Terms and Conditions for Own Merchant Account

PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE YOU SIGN UP FOR THE NETMYNE COMMERCE PAYMENT SERVICE. BY INDICATING YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREOF, YOU ARE DEEMED TO ACKNOWLEDGE AND AGREE TO BE BOUND BY ALL THE FOLLOWING TERMS AND CONDITIONS FOR THE USE OF NETMYNE COMMERCE PAYMENT SERVICE PROVIDED BY TM NET SDN. BHD. (TM NET) WHICH IS INVOLVED IN THE PROVISION OF MULTIMEDIA PRODUCTS AND SERVICES. TM NET RESERVES THE RIGHT TO UPDATE OR REVISE THE TERMS AND CONDITIONS FROM TIME TO TIME. NOTICE OF AMENDMENT MAY BE GIVEN BY TM NET TO THE CUSTOMER IN SUCH A MANNER AS TM NET DEEMS APPROPRIATE. CONTINUATION IN THE ACCESS OR USE OF THE NETMYNE COMMERCE PAYMENT SERVICE SIGNIFIES ACCEPTANCE OF THE CHANGES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT

1. Service

TM Net a company which provides Internet access throughout Malaysia through its service known as Tmnet and various other Internet related products and services including, but not limited to, TMnet, Netmyne, Streamyx and BlueHyppo.com. is desirous at the request of the Merchants to provide to the Merchants, who sell products and services vide internet, mail or telephone order, secured online card payment clearing service known as "Netmyne Commerce Payment Service". By subscribing the Netmyne Commerce Payment Service, the Merchants will be able to process and clear Card payment from its Customers who make internet, mail or telephone order purchases for the Merchant products and services.

2. Definitions

The following terms are defined for use in this Agreement, unless the context otherwise requires:

• "Acquiring Bank" means the financial institution to which TM NET will route Transaction data for authorisation, clearing and settlement purposes.
• "Agreement" means and refers to the completed Application Form, this Terms and Conditions and schedules or appendices attached hereto.
• "Annually" means each twelve (12) consecutive calendar month periods commencing on the first day of the first calendar month and ending on the last day of the twelfth calendar month during the terms of this Agreement.
• Application Form" means the forms to which these Terms and Conditions are attached requesting particulars from the Merchant furnishing the required and genuine information. Such Application Form, this Terms and Conditions together with schedules or appendices attached hereto shall collectively form the Agreement.
• "Business Day" means a day (excluding public holiday) on which the TM NET is open for business.
• "Calendar Quarter" means each three (3) consecutive calendar month periods commencing on the first day of the first calendar month and ending on the last day of the third calendar month during the terms of this Agreement.
• "Card" means a current credit, debit or charge card that TM NET may accept for processing, as notified to Merchant from time to time;
• "Card Account Number" means a primary Customer account number that is embossed and/or encoded on a Card;
• "Card Issuer" means a financial institution that issues the Card to the Customer;
• "Customer" means any person making a purchase or desiring to make a purchase of the Merchant's Product or Services through the Website and/or Mail Order and/or Telephone Order.
• "Delivery" means, the placing of Product or Service with a common carrier with delivery charges prepaid, with instructions to deliver the Product or Service to the Customer.
• "Effective Date" means the date upon approval and acceptance of the Merchant's application by TM NET and upon commissioning of the Service;
• Merchant Account" means an account open by the Merchant with the Acquiring Bank as part of the requirement for subscribing to the Service;
• "Merchant Charge" means the charge to be paid by the Customer to the Merchant in consideration for the supply of the Merchant's Products or Services to the Customer;
• "Netmyne Commerce Payment Service" means the service provided by TM NET to the Merchant more particularly specified in Schedule 2 hereof involving processing the Transactions and remitting the proceeds to the Merchant in consideration of goods and services supplied by the Merchant to the Customers;
• "Ringgit Malaysia" or "RM" means lawful currency of Malaysia;
• "Transaction Fee" means that part of the Service Charge based on a percentage of turnover charged by TM NET to the Merchant;
• "Products" means products that is sold or distributed online by the Merchant via the Web Site or vide mail order or telephone order;
• "Semi Annually" means each six (6) consecutive calendar month periods commencing on the first day of the first calendar month and ending on the last day of the sixth calendar month during the terms of this Agreement;
• "Services" means services that are offered by the Merchant online vide the Web Site or vide Mail Order or Telephone Order as consulted and approved by TM NET;
• "Service Charge" shall mean the charges and fees set out in of Schedule 1 and such other charges as notified to the Merchant by TM NET from time to time;
• "Tax" means value added tax, sales taxes, or any other similar tax or duty;
• "Transaction" means any payment made by the use of a Card or a Card Account Number for debit (or credit) to the Customer's account;
• "Web Site" means one or more e-commerce enabled, interactive Internet World Wide Web sites maintained by Merchant for the purpose of displaying and offering Products or Services for sale to Customers.

2.2 Interpretations

In the interpretation of the Agreement, unless the context requires otherwise:

• Words importing the singular also include the plural and vice versa where the context requires;
• Any gender includes every gender;
• Words importing people include corporations, associations, partnerships, Government Authorities, and other legal entities;
• Reference to a Party to this Agreement includes a reference to its principal, agents, successors and permitted assigns;
• Reference to statutes include statutes amending, consolidating and replacing the statutes referred to and all regulation, orders-in-council, rules, by-laws and ordinances made under those statutes;
• Reference to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;

A period of days from the occurrence of an event or act shall be inclusive of the day on which such event or act took place and if the last day of the period is a weekly holiday or a public holiday, the deadline for an event or act shall fall on the next day following the weekly holiday or public holiday;

Titles and headings to Clauses herein are inserted for convenience of reference only and shall not have any effect on the interpretation thereof.

Words importing the masculine gender include the feminine and neuter genders and vice versa.

3. Commencement of Netmyne Commerce Payment Service

The Netmyne Commerce Payment Service and this Agreement shall commence on the Effective Date and be valid for twelve (12) months from the Effective Date and may be extended by the mutual agreement of the Parties, unless otherwise terminated in accordance with Clause 14.

4. Representations and Warranties

4.1 Each Party hereby represents and warrants to the other that at the time of execution of this Agreement, it is a company duly incorporated and validly existing under the laws of Malaysia and has full power and authority to enter into this Agreement and undertakes its obligations under this Agreement.

4.2 Each Party represents and warrants for the benefit of the other that as at the date of this Agreement and throughout the term of this Agreement that:

(a) there are no material or substantial facts or circumstances relating to its affairs which in any way affect its capacity in undertaking and discharging its duties and obligations under this Agreement which have not been disclosed to the other Party in writing prior to the execution of this Agreement and which might if disclosed be reasonably expected to effect the other Party¹s decision to enter into this Agreement; and

(b) it recognises the goodwill attached to, and will not knowingly or negligently take any action that would be detrimental to the goodwill associated with the other Party and the other Party¹s Marks.

4.3 Each Party acknowledges that the other has entered into this Agreement in reliance of the representations made under Clause 4.1 and 4.3.

5. Application for the Service

5.1 The Merchant warrants that it has the required corporate authority to enter, execute and be bound by the terms and conditions of this Agreement.

5.2 The Merchant is required to submit accurate, current and complete information of the Merchant for the purpose of subscribing to the Netmyne Commerce Payment Service and the Merchant hereby undertakes to update such information in the event of any change thereto.

5.3 Supporting documents accompanying the Merchant's application for subscription of the Netmyne Commerce Payment Service shall be required to be submitted to TM Net together with the Application Form. The required supporting documents are as follows:

5.3.1 For Malaysian:

(a) Sole proprietor or partnership - a copy of either the Merchant's business license, Forms D, B or A;

(b) Company - a copy of Form 9, Form 49, Form 24 or Form 13.

5.3.2 For foreign:

(a) Company - a copy of either the Merchant's Form 79, 80, 80A or 83.

5.3.3 All supporting documents must be duly certified by the Authorised Representative of the Merchant

6. Service Charges

6.1 In consideration of TM NET providing the Service to the Merchant, the Merchant agrees to pay to TM NET in advance:-

a. In the case of the Merchant is a Departmental Store:

(i) a recurring and non refundable Subscription Fee payable every Calendar Quarter, Semi Annually or Annually, as the case may be, for yearly subscription fee of the Merchant Account;

ii) a recurring and non refundable Transactional Fee payable every Calendar Quarter, Semi Annually or Annually, as the case may be, for yearly transaction made for the Merchant Account;

b. In the case of Individual Store:

(i) a non recurring and non refundable Set Up Fee for initial installation of the Merchant Account;
(ii) a recurring and non refundable Subscription Fee payable every Calendar Quarter, Semi Annually or Annually, as the case may be, for yearly subscription fee of the Merchant Account;
(iii) a recurring and non refundable Transactional Fee payable every Calendar Quarter, Semi Annually or Annually, as the case may be, for the transaction fee made for the Merchant Account.

6.2 Without prejudice to TM NET's other rights TM NET may suspend or withdraw the Netmyne Commerce Payment Service provisioned to the Merchant if the Service Charges or any other sums payable to TM NET are not paid when due.

6.3 TM NET reserves the rights to suspend the Netmyne Commerce Payment Service provisioned to the Merchant in the event that the Setup Fee, Subscription Fee and other due charges are not settled by the Merchant after two (2) weeks from the date the debt is due ("the Due Date"). The Netmyne Commerce Payment Service shall be reactivated upon settlement of all dues within one month of the due date.

7. Acceptance of Cards

TM NET will accept for processing a Card payment offered by the Customers which TM NET is authorised by the Merchant to accept. Both parties agrees that authorisation from the Merchant is deemed whenever a Customer makes purchase for Merchant's products or services..

8. Authorisation of Transactions

Acceptance of Transactions shall not in any way be binding on TM NET as to the validity of any Transaction or Transaction receipts. TM NET shall not honour any Transactions, which in the opinion of the TM NET is not genuine

9. The Merchant's Obligations

9.1 The Merchant agrees to be bound by and follow all regulations regarding the acceptance of Cards for payment as stipulated by TM Net.

9.2 The Merchant agrees that it shall not perform or fail to perform any act that violates federal, state/provincial, or local law of Malaysia, as well as laws of any countries in which the Merchant does business.

9.3 The Merchant shall obtain the consent of all Customers to use their personal data for permit processing and use of the same by TM NET in accordance with this Agreement.

9.4 The Merchant shall retain copies of all Transaction receipts in the form of electronic data, with respect to Transactions for a period of three (3) years. The Merchant will provide such copies to TM NET within five (5) Business Days of such request to do so being received by the Merchant from TM NET.

9.5 The Merchant warrants that information provided to TM NET in connection with the Merchant¹s application for the Netmyne Commerce Payment Service is correct and that no information has been withheld which, if provided, could have materially affected TM NET¹s decision to enter into this Agreement.

9.6 The Merchant shall further:

(a) Provide TM NET in a timely manner with accurate information regarding Merchant account(s) and financial standing;

(b) Display on Merchan'¹s Web Site and any other promotional material, in such manner as TM NET may require, such promotional sign(s) or other material which may be provided by TM NET and TM NET of names or designs approved by TM NET solely to indicate that TM NET accept Card payments for Products and Services that Merchant supply, and are processed by TM NET. The Merchant shall not use any other material referring to TM NET without TM NET prior written approval and shall not display any brand name or logo of any other payment services provider or card scheme;

(c) Not use the Netmyne Commerce Payment Service in any manner, or in furtherance of any activity which may constitute a violation of any law or regulation or for any improper purpose or which may cause damage to TM NET reputation or subject TM NET to investigation, prosecution or legal action;

(d) Immediately notify TM NET in accordance with clause if:

(i) there is any change in the nature of the product or services offered on the Merchant's Website;
(ii) any technical alterations affecting the payment page of the Website are made to the Merchant Website;

(e) Be responsible for the statements, instructions, acts or omissions of any person who reasonably appears to have authority to act on the Merchant's behalf;

(f) Provide TM NET with any information reasonably required to assess creditworthiness and advise TM NET as soon as the Merchant become aware of a material adverse change in the Merchant¹s financial standing or an intention to close down the Merchant's on-line business or transfer to another processor or Acquiring Bank;

(g) Act in a reasonable manner to resolve Customer disputes or potential disputes;

(h) Describe accurately on the Merchant's Website, including a full description of the Merchant's trading name, address, telephone number and URL, what goods and services are being offered for sale, the price, the action which must be taken to make a purchase, the point at which a sale is completed, and details of delivery, shipping, returns and refund policies;

(i) Comply with any code of best practice that TM NET may provide to the Merchant including security to ensure Transactions are transmitted in an encrypted form using such protocol notified by TM NET to the Merchant from time to time.

9.7 The Merchant is entirely responsible for maintaining the confidentiality of the Netmyne Commerce Payment Service Account and its password. Furthermore, the Merchant is entirely responsible for any and all activities that occur under the Netmyne Commerce Payment Service Account including but not limited to all transfers and payments initiated by anyone who uses the Account by furnishing the Merchant's user-name and password, whether such use is pursuant to or beyond the Merchant's authorisation. The Merchant acknowledges that all security procedures set forth in this Agreement are commercially reasonable.

9.8 The Merchant shall inform TM NET at once in the event that the Merchant believes that its user name or password has been lost, compromised or may have been discovered by a third party or any of the Netmyne Commerce Payment Service Accounts have been improperly accessed. The Merchant shall also assume the entire risk for fraudulent, unauthorized or otherwise improper use of the Netmyne Commerce Payment Service, user names or passwords to the fullest extent permitted by law.

9.10 The Merchant is responsible for obtaining, installing, maintaining and operating all computer hardware, software and Internet access services necessary for performing the Netmyne Commerce Payment Service. TM NET will not be responsible for any errors or failures from the malfunction or failure of Merchant's hardware, software or any Internet access services.

9.11 The Merchant shall, at all times, have the ability to respond to inquiries from the Customers promptly and shall endeavor to resolve disputes with the Customers amicably. The occurrence of complaints from the Customers and/or inquiries regarding the Merchant's products or service, may become cause for termination of this Agreement if such events occur with unacceptable frequency as determined at TM NET sole discretion.

9.12 Breach of this clause may result in TM NET re-assessing Merchant and, subject to this re-assessment, TM NET may immediately terminate this Agreement without prior notice to Merchant.

9.13 The Merchant further undertakes that they shall:

a. Abide and adhere to the terms and condition of this Agreement;

b. Pay and settle all Charges, Fees and any other charges due to TM Net in accordance with this Agreement.

c. Provide accurate and complete information in the Application Form and when requested by TM Net;

d. Be responsible for the set-up or configuration of his own equipment for access to the Netmyne Commerce Payment Service;

e. Strictly comply with all notices or instructions given by TM Net from time to time in respect of the use of the Netmyne Commerce Payment Service;

f. Be solely responsible for obtaining, at his own cost, all licenses, permits, consents, approvals, and intellectual property or other rights as may be required for using the Netmyne Commerce Payment Service;

g. Strictly comply with the rules of any network from which the Merchant has access to the Netmyne Commerce Payment Service;

h. Conform to Internet etiquette that is required by the electronic forms including the TM Net's Conditions of Use (a copy of which is attached).

i. Be solely responsible for all information retrieved, stored and transmitted by the Merchant and/or Customer through the use of the Netmyne Commerce Payment Service.

j. Obtain TM Net's prior approval before making any change to the network configuration and interconnecting the private network to any public network.

k. Not use the Netmyne Commerce Payment Service in any manner, which in the opinion of TM Net may adversely affect the use of the Netmyne Commerce Payment Service by other customers or efficiency or security as a whole.

10. Prohibited Use The Merchant shall:-

a. comply with all and not to contravene any applicable laws of Malaysia relating to the Netmyne Commerce Payment Service, including but not limited to the Communication and Multimedia Act 1998.

b. Not use the Netmyne Commerce Payment Service for any unlawful purpose including and without limitation, for criminal purposes.

c. Not use the Netmyne Commerce Payment Service to send or receive any message, which is offensive on moral, religious, racial or political grounds or which may cause any anxiety to any person including a company or corporation.

d. Not use the Netmyne Commerce Payment Service to access sexually explicit materials and/or pornographic site(s);

e. Not to compromise any computer virus to any system;

f. Not to infringe any intellectual property rights;

g. Not to gain unauthorized access to any computer system connected to the Internet or any information regarded as private by other person including a company or corporation; and

h. Not to share the Netmyne Commerce Payment Service with any person including a company or corporation without the prior written approval of TM Net and shall use the Netmyne Commerce Payment Service only for the purposes for which it is subscribed.

11. Security and Other Features

11.1 The Merchant shall take all such measures as may be necessary to protect his own system and network.

11.2 The Merchant shall be responsible for maintaining the confidentiality of his passwords, if any, (including without limitation changing his passwords from time to time) and shall not reveal the same to any other person. Where a user identification is necessary to access the Netmyne Commerce Payment Service, the Merchant shall use only his user identification.

11.3 The Merchant shall inform TM Net within twenty four (24) hours if the User Account, user identification or password is stolen or lost. Until such report has been made, the Merchant shall be responsible for all transactions and access using the User Account, user identification or password by any third party and TM Net shall not be held responsible for any prohibited and/or unauthorized use of the Netmyne Commerce Payment Service as provided in this Agreement.

12. TM Net's Equipment

12.1 In connection with any equipment that may be provided by TM Net in relation to the Netmyne Commerce Payment Service:

a. The Merchant shall take appropriate measures to safeguard the said equipment;

b. The Merchant shall ensure that the equipment be properly maintained, be kept in good working condition and at a safe place;

c. The Merchant shall adhere to all instructions and notice (written or otherwise) given by TM Net from time to time regarding the use of the equipment.

d. The Merchant shall be responsible for all costs of repairs incurred in relation to the equipment in the event TM Net determines that any fault in such equipment is caused by the Merchant and/or the Customer.

13. Hardware, Equipment and Software

The Merchant shall be responsible for and shall provide all computer, hardware, cabling and software equipment and services necessary to access the Netmyne Commerce Payment Service. TM Net makes no representations, warranty or assurance that The Merchant's equipment shall be compatible with the Netmyne Commerce Payment Services.

14. Lawful Purpose

The Merchant shall only use the Netmyne Commerce Payment Service for lawful purposes. Transmission of any material in violation of any international, Federal, State or Local laws and regulation is prohibited. These include, but shall not be limited to copyrighted material, material legally judged to be threatening or obscene, pornographic, profane, or material protected by trade secrets. These also include links or any connection to such materials. The Merchant also warrants that The Merchant has the right to use any applicable trademarks which are featured in The Merchant's web site.

15. License, Easements and Others

If at any time TM Net shall be unable or not agreeable to obtain or maintain any license, easement or permission required for the purpose of providing or maintaining the Netmyne Commerce Payment Service, TM Net may, by notice in writing for the said purpose, terminate the Netmyne Commerce Payment Service and the Merchant shall not be entitled to claim any payment or compensation.

16. Change in the Merchant's Details

The Merchant undertakes to inform TM Net of any change to the Merchant's information provided earlier to TM Net within two (2) days of such change. Failure on the Customer to notify such change shall constitute a breach of this Agreement and TM Net reserves the right to suspend, disconnect or terminate the Netmyne Commerce Payment Service.

17. Suspension of Agreement

17.1 TM NET shall have the right to suspend this Agreement by giving the Merchant seven (7) days prior notice if the Merchant breach any of its obligations under this Agreement.

17.2 The suspension as provided in the aforementioned Clause shall continue for a period of seven (7) days (hereinafter referred to as "the Suspension Period") or any period, at TM NET's discretion.

17.3 Upon expiry of the Suspension Period, this Agreement shall:

(i) continue in effect subject to any additional requirements imposed on the Merchant by TM NET which is hereby agreed upon by the Merchant; or

(ii) be terminated in accordance with Clause 18 herein.

18. Termination of Agreement

18.1 Notwithstanding Clause 17 abovestated, this Agreement may be terminated immediately by fourteen (14) days written notice by:

a) either Party if it is required by law;

b) either Party if the other Party commits a breach of any of the conditions or stipulations in the Agreement and the other Party has given a written notice to the defaulting Party specifying the act of default and requiring the defaulting Party's rectification within fourteen (14) days of the notice; and the default Party fails to so rectify the default;

c) either Party if the other Party becomes insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of its creditor(s), permits the appointment of a receiver or a receiver and manager for its business or assets, or becomes subject to any legal proceedings relating to insolvency, reorganisation or the protection of creditors' rights or otherwise ceases to conduct business in the normal course;

d) TM NET where the Merchant has committed any of the following acts of default:

i. the Merchant acts against the express policies and reasonable instructions of TM NET;

ii. the Merchant breaches this Agreement; and TM NET has given a written notice to the Merchant specifying the act of default and requiring the Merchant's rectification within fourteen (14) days of the notice; and the Merchant fails to so rectify the default; or

e) TM NET if TM NET has any reason to believe that the Company or any one employed by the Company or acting on its behalf whether with or without the Company's knowledge engages in corrupt practice in connection with this Agreement;

18.2 Without prejudice to Clause 18.1, TM NET may at any time, without assigning any reason, terminate this Agreement, by giving thirty (30) days written notice to the Merchant.

18.3 TM NET shall not be liable to the Merchant by virtue of early termination of this Agreement including but not limited to any claim for loss of profits and/or revenue or prospective profits.

18.4 The termination of this Agreement shall not prejudice the rights of TM NET to sue for damages or to obtain any other relief in respect of any antecedent breach of the terms of this Agreement prior to such termination.

19. Consequence of Termination

19.1 In the event of termination:

(a) Both Parties shall have no further right to market and sell the Netmyne Commerce Payment Services and/or the Product respectively;

(b) Both Parties shall cease using the other Party's trademarks, tradenames and/or products name;

(a) Both Parties shall promptly return to the other Party all sales literature and promotional materials;

(b) Both Parties shall return to the other the confidential information supplied to each respective Party hereto pursuant to this Agreement; and

(c) All payments due and outstanding from one to the other shall be paid immediately.

19.2 Notwithstanding the above, TM NET may:

(a) retain any moneys hold by TM NET pursuant to this Agreement to settle any money due to TM NET under this Agreement;

(b) be regarded as discharged from any further obligations under this Agreement; and

(c) impose such applicable fees or charges for work performed which has not been previously charged.

20. Taxes

20.1 Each party agrees to report and pay its own taxes imposed on its income by any jurisdiction such as state and federal income Taxes. In the event that TM NET be required to pay any such taxes on the income of the Merchant, the Merchant undertakes to indemnify TM NET with the amount of such taxes and all related interest, fines, or penalties which shall become immediately due and payable to TM NET.

20.1 The parties agree that taxes in the nature of an excise or sales tax are not currently imposed on the Netmyne Commerce Payment Service contemplated under this Agreement. Further, the parties agree that if such taxes are imposed, the burden of such taxes shall be the Merchant's sole responsibility.

20.2 TM NET shall have the right to collect and pay over taxes in the nature of an excise or sales tax on behalf of the Merchant if reasonably required to do so by a taxing authority of competent jurisdiction and shall further have the right to recover from the Merchant the amount of any such taxes and related penalties and interest which are paid by TM NET with its own funds.

21. Confidentiality

21.1 Each Party shall:

a) treat as confidential and keep secret all Confidential Information which has already been disclosed to it pursuant to this Agreement;

b) take all proper and effective precautions to prevent the disclosure of the Confidential Information to unauthorised persons and to preserve the secrecy and confidentiality of the Confidential Information and, in particular but without in any way limiting the generality of the foregoing, take all necessary action to prevent unauthorised persons from obtaining access to the Confidential Information whether by direct or indirect exposure; and

c) destroy or return all Confidential Information to the other Party upon the termination or expiry of this Agreement.

21.2 Except with prior written consent of the other Party, each Party shall not, at any time:

a) communicate to any person or body or entity, any Confidential Information disclosed to them;

b) make or caused to be made any press statement nor publish any material whatsoever relating to the Agreement; or

c) use or permit to be used in any manner the Confidential Information for any purpose whatsoever except for the purposes expressly authorised by the other Party.

21.3 Each Party shall limit the disclosure of Confidential Information to its employees or agents who have a need to know such Confidential Information for the purpose of fulfillment of its obligations under this Agreement.

21.4 Clause 21.1 and 21.2 shall not apply to Confidential Information which:

(a) was in the possession of either Party prior to the commencement of the Agreement other than information provided to it by the other Party on a confidential basis;

(b) information that is or becomes available in the public domain through no violation of this clause;

(c) information that is independently developed by either Party prior to the execution of this Agreement; or

(d) disclosure is required by law or by a court of law.

21.5 Notwithstanding the terms of this clause, each Party may disclose the terms of this Agreement to its related companies, solicitors, auditors, insurers, accountants and financiers provided always that the disclosing Party shall advise any of the foregoing of the confidentiality obligations herein and procure their undertaking to abide by the same.

22. Intellectual Property Rights

22.1 The Intellectual Property Rights in the Netmyne Commerce Payment Services shall at all times vest in TM NET and the Merchant shall not use the Intellectual Property Rights in any way except in accordance with the rights given to it under this Agreement.

22.2 During the term of this Agreement, the Merchant agrees to grant TM NET a non-exclusive non-transferable non-assignable licence to use the Merchant trade marks solely for the purposes of this Agreement or the performance of TM NET's obligations under this Agreement and for no other purpose.

22.4 Both Parties acknowledge that the use of the other Party's trademarks, tradenames and or product names under this Agreement will not directly or indirectly create in it or for it any right, title or interest therein. Neither Party shall take any action that interferes with or diminishes the other Party's right, title and/or interest in its trademarks, tradenames and/or product names.

23. Limitation of Liability

Under no circumstances, including negligence, will TM NET or its employees, agents, servants, contractors or other for whom TM NET is responsible in law be liable for any indirect, incidental, special, exemplary, or consequential damages (including but not limited to loss of revenue, goodwill and or anticipated or lost profits) that result with regard to the Software, TM NET shall not be liable for the cost of procurement of substituted services, technology or data (if any). The Merchant acknowledge that this provision shall apply whether or not TM NET has been advised of the possibility of such damages.

24. Indemnification

24.1 Merchant warrants and agrees that Merchant is fully responsible for the content of its Web Site and for the advertising and promotion through any media of all of Merchant's offerings. Merchant certifies and represents to TM NET that it is the owner or that it has full right and authority to use and disseminate all information, data, graphics, text, video, music or other intellectual property which either forms a part of its Web Site, which is provided by Merchant to its customers, or which is used by Merchant in its advertising or promotions.

24.2 The Merchant hereby agrees that it shall not hold TM NET, its successors, and assigns harmless from any and all claims, actions, damages and liabilities including attorney's fees resulting from or arising out of

(i) the Merchant's breach of any provision of this Agreement or its failure to perform any duty or obligation hereunder, or

(ii) the nature of the Merchant's specific use or misuse of the Netmyne Commerce Payment Service, including but not limited to, claims of third parties arising out of or resulting from or in connection with the Merchant's products or services, messages, programs, caller contracts, promotions, advertising, infringement or any claim for libel or slander or for violation of copyright, trademark or other intellectual property rights.

24.3 Where litigation is commenced against TM NET by the Merchant's Customers or any third party in respect of any matter involving any breach of Merchant's obligation provided herein, TM NET shall, on leave being granted, withdraw from the litigation and Merchant shall, in its own name and expense, conduct the litigation.

24.4 The Merchant shall indemnify TM NET against all losses, costs, expenses, damages and liabilities incurred by TM NET as a result of any claim brought against TM NET by any Customer, Card Issuer, Acquiring Bank or other third party as a result of the Merchant's breach of the Agreement or the Merchant acts or omissions.

24.5 If a claim is brought against TM NET by a Customer, a Card Issuer, Acquiring Bank or other third party TM NET will be entitled to settle or otherwise deal with it at TM NET sole discretion, including taking such steps as are reasonable to mitigate any potential loss TM NET may incur.

25. Force Majeure

25.1 If either Party to this Agreement is temporarily unable by reason of Force Majeure or the laws or regulations of Malaysia to meet any of its obligations under this Agreement, and if such party gives to the other party written notice of the event within fourteen (14) days after such occurrence the obligations of the Party as it is unable to perform by reason of the event shall be suspended for as long as the disabling situation continues. If Force Majeure event prevents either Party from performing its obligations for a continuous period of thirty (30) days, either Party may terminate this Agreement in accordance with Clause 18.

25.2 Neither Party shall be liable to the other Party for the loss nor damages sustained by such other Party arising from Force Majeure or delays arising from such event.

26. Assignment

26.1 Neither Party may assign any of its rights or obligations under this Agreement to any other person whatsoever without prior written consent of the other.

27. Disputes

27.1 In the event of a dispute between the Parties relating to the provisions of this Agreement, it shall be resolved by way of arbitration. The arbitration as mentioned herein shall be settled by one (1) arbitrator under the auspices of the Regional Centre for Arbitration, Kuala Lumpur in accordance with the Arbitration Act 1952.

27.2 The arbitrator shall be appointed by mutual agreement of the Parties, failing which the appointing authority for the arbitrator shall be the Director of the Regional Centre for Arbitration, Kuala Lumpur.

27.3 NOTWITHSTANDING the reference of any dispute to arbitration in the foregoing manner, the Parties agree that the performance by both Parties of their continuing obligations hereunder shall be wholly unaffected by any such reference and, without limiting the foregoing, that they shall continue to perform fully their obligations hereunder.

28. General Provisions

28.1 Amendment and Variation of Agreement
Notwithstanding any of the other provisions and terms of this Agreement to the contrary, the provisions of this Agreement may at any time and from time to time be varied or amended in writing by mutual agreement of the Parties. No additions to or modifications of any part this Agreement shall bind the Parties unless made by a written amendment signed by a duly authorised representative of both Parties.

28.2 Waiver
Failure by TM NET to demand performance of any term or condition shall not be deemed a waiver of TM NET's right to demand performance at a later date.

28.3 Notice or Request
Save and except where expressly provided otherwise, all notices, requests, documents or other communication in connection with or regarding this Agreement shall be in writing and shall be delivered by personal service, prepaid registered post (acknowledgement received) or by facsimile or telex to the addresses specified in the Application Form or to such other address as the Parties may designate by like notice hereunder from time to time.

Any notice required to be given hereunder shall be deemed to have been received:

a) in the case of delivery in person, when delivered;

b) in the case of service by registered post, within five (5) working days;

c) in the case of communication by facsimile or e-mail, on the sender's receipt of a transmission report which purports to confirm that the addressee has received such facsimile or e-mail.

28.4 Signatory
In the event of the Application Form being signed on behalf of the Merchant by any person ("signatory"), the signatory warrants that he/she has the authority to make application for the Netmyne Commerce Payment Service on behalf of the Merchant and to bind the Merchant accordingly.

28.5 Merchant's Acknowledgement

28.5.1 The Merchant hereby acknowledges that:

a. it has read and fully understood all the terms and conditions contained herein upon signing the Application Form and agrees to be bound by the same upon TM Net accepting the application;

b. the details and documents provided to TM Net with the Application Form are true, genuine and contain the latest information and allows TM Net to conduct independent verification of the same with any organisation or body;

c. notwithstanding the above, TM Net reserves the right to reject the application or requires the Merchant to furnish further details or documents as TM Net deems fit and necessary without reserving any reason whatsoever.

28.5.2 The Merchant further acknowledges that:

a. it is TM Net's policy to use the Merchant's data and personal information acquired through the registration process or through the Merchant ¹s use of the Netmyne Commerce Payment Service for its business purposes.

b. TM Net may use the Merchant's personal information for the internal purposes of customising advertisements and content on the website(s) and TM Net's partner sites, providing information to the customer of other products and services available from TM Net and its affiliate, processing and fulfilling customer request for the Netmyne Commerce Payment Services, responding to customer enquiries, conducting research for improvement of the Netmyne Commerce Payment Service and statistical analysis and the general operation and maintenance of the Netmyne Commerce Payment Service and its related website(s).

c. TM Net will disclose the Merchant's personal information if required to do so by law or in good faith, if such action is necessary to:

i. comply with any law enforcement agency, court orders or legal process; and/or

ii. protect and defend the rights or property of TM Net and its users.

28.6 Law Applicable
This Agreement shall be governed and construed in accordance with the laws of Malaysia and unless specified otherwise, subject to the exclusive jurisdiction of the Courts of Malaysia.

28.7 Entire Agreement
This Agreement supersedes all previous agreements, arrangements, undertakings, negotiations and writings between the Parties relating to the subject matter of this Agreement.

28.8 Invalidity and Severability
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic, illegal and commercial objectives of the invalid or unenforceable provision.

28.9 Survival
The provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration or termination of this Agreement. This clause and the following clauses will survive expiration or termination of this Agreement: Clauses 3 (Representation and Warranties), 17 (Confidentiality), 18 (Intellectual Property Rights) and 20 (Indemnity).

28.10 Language
All documents, data, descriptions, books, catalogues, diagrams, instructions, invoices, and correspondences shall be in English Language.

28.11 Successors Bound
This Agreement shall be binding on and shall ensure for the benefit of the successors, personal representatives and permitted assigns of each of the Parties hereto.

28.12 Time is of the Essence
Any date or period mentioned in this Agreement may be extended by agreement between the Parties hereto failing which, as regards any such date or period, time shall be of the essence of this Agreement.

28.13 Relationship Of Parties
Nothing contained herein shall be construed to imply a partnership, joint venture, principal/agent or an employer/employee relationship between the Parties and neither Party shall have any right, power or authority to create any obligation, express or implied on behalf of the other.

Service Charges

* Please click here for more information on e-Pay Commerce Payment Service.