3D Printer Subscription Plan
EQUIPMENT RENTAL AGREEMENT
(last updated June 1, 2022)
1. This Equipment Rental Agreement (“Agreement”) is a binding agreement between you (the “Lessee”) and FABBXIBLE TECHNOLOGY (PG0382404-A) , a private company incorporated in Malaysia and having its business address at 11A, Jalan Iks Bukit Tengah, Taman Iks Bukit Tengah, 14000 Bukit Mertajam, Pulau Pinang, Malaysia (“Lessor”).
2. This Agreement governs and regulates the Lessee’s hire of the Equipment (as hereinafter defined) from the Lessor through the Lessor’s website https://www.fabbxible.com/ (“Website”).
3. By clicking “ACCEPT”, the Lessee unconditionally acknowledges and agrees that:
a. it has read and understood this Agreement;
b. (if the Lessee is an individual) he is of legal age to enter into a binding agreement; and
c. it is legally bound by this Agreement.
4. Please read and understand this Agreement carefully before continuing to use the services and/or products provided by the Lessor on its Website. If the Lessee does not understand this Agreement, or any services or products that the Lessor provides or offer, the Lessee should contact the Lessor before placing any order for hire, filling any forms and/or sending the Lessor any information.
5. The Lessor reserves the right, in its sole and absolute discretion, to modify, vary, amend, change and/or update this Agreement, and any checklists or agreements which are incorporated herein at any time as it deems fit and with reasonable notice to the Lessee, for example, by posting an update on the Website, or by emailing the updated Agreement to the Lessee. Such modifications, variations, amendments, changes and/or updates to this Agreement shall be effective upon the posting of an updated version on the Website. The Lessee agrees that it shall be its responsibility to review this Agreement regularly to ensure its understanding of this Agreement is current and understand the terms and conditions that apply to its hire of the Equipment.
6. The Lessee’s non-termination or continued use of the Equipment after the effective date of any modifications, variations, amendments, changes and/or updates constitutes the Lessee’s acceptance of, and agreement to be bound by, the revised Agreement.
7. If the Lessee does not agree to this Agreement or with any subsequent modifications, variations, amendments, changes and/or updates, the Lessee may terminate this Agreement in accordance with Clause 10.2 of this Agreement. If the Lessee have any question regarding this Agreement, the Lessee is advised to consult its professional lawyer.
1.0 Interpretation and Definitions
1.1 In this Agreement, unless the subject or the context otherwise requires, the following words and expressions shall have the following meanings respectively ascribed to them:
“Agreement” means this equipment rental agreement;
“Business Day” means a day on which banks are open for business in Kuala Lumpur, Malaysia (excluding Saturdays, Sundays and public holidays);
“Commencement Date” means the date that the Lessee takes Delivery of the Equipment;
“Delivery” means the transfer of physical possession of the Equipment to the Lessee;
“Equipment” means the device(s) as specified in the invoice to be issued by the Lessor to the Lessee, including all substitutions, replacements or renewals of such device(s) and all related accessories, manuals and instructions provided for it (if any);
“Governmental Authority” means any relevant governmental or quasi-governmental authority, statutory authority or quasi-statutory or regulatory authority, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or stock exchange or taxing authority or anybody entitled to exercise executive power or power of any nature or body or other organization to the extent that the rules, regulations, standards, requirements, procedures or orders of such authority, body or other organization have the force of Law;
“Laws” shall mean and include all applicable statutes, enactments, acts of legislature or Parliament, laws, ordinances, rules, by-laws, regulations, notifications, guidelines, policies, directions, directives and orders of any Governmental Authority, tribunal, board or court of competent jurisdiction;
“Rental” means the amount, as set out in the invoice to be issued by the Lessor to the Lessee, to be paid by or on behalf of the Lessee to Lessor for hire of the Equipment;
“Rental Period” means the period for hire of the Equipment by the Lessee, as set out in in the invoice to be issued by the Lessor to the Lessee;
1.2 In this Agreement:
1.2.1 Unless the context requires otherwise, a reference to:
(i) a gender shall include the other genders and references to the singular shall include the plural and vice versa;
(ii) natural persons shall include bodies corporate and vice versa;
(iii) this Agreement includes any Schedules to it and references to Clauses and Schedules are to the clauses and schedules to this Agreement. References to Paragraphs are to paragraphs of the Schedules;
(iv) a person (which for the purposes of this Agreement means any individual, corporation, partnership, association, limited liability company, trust, governmental or quasi-governmental authority or body or other entity or organization (whether or not having a separate legal personality)) shall include its successors in title;
(v) a “party” is to a party to this Agreement, and “parties” shall be construed accordingly;
(vi) a “day”, “week”, “month” or “year” is a reference to a day, week, month or year respectively in the Gregorian calendar;
(vii) this Agreement or any other document or any specified provision of this Agreement or any other document are to this Agreement, that document or that provision as in force for the time being and as amended from time to time in accordance with the terms of this Agreement or that document or, as the case may be, with the agreement of the relevant parties; and
(viii) a statute or statutory provision is a reference to it as it is in force from time to time, taking account of any change, extension, consolidation or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.2.2 General words are not given a restrictive meaning:
(i) if they are introduced by the word “other” by reason of the fact that they are preceded by words indicating a particular class of act, matter or thing; or
(ii) by reason of the fact that they are followed by particular examples intended to be;
1.2.3 the headings in this Agreement are inserted for coience only and shall not affect the interpretation of this Agreement;
1.2.4 no provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision; and
1.2.5 if any period of time is specified from a given day, or the day of a given act or event, it is to be calculated exclusive of that day and if any period of time falls on a day, which is not a Business Day, then that period is to be deemed to only expire on the next Business Day.
2.0 Equipment Rental
2.1 In consideration of the Lessee agreeing to pay the Rental to the Lessor, and further agreeing to duly observe, comply and perform the terms and conditions hereinafter set out, the Lessor hereby agrees to rent the Equipment to the Lessee, upon the terms and subject to the conditions of this Agreement.
2.2 The Lessor shall not, other than in the exercise of its rights under this Agreement or applicable Law, interfere with the Lessee's quiet possession of the Equipment.
3.0 Rental Period and Payments
3.1 This Agreement shall commence on the Commencement Date and shall continue for the Rental Period, until and unless terminated earlier in accordance with its terms.
3.2 During the Rental Period, the Lessee shall pay the Rental to the Lessor Upfront (first and last month) in advance for 6 months and 12 months subscription, and in the manner as stipulated in the invoice to be issued by the Lessor to the Lessee:
3.2.1 the first Upfront Payment shall be due upon acceptance of this Agreement; and
3.2.2 each and every subsequent Monthly Rental shall be due on or before the seventh (7th) day of each and every subsequent month during the Rental Period whether formally demanded or not.
3.3 The Rental payments are exclusive of any applicable Taxes which shall be payable by the Lessee at the rate and in the manner from time to time prescribed by Law.
3.4 All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of Tax as required by Law).
4.0 Advance Rental Payment
4.1 The Lessee shall, upon the acceptance of this Agreement, pay to the Lessor an advance rental equivalent to one (1) month of the Rental (“Advance Rental”), the exact amount of which will be set out in the invoice to be issued by the Lessor to the Lessee.
4.2 In the event the Lessee breaches any of its obligations under this Agreement, including the failure to make any Upfront Rental payments in accordance with Clause 3.2, or causes any loss or damage to the Equipment (in whole or in part), the Lessor shall be entitled to apply so much of the Advance Rental or any part thereof against such default, loss or damage suffered by the Lessor arising from such breach and any expense incurred by the Lessor in making good any loss of or damage caused to the Equipment. Any appropriation by the Lessor shall not constitute a waiver of the Lessee’s breach and shall not prejudice any other rights or remedies of the Lessor hereunder.
4.3 If any part of the Advance Rental is appropriated by the Lessor pursuant to any provision of this Agreement, the Lessee shall top-up the Advance Rental by paying to the Lessor the amount appropriated within seven (7) days of receipt of the Lessor’s written demand.
4.4 The Advance Rental (or any balance thereof) will be used by the Lessor to set-off against the Monthly Rental for the last month of the Rental Period.
4.5 In the event any part of the Advance Rental is unused upon the expiry of the Rental Period, such part of the Advance Rental will be refunded by the Lessor to the Lessee.
5.0 Equipment Delivery and Installation
5.1 The Lessor shall provide first time deliver and installation and retrieve the Equipment for the Lessee free of charge. Lessor shall provide basic training on the operation of the Equipment for all the Plan. Lessee can request detail training free of charge for 6 months and 12 months subscription plan.
5.2 Lessee shall, at their own expense, deliver the Equipment to Lessor's or authorized representative Service Center for repairing, maintaining or 1 to 1 exchange. Lessee shall confirm the schedule with Lessor for the Equipment Delivery date and time to Service Center.
5.3 If Lessee required Lessor to provide on-site repairing, maintaining or 1 to 1 exchange on site, Lessor shall charge Lessee travel fee for distance more than 10km.
5.4 The Lessor shall use its reasonable endeavors to effect Delivery by the date and time agreed between the parties. Title and risk shall transfer in accordance with Clause 6 (Title and Risk) of this Agreement.
5.5 The Lessee shall procure that a duly authorized representative of the Lessee shall be present at the time of Delivery and/or installation of the Equipment. Acceptance by such authorized representative of Delivery and/or installation of the Equipment shall constitute conclusive evidence that the Lessee has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by the Lessor, the Lessee's duly authorized representative shall sign a receipt confirming such acceptance.
5.6 To facilitate Delivery and/or installation of the Equipment, the Lessee shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and/or installation of the Equipment to be carried out safely and expeditiously by the Lessor.
6.0 Title and Risk
6.1 The Equipment shall at all times remain the property of the Lessor, and the Lessee shall have no right, title or interest in or to the Equipment, save and except for the right to possession and use of the Equipment subject to the terms and conditions of this Agreement.
6.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Lessee on Delivery. The Equipment shall remain at the sole risk of the Lessee during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Lessee (“Risk Period”) until such time as the Equipment is redelivered to the Lessor.
6.3 The Lessee shall give immediate written notice to the Lessor in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Lessee's possession or use of the Equipment.
7.0 Responsibilities of the Lessee
7.1 The Lessee shall during the term of this Agreement:
7.1.1 Ensure that the Equipment is kept and operated in a suitable environment and proper manner, used only for the purposes for which it is designed;
7.1.2 Keep the Equipment in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted). For the avoidance of doubt, the Lessee shall be liable for any cracks and/or damages which in the Lessor’s reasonable opinion has suffered on the Equipment during the period when the Equipment is in the possession, custody or control of the Lessee;
7.1.3 Make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment;
7.1.4 Ensure that the Equipment is not exposed to any risk of lost or being stolen;
7.1.5 Not install and/or flash any firmware on the Equipment;
7.1.6 Not tamper with or modify the Equipment, knowingly bug or other disabling features, or damage or interfere with the Equipment;
7.1.7 Keep the Lessor fully informed of all material matters relating to the Equipment;
7.1.8 At all times keep the Equipment in the possession or control of the Lessee;
7.1.9 Permit the Lessor or its duly authorized representative to inspect or repair the Equipment at all reasonable times and for such purpose to enter upon any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection or repair;
7.1.10 Not, without the prior written consent of the Lessor, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
7.1.11 Not do or permit to be done any act or thing which will or may jeopardies the right, title and/or interest of the Lessor in the Equipment;
7.1.12 Not use the Equipment for any unlawful purpose or in any way which may cause harm to any person;
7.1.13 Ensure that at all times the Equipment remains identifiable as being the Lessor's property;
7.1.14 Not instruct, authorize, facilitate or assist a third-party to do any of the above acts; and/or
7.1.15 Deliver up the Equipment at the end of the Rental Period or on the earlier termination of this Agreement at such address as the Lessor requires, or if necessary allow the Lessor or its representatives access to any premises where the Equipment is located for the purpose of retrieving the Equipment.
7.2 The Lessee acknowledges that the Lessor shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Lessee or its officers, employees, agents and contractors, and the Lessee undertakes to indemnify and keep indemnified the Lessor on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Lessee to comply with the terms of this Agreement.
8.0 Equipment Warranty
8.1 The Lessor provides free warranty for the Equipment during the Rental Period. The Lessee agrees and undertakes that it shall not remove the warranty stickers attached on the Equipment to prevent any void of warranty.
8.2 The warranty on the Equipment shall be void where the warranty stickers are damaged, impaired and/or removed, whether by the Lessee or its officers, employees, agents or contractors, or any person not authorized by the Lessee.
8.3 The Lessor shall use its reasonable endeavors to remedy, free of charge, any material defect in the Equipment which manifests itself during the Rental Period, provided that:
8.3.1 the Lessee notifies the Lessor of any defect in writing within five (5) Business Days of the defect occurring or of becoming aware of the defect;
8.3.2 the Lessor is permitted to make a full examination of the alleged defect;
8.3.3 the defect did not materialize as a result of misuse, neglect, alteration, mishandling or unauthorized manipulation by any person other than the Lessor's authorized personnel; and
8.3.4 the defect is directly attributable to defective material, workmanship or design.
8.4 Lessee is responsible to send the Equipment to Lessor's service center with Lessee own expense. In the event the Lessee requests for onsite service of the Equipment to be provided by the Lessor, the Lessee agrees and acknowledges that the Lessor will charge a minimum fee of Ringgit Malaysia Thirty (RM30) per trip for carrying out the onsite service of the Equipment.
8.5 Where the Equipment is required to be repaired, fixed and/or maintained at the Lessor’s service center, the Lessee will be provided with an Equipment of equivalent or higher specifications as replacement during the period where the Equipment is being repaired, fixed and/or maintained at the Lessor’s service center.
9.0 Limitation of Liability
9.1 The restrictions on liability in this Clause 9 apply to every liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 The Lessor's total liability to the Lessee (including any liability for the acts or omissions of its employees, agents and subcontractors) shall not exceed the aggregate amount of the Monthly Rental.
9.3 This Agreement sets forth the full extent of the Lessor's obligations and liabilities in respect of the Equipment and its hiring to the Lessee. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Lessor except as specifically stated in this Agreement. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within this Agreement, whether by statute, common law or otherwise, is expressly excluded.
9.4 The Lessor shall not have any obligation or liability to the Lessee, and hereby disclaims to the fullest extent permissible by Law all liability for any indirect, incidental, special, exemplary, consequential damages, pure economic loss or other pecuniary loss, including, any loss of revenue or profits, loss of sales or business, loss of agreements or contracts, loss of damages to goodwill, any loss resulting from business interruption or any loss arising out of the lawful termination of this Agreement or any decision not to renew this Agreement.
10.1 This Agreement will be effective upon your electronic acceptance. Without prejudice to any other right or remedy available to the Lessor, the Lessor may terminate this Agreement with immediate effect by giving written notice to the Lessee if:
10.1.1 the Lessee fails to pay any amount due under this Agreement on the due date for payment; and/or
10.2 The Lessee does not have the right to terminate this Agreement at any time during the Rental Period. If this Agreement is terminated by the Lessee prior to the end of the Rental Period, the Lessor shall be entitled to demand for twenty percent (20%) of the aggregate Rentals for the remaining or unexpired term of the Rental Period, as agreed liquidated damages for the Lessee’s early termination of this Agreement.
10.3 This Agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment. In the event of a Total Loss of the Equipment, the Lessee shall be liable to the Lessor for the Equipment at the compensation amount per unit/set of the Equipment as set out in the Annexure. Where requested by the Lessor, the Lessee shall produce a valid police report detailing the circumstances resulting in the Total Loss of the Equipment, within five (5) days from the written demand of the Lessor.
11.0 Referral Program
11.1 Lessee that sign up 6 months or 12 months plan is eligible to join referral program.
11.2 Lessee that success refer new client to sign up 6 months or 12 months plan can get 50% discount for next month payment invoice. If refer 2 new client sign up 6 months or 12 months plan, the next month payment will be waived.
12.0 Consequences of Termination
12.1 Upon termination of this Agreement, however caused:
12.1.1 the Lessor's consent to the Lessee's possession of the Equipment shall terminate and the Lessor may, by its authorized representatives, without notice and at the Lessee's expense, retake possession of the Equipment and for this purpose may enter any premises at which the Equipment is located; and
12.1.2 without prejudice to any other rights or remedies of the Lessor, the Lessee shall pay to the Lessor on demand:
(i.) all Rentals and other sums due but unpaid at the date of such demand;
(ii.) any costs and expenses incurred by the Lessor in recovering the Equipment and/or in collecting any sums due under this Agreement.
For the avoidance of doubt, such sums may be partly or wholly recovered by the Lessor from the Advance Rental.
12.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
13.0 Confidential information
13.1 Each party undertakes that it shall not at any time during the Rental Period, disclose to any person any confidential information concerning the other party, except as permitted by Clause 12.2.
13.2 Each party may disclose the other party's confidential information:
13.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this Clause 12; and
13.2.2 as may be required by Law or any Governmental Authority.
13.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Agreement.
In addition to the Lessor’s right to deduct and/or set-off from the Advance Rental, the Lessee undertakes to fully indemnify and keep indemnified and hold harmless the Lessor from and against any and all losses, liabilities, obligations, damages, judgements, deficiencies, claims, demands, suits, proceedings, arbitration, assessment, costs and expenses (including expenses of investigation and enforcement of this indemnity and reasonable solicitors’ fees and expenses) sustained, incurred, suffered or paid by the Lessor as a result of or arising out of any breach by the Lessee of its duties, covenants, stipulations and obligations under this Agreement on its part to be performed and fulfilled, provided that the indemnity contained in this Clause 13 shall be without prejudice to any other rights or remedies of the Lessor and all such other rights or remedies are hereby expressly reserved to the Lessor.
No waiver of any breach of any provision of this Agreement will be effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided in the written waiver, will be limited to the specific breach waived.
16.1 This Agreement shall be binding upon and inure for the benefit of the successors of the parties.
16.2 The Lessee shall not, without the prior written consent of the Lessor, assign its rights title and interest under this Agreement. Further, the Lessee shall not, without the prior written consent of the Lessor, novate its rights, title, interest and obligations under this Agreement. Any assignment, novation, transfer or delegation which is made without such prior written approval shall constitute a breach of this Agreement.
16.3 The rights and obligations of the Lessor under this Agreement shall be freely transferable or assignable (whether in whole or in part).
17.0 Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies of the Lessor provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by Law.
If any provision of this Agreement or part thereof is rendered void, illegal or unenforceable by any Law to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and it shall in no way affect or prejudice the enforceability of the remainder of such provision or the other provisions of this Agreement.
19.1 All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and in English or Malay and delivered personally or sent by prepaid registered post with recorded delivery, or by courier or e mail transmission addressed to the intended recipient thereof at its address or e mail address set out hereunder (or to such other address or e mail address as a party to this Agreement may from time to time duly notify the other party). Any such notice, demand or communication shall be deemed to have been duly served (if delivered personally or given or made by e mail) immediately or (if given or made by registered post or courier) 48 hours after posting, and in proving the same it shall be sufficient to show that personal delivery was made or that the envelope containing such notice was properly addressed as a prepaid registered letter or that the email was properly addressed and dispatched.
19.2 The addresses and e mail addresses of the parties for the purposes of Clause 19.1 are:
19.2.1 in the case of service on the Company to:
11A, Jalan Iks Bukit Tengah, Taman Iks Bukit Tengah, 14000 Bukit Mertajam, Pulau Pinang, Malaysia.
For the attention of: Support Team
19.2.2 and in the case of service on the Lessee to the address and/or email address of the nominated representative as set out in Schedule 1.
19.3 In this Clause 18 if deemed receipt occurs before 9am on a Business Day the notice shall be deemed to have been received at 10am on that day, and if deemed receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice shall be deemed to have been received at 10am on the next Business Day.
20.0 No partnership or agency
20.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
20.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21.0 Cost and Expenses
Each of the parties shall bear its own legal and other professional costs and expenses incurred by it in the negotiation and preparation of this Agreement and any other agreement or document entered into or signed under or in connection with this Agreement.
22.0 Entire Agreement
This Agreement constitutes the entire agreement and full understanding among the parties hereto with respect to all of the matters herein and it supersedes any previous negotiations, discussions, correspondence, arrangements, agreements and understandings among them, oral or written, with respect to the matters addressed herein.
The Lessee acknowledges and confirms that it has sought independent legal advice from professional legal advisors with regards to all the matters provided for in this Agreement and agrees that the provisions of this Agreement (including all documents entered into pursuant to this Agreement) are fair and reasonable and agrees that its failure to obtain such advice shall not be used as a defence to the enforcement of the terms and conditions under this Agreement.
24.0 Time of the Essence
Unless expressly provided otherwise, time wherever mentioned shall be of the essence of this Agreement.
25.0 Governing Law and Jurisdiction
25.1 This Agreement shall be governed by, and construed in accordance with, the Laws of Malaysia.
25.2 The parties irrevocably agree that the courts of Malaysia are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and that, accordingly, any legal action or proceedings arising out of or in connection with this Agreement may be brought in those courts and the parties irrevocably submit to the jurisdiction of those courts