PLEASE
READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE YOU SIGN UP FOR THE
STREAMYX 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 STREAMYX SERVICE PROVIDED BY
TELEKOM MALAYSIA BERHAD (¡°TM¡±). TM RESERVES THE RIGHT TO UPDATE OR REVISE THESE
TERMS AND CONDITIONS FROM TIME TO TIME. TM MAY GIVE NOTICE OF AMENDMENT TO THE
CUSTOMER IN SUCH A MANNER AS TM DEEMS NECESSARY AND APPROPRIATE. CONTINUATION IN
THE ACCESS OR USE OF THE STREAMYX SERVICE SIGNIFIES ACCEPTANCE OF THE CHANGES TO
THESE TERMS AND CONDITIONS WITH REGARD TO THE STREAMYX
SERVICE.
1.
The Service
TM is a
company which is involved, amongst others in the provision of telecommunications
and multimedia products and services and is desirous at the request of the
Customer to provide to the Customer, Streamyx Service ("the Service" as
hereinafter defined) on TM¡®s network, which will allow the Customer the access
to Internet on the terms and conditions set forth herein, as may be amended from
time to time by TM).
2.
Definitions
"Activation Date" means the date on
which the Service and User Account (hereinafter defined) are activated for the
Customer by TM as more particularly described in Clause 3.2
hereunder.
"Agreement" means the completed Application Form (and its attachment(s)) and
the terms and conditions herein
contained.
"Application Form" means the
application form to which these terms and conditions are attached requesting
particulars from an applicant offering to become a Customer (hereinafter
defined) and furnishing the required and genuine information. Such application
form and these terms and conditions shall form the Agreement.
"Customer" under this Agreement shall
mean a natural person other than a minor and shall include corporate body,
partnership, associations, company, government and/or non-government organisation whose application to enter into this Agreement
is accepted by TM and shall include his successors and permitted assigns
and is synonymous with the term "subscriber" or "applicant" wherever used in
other correspondence or documents.
"Commencement Notice" means the notice
issued by TM to the Customer specifying the date of commencement of the Service.
The Commencement Notice shall also contain the Customer¡¯s Internet Protocol (IP)
address or login name and password, as the case may be.
"Leased Equipment" means the equipment
which may include but not limited to modem provided by TM on lease basis to
enable usage of the Service by the Customer, as may be decided by TM from time
to time at its sole discretion.
"Minimum Subscription Period" means
the minimum period of twelve (12) months for subscription of the Service by the
Customer or such other minimum period for subscription of the Service as may be
determined by TM from time to time, and as more particularly described in Clause
4 herein.
¡°Quarantine
Period¡± means a
period where the service number is blocked from re-registration in provisioning
system.
"Registration Date" means the
effective date of this Agreement which is the date upon which TM approves the
Customer¡¯s application for the Services, as more particularly described in
Clause 3.1 herein.
"TM" means TELEKOM MALAYSIA BERHAD (Company No.
128740-P), a company incorporated under the laws of Malaysia and having its
registered address at Level 51, North Wing, Menara TM,
Jalan Pantai Baharu, 50672
Kuala Lumpur (¡°TM¡±).
"Streamyx Service" (or the "Service") means a high speed
Internet access service which provides connection to the internet with speeds
ranging from 384kbps up to 4Mbps.
"User Account" means an account under
the name of the Customer in relation to the Service subscribed by the Customer.
Word and
expressions donating the singular include plural numbers and words and
expressions denoting the plural shall include the singular number unless the
context otherwise requires.
Word
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.
3.
Agreement Period
3.1
This
Agreement shall be effective after execution of the Application Form by the
Customer and upon the acceptance of the Application Form together with the
required attachments hereunder and the registration thereof by TM ("Registration
Date"). TM shall reserves the right to decline any application without assigning
any reason thereto.
3.2
The
Service and Minimum Subscription Period shall commence after the successful
completion of the Service installation, whether by TM, its appointed contractor
or the Customer himself (as applicable) and upon the date on which the Service
is activated for the Customer by TM ("Activation
Date").
4.
Minimum Subscription
4.1
The
Customer shall subscribe to the Service for a period of not less than the
Minimum Subscription Period of twelve (12) months or in the event of any
promotion held by TM for the Service, such other minimum subscription period as
may be applicable to the relevant promotions as may be prescribed by TM from
time to time.
4.2
This
Agreement shall remain in full force and effect for the duration of the Minimum
Subscription Period and upon expiry of the Minimum Subscription Period, this
Agreement will automatically be renewed on a monthly basis unless earlier
terminated by either Party hereto in accordance with the provisions of this
Agreement.
5.
Application for the Service
5.1
The
Customer may apply for the Service online and offline. Where the Service is
applied online, the Customer is still required to submit the relevant documents
prescribed under Clause 5.3 herein to TM within reasonable period of the
application.
5.2.
Upon
submission of the Application Form (whether online or offline), the Customer
shall ensure that all information (and documents) submitted to TM for the
purpose of subscribing to the Service (including information requested to be
submitted with the Customer¡¯s Application Form or information upon TM¡¯s request)
are accurate, true, current and complete and the Customer hereby undertakes to
inform TM of any updates to such information in the event of any changes
thereto.
5.3
The
Customer is required to submit to TM the following supporting documents together
with the Customer¡¯s signed and completed Application Form:
For
Malaysian:
(i)
Individual - a copy of the individual¡¯s identity card (both
sides);
For
Non-Malaysian:
(i)
Individual - a copy of the Customer¡¯s passport;
5.4
In
order to subscribe and establish connection to the Service, the Customer may use
the Leased Equipment provided by TM or his own equipment to be connected to the
Customer's telephone line to enable usage of the Service.
6.
Service Availability
6.1
Upon
receipt by TM of all the supporting documents specified in Cclause 5.3 hereof, TM shall register the Customer¡¯s
application and verify and confirm availability of the Service at the Customer¡¯s
designated address as stated in the Customer¡¯s Application Form ("Designated
Address").
6.2
In the
event that the Service is not available in the Designated Address, TM may inform
the Customer and the Customer¡¯s application will be kept in TM¡¯s record as a
waiter pending availability of the Service at the Designated Address. Where the
Customer¡¯s application is recorded as a waiter, TM makes no guarantee or
warranty to the Customer that the Service will become available at the
Designated Address, and TM shall not be held liable or responsible in the event
that TM are unable to provide such Customer with or facilitate availability of
the Service at the Designated Address.
6.3
In the
event that the Service is available at the Designated Address, TM shall
forthwith fix an appointment for and carry out the installation of the Service
for the Customer in accordance with the provisions of Clause 7 hereof, unless
specified otherwise (please see additional terms and conditions for Streamyx
without modem package and Streamyx In-A-Box package attached hereto, as
applicable).
6.4
For
avoidance of doubt and subject to Clause 8.5 hereof, TM shall not be responsible
or liable for any problem arising between the Customer and TM in its capacity as
the telephone line providers that may affect the availability of the Service. If
there should be any interruption or termination of the Customer¡¯s fixed
telephone line account by TM, this will affect the availability of the Service
in which event, TM reserves the right to terminate the Service
accordingly.
7.
Installation
& Account Activation
7.1
Unless otherwise arranged or provided to the Customer, TM and/or it¡¯s appointed contractor shall fix an appointment date with
the Customer for installation of the Service at the Designated Address by TM
and/or its appointed contractor, subject to the Customer confirming the
readiness and availability of all the following basic equipment required for the
Service:
1.
Telephone
line through TM fixed line only;
2.
AC power
supply for Streamyx modem;
3.
Hubs,
Routers, Servers (for Networking purposes);
4.
Internal
wiring;
5.
Personal
computer (with
6.
DSL
Modem (if modem is not leased from TM as part of the package
subscribed);
7.
Approval
in writing of the developer or building management corporation or the building
owner, in the event that the Customer¡¯s premise is located at the high rise
building that need the said approval for the installation of the Service;
and
8.
Any
other requirement as TM may notify to the Customer from time to
time.
7.2
Upon
TM¡¯s satisfaction that the Customer is ready with all the basic equipment
required for the Service as specified in Clause 7.1 above, TM and/or its
appointed contractor shall confirm the appointment date and TM and/or its
appointed contractor shall carry out the installation of the Service at the
Designated Address within twenty four (24) hours from TM¡¯s confirmation thereof,
at such time as may be agreed by the Parties.
7.3
In
the event that the Customer is not ready with the basic equipment as required in
Clause 7.1 above, TM may at its sole discretion allow the Customer to defer the
installation date for a period of fourteen (14) days. If after such fourteen
(14) days period, the Customer is still not ready with the basic equipment, TM
may in its absolute discretion cancel the Customer¡¯s registration for the
Service, unless the Customer submits a request in writing to TM within the said
fourteen (14) day time frame to further defer the installation date for the
Service and TM approves the same. Any such cancellation of the Service shall be
at the Customer¡¯s own cost. The Customer may reapply for the Service subject to
availability of the Service at the relevant point in time.
7.4
Notwithstanding anything to the contrary in this Agreement, where the
Customer subscribes to either the Streamyx without modem package or Streamyx
In-A-Box package, the User Account and the Service will be activated
automatically by TM after seven (7) days from the Service registration date
without notice to the Customer and the fees for such Service shall become due
and payable to TM upon such Activation Date. The Customer is solely responsible
for ensuring that the Streamyx without modem package or Streamyx In-A-Box
package is properly installed at the Designated Address prior to such Activation
Date. In the event that the Streamyx without modem package or Streamyx In-A-Box
package is couriered to the Customer then the User Account shall only be
activated automatically after ten (10) days from the Service registration date
without notice to the Customer. For Customers of the Streamyx without modem
package or Streamyx In-A-Box package, Clauses 7.1, 7.2 and 7.3 hereunder will
not apply.
8.
Fees
8.1
The fees
for the Service shall be at the applicable rate indicated in the Application
Form or such rates as may be prescribed and informed to the Customer by TM from
time to time.
8.2
The Fees
shall be continuously chargeable and payable by the Customer upon connectivity
of the Internet access to the Customer¡¯s Equipment regardless of the
usage.
8.3
Save and
except as otherwise provided in this Agreement, payment of the fees for the
Service shall be payable in advance from the Activation Date. The Customer shall
be liable for and shall promptly pay to TM, within the time period specified in
TM¡¯s bill for the Service, all charges, fees, rentals, costs or other amounts
whatsoever as shown in TM's bill, notwithstanding that the Customer may dispute
the same for any reason(s) whatsoever.
8.4
In the
event of suspension or termination of the User Account at any time during the
Minimum Subscription Period, except where such termination arises from TM¡¯s
breach or fault or an event of Force Majeure, then the
Customer shall be liable to pay to TM all fees for the Service outstanding to TM
from the date of such suspension or termination until the end of the Minimum
Subscription Period.
8.5
In the
event that the telephone line used as a medium to connect to the Service is
disconnected for any reason whatsoever, the Customer shall continuously be
responsible to pay the monthly subscription fee for the
Service.
9.
Payment
9.1
In
the event the amount stated in TM's bill or any part thereof remains unpaid
after the due date, TM reserves the right to charge the Customer interest on the
sum that remains unpaid as aforesaid at the rate of 1.5% per month to be
calculated from the due date to the date of full payment.
9.2
The
billing date will commence from the Activation Date.
9.3
TM
will issue the bill on monthly basis and the Customer is obligated to do
reasonable inquiry in the event that he has not received the bill within the
expected period. The Customer hereby acknowledges that non-receipt of any
statement of account, bill, statement or any correspondence in relation to the
Service subscribed shall not be a valid reason for the Customer to withhold or
delay any outstanding payments to TM for the Service.
10.
Alteration/Modification
Any
alteration/modification/restoration/investigation to the Service or Service
configuration, and/or relocation of the Service based on the Customer's request
is chargeable to the Customer at a rate as specified in the Application Form or
any other rate as may be specified by TM from time to time.
11.
Change of Service Package Plan
11.1
The
Customer is not allowed to downgrade the Service package plan during the Minimum
Subscription Period.
11.2
Subject
to Clause 11.3 and 11.4 hereinafter mentioned, the Customer may upgrade the
Service package plan during the Minimum Subscription
Period.
11.3
Any
request by the Customer for upgrades or downgrades of his Service package plan
after the Minimum Subscription Period shall be subject to TM¡¯s written approval
which consent shall not be unreasonably withheld. For any allowable upgrades or
downgrades as aforementioned, installation, activation and any other applicable
fees will be charged to the Customer at a rate specified by TM from time to
time.
11.4
The
Customer may request for upgrades of his Service package plan at any time during
the Term of this Agreement subject to the upgrade rate as may be prescribed by
TM which shall be payable upon such application to upgrade. For the avoidance of
doubt, in the event of termination of the Service before the expiry of the
Minimum Subscription Period, the Customer shall be liable to pay the upgrade
rate of Service fees for the remainder of the Minimum Subscription
Period.
12.
Customer's Responsibilities
12.1
The Customer
shall:
(i)
be
responsible for the set-up or configuration of his own equipment for access to
the Service;
(ii)
ensure
his readiness for installation of the Service on the appointment date in
accordance with Clause 7 hereof;
(iii)
comply
with all notices or instructions given by TM from time to time in respect of the
use of the Service;
(iv)
be
solely responsible for obtaining, at his own cost, all licences, permits, consents, approvals, and intellectual
property or other rights as may be required for using the
Service;
(v)
comply
with the rules of any network to which the Customer has access through the
Service;
(vi)
comply
with and not contravene any and all applicable laws and regulations of
(vii)
be
solely responsible for all information retrieved, stored and transmitted by the
Customer through the use of the Service;
(viii)
obtain
TM's prior approval before making any changes to the network configuration and
interconnecting the private network to any public network;
(ix)
be
responsible for ensuring that the Customer¡¯s personal computer is equipped with
network card;
(x)
provide
basic infrastructure for installation of the Leased Equipment including but not
limited to internal wiring and in the event that the Customer is not leasing the
Leased Equipment from TM, the Customer shall be responsible for purchasing the
equipment at his own cost to enable connectivity of the
Service;
(xi)
pay and
settle all fees and any other charges due to TM in accordance with this
Agreement;
(xii)
abide
and adhere to the terms and conditions of this Agreement;
and,
(xiii)
be
responsible to maintain in good condition any Leased Equipment by TM. In the
event any of the Leased Equipment is faulty, lost or damaged due to any fault or
negligence of the Customer, the Customer will have to bear the cost of the
Leased Equipment according to its depreciated value that shall be determined by
TM.
13.
Prohibited Use
13.1
The Customer
shall:-
(i)
not use
the Service for any unlawful purpose including without limitation for any
criminal purposes;
(ii)
not use
the Service to send unsolicited electronic messages or any message which is
obscene, threatening or offensive on moral, religious, racial or political
grounds to any person including a company or a
corporation;
(iii)
not
compromise or infect any systems with computer viruses or
otherwise;
(iv)
not
infringe any intellectual property rights of TM, its related companies and
subsidiaries or any third party;
(v)
not gain
unauthorised access to any computer system connected
to the Internet or any information regarded as private by any person including a
company or corporation;
(vi)
not
share the Service with any person including a company or corporation without the
prior written approval of TM and shall use the Service only for the purpose for
which it is subscribed;
(vii)
not
resell or sublet the Service to any third parties without prior written consent
from TM; and,
(viii)
not use the
Service in any manner, which in the opinion of TM may adversely affect the use
of the Service by other Customers or efficiency or security as a
whole.
14.
Security and Other Features
14.1
The Customer
shall take all such measures as may be necessary to protect his own system and
network.
14.2
The Customer
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 user identification is
necessary to access the Service, the Customer shall use only his user
identification.
14.3
The Customer
shall report to TM within twenty four (24) hours if the User Account, user
identification or password is stolen or lost. Until such report has been made,
the Customer shall be responsible for all transactions and access to the Service
using the User Account, user identification or password by any third party and
TM shall not be held responsible for any prohibited and/or unauthorised use of the Service as provided in this
Agreement.
15.
Leased Equipment
15.1
In connection
with any Leased Equipment that may be provided by TM for use of the Service the
Customer shall:
(i)
take
appropriate measures to safeguard the Leased Equipment;
(ii)
properly
maintain and keep the Leased Equipment at a safe place;
(iii)
adhere
to all instructions and notice (written or otherwise) given by TM from time to
time regarding the use of such Leased Equipment;
(iv)
be
responsible for all costs of repairs incurred in relation to the Leased
Equipment in the event it is proven that any fault in such Leased Equipment
whether by act or omission is caused by the Customer;
(v)
return
and surrender the Leased Equipment to TM in the same condition as and when it
was first provided to the Customer, normal wear and tear excepted, upon
termination of the Service;
(vi)
be
liable to pay TM for any Leased Equipment which the Customer fails to return or
surrender to TM upon termination of the Service;
(vii)
not hold
TM liable in the event that the Customer¡¯s own equipment and/or other devices is
damage due to including but not limited to floods, fire and lightning strike
whilst using the Leased Equipment; and
(viii)
not hold
TM liable or responsible in the event that TM are unable to replace or change
the Leased Equipment to a similar model or type as the Customer¡¯s existing
Leased Equipment and TM reserves the right to replace the Leased Equipment to
any model or type available at the relevant time, at TM¡¯s sole
discretion.
15.2
In the event of
any interruption, loss or unavailability of the Service and/or any technical
faults encountered with the Leased Equipment, the Customer may request for
technical support and basic troubleshooting of the same from TM. Upon visiting
the Customer¡¯s premises, if TM and/or its appointed contractor determines that
such interruption, loss or unavailability of the Service is not attributable to
or caused by any fault in the Leased Equipment or TM¡¯s network, then TM reserves
the right to impose charges at the rate as specified in the Application Form or
any other rate as may be prescribed by TM from time to time for the visit to the
Customer¡¯s premises.
16.
Customer¡¯s Equipment Installation
16.1
The Customer
shall prepare all applicable Customer¡¯s equipment at
the Designated Address in accordance with Clause 7 herein and/or any other
specifications TM may provide to the Customer in relation to the Service. The
Customer shall further ensure that the said Customer¡¯s equipment are in good
condition and has proper set-up for purposes of installation of additional
configuration and installation of software to the said Customer¡¯s equipment by
TM.
16.2
The installation
of the configuration and software for the Customer¡¯s equipment can be conducted
by the Customer themselves as per TM¡¯s guidelines. The Customer acknowledges
that such installation shall be at the Customer¡¯s own
risk.
16.3
In the event that
the Customer¡¯s premise is located at the high rise building that need the
approval of the developer or the building management corporation or the building
owner for the installation of the Service, as the case may be, the Customer
shall ensure that he has obtained such consent to enable TM and/or its appointed
contractor to do the installation without any disruption.
16.4
TM shall not be
liable in any way whatsoever for any loss or damage to any property or injury to
any person howsoever caused, whether negligent or otherwise arising out of any
installation and/or configuration where such task is conducted by the
Customer.
16.5
TM and/or its
appointed contractor shall not be liable or responsible for any technical
problem, loss, interruption or unavailability of the Service, or other loss or
damage suffered by the Customer which arises from or is caused by the Customer¡¯s
equipment, whether connected to TM¡¯s equipment or
otherwise.
16.6
In the event the
Customer requests for TM¡¯s appointed contractor to conduct further technical
investigation for the purpose of identifying and/or rectifying any problem
arising from the Customer¡¯s equipment and TM¡¯s appointed contractor agrees to
render such assistance, TM will not be involved or responsible for any fees or
charges for such additional support services which TM¡¯s appointed contractor may
impose on the Customer. TM shall not be liable or responsible for any loss or
damage suffered by the Customer howsoever caused, whether negligent or otherwise
arising out of the provision of additional support services to the Customer
and/or in relation to the Customer¡¯s equipment by any appointed
contractor.
17.
Lawful Purpose
The
Customer shall only use the Service for lawful purposes. Transmission of any
material in violation of any international, federal, state or local laws or
regulations 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.
18.
Suspension of Service
18.1
Without prejudice
to any other rights or remedies and notwithstanding any waiver by TM of any
previous breach by the Customer, TM may suspend the Service for a period
determined by TM in its sole discretion in the event that:
(i)
any fee
and/or payment due hereunder for the Service provided is not settled in full on
due payment date;
(ii)
in the
event the Customer fails to comply with the terms of this
Agreement;
(iii)
any
scheduled or unscheduled outages occur which cause interruption to the Service,
including but not limited to maintenance of TM¡¯s equipment or
systems.
18.2
In the event of any suspension of the Service by TM in
accordance with Clause 18.1(i) and Clause 18.1(ii) hereof, TM may if it deems
appropriate at it sole discretion and upon such terms, as it deems proper
reconnect the Service, in which event the Service and this Agreement shall
continue in effect as if the Service had not been suspended. TM shall have the
right to impose on the Customer a reconnection fee at a rate as specified by TM
from time to time.
18.3
For the avoidance
of doubt, the abovementioned suspension exercise shall not prejudice the right
of TM to continuously bill the Customer for the subscription fees and/or recover
all other charges, costs, and interests due and any other incidental charges
incurred during the period of suspension. In the event of non-payment by the
Customer and subsequent suspension of the Customer¡¯s Service by TM, the Customer
will still be liable to pay the fees for the Service during the period of
suspension. Further where the Customer defaults in payment, TM may at its
discretion charge the Customer a reconnection fee for the Service at the rate
stated in the Application Form or any other rate as may be prescribed by TM from
time to time.
19.
Change of Customer¡¯s Details
The
Customer undertakes to inform TM of any change of the Customer¡¯s information
provided earlier to TM within fourteen (14) days of such changes. Failure by the
Customer to notify TM of such changes shall be a waiver of the Customer¡¯s right
including the right to be notified under this Agreement as the case may be.
20.
Termination
20.1
Without prejudice
to any other rights or remedies of the parties under this Agreement or at law,
either party may terminate this Agreement, in the event:
(i)
the other 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)
the other 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; or,
(iii)
any event of Force Majeure occurs
as specified in Clause 31 hereof, which continues for a period of more than
sixty (60) days.
20.2
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; or,
(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.
20.3
Notwithstanding
the above, TM may terminate the Service under this Agreement immediately,
without penalty, if:
(i)
the
Customer fails to make payment of fees, Charges and/or any sum due to TM within
the stipulated time. Notwithstanding the termination by TM, the Customer shall
remains liable for all fees due and owing to TM during the Minimum Subscription
Period.
(ii)
the
Customer 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 20.1 (i) above; and/or,
(iii)
the
Customer provided false or incomplete information to TM.
20.4
Such termination,
as hereinbefore mentioned in Clauses 20.2 and 20.3, shall not prejudice the
right of TM to recover all charges, costs, and interests due and any other
incidental damages incurred thereto.
20.5
Subject to Clause
4 and Clause 8.3 aforementioned, this Agreement may be terminated by either
party upon thirty (30) days written notice to the other party.
20.6
Upon termination
of the Service or the Agreement, all monies owing by the Customer to TM shall
immediately become due and payable and the Customer shall upon demand by TM
settle all amounts within the time stipulated by such demand. The Customer shall
forthwith return the Leased Equipment (if any) to TM in a good condition (fair
wear and tear excepted).
20.7
Subject to Clause
20.5 aforementioned, any termination (based on service number) shall be subject
to thirty (30) days Quarantine Period from the termination date.
20.8 Any fee and/or
charge paid by the Customer to TM pursuant to this Agreement shall not be
refundable upon termination of the Service by the
Customer.
20.9 TM shall not be
liable to the Customer 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.
21.
Disclaimer
21.1
The Service is
provided on an "as is" basis. TM makes no warranty of any kind, either expressed
or implied, and expressly disclaims all implied warranties, including, but not
limited to warranties of accuracy of the Service and/or the Leased Equipment for
a particular purpose of the Customer.
21.2
TM shall not be
liable to the Customer for any direct and incidental loss, cost, claim,
liability, expenses, demands or damages whatsoever (including any loss of
profits, loss of savings or incidental or consequential damages), arising out of
the Customer¡¯s failure or inability to use such Leased Equipment provided by TM
hereunder. TM¡¯s liability (if any) is limited to restore and if necessary to
replace the Leased Equipment if TM decides that the Leased Equipment is not in
working conditions or faulty not due to the Customer¡¯s act or
omission.
21.3
TM shall not be
liable in the event that the Customer¡¯s own equipment and/or other devices is damage due to Force Majeure
Event including but not limited to floods, fire and lightning strike while using
the Service. TM¡¯s liability (if any) during installation and/or restoration of
any reported faulty of the Leased Equipment shall not cover the wiring or
cabling connecting the Leased Equipment or the Customer¡¯s equipment and the
building management corporation or the building owner power
house.
21.4
TM shall not be
liable to the Customer for any loss or any damages sustained by reason of any
disclosure, inadvertent or otherwise in any information concerning the User
Account particulars.
21.5
While every care
is taken by TM in the provision of the Service, TM shall not be liable for any
loss of information howsoever caused whether as a result of any interruption,
suspension, or termination of the Service or otherwise, or for the contents
accuracy or quality of information available, received or transmitted through
the Service.
21.6
The Customer
shall be solely responsible, and TM shall not be liable in any manner
whatsoever, for ensuring that in using the Service all applicable laws, rules
and regulations for the use of any telecommunications systems, service or
equipment shall be at all times complied with.
22.
Indemnity
22.1
The Customer
undertakes and agrees to indemnify, save and hold harmless TM at all times
against all actions, claims, proceedings, costs, losses and damages whatsoever
including but not limited to libel, slander or infringement of copyright or
other intellectual property rights or death, bodily injury or property damage
howsoever arising which TM may sustain, incur or pay, or as the case may be,
which may be brought or established against TM by any person including a company
or corporation whomsoever arising out of or in connection with or by reason of
the operation, provision or use of the Service and/or equipment under and
pursuant to this Agreement and which are attributable to the act, omission or
neglect of the Customer, his servants or agents.
22.2
TM shall use its
best endeavours to ensure the continuity and
efficiency of the Service at all times but shall not be liable for any loss,
damage, consequential or otherwise, arising out of any failure of the Service
caused unless such default, error, omission or loss is due to the willful
neglect or fault of TM. Notwithstanding the aforementioned, the extent of TM¡¯s
liability shall be limited to correcting the failure of the Service
only.
23.
Confidential Information
Save and
except with the prior written consent of the other Party, either Party shall not
at any time communicate to any person any confidential information disclosed to
him for the purpose of the provision of the Service or discovered by him in the
course of the provision and performance of the Service. For the avoidance of
doubt, TM may disclose any confidential information in regards to this Agreement
to Telekom Malaysia Berhad and its affiliates in its ordinary course of business
and/or on need to know basis as the case may be.
24.
Compliance with applicable laws
The
Customer shall comply with and not to contravene any and all applicable laws and
regulations of Malaysia relating to the Service or otherwise, 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.
25.
Variation
TM shall
reserves the right to amend the terms and conditions herein contained and/or the
specific terms at any time and the Customer shall be bound by the amended terms
and conditions. Notice of the amendment may be given by TM to the Customer in
such manner as TM deems appropriate.
26.
Severability
If any
provision herein contained should be invalid, illegal or unenforceable under any
applicable law, such provision shall be fully severable and this Agreement shall
be construed as if such illegal or invalid provision had never comprised a part
of this Agreement and the legality and enforceability of the remaining
provisions of this Agreement shall not be affected or impaired in any way.
27.
Assignment
The
Customer shall not assign any of his rights or obligations under this Agreement
to any other person whatsoever except with prior written approval of TM. TM may
assign or novate this Agreement or any part thereof to
any body corporate which is a parent company, subsidiary or related company of
TM and consent for the abovementioned is hereby given by the Customer.
28.
Binding on Successors
These
terms and conditions shall binding upon the successors, executors,
administrators, personal representatives and assign of the Customer and upon the
substitute and assigns of TM.
29.
Indulgence and waiver
29.1
No delay or
indulgence by TM in enforcing any term or condition of this Agreement or
granting of time by TM to the Customer shall prejudice the rights or powers of
TM under this Agreement or at law.
29.2
Failure by TM to
exercise any part or all of its rights under the terms and conditions of this
Agreement or any partial exercise shall not act as a waiver of such right nor
shall any waiver by TM of any breach constitute a continuing waiver in respect
of any subsequent or continuing breach.
30.
Notice
All
notices, requests or other communications required or permitted to be given or
made hereunder shall be in writing and delivered either by hand, or sent by
prepaid registered post or legible telefax addressed
to the Party at his address set out in the application form for the Service or
to such other address or facsimile number as any Party may from time to time
duly notify to the other Party. Such notices, requests or other communications
shall be deemed to have been given by facsimile immediately after transmission
thereof or if sent by post, forty-eight (48) hours after
posting.
31.
Force
Majeure
Neither
party shall be liable for any breach of this Agreement arising from cause beyond
its control including but not limited to Acts of God, insurrection of civil
disorder war or military operations, national or local emergency, acts or
omissions of government, highway authority or other competent authority,
industrial disputes of any kind (whether or not involving either party¡¯s
employees), fire, lightning, explosion, flood, subsidence, inclement weather,
acts or omissions of persons or bodies for whom neither party is responsible or
any other cause whether similar or dissimilar outside either party's control.
The parties hereby agree that either party may terminate this Agreement, by
giving fourteen (14) days notice to the other party, in the event that the Force
Majeure event which has occurred prevents either party
from performing and/or continuing its obligations for more than a period of
sixty (60) days.
32.
Governing Law
This
Agreement shall be governed and construed in accordance with the laws of
33. Costs
and Taxes
33.1
The Customer shall bear the stamp
duty on this Agreement.
33.2
Any cost incurred in relation to
preparation and legal vetting of this Agreement shall be borne by the Parties
respectively.
33.3
The Customer shall bear all
Government taxes, levies and other costs imposed by law in relation to the
provision of the Service by TM. In particular, where Goods and Service Tax
(¡°GST¡±) is applicable to TM as the supplier under this Agreement, TM is entitled
to charge the GST payable to the Government on the Service and/or any TM
services or equipment supplied to the Customer.
33.4 If TM is liable
for GST as contemplated by Clause 33.3 then:
(i)
TM shall:
-
provide
to the Customer information that may be reasonably required to establish its
liability for GST; and
-
provide
such information and documents as may reasonably be required by the Customer to
enable the Customer to claim an input tax credit under the law applicable to GST
; and
(ii)
where a taxable supply has been made and
consideration charged but the applicable GST has not been charged, the increase
in the consideration required by clause 33.3 shall be paid by the Customer.
33.5 If the fees,
charges, damages or any other monies due hereunder by the Customer 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
Customer shall pay (in addition to the said monies) TM¡¯s solicitors fees and any
other fees or expenses incurred in respect of such collection as may be
determined by the Court of law.
34.
Customer¡¯s Warranties and Acknowledgement
34.1
The Customer
hereby warrants that:
(i)
he has
the legal capacity to enter into this Agreement and is not a minor;
and
(ii)
if the
Customer is a body corporate, it has the required corporate authority to enter,
execute and be bound by the terms and conditions of this
Agreement.
34.2
The Customer
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;
34.3
Notwithstanding
the above, TM shall reserves the right to reject the application or require the
Customer to furnish further details or documents as TM deems fit and necessary
without assigning any reason whatsoever.
34.4
The Customer
further acknowledges and agrees that:
(i)
It is
TM¡¯s policy to use the Customer¡¯s data and personal information acquired through
the registration process or through the Customer¡¯s use of TM¡¯s products and
services for its business purposes.
(ii)
TM may
use the Customer¡¯s personal information for the internal purposes of customising advertisements and content on the website(s) and
TM¡¯s partner sites, providing information to the Customer of other products and
services available from TM and its affiliate, processing and fulfilling Customer
request for products and services, responding to Customer 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 will
disclose the Customer¡¯s personal information if required to do so by law or in
good faith, if such action is necessary to:
(a)
comply
with any law enforcement agency, court orders or legal process; and/or
(b)
protect and
defend the rights or property of TM and its users.