Managed Equipment Solution – Master Terms & Conditions
The agreement (“Agreement”) consists of (1) these Master Terms and Conditions and (2) the terms and conditions of any Equipment Contract(s) that are executed by the parties from time to time. By executing any Equipment Contract, the Customer acknowledges that it has read, understood and agreed to these Master Terms and Conditions as well as the relevant Equipment Contract(s). The terms and conditions set out in the schedule(s) to any Equipment Contract are incorporated into and form an integral part of that Equipment Contract.
The Customer and JOS agree to the provision and use of the Equipment and Services on the following terms and conditions:
- The Equipment
1.1 JOS shall rent the Equipment to the Customer in accordance with the relevant Equipment Contract.
1.2 The agreement to provide any Equipment and/or Services will only be binding on the parties when the relevant Equipment Contract has been executed by them both, after which that Equipment Contract shall form an integral part of the Agreement.
1.3 Save as otherwise provided in this Master Terms and Conditions, each Equipment Contract shall with the terms of this Master Terms and Conditions be a separate agreement for the rental of the Equipment described therein, and without prejudice to the generality of the foregoing, sums payable pursuant to or in respect of any Equipment Contract shall be calculated assessed and paid independently of and without regard to any other Equipment Contract.
1.4 If any conflict or inconsistency arises between any of the terms or conditions of the Agreement and the relevant Equipment Contract, the order of priority shall be: (i) the relevant Equipment Contract; and then (ii) the Master Terms and Conditions.
1.5 If any conflict or inconsistency arises amongst the terms or conditions of the Equipment Contracts, the order of priority shall be determined as stated in the relevant Equipment Contracts.
- Commencement and Duration
2.1 These Master Terms and Conditions shall come into effect on the effective date of the first Equipment Contract. The rental period for each of the Equipment (the “Term”) and the date on which that Term expires (the “Expiry Date”) shall be as stated in the relevant Equipment Contract.
2.2 After the Expiry Date, the Equipment Contract shall automatically renew for continuous periods of 3 months subject always to JOS’ sole discretion not to renew, unless the Customer gives 60 days’ written notice to JOS of its intention not to renew prior to the Expiry Date or at any time during the renewed term(s) or as otherwise provided in the relevant Equipment Contract. The termination of any individual Equipment Contract shall only affect the rental of the Equipment and Services covered by that particular Equipment Contract and shall have no effect on these Master Terms and Conditions if there is still other Equipment Contract in force. For the purposes of the Agreement, the “Term” shall mean the initial term together with any renewed terms made pursuant to this Clause 2.2.
2.3 The Agreement will terminate automatically upon the termination or expiration of the last remaining Equipment Contract.
- Charges & Deposit
3.1 The charges for the rental of and/or services performed on the Equipment or any other relevant charges shall be specified in the relevant Equipment Contract (the “Charges”). JOS shall be entitled to modify these Charges on any renewal pursuant to Clause 2.2 by giving the Customer written notice at least 30 days in advance before the effective date of the new charges. Such modification shall be deemed accepted by the Customer upon the renewal.
3.2 The Customer agrees to pay to JOS a deposit in the sum more particularly specified in the relevant Equipment Contract (the “Deposit”) upon signing of the Equipment Contract. JOS shall return the Deposit to the Customer without interest upon termination of any Equipment Contract, provided that the Customer has complied with all provisions of the Agreement. JOS is entitled to deduct from the Deposit any penalty, liquidated damages, outstanding Charges and others due from the Customer pursuant to this Agreement or in relation to any Equipment Contract(s).
3.3 JOS is entitled to charge the Customer at JOS’ prevailing rates for the following:
(a) any loss or wastage of consumables, accessories and spare parts, if any;
(b) service and maintenance outside of JOS’s normal working hours or coverage; and
(c) any additional parts, service and maintenance which is not covered by the Manufacturer’s Standard Warranty (as hereinafter defined) and/or that is required due to (i) usage without care or misuse, (ii) adjustments or alterations made to the Equipment without the consent of JOS, (iii) usage of consumables, accessories and spare parts other than those provided by JOS, or (iv) repairs done by person(s) not authorized by JOS.
3.4 JOS reserves the right to increase, vary the Charges or to charge additional charges by serving 30 days’ prior written notice to the Customer at any time at JOS’ sole discretion or on the happening of the following event(s):
(a) the Customer is found to have changed the location of the Equipment; or
(b) the Customer is found to have breached the term(s) of this Agreement, including using the Equipment without due care or have adjusted or altered the Equipment without the consent of JOS or used consumable and spare parts other than those provided by JOS or caused repairs to be done by person(s) not authorized by JOS.
- Invoicing and Payment
4.1 Invoicing by JOS and the due date for payment shall be specified in the relevant Equipment Contract. All payments under the Agreement shall be made in Ringgit Malaysia and will be due and payable without setoff. Unless otherwise specified, any invoice shall be due thirty (30) days from the date of issue. Amounts remaining unpaid after the due date will bear interest from the due date until the date payment are made in full at the rate of 1.5% per month or pro-rata for each day (the “Interest”). Payment shall be made to JOS by cheque or as JOS may otherwise direct. Payments made by post shall be at the sole risk of the Customer.
4.2 All invoices by JOS shall be deemed correct unless disputed by written notice within seven (7) days from the date of the invoice. Any Charges shall not be refundable under any circumstances.
4.3 Any payments made by the Customer to JOS may be appropriated by JOS in or towards the satisfaction of any sums due and owing to JOS hereunder or otherwise than under this Agreement notwithstanding that the Customer may have purported to appropriate such payments in some other way.
4.4 In the event of late payment, JOS reserves the right to suspend the provision of any Services without prior notice to Customer. Any extra costs incurred by JOS arising from the suspension and any resumption of the Services may be added to the amounts due to JOS.
4.5 In the event of this Agreement being postponed or suspended due to the Customer’s breach of this Agreement, the Customer’s obligation of payment to JOS will remain unchanged.
- Taxes and Tariffs
All charges stated in any Equipment Contract or any invoice are exclusive of taxes or tariffs and the Customer agrees to pay such taxes and tariffs based upon or charged by the government or any local authorities in connection with the Equipment, Services or the Customer’s use of the Equipment or Services performed.
- Termination and Consequences of Termination or Expiry
6.1 JOS may terminate any Equipment Contract (without payment of compensation or other damages caused to the Customer by such termination) immediately at any time by giving the Customer notice in writing if any of the following events occur:
(a) any charges payable by the Customer is not paid within 30 days of its due date for payment under the Agreement;
(b) the Customer commits a breach of the Agreement which, as determined by the sole discretion of JOS, is incapable of remedy;
(c) the Customer fails to remedy a breach of the Agreement, which is capable of remedy (other than non-payment of charges), within 30 days of receipt of written notice to do so from JOS;
(d) the Customer ceases, or threatens to cease, to carry on its business, is unable to pay its debts or if an order is made or a resolution passed for the liquidation, administration, winding-up or dissolution of the Customer or an administrative or other receiver or similar officer is appointed over all or any of the assets of the Customer or the Customer enters into or proposes any composition or arrangement with its creditors generally (or if anything analogous to the foregoing occurs in any applicable jurisdiction);
(e) the Customer shall do or cause to be done or permit or suffer any act or thing whereby JOS’ rights in the Equipment or interests are prejudiced or put into jeopardy;
(f) any security created by any mortgage or charge created by the Customer becomes enforceable on the Equipment whether or not the mortgagee or chargee takes step to enforce the same;
(g) have any distress of rent or other seizure under execution or other legal process made in respect of the Customer or the Customer’s estate or assets;
(h) the Equipment or any part thereof are abused, illegally used, misused or confiscated, or abandoned by the Customer or it cannot be found at the Location; or
(i) if any Force Majeure Event prevents a party from performing any of its obligations under the Agreement for more than 60 days..
6.2 Upon the termination of any of the Equipment Contract whether under Clause 6.1 above or otherwise, the Customer shall:
(a) immediately surrender up the Equipment and all relevant documents relating to the Equipment to JOS at such place as may be appointed by JOS unencumbered and in good working order and condition (reasonable fair wear and tear only excepted) or JOS may, at its option forthwith and without any notice retake possession of the Equipment and all other items belonging to JOS including all relevant documents relating to the Equipment immediately and in such event, the Customer shall grant JOS, its servants or agents the right and/or license to enter into the installation address or such other premises where the Equipment is found to be stored to retake possession without prejudice to any other rights of JOS;
(b) be solely responsible for ensuring the safe-keeping supervision and custody of the Equipment until it is returned to or repossessed by JOS, or if so requested by JOS, store the Equipment for a period of up to 6 months after expiry of the Term and in that event the Customer shall be responsible for the safe custody and supervision of the Equipment. During this time, JOS shall have no obligation to provide any Services to the Customer;
(c) without prejudice to JOS’ rights to claim damages, become immediately liable to pay to JOS an amount comprising the aggregate of:
(i) all arrears of Charges and other monies accrued, due and unpaid under the terms of this Agreement and any Equipment Contract together with Interest thereon;
(ii) any cost and expense incurred by JOS in locating, repossessing, recovering, repairing or restoring the Equipment or collecting any payment due under this Agreement and/or any Equipment Contract or otherwise in obtaining the due performance of the obligations by the Customer under this Agreement and each Equipment Contract;
(iii) if the Equipment cannot be recovered or is unusable beyond reasonable repair, an amount equal to the market value of the Equipment at the time of termination as estimated by JOS;
(iv) all Charges together with Interest that would have been payable during the unexpired term of the rental period; and/or
(v) all and any other sum due under this Agreement.
6.3 The termination or expiry of the Agreement or any individual Equipment Contract shall be without prejudice to any accrued rights or obligations of either party, including the payment of all Charges and any other charges payable by the Customer up to the date of termination or expiry, and to any other rights and remedies of either party at law.
6.4 All provisions of the Agreement or any individual Equipment Contract that are intended to survive its termination or expiry shall so survive.
- Limitation of Liability and Indemnity
7.1 To the extent permitted by law, JOS’ total liabilities for any loss or damage, whether direct or indirectly arising from the negligence of or breach of the Agreement by JOS, its employees, subcontractors or agents, whether arising from one event or a series of related events, shall not exceed the total Charges paid by the Customer under the relevant Equipment Contract for the twelve (12) months preceding the event giving rise to such liability.
7.2 Notwithstanding anything to the contrary, under no circumstances shall JOS be liable, whether in contract, tort or otherwise (including negligence), for:
(a) any indirect, consequential or economic loss or damage (including loss of revenue, profits, business, contracts, anticipated savings or goodwill) in connection with the Agreement, the Equipment or JOS’ delay, failure or cessation to provide the Services due to whatsoever reason even if such loss was reasonably foreseeable or if JOS had been advised of the possibility of the Customer incurring such loss or damage;
(b) any loss or damage suffered by the Customer as a result of an action brought by a third party (other than loss or damage to real property or tangible personal property where such loss or damage results from the negligence of JOS, its employees, subcontractors or agents);
(c) any loss of, or damage to the Customer’s records or data or to Customer’s other equipment connected to the Equipment;
(d) any failure to observe or comply with its obligations under the Agreement as a result of the failure by the Customer to observe or comply with its obligations under the Agreement; or
(e) any act, omission or negligence of any third person in connection with the Equipment (excluding any subcontractor of JOS), including the provision of equipment or services, transmission facilities, software or Internet Equipment to the Customer (and JOS makes no representation and gives no warranty of any kind in this regard) or any unauthorised access or alteration to, or theft or destruction of the Customer’s equipment, facilities, software or data.
7.3 The Customer shall indemnify JOS, its employees, subcontractors or agents and keep them at all times fully indemnified from and against all actions, claims, demand, proceedings, costs, expenses, losses or liabilities of whatsoever nature which may be made or brought against or suffered or incurred by each or any of them by reason of any loss, injury, death or damage caused or alleged to be caused to any person or property by or arising or alleged to arise directly or indirectly out of the control, operation, installation, use, removal, maintenance, repair or rental of the Equipment howsoever arising (except where is it caused by JOS’ wilful default or gross negligence) and regardless of the time when the same arise or shall be alleged to arise and when the Equipment is in the possession or control of the Customer and against all costs charges and expenses of and incidental thereto.
7.4 No action, regardless of form, arising out of this Agreement may be brought by either party more than three years after the cause of action has risen or, in the case of non-payment, more than six years from the due date for payment.
JOS shall notify the Customer if in JOS’ opinion the provision or use of any of the Equipment and/or Services at any time would involve a safety hazard. In case the Customer continues to use such Equipment and/or Services notwithstanding JOS’ notification, Customer shall be deemed to have assumed all the risks involving therein. JOS shall not be responsible for any failure to provide remedy to the safety hazard in these circumstances.
- Data Protection
Each party shall comply with all provisions applicable to that party under the Personal Data Protection Act 2010 and any similar legislations or regulations in any other jurisdiction in which its obligations are performed to the extent that it relates to the Equipment and/or Services. Customer shall indemnify JOS against all losses that the JOS’ other party may incur arising out of any breach of this Agreement.
- Customer’s Covenants
The Customer covenants:
10.1 Delivery and Installation of Equipment
that the Customer shall at its own expense and in sufficient time facilitate delivery of the Equipment by suitably prepared Location for installation of the Equipment providing all (if any) necessary electrical and other connections fittings and facilities as recommended by JOS and/or the manufacturer of the Equipment (the “Manufacturer”). Signature of Customer on JOS’ delivery documents shall be conclusive evidence that the Customer has examined the Equipment and found to be completely in accordance with its description, in good order and condition, fit for any purpose for which they may be required and in every way satisfactory.;
10.2 Care of the Equipment
that the Customer to take all reasonable and proper care of the Equipment and keep the same clean and in good and serviceable condition (reasonable fair wear and tear excepted) during the Term and, in the case of termination, until its return to JOS and to carry out or allow to be carried out by JOS all periodical or other maintenance requirements in respect of the Equipment prescribed by the manufacturer’s written instructions or any written instructions from JOS with all due care in accordance with any such instructions and at the recommended time or times.;
10.3 Operation of the Equipment
that the Customer shall use the Equipment in a good and careful manner, in a proper environment as JOS may from time to time consider appropriate, suitable and satisfactory for installation, operation, servicing and maintenance or continued operation of the Equipment and to operate, keep, care and clean in compliance with the applicable operating instructions, directions, recommendations or requirements (including those which may be specified by JOS and/or the Manufacturer from time to time) and all applicable laws and regulations and not to use or permit the Equipment to be used in contravention of any statutory provision or regulation or in any way contrary to law or for any purpose for which the Equipment is not designed or reasonably suitable and shall operate the Equipment and to permit the Equipment only to be operated in a skillful and proper manner and by persons who are competent to operate such Equipment;
that the Customer to notify immediately JOS if Customer uses the Equipment in an environment that poses a potential health and safety hazard to JOS employees, agents or subcontractors. JOS may require the Customer to take such further steps as may be properly recommended by the JOS and/or Manufacturer or may otherwise be necessary to ensure that the Equipment will be safe and without risks to health and safety and maintain such Equipment in a safety standard under JOS’ supervision and JOS may postpone or suspend Services until Customer remedies such hazards;
10.5 Alterations or Additions
that the Customer not to make or cause to be made any alteration, enhancement, modification or addition or removal to any part of the Equipment (the “Alteration”) without JOS’ prior consent in writing. Unless otherwise agreed, the Equipment after Alteration shall belong to and become the property of JOS or the Manufacturer. The Customer shall be liable to JOS for any losses or damages causing to or resulting from the Alternation including but not limited to the loss in the Equipment hardware value, costs of Equipment repair or replacement (if a replacement is determined by JOS to be necessary) and costs for JOS to re-join the Equipment back to the Manufacturer’s warranty. The Customer agrees to pay to JOS for additional costs in respect of any Equipment or Software if the failure or damage to the Equipment or Software is due to the Customer use of a combination of other software, hardware or components or parts which is not provided by JOS or its maintenance service is not provided by JOS or the Manufacturer. The said additional costs shall be including but not limited to the cost for JOS to repair or replace the damaged Equipment, reinstall or re-develop the Software and the labour costs involved;
that the Customer to provide JOS and any person duly authorised by JOS full and free access to enter on any land or premises (including but not limited to the Location and the registered office of the Customer) on reasonable notice during normal business hours on a Business Day so as to inspect the Equipment (including for the purpose of enabling JOS to review the Customer’s compliance with the Agreement) and/or to perform the Services and/or for the purpose of reading the usage meter of the Equipment (if applicable). The Customer further agrees to provide JOS and/or its representatives with relevant records on request and allow the reproduction and retention of copies of those records;
10.7 Removal of Equipment
that the Customer not to remove the Equipment from the Location without prior written consent from JOS and to notify JOS in writing of any change in the Customer’s address immediately and upon the request of JOS to inform JOS in writing of the whereabouts of the Equipment. In the case of portable Equipment such as a laptop, the Customer shall ensure that those Equipment will be primarily used and/or kept in the Location and is available for inspection and/or Service at the Location upon reasonable notice from JOS;
(a) that the Customer at its expense to obtain, effect and keep effective all permissions licences and permits which may from time to time be required in connection with the business of the Customer and the use of the Equipment at the premises where it is situated and to comply with all statutes and other obligations of all kinds in relation to the Equipment and the use thereof and at its own expense to add to or install with the Equipment any safety or other equipment required by any applicable law or regulation to be so added or installed for the use or operation of the Equipment;
(b) that the Customer to ensure that any and all copyright works (including software other than the Software provided by JOS) which it uses in connection with the Equipment for whatever purpose, are not infringing copies as regulated under the Copyright Act 1987 and other relevant legislation or regulation, and that the Customer has warranted that the Customer has obtained all relevant licenses to possess or use such works. No liability is accepted by JOS for any claim against or loss by the Customer of any kind arising from the infringement of Intellectual Property Rights of any third party in connection with any software in the possession of or used by the Customer at any time with the Equipment, and the Customer agrees to indemnify JOS on demand against all such claim, loss or damage caused to JOS resulting from Customer’s breach;
10.9 Prohibition on dealings
that the Customer not to sell or offer for sale, assign, mortgage, pledge, sub-let, lend out, license or export the Equipment or in any part of the Equipment or any interest therein to any third party including its subsidiaries and associated entities and to keep the Equipment in Customer’s own possession or under its control and to prevent the creation of any charge, mortgage or lien thereon. For avoidance of doubt, the Equipment and Software provided by JOS is solely for the use and enjoyment of the Customer prescribed by this Agreement;
10.10 Mortgagees’ interest
that the Customer shall not procure or enter any mortgage charge (whether fixed or floating), lien or debenture in respect of any Equipment, which is used or stored in any premises controlled by the Customer, The Customer agrees that JOS has rights to notify any mortgagee or chargee of the Customer’s assets from time to time of the existence of this Agreement and of such of its terms as JOS shall consider appropriate;
10.11 Data Backup
that the Customer to maintain a separate backup system, or procedure that is not dependent on the Equipment and Service and the Customer has the ability to reconstruct lost or altered files, data or programs based on its own backup system, which shall be maintained at the Customer’s own cost and expense;
10.12 Changes in Circumstances
that the Customer to give JOS prompt written notice (unless prohibited by law or regulation) of any change or anticipated change in the Customer’s financial condition in particular its ability to fulfill any monetary obligation, business structure, or operating environment (for example, a material change in equity ownership or management).
10.13 and the Customer further hereby expressly warrants and represents to JOS that:
(a) the Customer has and will have full power authority and right and has taken or will take all corporate and other action necessary to enter into and carry out its obligations under this Agreement and each Equipment Contract;
(b) the execution, delivery and performance of this Agreement and any of the Equipment Contracts do not and shall not result in a breach of, constitute a default under, contravene any provision of, or result in the creation of any lien on or in any property or assets of the Customer pursuant to any document under which the Customer is organised or operates, or any agreement, indenture or other instrument to which the Customer is a party or by which the Customer or any of its property or assets may be bound or affected; and
(c) there is no action, suit, investigation or proceeding (including without limitation a tax claim or administrative proceeding) pending or, to the knowledge of the Customer, threatened in any court or tribunal or before any competent authority against the Customer or any of its property or assets which challenges this Agreement or any of the Equipment Contracts or any of the transactions contemplated hereunder or thereunder or which may have a material adverse effect on the financial condition or business of the Customer.
11.1 The title to and property of the Equipment remain always vested in JOS (notwithstanding that it may have become affixed or attached to any land or building) and during the Term the Customer shall have no right or interest therein otherwise than as a renter and shall at no time do or permit to be done any act or thing which might prejudice or jeopardise the right of JOS in and to the Equipment.
11.2 Title and risk in all equipment and other tangible property provided by the Customer to enable JOS’ performance of the Agreement will remain with the Customer, who must ensure such equipment and property are adequately insured.
- Warranties relating to the Equipment
12.1 The Equipment shall be covered under the Manufacturer’s standard warranty as set out in the Equipment Contract, including certain onsite support services for hardware on terms specified therein (“Manufacturer’s Standard Warranty”). All parts and hardware furnished in connection with such warranty shall thereupon become part of the Equipment and the property of JOS for all purposes.
12.2 In the event any such guarantee or warranty cannot be enforced due to an act, omission or negligence of the Customer, the Customer shall fully indemnify JOS to the satisfaction of JOS against all costs, expenses, damage or claims incurred caused by the aforesaid or to be incurred in connection with the enforcement thereof.
12.3 The Customer expressly acknowledges that JOS is not the original manufacturer of the Equipment, that the Equipment has been selected by the Customer as suitable for its purpose. There are no warranties, terms, conditions or obligations, representations either in the form of oral or written, expressed or implied other than those contained in the Agreement and/or the relevant Equipment Contract. The Customer accordingly agrees and acknowledges that NO CONDITION WARRANTY OR REPRESENTATION OF ANY KIND HAS BEEN OR IS GIVEN OR MADE BY JOS ITS SERVANTS OR AGENTS WITH RESPECT TO OR IN RESPECT OF THE EQUIPMENT AND ALL OTHER CONDITIONS WARRANTIES OR REPRESENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE AS TO THE STATE, QUALITY, DESCRIPTION OR OTHERWISE OF THE EQUIPMENT OR AS TO ITS FITNESS FOR ANY PURPOSE, MERCHANTABLE QUALITY, NON-INFRINGEMENT WHICH ARE HEREBY EXPRESSLY EXCLUDED. In particular, JOS makes no representation and gives no warranty of any kind that the Equipment will be uninterrupted, error-free or completely secure, or that the information received and stored by the Customer through the Equipment will be accurate and complete. No oral or written information or advice in connection with the Equipment given by JOS, its employees, subcontractors or agents shall be deemed to create any warranty or obligation unless made in accordance with this Agreement.
12.4 The Customer warrants that it shall take all reasonable and proper care of the Equipment and notify JOS immediately in writing of the occurrence of any damage, destruction, loss, theft or requisition of the Equipment during the continuance of the Term or until such time the Equipment is returned to JOS and at the sole and absolute discretion of JOS: –
(a) the Customer shall place the Equipment in good repair, condition and working order at the sole cost and expense of the Customer; or
(b) the Customer shall replace such Equipment or parts thereof with like ones from the Manufacturer in good repair, condition and working order, with clear title thereto in JOS at the sole cost and expense of the Customer, and following such replacement the new Equipment or such parts thereof shall be deemed to be “the Equipment” for the purpose of the relevant Equipment Contract; or
(c) JOS shall treat such event as a breach of the relevant Equipment Contract and to accept such breach as a repudiation of such Equipment Contract.
12.5 In the event of any loss or damage to all or any part of the Equipment the Customer shall give immediate notice to JOS and shall make or assist in the making of any appropriate claim or claims under any insurance policy in such manner as JOS shall require and shall not in any manner settle or compromise any such claim without the prior written request of JOS. The Customer hereby irrevocably appoints JOS as the Customer’s agent (whenever relevant) in order to claim and/or receive payment of and execute and endorse all documents cheque or draft issued with respect to such loss, theft damage, destruction or requisition under any insurance policy relating thereto.
12.6 The Customer will not be entitled to any rebate in rentals in respect of any reasonable period during which the Equipment is not in the possession of the Customer, unserviceable, out of order or unusable due to no fault of JOS and JOS will not be liable to provide the Customer with any replacement Equipment or parts at all during such period, unless otherwise stated in the Equipment Contract.
- Software License
13.1 If JOS provides any Software to the Customer under this Agreement, JOS, to the extent empowered by supplier, owner or licensor of Software grants to the Customer a license to use the Software for the Term of the Equipment Contract based on the standard terms of the Software License. The Customer agrees to observe the terms of the Software License which shall be fully applicable and binding on the Customer, in particular the provisions therein concerning limitation of liability, exclusions and obligations of the Customer in respect of the Software.
13.2 The Customer acknowledges that JOS is undertaking the financing of the Software for the benefit of and use by the Customer, and the Customer agrees to indemnify and hold JOS harmless from and against any and all claims, costs, expenses, damages, liabilities and legal fees that JOS may suffer or incur as a result of any dispute that may arise, in any way whatsoever, in connection with such Software and the related Software License. The Customer undertakes to continue paying the Charges to JOS in full without deduction or set-off of any kind for the full term of each and any Equipment Contract notwithstanding termination of the Software License or the lack of any such Software License for any reason whatsoever.
13.3 Notwithstanding the terms of this Agreement, the Software License may be terminated by the suppliers thereof in accordance with their terms; and in addition the Software License will terminate without notice upon the expiration or earlier termination of this Agreement, unless the parties hereto renew or extend the Agreement as provided elsewhere herein.
- Support Services
14.1 JOS hereby agrees to provide Services for the Equipment upon request by the Customer on terms more specifically set out in the Equipment Contract.
14.2 All parts, including but not limited to consumables and accessories (if any) furnished in connection with such maintenance or repair shall thereupon become part of the Equipment and the property of JOS for all purposes.
14.3 For the avoidance of doubt, the Services contemplated under the Agreement do not include provision of services for, where applicable, matters which are not covered under the Manufacturer’s Standard Warranty, or for Customer’s other equipment connected to the Equipment.
The Customer, including its subsidiaries and associated entities, shall not, without the prior written consent of JOS, during the term of the Agreement and for a period of 12 months after its expiry or termination of this Agreement, solicit or endeavour to entice to leave the service or employment of JOS any person who is or was involved in the fulfilment of this Agreement or provision of any of the Services with a view to that person providing services to the Customer or any other person.
- Replacement Right
JOS reserves the right to replace JOS’ representatives, employees, agents, contractors or subcontractors for performing the Services to the Equipment at any time during the Term, if any, without giving notice to the Customer.
- Confidentiality and Publicity
17.1 Neither party shall use or disclose the other party’s Confidential Information (including the existence and terms of any part of the Agreement) save for the purposes of the proper performance of the Agreement or with the prior written consent of the other party or as required by any court or tribunal or before any competent authority.
17.2 The Customer acknowledges that JOS may wish to use the Customer’s name in press releases, product brochures and financial reports indicating that the Customer is a customer of JOS, and the Customer agrees that JOS may use its name in such a manner.
18.1 The Customer may not assign, novate, sub-contract or otherwise transfer the Agreement or any or all of its rights and/or obligations under the Agreement without the prior written consent of JOS. It is JOS’ sole discretion to give such consent and in giving such consent, JOS shall be entitled to impose such fees, terms or conditions as it determines in its absolute discretion.
18.2 JOS is entitled to assign, novate, sub-contract or otherwise transfer the Agreement or any or all of its rights and/or obligations under the Agreement without the prior consent of the Customer provided that no such transfer or assignment shall materially affect the Customer’s right to quiet possession and enjoyment of the Equipment.
- Force Majeure
19.1 Neither JOS nor the Customer shall be under any liability for any loss or damage resulting from any delay or failure to perform the Agreement either in whole or in part where such delay or failure is due to a Force Majeure Event, provided that this Clause shall not excuse either party from paying any sum to the other when it becomes due.
19.2 A Force Majeure Event affecting any of JOS’ sub-contractors or agents will be deemed to be a Force Majeure Event.
20.1 All written notices, requests, demands and other communications under the Agreement shall be in writing and given by letter, fax or e-mail (to the extent permissible under Malaysian law as a notice in writing) to the relevant contact at the relevant party’s address, fax number or e-mail address as specified in the Equipment Contract(s) (as may be amended from time to time by notice to the other party in accordance with this Clause).
20.2 Any such notice, request, demand or communication shall be deemed to have been duly served immediately if given or made by fax or e-mail unless the sender receives a notification on failure to transmit or if given or made by letter, 2 Business Days after posting. For e-mails, an identification code (a “user ID”) contained in an electronic document shall be sufficient to verify the sender’s identity and the document’s authenticity.
- Independent Parties
JOS and the Customer are independent contractors and nothing contained in the Agreement shall be construed as creating a partnership, franchise, joint venture, agency or employer/employee relationship. The Customer is not the agent of JOS for any purpose and shall not have the right, power or authority to create any obligation or duty, express or implied, on behalf of JOS or makes any representations or warranties, express or implied, about JOS.
No failure or delay on the part of either party to exercise any right, power, discretion or remedy under the Agreement, nor any single or partial exercise by either party of such right, power, discretion or remedy, shall operate as a continuous waiver thereof. The rights, powers and remedies provided in the Agreement are cumulative and are not exclusive of any rights, powers or remedies provided by law.
If any provision of the Agreement, in whole or in part, is or becomes (whether or not pursuant to any judgment or otherwise) illegal, void, invalid or otherwise unenforceable it shall be ineffective only to the extent of such illegality, voidness, invalidity or enforceability and shall not effect the legality, validity or enforceability of the remainder of the Agreement, which shall continue in full force and effect.
If any part of the Agreement is translated into another language, the English version shall prevail if there is any discrepancy.
Each party shall bear its own costs incurred by it in connection with the preparation, negotiation and entry into the Agreement and the documents to be finalised into pursuant to it. All stamp duties payable for this Agreement and any Equipment Contract(s) shall be borne by the Customer.
Unless expressly provided otherwise in the Agreement, any amendment to any terms of the Agreement shall only be effective if agreed in writing and signed by authorised representatives of the parties. Additional or different terms in any written communication from the Customer (including an order) will be of no effect and no conduct by JOS will be deemed to constitute acceptance of any such additional or different terms.
The Agreement, including any Equipment Contract, may be executed in counterparts which together shall constitute one agreement.
- No Third Party Beneficiaries
The Agreement is solely for the benefit of the parties and will not be deemed to confer any rights or remedies upon any other person.
- Entire Agreement
The Agreement embodies the entire understanding between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, arrangements or understandings.
- Governing Law and Submission to Jurisdiction
The Agreement shall be construed in accordance with the laws of Malaysia and, unless and to the extent that the parties agree (in an Equipment Contract or otherwise in writing) to an alternative method of resolving any dispute arising out of or in connection with the Agreement, the parties submit to the exclusive jurisdiction of the courts of Malaysia.
In the Agreement, words importing the singular include the plural and vice versa. References to a “person” shall include an individual, partnership, corporation, unincorporated association, joint venture or other entity or a government and/or competent authority or any agency or department. References to any statute or statutory provision shall include any statute or statutory provision which amends or replaces, or has amended or replaced, it. Clause headings are for convenience only and shall not affect the construction of the Agreement or the Equipment Contract. The terms and conditions set out in the addendum(s) to any Equipment Contract are incorporated into and form an integral part of that Equipment Contract.
“Business Day” means a day on which banks in Malaysia are open for business excluding a Saturday, Sunday or a public holiday.
“Confidential Information” means any oral, written or electronic data and information in existence during the term of the Agreement relating to the business and management of either party and to which access is granted or obtained by the other party, but does not include any data or information which (1) was known to the recipient prior to the disclosure to it by the other party; or (2) was or is independently developed by the recipient; or (3) is subsequently lawfully obtained by the recipient from a third party, without breach of the Agreement by the recipient; or (4) becomes publicly available other than through a breach of the Agreement; or (5) the other party has provided its prior written consent to such disclosure by the recipient; or (6) is or is required to be disclosed by legal requirement.
“Customer” includes its permitted assigns and successors-in-title.
“Equipment” means the equipment described in each, any and (as the context requires) every Equipment Contract for the time being in force between JOS and the Customer and including all replacements and renewals of such equipment and the component parts thereof and all accessories and additions thereto including all relevant documents relating to the Equipment. References herein to the Equipment shall (where the context so permits) be construed as including a reference to any item thereof.
“Equipment Contract” means any agreement between JOS and the Customer from time to time in force for the rental of the Equipment specified in such agreement which is expressed to be an Equipment Contract, terms of which are as set out in this Master Terms and Conditions.
“Force Majeure Event” means an event beyond a person’s reasonable control, including war, the threat of war, riots or other acts of civil disobedience, insurrection, acts of God, restraints imposed by governments or any other supranational legal authority or any other industrial or trade disputes; failure or shortage of power supplies or materials; computer virus; fires, explosions, storms, floods, lightning, earthquakes and other natural calamities.
“including” shall be deemed to mean “including, without limitation”.
“Intellectual Property Rights” means patents, trade marks, service marks, trade names, design rights, copyrights, database rights, rights in know-how and other intellectual property rights of whatever nature arising anywhere in the world, whether registered or unregistered, and including applications for the grant of any such rights.
“JOS” includes its assigns and successors-in-title and where the context so admits, JOS’ representatives, employees, agents or subcontractors.
“Location” means the site designated in the Equipment Contract(s) as the location at which the Equipment will be installed.
“Manufacturer” means the manufacturer or maker of the Equipment.
“Parties” means JOS and the Customer, and “Party” shall be construed accordingly.
“Services” means the Services to be provided by JOS, its representatives, agents or subcontractors to the Customer under the Agreement, the extent of which is more specifically described in the relevant Equipment Contract (or any schedule to it).
“Software” means the operating and application software provided in the Equipment specified in the relevant Equipment Contract and includes all updates thereto.
“Software License” means the personal, non-exclusive, non-transferable license granted by the supplier or the owner to execute the Software on the licensed processor and to load, copy or transmit the same in whole or in part only as necessary.