LEASE AND LICENSE WITH DATA CENTRE(S)
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 Service Order Form (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.
RIGHT/PURPOSE OF USE
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.
FEES, CHARGES AND LIEN
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.
PAYMENT OF FEES; DUE DATE; LATE CHARGE; SUSPENSION OF SERVICE; DEFAULT INTEREST.
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.
TAXES AND SST
17. Each Party shall be responsible for reporting of its own taxes and SST 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 BIG 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.
DATA PROTECTION & DISCLOSURE OF INFORMATION
24. Kindly refer to BIG BAND SDN BHD Privacy Statement at www.bigband.net.my and read the terms carefully.
DISCLAIMER OF WARRANTIES
25. 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 BAND SHALL 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.
DEFAULT BY CUSTOMER
26. 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.
REMOVAL OF EQUIPMENT
27. 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.
28. 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
DEFAULT BY BIG BAND
29. 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.
30. 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.
31. 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.
32. 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.
LIMITATION OF LIABILITY
33. 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 BAND TO 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 BAND BE 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.
34. 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) INFRINGEMENT OF INTELLECTUAL PROPERTY BY CUSTOMER OR ITS USERS
35. 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.
36. 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.