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Standard Terms and Conditions
1. Services. Axis Basics Sdn Bhd ("AxisBasics") will
provide Subscriber with access to the AxisBasics Facilities
as implemented from time to time. The transmission of data
to and from Subscriber's computer over the AxisBasics
Facilities is hereinafter referred to as the "Services."
2. Charges and Payments. (a) For Services provided
under the Agreement, Subscriber shall pay AxisBasics for the
Services in accordance with the service bills delivered to
the Subscriber from time to time. All applicable excise,
value added, utility, sales or use taxes, if any, shall be
billed to Subscriber as separate items and shall be paid by
Subscriber. There shall be no charge to Subscriber for
maintenance of the AxisBasics Facilities in order to resolve
problems which render Subscriber's application(s)
inoperative or partially inoperative. (b) Except as
otherwise may be provided by this Agreement, AxisBasics will
not increase its rates for Services during the Initial Term.
AxisBasics will provide at least thirty (30) days prior
written notice of any rate increase which may be made, from
time to time, by AxisBasics during any Renewal Term.
3. Subscriber Licenses/Subscriber Facilities. (a)
Subscriber agrees to obtain any and all licenses, permits or
other authorizations required by Malaysian Communications
and Multimedia Commission ("MCMC") for the lawful operation
of antenna equipment used by Subscriber in connection with
its receipt of the Services. At the present time the MCMC
does not have any such requirement applicable to
Subscriber’s lawful operation of antenna equipment.
Subscriber shall promptly provide AxisBasics with all such
information as AxisBasics shall reasonably request with
respect to matters relating to the rules and regulations of
the MCMC. (b) Except as may otherwise be specifically agreed
to in writing between AxisBasics and Subscriber, Subscriber
shall be solely responsible for the selection,
implementation, and performance of any and all equipment,
software and third party telecommunication equipment and
services (“Subscriber Facilities”) used by Subscriber in
connection with the Services and the AxisBasics Facilities.
Subscriber shall be responsible for ensuring that Subscriber
Facilities make efficient use of the AxisBasics Facilities
and have no detrimental effect, as determined by AxisBasics
in its sole discretion, upon the AxisBasics Facilities (or
any portion thereof), AxisBasics’ provision of the Services,
or the use of the Services or the AxisBasics Facilities by
users other than Subscriber. In the event AxisBasics
determines that any Subscriber Facilities do not make proper
and efficient use, as determined by AxisBasics at its sole
discretion, of the AxisBasics Facilities or have a
detrimental effect upon the AxisBasics Facilities (or any
portion thereof), AxisBasics' provision of the Services, or
the use of the Services or the AxisBasics Facilities by
users other than Subscriber, AxisBasics shall have the right
to (i) impose additional charges for Subscriber’s use of the
Services, and/or (ii) take such other steps, with or without
notice, including but not limited to curtailment,
suspension, or termination of Subscriber’s use of the
Services, as AxisBasics in its sole discretion deems
necessary. AxisBasics shall have no obligation to remedy any
problem occurring in any Subscriber Facilities that affects
Subscriber’s use of the Services.
4. Notices. Except as otherwise provided in this
Agreement, all notices or other communications hereunder
shall be deemed to have been duly given when made in writing
and delivered in person or deposited in the postal mail,
postage prepaid, certified mail, return receipt requested,
and addressed to Subscriber as shown on the cover sheet to
this Agreement and to AxisBasics at Axis Basics Sdn Bhd,
2-2-23C 2nd Floor, Wisma Rampai, Jalan 34/26, 53300 Kuala
Lumpur. Attention: Customer Services.
5. Termination. (a) INVOICES AND BILLS ARE PAYABLE
UPON RECEIPT. If an invoice or bill is not paid within the
stipulated due date, AWB may (reserving cumulatively all
other rights and remedies available to it at law, in equity
or under this Agreement) at its sole option and discretion,
and without prior notice to Subscriber, terminate this
Agreement and/or Subscriber's access to and use of the
AxisBasics Facilities. (b) If Subscriber is in default of
its obligations under this Agreement and such default
continues for thirty (30) days after written notice thereof
AxisBasics may, in addition to all other rights and remedies
provided by this agreement, terminate this Agreement. Events
of Default shall include, but shall not be limited to,
failure to perform a term or condition contained herein,
provision of a false statement or representation made for
the purpose of obtaining the Services, or Subscriber's
insolvency, failure to pay debts as they come due,
assignment for the benefit of creditors, or application for
or consent to the appointment of a custodian, receiver or
trustee for Subscriber or a substantial part of Subscriber's
property or business, or institution of bankruptcy,
insolvency, reorganization or liquidation proceedings or
other proceedings for relief under any bankruptcy law or any
law for the relief of debtors by or against Subscriber. (c)
In the event that AxisBasics is prevented from providing the
Service by any law, regulation, requirement or ruling issued
in any form whatsoever by judicial or other governmental
authority (including, without limitation, the Malaysian
Communications and Multimedia Commission), or if a notice
from an government agency or department indicates AxisBasics
is not permitted to provide any part or all of the Services,
AxisBasics may immediately cease providing such Services
without liability to Subscriber. Nothing herein shall be
construed to require AxisBasics to seek waiver of any law,
rule, regulation, or restriction, or seek judicial review or
appeal of any court order.
6. File Security. Subscriber acknowledges that it is
possible for third parties to monitor data traffic over the
AxisBasics Facilities. If Subscriber desires to secure
transmission it will be required to provide for encryption
in its application(s) software. Subscriber also assumes full
responsibility for the establishment of appropriate security
measures (including, without limitation, the selection of
passwords, firewalls and the like) to control access to
Subscriber's equipment and information.
7. Security Deposit. AxisBasics shall have the right,
from time to time, at its sole discretion to require
Subscriber to deposit with AxisBasics such sums as
AxisBasics deems appropriate to secure the prompt and
faithful performance by Subscriber of its obligations under
this Agreement. AxisBasics shall have the right, at its
discretion, to apply all or a portion of the Security
Deposit in total or partial satisfaction of the
non-performance of Subscriber under this Agreement. The use
of all or any portion of the Security Deposit by AxisBasics
shall not deprive AxisBasics of any other rights or remedies
otherwise available to AxisBasics nor shall such use of the
Security Deposit by AxisBasics constitute a waiver by
AxisBasics of Subscriber’s non-performance. In the event
that AxisBasics should use any portion of the Security
Deposit pursuant to this provision, Subscriber shall
immediately and without notice from AxisBasics restore the
Security Deposit to its original amount, or such other
amount specified by AxisBasics. Except as otherwise provided
by law, AxisBasics shall not pay interest on any sums
retained as a Security Deposit.
8. Remedies; Limitation of Remedies; Exclusion of
Warranty. Subscriber's sole remedies for loss or damage
caused by partial or total failure of the AxisBasics
Facilities or for delay or nonperformance of any Services
under this Agreement, regardless of the form of action,
whether in contract, tort (including negligence), strict
liability or otherwise, shall be, where applicable,
Subscriber's direct damages, if any, limited solely to the
amount paid by Subscriber to AxisBasics under this
Agreement.
AXISBASICS MAKES AND SUBSCRIBER RECEIVES, NO WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES OR THE
AXISBASICS FACILITIES. AS A MATERIAL PART OF THE
CONSIDERATION PAID BY SUBSCRIBER FOR THE SERVICES PROVIDED
BY AXISBASICS UNDER THIS AGREEMENT, THE PARTIES AGREE THAT
AXISBASICS SHALL IN NO EVENT BE LIABLE FOR AND SUBSCRIBER
HEREBY WAIVES ITS RIGHT TO CLAIM ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS)
DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF
SUBSCRIBER'S INABILITY TO USE THE AXISBASICS FACILITIES OR
ANY PART THEREOF, EITHER SEPARATELY OR IN COMBINATION WITH
ANY OTHER COMMUNICATIONS FACILITIES OR IN CONNECTION WITH
ANY SERVICES, PERFORMED OR NOT PERFORMED BY AXISBASICS UNDER
THIS AGREEMENT, OR FOR ANY OR ALL LOSS OR DAMAGE DIRECTLY OR
INDIRECTLY RELATING TO OR ARISING OUT OF A THIRD PARTY'S
UNAUTHORIZED ACCESS TO SUBSCRIBER'S DATA TRANSMITTED OVER
THE AXISBASICS FACILITIES REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE
FORESEEN OR UNFORESEEN.
9. Indemnification. Subscriber shall indemnify
AxisBasics and its partners, parents, subsidiaries,
affiliates, directors, officers, employees and agents from
and against any claims, demands or liability (including any
losses, costs, expense, and attorney's fees) arising out of
or resulting from any injury (including death) to persons or
damage to property caused, directly or indirectly, by the
Services or the AxisBasics Facilities due to the negligent
acts or omissions of Subscriber.
10. Improvements and General Administration.
AxisBasics reserves the right, from time to time, to make
changes in the configuration of the AxisBasics Facilities,
rules of operation, accessibility periods, Subscriber
identification procedures, type and location of equipment
(including, but not limited to, the reassignment or
re-engineering of Subscriber host connections to one or more
alternative AxisBasics host connect facilities using the
AxisBasics Facilities or some alternative thereof),
allocation and quantity of resources utilized, programming
languages, administrative and operational algorithms and
designation of the control center serving Subscriber at any
particular address. AxisBasics may perform all of the
Services to be performed under this Agreement directly or
may have some or all of the Services performed by its
subsidiaries, affiliates or subcontractors, but shall retain
responsibility for the delivery of the Services to
Subscriber.
11. Assignment. (a) Subscriber shall not assign its
rights under this Agreement without the prior written
consent of AxisBasics. Any attempted assignment or
delegation in contravention of this Section 11.a. shall be
void. (b) Subject to the provisions of Section 11.a., above,
this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns, if any, of the
parties hereto.
12. Force Majeure. Notwithstanding any other
provision of this Agreement, neither party shall be deemed
in default of this Agreement for delay, failure in
performance, loss or damage due to any of the following
force majeure conditions: fire, strike, embargo, explosion,
power irregularities, earthquake, nuclear accident, volcanic
action, flood, war, water, the elements, labor disputes,
civil disturbances, government requirement, civil or
military authority, acts of God or public enemy, inability
to secure products or transportation facilities, acts or
omissions of common carriers or other causes beyond their
reasonable control, whether or not similar to the foregoing.
13. General. (a) No Third Party Beneficiaries Except
as otherwise specifically stated in this Agreement, the
provisions of this Agreement are for the benefit of the
parties hereto and not for any other person. (b) Precedence
Over Purchase Order Terms and Conditions. Any additional or
different terms of Subscriber's purchase order, whether or
not such terms materially alter this Agreement, shall be
deemed objected to by AxisBasics unless this Agreement is
expressly amended by the parties hereto. Execution of a
Subscriber's purchase order shall not operate as an
amendment to this Agreement. Whenever printed, typed,
stamped or written provisions of Subscriber's purchase order
conflict with this Agreement, this Agreement shall control.
(c) Waivers of Default. Waiver by either party of any
default by the other party shall not be deemed a continuing
waiver of such default or a waiver of any other default. (d)
Survival. The terms and conditions and warranties contained
in this Agreement that by their sense and context are
intended to survive the performance hereof by either or both
parties hereunder shall so survive the completion of
performance, cancellation or termination of this Agreement.
(e) Headings. The section headings contained in this
Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement. (f) Governing Law. The Agreement shall be
construed in accordance with the laws of Malaysia applicable
to contracts executed and wholly performed within the
country. (g) Severability. If any of the provisions of this
Agreement shall be invalid or unenforceable, such invalidity
or unenforceability shall not invalidate or render
unenforceable the entire Agreement, but rather (unless a
failure of consideration would result therefrom) the entire
Agreement shall be construed as if not containing the
particular invalid or unenforceable provision or provisions,
and the rights and obligations of AxisBasics and Subscriber
shall be construed and enforced accordingly.
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