Agreement for Orient BB Sdn Bhd Domestic and International Network Services
This “Agreement for Orient BB Sdn Bhd” (this “Agreement”), Orient BB Sdn Bhd (“Orient BB”), principal office at Suite 2B-25-1, 25th Floor, Block 2B, Plaza Sentral Jalan Stesen Sentral 5, KL Sentral 50470 Kuala Lumpur, MALAYSIA (1301262-A), dated (YYYY/MM/DD)……………… , is entered into by and between
…………………………………………………………………………………………… (Company Name) , a company duly organized under the laws of Malaysia, and having its principal office at
……………………………………………………………………………………………………………………………… (the “Customer" address); individually referred to as “Party” and collectively referred to as “the Parties”.
1 Scope and Structure
This Agreement sets forth the general terms and conditions governing the Parties’ relationship with respect to the purchase by Customer of certain Network capacity, IP Transit, IPLC and/or other services from Orient BB Sdn. Bhd. (the “Services”) and is entered into with the expectation that Customer will submit one or more orders to Orient BB for the purchase of services pursuant to this Agreement (“Service Orders”). The Services provided pursuant to this Agreement shall be subject to.
This Agreement, and
The Fault Escalation Process, and
The applicable Service Level Agreement (SLA), and
Each applicable terms and conditions set forth in Service Order Form (SOF).
The Specification of Service is incorporated into the Agreement as Direct Internet Access (DIA) SLA.
From time to time, Customer may desire to order Services from Orient BB subject to a Service Level Agreement or Specification(s) of Service or other appendices that were not initially made part of this Agreement. In such event, Customer shall indicate such desire to Orient BB and the Parties shall agree to attach appropriate appendices to the Agreement or to the relevant Service Order. If no such appendix is incorporated into this Agreement by the written agreement of the Parties, the Service shall be provided subject to Orient BB’s then standard terms and conditions for the relevant Service, which shall be provided to Customer upon request.
2.1 The term of this Agreement (the “Agreement Term”) shall commence on the Effective Date and shall be effective for a period of ……… Year(s) Commencing on the Effective Date and shall thereafter automatically continue for additional periods of one (1) year unless terminated in writing by either Party no later than sixty (60) days prior to the end of the initial Agreement Term or the renewal Agreement Term.
2.2 Each accepted Service Order should have its own term as indicated in the Service Order (the “Service Term”). The Service Term for each Order shall commence on the date upon which the Service is accepted or deemed accepted by Customer in accordance with Section 3.3 below. After the expiration of the initial Service Term, each Service Order shall automatically continue in effect subject to termination by either Party upon ninety (90) days prior written notice or until the Parties agree in writing on a new Service Term. In conjunction with a termination request, Customer also shall be required to submit Orient BB’s standard service cancellation form as provided by Orient BB upon request. If a Service Term is not specified in a Service Order, the Service Term for the relevant Service shall be twelve (12) months. In the event that the Service Term for a particular Service extends beyond the Agreement Term, such Service(s) shall remain in effect for the agreed upon time of Service, subject to all of the terms and conditions of this Agreement as if it were still in effect. All equipment belonging to Orient BB in the possession or control of the Customer shall be returned within fourteen (14) days from termination or cancellation of services, failing which Orient BB reserves rights to claim the equipment from the customer by any means deemed fit.
3 Ordering and Testing
3.1 Customer may order Service from Orient BB pursuant to this Agreement by submitting a Service Order using Orient BB’s standard form. Each submitted Service Order shall be considered an offer from the Customer and shall be binding on the Parties only when accepted in writing by a duly authorized representative of Orient BB. Each Service Order shall be subject to the terms and conditions of this Agreement, except to the extent indicated otherwise in writing in the Service Order. Customer shall provide Orient BB with all information requested in the Service Order form and any other information or access required by Orient BB in order to implement and provide the Service. Customer is responsible for the accuracy of information contained in Service Orders submitted to Orient BB.
3.2 Upon receipt of a Service Order, Orient BB will use commercially reasonable efforts to either accept or reject the Service Order within five (5) business days, but may extend this interval for Service Orders involving the provision of local tails. As used in this Agreement, the term "business day" means a day (other than a Saturday or Sunday) when clearing banks are open for business for the transaction of general banking business in the country or city in which a relevant activity is to be performed or the relevant service is to be rendered.
3.3 Orient BB reserves the right not to accept a Service Order submitted under this Agreement if, in Orient BB’s judgment, (a) Orient BB lacks sufficient facilities, equipment, capacity or regulatory authority to provide the Service requested therein to Customer, (b) Customer or its associated or related company is not in compliance with the terms of this Agreement including, without limitation, for non-payment of amounts owed, or (c) the submitted Service Order contains insufficient information. The Service Order shall set forth the Customer’s desired delivery date (the “Requested Delivery Date”) as well as the number of days from acceptance of such order (the “Service Order Acceptance Date” as defined below) that Orient BB estimates will be required to deliver the Service (the “Estimated Delivery Interval”). The Requested Delivery Date and Estimated Delivery Interval shall not be binding on Orient BB.
3.4 If Orient BB returns a Service Order to Customer with modified or additional terms, such Service Order shall be deemed a counter-offer and Customer shall either: (a) notify Orient BB that the modified and/or additional terms are unacceptable and provide Orient BB with a written rejection, or (b) notify Orient BB of its acceptance of the modified and/or additional terms by signing and returning the Service Order to Orient BB. If Customer does not provide Orient BB with a written response within five (5) business days or receiving a modified Service Order, then the modified or additional terms shall be deemed to be accepted by Customer.
3.5 Orient BB will use commercially reasonable efforts to provide Customer with a binding delivery date (“Committed Delivery Date”), which will be communicated by electronic mail to the Customer contact designated in the relevant Service Order, within ten (10) calendar days from the date upon which the Service Order has been signed by both Orient BB and Customer (the “Service Order Accepted Date”). If Orient BB does not provide Customer with a Committed Delivery Date within the ten-calendar day period, then the Committed Delivery Date shall be deemed to be the date corresponding to the last day of the Estimated Delivery Interval as calculated from the Service Order Accepted Date.
3.6 If the Committed Delivery Date provided by Orient BB is more than thirty (30) calendar days beyond the date corresponding to the end of the Estimated Delivery Interval as calculated from the Service Order Accepted Date, then the Customer shall have the right to cancel the relevant Service Order subject to providing written notice of cancellation to Orient BB within two (2) business days of receiving the Committed Delivery Date or Orient BB shall pay in terms if Rebate for the delay as stated in the SLA “Orient BB SLA Draft Domestic/International Services V3 -R1.3”. Such right of cancellation/rebate claim shall expire and be of no force or effect if not exercised within such two (2) business-day periods.
3.7 Upon completion of testing of any Service provided by Orient BB, Orient BB will send a notification by electronic mail to the Customer contact designated in the relevant Service Order confirming that the Service Order has been installed and tested and is ready for service. The date on which such notice is issued shall be the ready-for-service date (“RFS Date”). The acceptance date for the Service provided by Orient BB pursuant to a Service Order shall be the earlier of (a) two (2) calendar days after the RFS Date, (b) the date on which Customer notifies Orient BB of its acceptance for the Service, or (c) the date on which Customer begins using the Service. Unless Customer notifies Orient BB in writing within such two calendars day period that the Service is not functioning properly, Customer shall be deemed to have accepted the Service. The Service Term for the Service and billing shall commence as of the date upon which the Service has been accepted or is deemed accepted (the “Billing Commencement Date”).
3.8 The Specification of Service for a Service may set forth terms and conditions with respect to the ordering, testing, acceptance and renewal of Orders that are different from or in addition to those set forth in this Agreement. Such additional or different terms shall govern and control in the event of a conflict with the terms of this Section 3.
4.1 If requested by Orient BB, Customer shall submit a completed credit application. Orient BB reserves the right to withhold initiation or full implementation of Service without penalty pending the completion of a satisfactory credit evaluation and Customer may be required to pay a deposit or, with respect to usage- based Services, become subject to a limit on the charges that Customer may incur before a payment is required (“Credit Limit”). At any time during the Agreement Term, Orient BB may require or revise a deposit amount or Credit Limit if, in Orient BB’s sole discretion, there is a material and adverse change in Customer’s financial condition, business prospects, or payment history. The amount of the deposit shall not exceed two month’s charges (or, as the case may be, estimated charges) under the applicable Service Order.
4.2 If Customer fails to provide Orient BB with a new or revised security deposit within ten (10) business days of a request from Orient BB, then Orient BB shall have the right to suspend the provision of Service to Customer without liability and/or terminate this Agreement without further notice or demand. Orient BB shall have the right to apply the deposit to cure any payment defaults (or to pay any applicable taxes) and shall refund any amount of deposit paid to Orient BB pursuant to this Section, less any amount owed to Orient BB by Customer, no later than thirty (30) days after termination or suspension of Service. If Customer fails to pay any charges incurred in excess of Customer’s Credit Limit within two business days of a request from Orient BB, then Orient BB shall have the right to suspend the provision of Service to Customer without liability and/or terminate this Agreement or a Service Order without further notice or demand.
5 Invoices; Payment
5.1 Orient BB’s rates and charges for Service as well as certain ancillary charges associated with the provision of Services shall be set forth in a Service Order Form or in an Appendix hereto. Orient BB reserves the right to modify the rates applicable to Service provided to Customer upon ninety (90) days prior written notice to Customer, provided that any rate increase shall not become effective until after the expiration of the then effective Service Term.
5.2 Customer shall pay to Orient BB all recurring and non-recurring charges for Service at the prices and rates set forth in this Agreement or in the relevant Service Order, plus all applicable taxes. Billing for Service will start on the Billing Commencement Date. When Service is activated on other than the first day of the month or terminates on other than the last day of the month, the charge for that month shall be determined by pro-rating the monthly payment by the number of days during which Service was provided. All payments due under this Agreement shall be made by wire transfer in immediately available funds in the currency specified in the relevant Service Order to the account or accounts designated by Orient BB.
5.3 Orient BB shall have the right to invoice and to require the payment of monthly recurring charges (including committed charges for Services billed on a usage-sensitive basis) not more than thirty (30) calendar days in advance and also shall reserve the right to require the payment of certain non-recurring charges, such as installation fees, in advance. On the first invoice issued to Customer after the Billing Commencement Date has occurred, Orient BB reserves the right to invoice Customer (a) the recurring charge(s) (pro-rated as necessary) for the then current month as well as any preceding months that have not yet been invoiced, and (b) the recurring charge in advance for the next month of the Service Term. Orient BB will provide Customer with an invoice for Service and Customer shall pay Orient BB in full within thirty (30) calendar days of the date of the invoice (the “Due Date”). If Orient BB does not receive full payment by the Due Date, Orient BB may (a) charge Customer interest on the unpaid balance at the rate of 18% per annum or the highest lawful rate, whichever is higher, (b) require a deposit or impose a credit limit pursuant to Section 4 above, (c) suspend or terminate Service pursuant to Section 6 below, and/or
(d) take any other action in connection with any other right or remedy Orient BB may have under this Agreement or available under applicable law. Customer shall pay all costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by Orient BB in collecting past due balances.
5.4 Unless agreed otherwise in the Service Order, all prices shall be exclusive of VAT and any other similar taxes, duties, regulatory fees, or levies (other than income tax) charged to or against Orient BB because of the sale or provision of Service by Orient BB to Customer. In the event such a tax, duty, fee or levy becomes due, the respective amount will be added to the charges payable by Customer, and specified in the relevant invoice. Charges shall not include any taxes for which Customer has furnished a valid and up-to-date exemption certificate. If Customer is entitled to an exemption from any tax, duty, levy or fee for a particular Service applicable, Customer shall provide Orient BB with a current copy of a valid exemption certificate. Orient BB will give effect to any such exemption certificate on a prospective basis after Orient BB’s receipt of such exemption certificate.
6 Suspension and Termination
6.1 In the event of a breach of any material term or condition of this Agreement by a Party, excluding a failure by the Customer to pay amounts due under the Agreement, the non-breaching Party may terminate any Service Orders affected by the breach upon thirty (30) calendar days' prior written notice, unless the breaching Party cures the breach during such thirty (30) day period.
6.2 Either Party may terminate this Agreement, subject to applicable law, immediately in the event that: (a) the other shall become insolvent; (b) the other files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law;
(c) the other makes an assignment for the benefit of the creditors or makes an application to a court of competent jurisdiction for protection from its creditors; (d) the other admits in writing its inability to pay its debts as they mature; or (e) the other ceases to function as a going concern or to conduct its operations in the normal course of business.
6.3 In the event that Customer defaults by failing to pay any amount due to Orient BB hereunder when due and does not cure such default within ten (10) calendar days of receipt of written notice of such default from Orient BB, then Orient BB shall, in addition to any rights or legal or equitable remedies that it may have under this Agreement or by law, have the right to (a) refuse to accept further Service Orders and to suspend the provision of Service pursuant to any Service Order(s) or this Agreement without any liability or further notice until such time as Customer has paid all past due amounts in full, including any interest (if applicable), and/or (b) terminate the Agreement or the affected Service Order(s).
6.4 Upon termination of this Agreement for any reason, all rights of Customer to order new or additional Service under this Agreement will cease, and Customer shall be obligated to pay for all services rendered and deliverables provided through to the effective date of such termination. Customer agrees and acknowledges that the loan of any IP addresses shall terminate and the IP addresses shall revert and be returned to Orient BB without delay when this Agreement and/or any Service Orders hereunder are terminated.
6.5 In the event that this Agreement or a Service Order is terminated or cancelled by reason of Customer’s breach, Customer shall pay to Orient BB an early termination charge equal to (a) one-hundred percent of the monthly recurring charges that would have become due for each month or pro-rated portion thereof in the unexpired portion (if any) of the first twelve (12) months of the Service Term, and (b) seventy-five percent of the monthly recurring charges that would have become due for each month or pro-rated portion thereof in the unexpired portion (if any) of months thirteen (13) through the remainder of the originally scheduled Service Term. Such charge shall be payable within thirty (30) days of the date on which Orient BB provides an invoice for such charge. Customer agrees and acknowledges that the actual damages in the event of such termination or cancellation would be difficult or impossible to ascertain, and that the charge in this Section is intended, therefore, to establish a pre-estimate of the loss and is not intended as a penalty.
7 Provision and Use of Service
7.1 The Service shall be provided in accordance with the applicable Service Level Agreement attached hereto and for services that are not illegal or carry data that may be deemed illegal. Customer agrees and acknowledges that Service may be provided in areas outside of the country where Orient BB is licensed to provide service through affiliates of Orient BB, provided however that Orient BB shall continue to bill Customer for such Services and to serve as Customer’s point of contact for ordering and billing matters. All Service provided through an affiliate outside of the country where Orient BB is licensed shall be subject to, and governed by, all the terms and conditions of this Agreement as if such Service were furnished directly by Orient BB. An affiliate shall be considered any entity that controls, is controlled by, or is under common control with a Party. For purposes of this Agreement, the terms “control,” “controlled by” and “under common control with” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities, by contract or credit arrangement, as trustee or executor, or otherwise.
7.2 Each Party will provide the other with any reasonable information (including without limitation design layout, circuit facility assignment, and other information), access and assistance required to install, test, inter-connect, maintain and repair the Service. Orient BB shall send a notification by electronic mail to the Customer contact designated in the relevant Service Order in advance of any regularly scheduled maintenance that will require access to the Customer’s premises or the premises of a third-party provider. Orient BB reserves the right to modify or amend the terms set forth in the Fault Management Agreement upon written notice to Customer, provided such modifications or amendments shall not have a material adverse effect on Customer’s use of the Service.
7.3 The Service provided by Orient BB pursuant to the Agreement shall only be used for purposes assumed under the Agreement, and in accordance with applicable local legislation, rules and regulations. Orient BB shall be entitled, at its option, to immediately suspend the Services if in its opinion the Services are being used in a manner that may result in liability or other damage for Orient BB. Orient BB will involve and co-operate with the police or other relevant authorities if a criminal violation is suspected, in order to bring such misuse and/or violation to an end.
7.4 Each Party agrees to conduct its operations in a manner that does not interrupt, impair or interfere with the operation of the other Party’s network or services. The Service shall be provided subject to Orient BB’s Acceptable Use Policy, which shall be provided to Customer upon request. The Parties agree that if any Party, in its sole discretion, determines that an emergency action is necessary to protect its own network, the Party may block any path over its network used by the other Party.
7.5 Customer has sole responsibility for installation, maintenance, testing and operation of facilities, services and equipment other than those specifically provided by Orient BB as part of the Services provided in connection with this Agreement. Customer shall be responsible for ensuring that services, equipment, cabling and/or connections ordered by Customer from third parties are turned up at the same time as the Services being provided by Orient BB. In the event such Customer-ordered services, equipment, cabling and/or connections or other services are not ready at such time as the Services provided by Orient BB, Orient BB shall have the right to begin billing for its Services as of the Billing Commencement Date.
7.6 Orient BB will provide equipment and Service only up to the relevant service delivery point and shall not be responsible for providing any connectivity on the Customer side of the service delivery point. The service delivery point shall mean the point at which Orient BB’s responsibility to provide equipment and service ends and where Customer’s responsibilities begin, as identified on the applicable Service Order. Orient BB will not be responsible for providing any equipment or services on the Customer side of the service delivery point or for providing in-house cabling or conduits unless specifically agreed in writing in the Service Order by the Parties.
7.7 This Agreement shall not, and shall not be deemed to, convey to Customer title of any kind to any of the facilities, equipment or other services utilized in connection with the Service, regardless of whether or not such facilities or equipment are placed at Customer’s premises. Customer shall not take any action that causes the imposition of a lien, claim or encumbrance on the facilities or equipment used to provide the Service and shall promptly discharge any lien, claim or encumbrance that arises at its sole cost and expense. Customer shall not assert any claims to any Orient BB facilities or equipment or to any IP addresses allocated by Orient BB (if any) and shall not obtain any rights in such facilities, equipment or addresses.
7.8 If Orient BB installs any facilities or equipment on the Customer premises for purposes of providing Service, Customer shall be liable for any loss or damage to Orient BB's facilities or equipment arising from the negligence, intentional act, or unauthorized maintenance or other cause, including theft, of Customer or its employees or agents. In the event of any such loss or damage to Orient BB’s facilities or equipment, Customer shall reimburse Orient BB for the cost of repair or replacement thereof within thirty
(30) calendar days after receipt of a written request for such reimbursement.
7.9 If Orient BB installs any facilities or equipment on the Customer premises for purposes of providing Service, Customer will provide Orient BB (or its designated subcontractors) access to such facilities or equipment as required for Orient BB’s proper performance of its obligations and to provide Service. Customer shall not, and shall not permit any third party, to repair, disconnect, alter, rearrange or tamper with Orient BB’s facilities or equipment.
7.10 If Orient BB installs any facilities or equipment on the Customer premises for purposes of providing Service, Customer will be responsible for providing and maintaining, at its own expense, the space, the level of power (including the necessary grounding as is required for the installation), heating and air conditioning, and humidity levels necessary to maintain the proper environment for any Orient BB facilities and equipment that are installed on the Customer premises for purposes of providing Service. Upon termination or expiration of the Agreement or a Service Order, Customer shall provide Orient BB with access to its premises to facilitate Orient BB’s removal of its property.
7.11 During the Agreement Term of this Agreement, Orient BB may modify the configuration and specifications of the Services, provided such modifications are necessary due to technical, economic or regulatory developments or to maintain the quality standard of the Services offered by Orient BB and will not affect the essential characteristic features of the Services ordered.
8 Limitation of Liability
8.1 Neither Party shall be liable to the other Party, in contract, tort (including negligence) or for breach of statutory duty or in any other way for (a) any economic loss, loss arising from or in connection with loss of revenues, profits, contracts, customers or business or from failure to realize anticipated savings, (b) any loss of goodwill or reputation, (c) the loss or corruption of any data, and/or (d) any indirect, consequential, special, incidental, exemplary or punitive loss or damage, in connection with this Agreement whether or not the Party knew or should have known of the possibility of such damages in advance.
8.2 Orient BB shall have no liability or responsibility for the content of any communications transmitted via the Service, however the Customer warrants to NOT transmitting content that is deemed illegal and/or data that may be deemed illegal or immoral in nature.
8.3 Except for damages caused by willful misconduct or gross negligence, under no circumstances shall either Party be liable to the other Party (except with respect to property damage, personal injury, death and amounts payable under this Agreement) under this Agreement whether in contract, tort (including negligence), breach of statutory duty or under any other theory of law in an amount that exceeds the amount(s) paid or payable for the Service affected by the event giving rise to the liability during the first six (6) months of the Service Term.
8.4 Except with respect to an action to collect amounts owed under this Agreement, no action or dispute over invoiced charges, regardless of form, arising out of this Agreement may be brought by either Party more than thirty (30) days after the Party filing the claim or seeking to dispute the invoiced charges became aware, or should have become aware (i.e. based on the date of an invoice with the disputed charges) of the circumstances giving rise to the action.
8.5 Except as provided in this Agreement, Orient BB makes no other warranty, express or implied, as to the description, quality, merchantability completeness, or fitness for any purpose of any Service or space provided or arranged in connection with this agreement or any other matter, all of which warranties are hereby expressly excluded and disclaimed.
9 Force Majeure
In no event shall either Party have any claim or right against the other Party for any failure of performance by such other Party if such failure of performance is caused by or is the result of causes beyond the reasonable control of such other Party (a “Force Majeure Event”), including, but not limited to, fire, flood or other natural catastrophe; laws, orders, rules, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter of this Agreement or any civil or military authority; the condemnation, compulsory purchase or taking by eminent domain of a Party's facilities used in connection with the Service; a fiber cut caused by a third-party; the insolvency of an underlying facility provider or other supplier; national emergency, insurrection, terrorism, riot or war; labor strike that effects delivery of committed service or other similar occurrence recognized as a Force Majeure Event under applicable law and jurisprudence. Notwithstanding anything in this Agreement to the contrary, if a failure of performance caused by a Force Majeure Event exceeds thirty (30) calendar days, either Party may terminate the affected Service Order(s) immediately on written notice to the other Party, without incurring any termination liability. Such right of termination must be exercised, if at all, prior to the end of the force majeure period. The claiming Party shall have no liability to the other Party as a result of an event of force majeure.
10.1 Each Party shall indemnify and hold the other Party harmless from any claims by third parties and expenses (including reasonable legal fees) with respect to damage to property, personal injury or death caused by such Party’s negligence or willful conduct. Customer agrees to indemnify and hold Orient BB harmless from any and all claims arising from Customer’s use of the Service and from any all claims brought by Customer’s subscribers, customers or end-users resulting from any use of the Service or any feature of the Service.
10.2 In all instances in which one Party (the “Indemnifying Party”) is obligated to indemnify another (the “Indemnified Party”) as provided for in this Agreement, the Indemnified Party shall notify the Indemnifying Party within (30) days after becoming aware of the claim, damage, loss, suit or other event (the “Claim”) giving rise to its right of indemnification hereunder. The Indemnified Party shall provide the Indemnifying Party reasonable cooperation (e.g., providing copies of documents or testimony of witnesses), at the Indemnifying Party’s expense, in the defense of the Claim. The Indemnifying Party shall have control over the defense of the Claim, provided that the Indemnified Party shall have the right to participate in a secondary role at its own cost and expense with counsel of its selection. Any settlement or compromise of a Claim initiated or entered into by an Indemnifying Party must receive the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed.
11 Subject to Laws
This Agreement, and each Service Order, is subject to all applicable laws, and regulations, rulings and orders of governmental agencies and the obtaining and continuance of any required approval or authorization of any governmental body or agency. Either Party may terminate its obligations under this Agreement without liability if ordered to do so by the final order or ruling of a court or other governmental agency or if such an order or ruling makes it impossible for either Party to carry out its obligations under this Agreement.
12.1 The Parties agree that the terms and conditions of this Agreement and all exhibits referenced herein, as well as any invoices for Service provided hereunder, are confidential as between Orient BB and Customer.
12.2 If the Parties have signed a separate confidentiality, non-disclosure, or similar agreement (“NDA”), then such NDA is expressly incorporated herein by reference and is specifically amended to provide that confidential information is able to be used by the Parties solely for the purposes contemplated in this Agreement and the term of the NDA is extended to be coterminous with the last to expire of the Agreement Term or the term set forth in the NDA.
12.3 If the Parties have not signed a separate NDA, then all information acquired during the Agreement Term concerning either Party’s business affairs and operations shall be deemed confidential. The term “Confidential Information” shall include all information made available by or on behalf of one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under or in connection with this Agreement, including (a) the rates, terms and conditions of this Agreement, including any Service Orders, (b) all information, data, know-how, trade secrets or other material pertaining to the operations, technology, intellectual property, programs, strategies, business plans, finances, personnel, customers, suppliers, markets, network, sales, prices, policies or business affairs of the Disclosing Party or its Affiliates, (c) all information which is marked as “proprietary”, “confidential” or with words of similar meaning,
(d) information otherwise supplied orally with a contemporaneous confidential designation, or
(e) information which is known by the Receiving Party to be confidential or proprietary information or documentation of the Disclosing Party.
12.4 Confidential Information shall not include information that (a) is or becomes part of the public domain through no fault of the Receiving Party or breach of this Agreement, (b) is rightfully received by the Receiving Party from a third party not acting in breach of an obligation of confidentiality owed to the Disclosing Party, (c) is independently developed by the personnel of the Receiving Party or any of its Affiliates without access to the information disclosed by the Disclosing Party, (d) is rightfully known to or possessed by the Receiving Party or its Affiliates, as evidenced by the written records of the Receiving Party or its affiliates, as the case may be, prior to its receipt from the Disclosing Party, or (e) is disclosed by the Receiving Party with the Disclosing Party’s prior written consent. The Party claiming that any of the exceptions set forth in the clauses above apply shall have the burden of proof to establish such applicability.
12.5 Each Party agrees (a) to hold the other Party’s Confidential Information in strict confidence and to disclose the information only to those of its employees or permitted third-parties with a legitimate need to know such information, (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information, but in any event no less than a reasonable degree of care, and (c) not to disclose such Confidential Information to third parties, excluding employees of an Affiliate, independent third-party auditors, potential third party purchasers, shareholders, lenders, investors and similar parties provided that they agree in writing to comply with confidentiality requirements no less restrictive than those contained in this Section 12. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order or request or by operation of law, provided that Receiving Party, if permitted by law, will notify Disclosing Party thereof in order to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, provided such notice is permissible.
12.6 Each Party shall be liable for any breach of confidentiality by itself or any of its agents or representatives. Receiving Party shall notify Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Receiving Party and/or its employees, consultants or contractors, and will cooperate with Disclosing Party in every reasonable way to assist Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. Notwithstanding termination of this Agreement, the Parties’ obligations under this Section shall remain in full force and effect with respect to confidential knowledge and information for a period of one (1) year after the termination date of this Agreement.
12.7 Neither Party shall have the right to use the other Party’s or its Affiliates trademarks, service marks or trade names or to otherwise or to make a public announcement or to refer to the Agreement or any Service Orders without the consent of the other Party. Notwithstanding the foregoing, either Party may make an announcement concerning this Agreement or any ancillary matter if required by law or by any securities exchange or governmental body with jurisdiction over the Party.
Notices under this Agreement (excluding any notices that the Agreement specifically provides may be provided by electronic mail) shall be in writing and delivered by mail, by facsimile, or by nationally recognized courier to the persons whose names and business addresses appear below and such notice shall be deemed given on the date of receipt, or refusal of delivery, by the receiving Party.
(a) If to Orient BB Sdn Bhd:
Attention: Legal Department (email@example.com)
Address : : Suite 2B-25-1, 25th Floor, Block 2B, Plaza Sentral, Jalan Stesen Sentral 5, 50470 Kuala Lumpur.Tel no : +603 7786 0448
Fax no : +603 7786 0450
If to Customer:
Tel no :
Fax no :
A Party may change the address and/or facsimile number to which future notices under this Agreement are to be delivered to such Party by giving notice to the other Party in accordance with this Section.
This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective permitted successors and assigns. Either Party may assign or otherwise transfer, in writing and agreed to by the Party in this Agreement, its rights or obligations under this Agreement to an Affiliate, provided the assigning Party shall remain jointly and severally liable for the performance of its Affiliate under this Agreement and the Affiliate shall agree in writing to be bound by the terms of this Agreement. Neither Party shall assign or otherwise transfer this Agreement without the prior written consent of the non-assigning Party. Any such assignment without such consent shall be deemed void and shall entitle the non-assigning Party to terminate this Agreement and the Services provided hereunder at its option upon thirty (30) calendar days’ prior written notice to be calculated upon the non-assigning party’s knowledge of such an assignment.
15 Relationship of the Parties
15.1 Nothing in this Agreement will be deemed or construed to create any third-party beneficiary or any relationship of principal and agent, partnership or joint venture between the Parties. Unless otherwise specifically authorized in writing, no Party shall make any express or implied agreements, guarantees or representations, or incur any debt in the name of or on behalf of the other.
15.2 Customer is the service provider with respect to its end-users and Orient BB is merely a supplier to Customer with no relationship to Customer’s end-users. The Parties agree and acknowledge that Customer shall assume all credit risk associated with Customer’s end-users and that delays or failures in obtaining such payments from end users shall not affect or relieve Customer of its responsibility to make payments to Orient BB pursuant to this Agreement.
15.3 The Services provided to Customer by Orient BB pursuant to this Agreement shall be provided on a non- exclusive basis. The Parties agree and acknowledge that this Agreement shall not prohibit (a) Orient BB from providing Services to competitors of Customer without notice or liability, or from providing the Services directly to end-users in competition with Customer, or (b) Customer from buying or reselling services from other providers, including competitors of Orient BB, or from providing the Services directly to end-users in competition with Orient BB.
16 General Warranties
Each Party represents and warrants that (a) the person executing this Agreement has the right, power and authority to execute documents and to contractually bind the executing Party; (b) it has received all necessary permits, licenses, and approvals necessary to provide or use the Services; and (c) it has complied with and does comply with all laws, regulations, orders and statutes which may be applicable to the Party.
17 Rules of Construction
17.1 The headings contained in this Agreement are for convenience only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof. All provisions that can be given proper effect only if they survive the termination or expiration of this Agreement will survive the termination or expiration of this Agreement.
17.2 Should any terms or conditions within this Agreement, any appendix, and/or any Service Order be in conflict with or inconsistent with one another, the documents shall be interpreted in the following order of precedence: (a) the Service Orders, (b) the applicable Service Level Agreement, (c) the applicable Specification of Service, (d) the applicable Appendix, or (e) this Agreement.
17.3 If any one or more of the provisions of this Agreement shall for any reason be held to be invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and shall remain in effect and be binding upon the Parties. In such event, the Parties agree to negotiate, in good faith, substitute valid provision(s) that most nearly approximate the Parties' intent.
17.4 Except as provided in Section 8.4, no waiver of a breach of any provision of this Agreement shall constitute a waiver of any other breach or of the future performance of such provision.
18 Governing Law and Venue
This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by the laws of Malaysia. The Parties irrevocably consent and submit to the jurisdiction of the Subordinate or High Courts of Malaya for all matters arising under this Agreement.
19 Entire Agreement
This Agreement (including any appendices, exhibits, attachments and/or schedules attached hereto) constitutes the entire Agreement between the Parties with respect to the matters set forth herein and correctly sets forth the rights, duties, and obligations of each Party to the other as of the Effective Date. The Parties agree and acknowledge that they have not relied upon any prior agreements, promises, or representations in entering into this Agreement.
No alteration or variation of the terms of any provision of this Agreement shall be valid unless made in writing and signed by a duly authorized representative of each of Orient BB and Customer. Notwithstanding the foregoing, no exhibit attached hereto requiring execution by each Party shall be binding unless and until such exhibit has been fully executed by an authorized officer, agent or representative of each Party.
This Agreement may be executed in counterparts. In confirmation of their consent and agreement to the terms and conditions contained in this Agreement and intending to be legally bound thereby, the Parties have executed this Agreement.
Orient BB Sdn Bhd
Sign & Stamp
Sign & Stamp: