| PLEASE
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE
YOU SIGN UP FOR THE E-BIZ SERVICES.
1.
Registration of the Services
The
Customer are deemed to have agreed to be bound by these terms
and conditions by signing the Application Form attached with the
terms and conditions of use of the Service and return to TM Net
through its sales office or any of TMPoints or TM's authorized
outlets or resellers as stated in the web site currently held
at: http://www.netmyne.com
or any other URL which TM Net may provides from time to time.
TM
RESERVES THE RIGHT TO UPDATE OR REVISE THE TERMS AND CONDITIONS
FROM TIME TO TIME WITHOUT GIVING PRIOR NOTICE TO YOU. PLEASE REFER
TO THE TERMS AND CONDITIONS PERIODICALLY FOR CHANGES.
CONTINUATION
IN THE ACCESS, OR USE OF THE SERVICES SIGNIFIES ACCEPTANCE OF
THE CHANGES.
2.
Description of the Service
TM
is a company which is involved, amongst others in the provision
of Internet and multimedia products and services and is desirous
at the request of the Merchant to provide e-Biz Services on TM's
network, which will allow the Merchants and its Customer the access
to the Internet on the terms and conditions set forth herein,
as may be amended from time to time by TM (hereinafter referred
to as "the Services").
3.
Definitions and Interpretations
"Agreement"
means the completed application form including its attachment
(if any) and the terms and conditions stated herein.
"Application
Form" means the application form to which these terms
and conditions are attached requesting particulars from the Merchant
subscribing to the Service and furnishing the required and genuine
information. Such application form and these terms and conditions
shall form this Agreement.
"Commencement
Notice" means the written notification issued by TM to
the Merchant specifying the approval of the Services subscription
and the date of commencement of the Services. The Commencement
Notice may also contain the Merchant's Internet Protocol (IP)
address or login name and password, as the case may be.
"Commencement
Date" means the commencement of the Services upon issuance
of the Commencement Notice to the Merchant.
"Customer"
refers to the customer of the Merchant on the Merchant's On-Line
Site.
"Extended
Term" means the extended period of subscription for the Service
applied by the Merchant, at the end of the Minimum Subscription
Period.
"Merchant"
means the person whose name and address appears in the application
form, who has subscribed to the Service.
"Minimum
Subscription Period" means the minimum period of twelve
(12) months for subscription of the Service by the Merchant as
specified in Clause 3.1.2 herein.
"On-Line
Site" means Merchant's site on the World Wide Web (www) through
which Merchant conducts electronic business.
"One
Time Registration" or "Set-Up Fees" means the charges
which are payable once by the Merchant to TM NET throughout the
Subscription Term for the initial set-up of the Services.
"Services"means
the e-Biz facilities, that enable the Merchant to do his business
online and transact with the Customer on World Wide Web (www).
"SSL
Server ID Certificate" means upon installation, SSL will be
activated, creating a secure communication channel between the
Merchant's site and the Customer's browser.
"Subscription
Term" means the period of the Subscription of the Services,
including the Minimum Subscription Period and/or the Extended
Term thereof.
"Subscription
Fees" means certain amount of money payable by Merchant to
TM on an annual basis or monthly basis (whichever applicable)
as defined by TM, agreed and selected by the Merchant as indicated
on the Application Form for the ongoing Services provided.
"TM
" means Telekom Malaysia Berhad (Company No. 128740-P),
a company incorporated under the laws of Malaysia with its registered
address at Level 51, North Wing, Menara Telekom, Jalan Pantai
Baharu, 50672, Kuala Lumpur.
"Transaction
Fees" means the amount of money payable by the Merchant to
TM on per transaction basis, for any successful transaction through
Merchant's On-Line Site, agreed and selected by the Merchant as
indicated on the Application Form.
"User
Account" means an account under the name of the Merchant
in relation to the Services subscribed by the Merchant.
Words
and expressions denoting the singular include plural numbers and
words and expressions denoting the plural shall include the singular
number unless the context otherwise require. Words denoting natural
persons include bodies corporate, partnerships, sole proprietorship,
joint ventures and trusts.
The expression "him" or any other expressions appear
herein shall be deemed to include the masculine, feminine, plural
thereof where the context so admits.
4.
Scope of Services
4.1
Term
4.1.1
This Agreement shall be effective on the Commencement Date and
shall be valid for a period of not less than the Minimum Subscription
Period. Usage of the Service by the Merchant shall become a conclusive
proof of the commencement date of the Service.
4.1.2
This Agreement shall be automatically continue to be enforceable
after the Minimum Subscription Period ("Extended Term"
as defined herein) unless and until the said Services are terminated
by either Party by giving the other Party thirty (30) days notice
in writing as provided under this Agreement.
4.2
Procedures
4.2.1
The Merchant is required to submit accurate, current and complete
information for the purpose of subscribing to the Services and
the Merchant hereby undertakes to update such information in the
event of any change thereto.
4.2.2 The Merchant is required to submit supporting documents
with the Application Form. The required supporting documents are
as follows:
For Malaysian:
(a)
Individual - a copy of the individual's identity card (both sides);
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.
For foreign:
(a) Individual - a copy of the Merchant's passport;
(b) Company - a copy of either the Merchant's Form 79, 80, 80A
or 83.
All
supporting documents must be duly certified by the Authorized
Representative of the Merchant.
4.2.3
Upon submission of the Application Form together with all the
required documents to TM, TM will process the Merchant's application.
The Services shall commence upon acceptance and approval of the
Merchant's application together with payment by Merchant of the
applicable fees to TM.
4.2.4
Merchant Identification and Authorization
Upon provisioning of the Service to the Merchant, TM will assign
Merchant Username for identification purposes, and a Merchant
Password for authorization purposes.
4.2.5
Customization
The Merchant shall have an option to include additional service
of Web Design Service, Banking or Payment Service and Logistic
Service to the site. TM shall provide the integrated services
to the Merchant subject to associated customization charges as
determined by TM. Notwithstanding, the Merchant shall make independent
contractual arrangement with the respective bank and/or logistic
companies and TM shall bear no responsibilities with respect to
the provision of the service including but not limited to execution
of such agreement and/or any settlement of disputes.
4.2.6
SSL Server ID Certificate
The Merchant shall have an option to secure their On-Line Site
by applying SSL Server ID Certificate to the site. TM shall on
their best endeavors to help Merchant to apply the certificate
from Certificate Authority. Notwithstanding, the merchants shall
make independent contractual arrangement with the respective Certificate
Authority and TM shall bear no responsibilities with respect to
the provision of the service except if the Merchant's On-Line
Site is hosted in TM.
5.
No Warranty
5.1
No responsibility on Customer's Orders and Card verification
TM does not perform any payment collection services, which are
Merchant's and/or Merchant's bank or credit card processor's sole
responsibility. TM shall have no liability to Merchant or its
Customers for TM's refusal to process any order for whatsoever
reason, including where Merchant's credit card processor notifies
TM of a problem with a Customer's credit card account.
5.2
Technical Support
TM may provide technical support in terms of software and hardware
maintenance with respect to the Service, as reasonably required
by Merchant subject to associated charges as determined by TM.
5.3
Sales Tax
The Merchant assumes full responsibility for the payment of all
sales taxes upon sale of products or services related to purchase
orders received from Customers through the Services.
5.4
Other Features
TM may, from time to time during this Agreement, offer other features
of services to Merchants, which shall be subject to additional
costs to be determined by TM which shall be subject to this Terms
and Conditions and / or such other additional Terms and Conditions
to be determined by TM.
5.5
Changes in Service
The Service described herein may be supplemented or modified during
the Term of this Agreement by TM, with notice of the said modification
to the Merchant. In that regard, Merchant agrees to provide TM
with such additional information as TM may reasonably request
and to otherwise cooperate with TM in implementing such supplemented
or modified services.
6.
Fees and Payment Terms
6.1
The Merchant shall pay TM in advance the following fees under
this Agreement which amount are more particularly described under
the Application Form:
(i)
One- time Registration Fees;
(ii)
Annual or Monthly Subscription fees (whichever applicable);
(iii) Transaction Fees (if any);
(iv) Maintenance Fees (if any);
(v) License Fees for Out-right Purchase (if any)
6.2
Changes to Fees
TM shall have the right to revise any of the fees mentioned
in Clause 5.1 from time to time, and will notify Merchant
of such changes before the beginning of Merchant's next applicable
billing cycle. Such revised fees will take effect during Merchant's
next applicable billing cycle.
6.3.
Billing and Payments
The Subscription Fees, Transaction Fees and Maintenance Fees
for the subsequent Subscription Term shall be billed by TM
to Merchant in accordance to the subscription term. Such amounts
are due and payable to TM within twenty (28) days from the
date of such bills. In the event such amount or any part thereof
remains unpaid after the due date, TM reserves the right to
charge interest on the sum that remain unpaid as aforesaid
at the rate specified in TM's bill from the due date to the
date of settlement. All payments received from the Merchant
will not be refunded.
7.
Obligations of Merchant
7.1
The Merchant represents and warrants that it will abide by the
following business practices throughout the term of this Agreement:
(i)
To offer for sale through its On-Line Site only products and
services that are available for delivery in the normal course
of Merchant's business, based upon the type of product or service
being offered.
(ii) To offer products for sale only if Merchant has legitimate
rights to market and sell such products.
(a)
Be solely responsible for the content of the Web Site;
(b)
Comply with all notices or instructions given by TM from time
to time in respect of the use of the Services;
(c)
Be solely responsible for obtaining, at its own costs, all licenses,
permits, consents, approvals and intellectual property or other
rights as may be required for using the Services;
(d) Be solely responsible for all information retrieved, stored
and transmitted by the Merchant through the Services;
(e) Be solely responsible for shipment or delivery of the goods
to the Customer.
7.3
The Merchant is responsible for and must provide all telephone,
computer, hardware and software equipment and other materials
necessary to access the Services. TM makes no representations,
warranties or assurances that the Merchant's equipment will
be compatible with the Services.
7.4
The Merchant may only use the Services for lawful purpose. Transmission
of any material in violation of any international, Federal, State
or Local regulation is prohibited. This includes, but is not limited
to copyrighted material, material legally judged to be threatening
or obscene, pornographic, profane, or material protected by trade
secrets. This also includes links or any connection to such materials.
Merchant also warrants that it has the right to use any applicable
trademarks, which are featured in its Web Site.
8.
Foreign Trade by Merchant
The Merchant agrees that it will not export or re-export any
of the products or services that it lists for sale through its
On-Line Site without the appropriate government and foreign
government licenses and will comply with all applicable export
control laws.
9.
Indemnification by Merchant
The Merchant agrees to defend, indemnify and hold harmless TM,
its officers, directors, stockholders, employees, agents and
representatives, and the successors, heirs and assigns of the
foregoing, from and against any and all claims, demands, actions,
causes of action, suits, proceedings, losses, damages, costs
and expenses incurred arising out of or in connection with this
Terms and Conditions, any obligation or representation and warranty
of Merchant hereunder, or Merchant's On-Line Site, including
without limitation (a) the provision by Merchant of, or the
use or possession by any Customer or any person acquiring from
any Customer of, Merchant's products or services, or any act,
error or omission of Merchant in connection therewith, (b) product
liability claims, including but not limited to any claim arising
out of or relating to a Customer's downloading of any product
or service of Merchant's from Merchant's On-Line Site (c) claims
arising from or alleging inaccurate or incomplete information
contained in Merchant's On-Line Site or that any such information
infringes the intellectual property rights of any third party,
(d) claims that any of Merchant's products infringe any intellectual
property rights of any third party, (e) damages arising from
any violation by Merchant of its export control obligations
hereunder, (f) damages arising from any violation of any applicable
law or regulation, (g) any libel, invasion of privacy, or similar
claims or (h) any other violation of rights of any third party
not otherwise set forth in this Clause.
10.
Limitation of Liability
EXCEPT
AS PROVIDED HEREIN, TM MAKES NO EXPRESS OR IMPLIED WARRANTY
WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL TM BE LIABLE TO MERCHANT
FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR SPECIAL
DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, SAVINGS
OR REVENUES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY,
INCLUDING WITHOUT LIMITATION AS A RESULT OF INOPERABILITY OR
MALFUNCTION OF THE SERVICES, ANY SOFTWARE, ANY DELAY IN THE
CORRECTION OR REPAIR OF THE SERVICES OR OF ANY SOFTWARE MALFUNCTION.
11.
Suspension of Service
11.1
Without prejudice to any other rights or remedies and notwithstanding
any waiver by TM of any previous breach by the Merchant, TM
may suspend the Service for a period at TMÕs discretion in the
event that:
(i)
any fee and/or payment due hereunder for the Service provided
is not settled in full on due date;
(ii) in the event the Merchant fails to comply with the terms
and conditions of this Agreement;
(iii) for maintenance of TM's equipment and systems;
(iv) scheduled or unscheduled outages which causes interruption
to the Service.
11.2
For suspension of the Service due to Clause 10.1(i) and Clause
10.1(ii), TM may if it deems appropriate at it sole discretion
and upon such terms, as it deems proper reconnect the Service,
in which event this Agreement shall continue as if the same
has not been suspended. TM shall have the right to impose on
the Merchant a reconnection fee at a rate as specified by TM
form time to time.
11.3
For the avoidance of doubt, the abovementioned suspension exercise
shall not prejudice the right of TM to continuously bill the
Merchant for the subscription fees and/or recover all other
charges, costs, and interests due and any other incidental damages
incurred thereto.
12.
Termination
12.1
Without prejudice to any other rights or remedies of the parties
under this Agreement or at law, either party may terminate this
Agreement, if the other:
(i)
breaches any term, condition, undertaking or warranty under
this Agreement and such breach shall remain unremedied for a
period of thirty (30) days after receipt of the written request
to remedy the same;
(ii) becomes bankrupt or enters into any composition or arrangement
with or for the benefit of creditors or either party or allow
any judgment against either party to remain unsatisfied for
the period of twenty-one (21) days;
12.2
The Merchant may terminate the Service for breach due to TM
by giving at least fourteen (14) days written notice to TM and
such notice shall include Merchant's name, On-Line Site name,
Merchant Username and Password. TM will terminate the Service
within seven (7) days of receipt of notice. Merchant will be
responsible for the payment of any fees accrued prior to the
termination date. No fees already paid to TM will be refunded.
12.3
Without prejudice to any other rights or remedies of TM under
this Agreement or at law, TM may terminate this Agreement by
giving the Customer fourteen (14) days notice, in writing, if
the Customer:
(i)
fails to comply with TM's policy(ies) and/or instruction(s)
communicated to the Customer, in writing;
(ii) is in breach of any provision under Communication and Multimedia
Act, 1998 or any other rules, regulations, by-laws, acts, ordinances
or any amendments to the above.
12.4
Notwithstanding the above, TM may terminate the Service under
this Agreement immediately, without penalty, if:
(i)
the Merchant fails to make payment of Fees, Charges and/or any
sum due to TM within the stipulated time;
(ii)the Merchant fails to comply with the terms of this Agreement,
and TM, in its sole discretion is of the opinion that such breach
shall not be tolerated and shall not fall under provision of
Clause 10.1 (i) above;
(iii)
the Merchant provided false or incomplete information to TM;
(iv) due
to an event of Force Majeure which continues for a period of
more than sixty (60) days;
(v) the Merchant products or services do not meet acceptable
standards of decorum or contain any material that infringe any
proprietary right or is libelous or slanderous, is misleading
or is otherwise in violation of law or regulation or otherwise
inappropriate.
12.5
Such termination, as hereinbefore mentioned in Clauses 11.2
and 11.3, shall not prejudice the right of TM to recover all
charges, costs, and interests due and any other incidental damages
incurred thereto.
12.6
Subject to Clause 11 aforementioned, this Agreement may be terminated
by either Party upon thirty (30) days written notice to the
other Party.
12.7
TM shall not be liable to the Merchant for any claim for damages
or costs of any nature whatsoever arising out of discontinuance
of the Service or termination or expiration of this Agreement
in accordance with its term including but not limited to any
claim for loss of profits or prospective profits or for anticipated
loss.
13.
Consequences of Termination
Upon termination of this Agreement, TM shall promptly discontinue
providing the Service to the Merchant. All provisions regarding
indemnification, warranty, liability and limits thereon, and
confidentiality and/or protection of proprietary rights and
trade secrets shall survive indefinitely or until the expiration
of any time period specified elsewhere in this Agreement with
respect to the provision in question, and termination of this
Agreement shall not relieve the Merchant of its obligations
to pay accrued fees. In no event shall TM be required to refund
any fees paid under this Agreement.
14.
Confidentiality
(a)
TM shall not be responsible in assuring confidentiality of
the information and materials transmitted via the Services.
Any transmission of confidential information via the Services
shall be at the Merchant's own risk and TM shall not be held
liable.
(b)
Except with the prior written consent of TM, the Merchant
shall not at any time communicate to any person any confidential
information disclosed to him for the purpose of the provision
of the Services or discovered by him in the course of the
provision and performance of the Services.
(c)
TM has no obligation to monitor the Web Site. However the
Merchant agrees that TM has the right to monitor the Web Site
electronically from time to time and to disclose any information
as necessary to satisfy any law, regulation or other governmental
request in order to operate the Services properly, or to protect
itself or its customers. TM will not intentionally monitor
or disclose any private electronic-mail message unless required
by law. TM reserves the right to refuse to post or to remove
any information or materials, in whole or in part, that in
its sole discretion, are unacceptable, undesirable, or in
violation of this Terms and Conditions.
15.
Compliance with Applicable Laws
The
Merchant shall comply with and not to contravene all applicable
laws of Malaysia relating to the Services including but not limited
to Communication and Multimedia Act 1998 and its subsidiary legislation,
other Acts of Parliament, local by- laws, rules and regulations
issued by relevant Government Bodies and/or Authorities.
16.
Severability
If
at any time any provision, condition or term stipulated in this
Agreement is or becomes illegal, void, invalid, prohibited or
unenforceable in any respect, the same shall be ineffective to
the extent of such illegality, invalidity, prohibition or unenforceability
without invalidating in any manner the remaining provisions thereof.
17.
Force Majeure
TM shall not be liable for its breach in any of the terms and
conditions of this Agreement arising from the natural disaster,
rebellion or civil commotion, war or military operation, emergency,
government action, any industrial action, fire, lightning, explosion,
flood, heavy or inclement weather, acts or deeds of person or
group not commissioned by TM or other causes of its kind or otherwise
beyond the control or power of TM.
18.
Amendments or Variations
TM reserves the right to vary the terms and conditions herein
at any time and the Merchant will be informed of the said variation
by way of written notice by TM.
19.
Waiver
Any failure, delay or indulgence of TM to enforce any terms, conditions
or provisions of this Agreement shall not be construed as a waiver
of any of TM's right or as affecting the legality or validity
of all or any part of this Agreement or the right of TM to take
action later.
20.
Notice
Any notice which may be given or forwarded to the Merchant under
this Agreement shall be deemed to be properly delivered if it
is left at the Merchant_s premises at the address as stated in
the application form or if it is sent by ordinary post to the
address stated in the application form or any other last known
address of the Merchant.
Any
notice to be given to TM by the Merchant shall be sent by post
or legible facsimile to be followed by confirmation in writing
to the address and number as stated below or any other address
that may be informed by TM to the Merchant from time to time:
Telekom
Malaysia Berhad
Sales Division
3rd Floor, Kelana Parkview Tower,
No.1, Jalan SS6/2, Kelana Jaya,
47301 Petaling Jaya,
Selangor.
21.
Assignment
Save and except with the prior written consent of TM, the Merchant
shall not assign or transfer to any person, any interest or benefits
obtained from the Services. TM may assign or notate this Agreement
or any part thereof to any body corporate which is a subsidiary
of TM and consent for the above mentioned is hereby given by the
Merchant.
22.
Binding on Successors
This Agreement is binding upon the successors, executors, administrators,
and personal representatives and assign of the Merchant and upon
the substitute and assigns of TM.
23.
Solicitors Fees and Costs
If
the fees, charges, damages or any other monies due hereunder by
the Merchant to TM shall be required to be recovered through any
process of law, or if the said monies or any part thereof shall
be placed in the hands of solicitors for collection, the Merchant
shall pay (in addition to the said monies) TM's solicitors fees
(on a solicitor and client basis) and any other fees or expenses
incurred in respect of such collection. The Merchant will bear
the costs for stamping this Agreement
24.
Time
Time shall be the essence of this Agreement.
25.
Recourse
If the Merchant is dissatisfied with the Service, or with any
terms, conditions, rules, policies, guidelines or practices of
TM in operating the Service, the Merchant's sole and exclusive
remedy is to discontinue using the Service.
26.
Governing Law
This Agreement shall be governed by and construed in accordance
with the laws of Malaysia and the parties agree to submit to the
exclusive jurisdiction of the courts of Malaysia for the purpose
of hearing and determining any dispute arising out of this Agreement.
27.
Merchant 's Warranties and Acknowledgement
27.1
The Merchant hereby warrants that:
(i)
he has the legal capacity to enter into this Agreement and is
not a minor; and
(ii)(ii) if the Merchant is a body corporate, it has the required
corporate authority to enter, execute and be bound by the terms
and conditions of this Agreement.
27.2
The Merchant acknowledges that:
(i)
he has read and fully understood all the terms and conditions
herein upon signing the Application Form and agrees to be bound
by the same upon TM accepting the application;
(ii) the details and documents provided to TM together with
the Application Form are true, genuine and contain the latest
information and allows TM to conduct independent verification
of the same with any organization or body;
27.3
Notwithstanding the above, TM reserves the right to reject the
application or requires the Merchant to furnish further details
or documents as TM deems fit and necessary without reserving any
reason whatsoever.
27.4
The Merchant further acknowledges that:
(i)
(i) it is TM's policy to use the Merchant's data and personal
information acquired through the registration process or through
the Merchant's use of TM's products and services for its business
purposes.
(ii) (ii) TM may use the Merchant's personal information for
the internal purposes of customizing advertisements and content
on the website(s) and TM's partner sites, providing information
to the Merchant of other products and services available from
TM and its affiliate, processing and fulfilling Merchant request
for products and services, responding to Merchant enquiries,
conducting research for improvement of the Service and statistical
analysis and the general operation and maintenance of the Service
and its related website(s).
(iii)
TM may disclose the Merchant's personal information if required
to do so by law or in good faith, if such action is necessary
to:
(a)
(a) comply with any law enforcement agency, court orders
or legal process; and/or
(b) (b) protect and defend the rights or property of TM
and its users.
END OF CLAUSES
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