, its employees, representative or agents will maintain the confidentiality of the information and not divulge it to any other party.
c. The Parties including any of the aforementioned third parties shall not use any Confidential Information for any purpose unrelated to the performance or non-performance of this Agreement.
d. The above provisions under this Clause 16 shall not modify the confidentiality requirements to any information divulged by a Party to the other Party prior to the date of this Agreement.
e. The Parties will not make copies of the Confidential Information and will return all such Confidential Information to the disclosing Party upon the expiry of this Agreement or the termination of this Agreement.
f. The confidentiality obligations under this Clause shall survive the expiry of the Agreement or termination under Clause 22.
The provisions of this Clause shall survive the, expiry or termination, of this Agreement.
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.
18. Limitation of Liability; Waiver and Release
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 endeavor 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.
19. Force Majeure
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:
a. the affected Party notifies the other Party within 14 days of the start and end of a Force Majeure Event with full particulars of the Force Majeure Event, its nature, consequence thereof, likely duration and the steps that the Party proposes to take to mitigate the non-performance subject to the approval of the other Party;
b. the affected Party furnishes all information in relation to the Force Majeure Event as reasonably required by the other Party.
The Parties shall bear their respective costs arising from a Force Majeure Event and the Parties shall perform all obligations which are unaffected by a Force Majeure Event.
If performance of the Agreement is substantially prevented by any Force Majeure Event for a continuous period of thirty (30) days, then, either Party may terminate this Agreement forthwith by written notice to the other Party and neither Party shall have any claim against the other Party or be entitled to any compensation arising thereof for, loss or damages or expenses arising from such termination save for antecedent breaches.
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;
a. Customer or End User’s, use of Services, (1) is a security risk to any party, (2) adversely affects, Services or system (server, network, software, device, hosts or users) or Data Center, belonging to or operated by, THE HOST or another party, (3) subjects, THE HOST or any third party, to liability and (4) is fraudulent;
b. Customer breaches any of the material provisions under this Agreement, the 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
c. the Service(s) is used in violation of laws, regulations or notices issued by the relevant authorities;
d. the Customer does not cooperate with the investigations made by the authorities in relation to suspected illegality;
e. Customer fails to settle THE HOST’s invoice within seven (7) days from its due date.
During the suspension, Customer will remain liable for any payments due, prior to the suspension and until the suspension ends. THE HOST shall re-connect Services, provided Customer remedies the event which generated the suspension and it pays a reconnection fee to THE HOST.
THE HOST’s right to effect a suspension under this Clause is independent of THE HOST’s right to terminate this Agreement.
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.
23. Consequence of Expiry or Termination of Agreement
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.
a. Customer shall not assign Customer’s, rights or interests, under this Agreement, in whole or in part, without the written consent of THE HOST.
b. Notwithstanding any permitted Customer assignment, the Customer is responsible for its assignee’s obligations under this Agreement and to its acts or omissions.
c. THE HOST may by notice assign its, rights or interests, under this Agreement to any third party without the Customer’s consent.
a. A Party may grant a waiver of its rights PROVIDED the waiver is in writing.
b. No waiver under Clause (a) for a breach of this Agreement shall operate as a waiver of, a subsequent breach of Agreement or a continuing breach of Agreement, unless expressly written.
c. Subject to Clauses (a) and (b), no:
(i) granting of time to a Party;
(ii) relaxation, forbearance, delay or indulgence by the other Party;
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.
a. This Agreement constitute the entire agreement between the Parties.
b. All previous, written or oral, agreements, communications, representations, warranties, negotiations, purchase orders or understandings, between the Parties with respect to this Agreement:
(i) are superseded by this Agreement;
(ii) are merged in this Agreement to the extent of its incorporation in this Agreement;
(iii) are of no effect; and
(iv) shall not constitute any collateral agreement or warranty.
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:
a. on the day of delivery if served by facsimile (provided the transmission report confirms error free transmission), by electronic mail or by hand;
b. on the Business Day following dispatch if served by Courier;
c. five (5) Business Days after dispatch if served by post.
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.
25. Governing Law and Settlement of Dispute
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.
26. Security Deposit
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.
28. Disputes Relating to Invoices
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.