In this Agreement unless the context otherwise requires, the following definition shall apply.
“This Agreement” shall mean this agreement for the Service Made between Web ASP and/or Carrier and the Customer In accordance with the terms and conditions
“Web ASP” means Web ASP Sdn Bhd.
“Customer” means a person, company, partnership, joint venture, association whose application to
subscribe to the Service has accepted by Web ASP.
“Application for Serviceâ€ means the Customer’s duly completed application to subscribe to the Service In the form set out on the reverse side of this Agreement.
â€œServiceâ€ means the services subscribed by the Customer as indicated in the Application for Service.
“Web ASP’s Equipment” means equipment provided by Web ASP and/or the Carrier from time to time in order to provide the Service and including but not limited to dialers, cables, ducts and any other equipment which is the property of Web ASP and/or the Carrier. Web ASP’s Equipment does not include telephone sets or any other equipment purchased by the Customer from parties other than Web ASP and/or the Carrier which is connected to the Service.
“Customer’s Equipment” means the terminating equipment procured, installed and maintained by the Customer through which the Service is provided.
“Fixed Line Carrier” means the Customer’s telephone fixed line service provider(s) to which the Service is rendered.
â€œMobile Service Carrier” means the Customerâ€™s or the Customer’s designated employees’ mobile service line to which the Service is rendered.
â€œDepositâ€ means the refundable account deposit payable by the Customer as the security for the payment of call charges, service tax, service fees and other outstanding charges.
“Credit Limit” means the limit imposed on the Customer’s monthly usage charges for the Service by Web ASP from time to time at its sole discretion.
“Carrier” means licensed telecommunication carrier(s) to which Web ASP is/will be an authorised agent from time to time to procure new subscribers for the Carrier’s Service.
“Carrier’s Service” means the services provided by the Carrier that forms part of the Service.
2. DURATION OF AGREEMENT
2.1 This Agreement between the Customer shall take effect from the date of Web ASP’s acceptance of the Application for Service to subscribe for the Service (such acceptance shall be at Web ASP’s sole discretion) and shall continue unless terminated in accordance with the terms and conditions of this Agreement.
2.2 Customer agrees to maintain and keep the account active for a minimum continuous period of 12 months from the date of activation of the services.
3.1 The Customer shall pay to Web ASP the Deposit and any such other fees and charges as prescribed by Web ASP upon acceptance by Web ASP of the Application for Service to subscribe for the Service (wherever applicable).
3.2 The Deposit shall be held to Customer’s credit and repaid to the Customer free of interest after termination of this Agreement less any deduction of any amount due to Web ASP and/or the Carrier by the Customer.
3.3 Usage Charges payable for the Services shall be calculated by reference to data recorded or logged by Web ASP or the Carrier and not by reference to any data recorded or logged by the Customer.
3.4 The Customer shall pay all legal fees, stamp duties and such other charges, fees as may be prescribed by Web ASP and/or the Carrier for any registration, termination or re-registration or transfer or requisition in connection with the Service (wherever applicable).
3.5 All payments due by the Customer shall be paid promptly to Web ASP In accordance with the terms expressed in the Monthly Invoice issued by Web ASP and/or the Carrier and Web ASP may at its sole discretion charge interest on all late payments including the accrued interest thereon at the rate of 1% above Malayan Banking Berhad’s base lending rate calculated daily from the due date until payment. The Customer shall continue to be liable for such amounts notwithstanding the termination of the Agreement.
3.6 Any certificate of Web ASP and/or the Carrier as to monies owing by the Customer shall be conclusive evidence or proof that the amount appearing therein is due and owing and payable by the Customer to Web ASP.
4. CUSTOMER’S RESPONSIBILITIES
4.1 The Customer shall
4.1.1 notwithstanding any interruption or loss of Service, promptly pay to Web ASP (or to such Party that Web ASP may by written notice direct the Customer to pay) all amounts due from the activation of the Service in accordance with the payment terms expressed in the Monthly Invoice issued by Web ASP and/or the carrier and shall continue to be responsible and pay all fees and charges irrespective of whether such charges were authorised by the Customer, had exceeded the Credit Limit or had arisen from any other causes whatsoever;
4.1.2 report to Web ASP within twenty four (24) hours upon discovery of any fraud, theft, loss, unauthorised usage, abnormality of charges of the Customer’s Monthly invoice or occurrence of any irregular or unlawful nature in respect of the Service.
4.2 Subject to the terms and Clause 5.1. the Customer hereby grants to Web ASP, its employees, Carriers, agents or contractors the right to enter upon the Customer’s premises at all reasonable times for the duration of this Agreement to execute any works for or in connection with the supply, installation, maintenance, adjustment, repair, alteration, replacement, renewal or removal of Web ASP’s Equipment and or the Service or to disconnect the Service.
4.3 Any of Web ASP’s Equipment placed in Customer’s premises (if applicable) shall remain the property of Web ASP and/or the Carrier. The Customer shall be responsible for the safekeeping and proper use of Web ASP’s Equipment, in particular (without affecting the generality of the foregoing) the Customer undertakes:
4.3.1 not to cause Web ASP’s Equipment to be repaired or otherwise maintained except by an authorised representative of Web ASP and/or the Carrier.
4.3.2 not to remove, tamper with or obliterate any Identification mark(s) affixed to Web ASP’s Equipment or any part thereof.
4.4 The Customer shall be strictly liable for any loss or damage howsoever caused to any part of Web ASP’s Equipment (fair wear and tear only excepted) within the Customerâ€™s premises and undertakes to indemnity Web ASP and/or the Carrier against all such loss or damage. The Customer shall notify Web ASP Immediately of any such loss or damage.
4.5 The Customer shall be responsible for the procurement, installation and maintenance of the Customer’s Equipment and the procurement of licenses, permissions, consents, registration and approvals necessary for the Customer’s Equipment from parties other than Web ASP or its appointed agents. The Customer hereby warrants that the Customer’s Equipment shall be the type approved by Multimedia Commission and/or any organization which has taken over the approvals function of Jabatan Telekom Malaysia.
4.6 Any requests by the Customer to change, add or delete the Service or part thereof are subject to the prevailing charges imposed by Web ASP and/or the Carrier.
4.7 The Customer undertakes not to use or permit anyone else to use the Service:-
4.7.1 to send a message or communication which is offensive, abusive, indecent, obscene, or menacing; or
4.7.2 to cause annoyance, inconvenience or needless anxiety; or
4.7.3 in a manner which in the opinion of Web ASP and/or the Carrier may adversely affect the use of the Service by other customers of Web ASP and/or the Carrier or the efficiency of the Service as a whole; or
4.7.4 in a manner which is contrary to low.
4.8 Subject to terms of Clause 5.1, the Customer hereby agrees and authorises that if the provision of the Service requires the Customer’s Equipment to be modified. Web ASP may at the Customer’s expense:
4.8.1 attend to the modification through its agents or contractors; or
4.8.2 supervise the modification works done by the Customer’s agents or contractors. In this respect, Web ASP’s is authorised to deal directly with the Customer’s agents or contractors.
5. RIGHTS AND NON-LIABILITY OF Web ASP
5.1 Web ASP and/or the Carrier shall not be liable to the Customer or any third party or persons authorised or claiming through the Customer far any Ioss of or damage whether direct or indirect, special or consequential or loss of business revenue, profits or of any nature whatsoever or any injury caused to or suffered by any person or any personal property arising from:
5.1.1 any malfunction or defect in the Customer’s or Web ASP’s Equipment or the Service; or
5.1.2 the connection of any equipment to Web ASP’s Equipment; or
5.1.3 any claim for libel, slander, infringement of copyright arising from the transmission and receipt of material in connection with the Service and any claims arising out of any act or omission of the Customer and such third party in relation to the Service; or
5.1.4 any loss (whether of profit or otherwise) or damage caused to the Customer as a result of the suspension or termination of this Agreement, or suspension. Interruption or loss of the Service or any delay in providing the Service, howsoever caused.
5.1.5 any modification(s) done on the Customer’s Equipment by the Customer without Web ASP’s knowledge.
5.2 The Customer hereby agrees that Web ASP and/or the Carrier may at their sole discretion at any time and from time to time, vary any applicable charges for the Service or make any alteration to the Service, or vary, add or delete any of the terms and conditions contained in this Agreement upon giving prior written notice to the Customer.
5.3 Web ASP may share its database with any of its holding and/or related corporations (as defined in the Companies Act, 1965) in order to provide integrated services to its customers.
5.4 If the Service is to be ready for use by a date specified by the Customer or by Web ASP, such date shall be a tentative date only. Web ASP And/or the Carrier does not warrant, represent or guarantee that the Service will be ready for use by such date or accept any liability for failure to make available the Service at such date.
5.5 Web ASP may at any time without prior notice, set off, consolidate or combine accounts or transfer monies standing to the credit of the Customer’s Accounts with Web ASP or its related corporations (as defined in the Companies Act, 1965) towards the reduction of any sum due to Web ASP by the Customer under this Agreement.
5.6 The Customer shall indemnify and keep indemnified Web ASP and/or the Carrier in respect of any actions, claims, costs, damages, demands, expenses. losses, payments, penalties, liabilities made against, suffered or incurred by Web ASP and/or the Carrier arising directly or Indirectly out of or in any way connected with:-
5.6.1 any failure by the customer to comply with any of the provisions of this Agreement, or
5.6.2 any damage or personal injury as the case may be caused to or by Web ASP’s Equipment at the Customer’s premises or otherwise or by the Customer’s Equipment which is attributable in any way to the act or omission of the Customer or its authorised user; or
5.6.3 damage to or loss of Web ASP’s Equipment (if applicable) or any part thereof; or
5.6.4 any claims made or defence raised against Web ASP and/or the Carrier in respect of any or any alleged act, omission, misrepresentation or breach of contract by the Customer, or
5.6.5 any use of the Service by the Customer which infringes the law or the intellectual property, rights of any third parties or which is prohibited in this Agreement; or
5.6.6 any works undertaken by Web ASP and/or the Carrier and the Customer’s request pursuant to Clause 4.6: or
5.6.7 any termination or any consequences arising from the termination of the Service or this Agreement by Web ASP and/or the Carrier as a result of non-payment by the Customer.
5.7 Web ASP and/or the Carrier reserves the right at any time or from time to time without being liable to the Customer and or any third party whatsoever, to discontinue, disconnect, interrupt, terminate or suspend the Service for such period of time as Web ASP and/or the Carrier shall deem necessary or fit for the following reason, inter alia:-
5.7.1 Upgrading, modification, testing or alteration to the Service or any other service offered by Web ASP and/or the Carrier for its proper and effective functioning.
5.7.2 A breach of any terms and conditions of this Agreement by the Customer.
5.7.3 Where the Customer is adjudged as a bankrupt or commits an act of bankruptcy or in the case where the Customer is a company, is wound up or has a receiver or manager appointed.
6. CREDIT LOUT
6.1 Web ASP may at any time at its sole discretion set a Credit Limit for credit control purposes.
6.2 The Credit Limit shall operate as a threshold allowed for the total charges outstanding inclusive of unbilled charges. The Credit Limit shall be reviewed from time to time at the sole discretion of Web ASP. The Customer may make an application for a review of the Credit Limit but the discretion to allow any changes to the Credit Limit shall be at the sole discretion of Web ASP.
6.3 When the Credit Limit has been reached, Web ASP may at its sole discretion:-
6.3.1 bar or suspend the Service;
6.3.2 send the Customer a pre-recorded message notifying the Customer to remit payment In order to utilise the Service.
6.4 In amplification of the above, Web ASP reserves the absolute right and without giving notice and being liable to the Customer whatsoever to impose call barring, suspend, disconnect or terminate the Service or such action as Web ASP may deem necessary for its own credit control purposes (including imposing or Increasing the Deposit).
7.1 Web ASP may by giving fourteen (14) days written notice and without prejudice to any rights, claims or actions it may have against the Customer under this Agreement or in law Immediately discontinue the Service a part thereof or terminate this Agreement without having to give any reason whatsoever.
7.2 The Customer may terminate the Service or any part thereof by giving Web ASP fourteen (14) days prior notice in writing.
7.3 Notwithstanding the termination of the telephone line provided by the Fixed Line/Mobile Service Carrier, the Customer shall continue to be liable for all monthly service fees and any other charges in connection with the Service until the Customer gives Web ASP fourteen (14) days prior notice in writing.
7.4 Upon termination of the Service, Web ASP shall be entitled to enter upon the Customer’s premises to remove any of Web ASP’s Equipment (if applicable) or any part thereof. Such removal shall be undertaken at the Customer’s costs if the termination of the Service is upon the Customer’s request or due to any breach by the Customer of the terms and conditions set out herein. Upon termination of the Service, the Customer shall be liable to Web ASP and/or the Carrier for:-
7.4.1 the monthly service fees for the whole month preceding the termination;
7.4 .2 any call charges Incurred by the Customer up to and including the date of termination;
7.4 .3 any loss or damage to Web ASP’s Equipment: and
7.4.4 any other outstanding amounts.
7.5 Upon termination of the Service or part thereof or the Agreement, all monies payable by the Customer to Web ASP and/or the Carrier shall become immediately due and payable. The Customer shall upon demand settle all such amounts within the time period stipulated in the demand Issued by Web ASP and/or the Carrier or if no such demand is made, within 14 days of such termination.
7.6 Any termination of this Agreement shall be without prejudice to the rights and remedies of Web ASP and/or the Carrier nor than such termination affect any accrued rights of Web ASP and/or the Carrier under this Agreement or at law.
8. FORCE MAJEURE
8.1 Web ASP and/or the Carrier shall not be liable for any breach of this Agreement caused by an act of God, acts of terrorism, Insurrection or civil disorder, military operations, national or local emergency, acts or omissions of government highway authorities or other competent authority, industrial disputes of any kind, lightning, fire, explosion, flood, subsidence, inclement weather, acts of omissions of persons or bodies for whom Web ASP and/or the Carrier are not responsible or any other cause whether similar or dissimilar outside Web ASP’s and/or the Carrier’s control.
8.2 Upon the happening of a force majeure event, Web ASP and/or the Carrier may elect to terminate this Agreement or the Service or any part thereof thereby affected with or withoutprior notice to the Customer.
9.1 If any provision of this Agreement should be invalid, illegal or unenforceable under any applicable law, then the legality and enforceability of the remaining provisions shall not be affected or impaired in any way and such invalid, illegal or unenforceable part shall be deemed deleted.
10. GOVERNING LAW
10.1 This Agreement shall be governed by and construed in accordance with Malaysian laws and the Customer agrees to submit to the jurisdiction of the Malaysian courts.
11.1 Any notice to be given by Web ASP to the Customer under this Agreement must be in writing and sent to the last known address of the Customer.
11.2 Any notice to be given by the Customer to Web ASP under this Agreement must be in writing and sent to Web ASP at the address stated in the Application for Service or to any other address notified by Web ASP from time to time.
11.3 Any notice given pursuant to this clause shall be deemed to have been duly served if:
11.3.1 sent by prepaid registered post, on the second business day after the date of posting;
11 .3.2 sent by ordinary post on the fifth business day after the date of posting:
11.3.3 sent by facsimile transmission to the designated facsimile number stated overleaf in the Application for Service upon receipt;
11.3.4 hand delivered upon delivery.
12.1 Web ASP may assign the whole or part of this Agreement by giving the Customer written notice and the Customer agrees to make all or subsequent payments as instructed In such notice. The Customer shall not assign their rights and obligations under this Agreement without the prior written consent of Web ASP.
13.1 Failure by MoBif and/or the Carrier to exercise any or all its rights under this Agreement or any partial exercise of a right shall not act as a waiver of such rights and such right maybe exercised without having to watt for occurrences or re-occurrences of a similar or any other events giving rise to such rights.
14.1 The Customer shall upon executing this Agreement consent and permit Web ASP to use/disclose the Customer’s personal data for all purposes related to the provision of the Service including but not limited to data matching, transborder transfer of data, Call Line Identification Presentation (CLIP), Credit Checking and for any other purpose deemed to be in the interest of Web ASP.
15. THIRD PARTIES
15.1 Web ASP shall be entitled to perform any one or more of its obligations due under the provisions for the Service by appointing third parties to do so on its behalf.
16.1 The Customer hereby authorises Web ASP to verify any information stated in the Customer’s Application for Service and Customer Requirement Evaluation from any source as Web ASP deems necessary, and Web ASP reserves the right to reject and/or seek such further clarification from the Customer to establish the identity or credit worthiness of the Customer. Any such action taken by MoBif in pursuance of this shall not be considered defamatory or an Invasion of privacy nor be the subject of legal proceedings.
16.2 The Customer shall forthwith inform Web ASP of any change in the Customer’s particulars stated in the Customer’s Application for Service by notice in writing within 14 days of the date of such change.
16.3 The Application for Service, Customer Requirement Evaluation, Sales Proposal and Service Acceptance (upon acceptance by the Customer) relating to the Customer are and shall be incorporated into this Agreement by reference.
16.4 The Agreement shall be binding upon the successors in title and permitted assigns of the parties hereto.
16.5 The Customer shall pay all legal costs and expenses pertaining to this Agreement including the stamp duty payable thereon. The original stamped copy of the Agreement shall be retained by Web ASP.
16.6 In this Agreement, where the context so admits:
16.6.1 the singular number includes the plural number and vice versa;
16.6.2 the masculine gender Includes the feminine and neuter gender; and
16.6.3 an expression importing a natural person includes any company, partnership, joint venture, association, corporation or government agency.
16.6.4 Any reference or use of the expression â€Carrier” whether in these terms and conditions, Application for Service, Customer Requirement Evaluation, Sates Proposal and Service Acceptance (or in any document concerning the Service) shall only apply and interpreted in respect of the Carrierâ€™s Services.