|1.||DEFINITIONS AND INTERPRETATION|
In these Main Terms and Conditions, the following words and expressions shall have the meaning ascribed to them below unless otherwise stated herein: -
|Agreed Holidays |
means any day which is declared by the government of Malaysia as a national public holiday or state in Selangor
|Business Day ||means any day which is declared by the government of Malaysia as a national public holiday or state in Selangor means any working day excluding Saturdays, Sundays and Agreed Holidays in the state of Selangor in Malaysia.|
|Commencement Date ||means the agreed date from which the Content is made available to Digi’s Customers as specified in Proposals.|
|Confidential Information||means the confidential information of the Parties which relates to the subject matter of these Main Terms and Conditions or information, material and data which may be deemed by either Party and brought to the attention of the other Party to be confidential from time to time and confidential information may include but is not limited to information which relates to :-|
- the design, specifications and Content of either Party’s services;
- the personnel, policies, clientele or business strategies of either Party;
- any information, material or data of the Customers including but not limited to the Customers’ Mobile Subscriber Integrated Services Digital Network (“MSISDN”) numbers, types or models of the Customers’ mobile phones, usage by the Customers of the content, username and password details of the service rendered by the Customer, product and services and the Customers’ aggregated information such as usage pattern and reports, which come into the Content Provider’s possession arising out of the delivery of the content, product and services by the Content Provider. (For avoidance of doubt, such information, material and/or data are intended only for the delivery of the content, product and services in strict accordance with the terms of these Main Terms and Conditions; and
- the terms of these Main Terms and Conditions and the Schedules annexed.
|Content||means the products and services offered to Digi’s Customers by the Content Provider as specified in the Proposal(s) and other services offered from time to time.|
|Customers||means the customers of Digi or other users who are authorised or deemed to be authorised by Digi to access the Content.|
|Force Majeure ||means a natural and unavoidable catastrophe that interrupts the expected course of events; including but not limited to war, rebellion, civil commotion, strikes, lock-outs and industrial disputes, fire, power failure or disruption, breakdown in any communication network, explosion, earthquake, acts of God, flood, drought or bad weather, the unavailability of deliveries or supplies or requisitioning or other act or order by any government or regulatory authorities, council or other constituted body.|
|Infrastructure||means the telecommunications, billing and other necessary infrastructure mutually agreed between the Parties to enable the delivery of the Content to the Customers.|
|Main Terms and Conditions||means these terms, including all its Schedules, the Proposals and any amendments or additions or supplemental thereto as mutually agreed by Parties from time to time. |
|Proposal(s)||has the meaning as set out in Clause 4.1 (may include any order forms )|
|Service Level(s)||the standards to which the Content Provider must adhere to and/or deliver as described in any Proposals.|
|Short Code||means short code assigned by Digi in any Proposals.|
- References to Recitals, Clauses, and Schedules are to be construed as references to Recitals, Clauses, and Schedules of these Main Terms and Conditions, unless otherwise provided herein.
- All references to provisions of statutes and legislation include such provisions as amended, modified or re-enacted.
- The word “law” or “laws” mean any present or future law and legislation and any constitution, decree, judgment, legislation, order, ordinance, statute, treaty, directive, by-law, rule or regulation, the compliance with which is in accordance with the general practice of persons to whom such rule or regulation is addressed.
- Words applicable to natural persons shall include any body of persons, company, corporation, firm or partnership incorporated or unincorporated and vice versa.
- Words importing a gender shall include any other gender.
- Words importing the singular number shall include the plural number and vice versa including the definitions referred to in Clause 1.1.
- The headings and sub-headings to the Clauses are for convenience of reference only and shall neither affect the interpretation and construction thereof nor shall limit or extend the language of the provisions to which they refer.
- Where any word or expression is defined in these Main Terms and Conditions, the definition shall extend to all grammatical variations and cognate expressions of the word or expression so defined.
- For the purpose of calculating any period of time stipulated herein, or when an act is required to be done within a specified period after or from a specified date, the period is inclusive of and time begins to run from the date so specified.
- no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of these Main Terms and Conditions or any part of it;
- Wherever there shall appear any reference to a time within which an act should be done or agreement reached or consent given, such reference shall be deemed to be read as including the expression “or any other period agreed in writing between the Parties from time to time”.
- Any technical term not specifically defined in these Main Terms and Conditions shall be construed in accordance with the general practice of those in that profession to which the term is used.
- Any reference to a “business day” is a reference to a day other than Saturday, Sunday, Agreed Holidays and any other day which is declared as a public holiday in the state of Selangor and any reference to a “day”, “week”, “month” or “year” is a reference to that day, week, month or year in accordance with the Gregorian calendar.
- Any reference to “approval” or “consent” shall mean approval or consent in writing.
- Monetary references are references to Malaysian currency.
|1.3.||The Recitals and Schedules of and to the Main Terms and Conditions shall have effect and be construed as an integral part of the Main Terms and Conditions, but in the event of any conflict or discrepancy between any of the provisions of the Main Terms and Conditions such conflict or discrepancy shall, for the purposes of the interpretation and enforcement of these Main Terms and Conditions, be resolved by :-|
- giving the provisions contained in the clauses of the Main Terms and Conditions priority and precedence over the provisions contained in the Recitals and Schedules of and to the Main Terms and Conditions; and
- giving the provisions contained in the Schedules of the Main Terms and Conditions priority and precedence over the provisions contained in the Recitals to this Main Terms and Conditions.
|2.1||Each Party represents and warrants that:|
- it has the power and authority to enter into and perform the Main Terms and Conditions and to grant the rights granted herein.
- the execution and performance of the Main Terms and Conditions does not and will not violate or conflict with any undertaking, contract or arrangement with the respective Parties may have with any third party or any law, regulation, ruling or requirements of any government authorities.
|2.2||Each Party covenants with the other that during the term of the Main Terms and Conditions, it shall act in good faith towards the other Party and use its best endeavours to give the other Party such assistance and co-operation as that other Party reasonably requests for the performance of the Main Terms and Conditions.|
|2.3||Both Parties acknowledge that the provision, receipt and use of the Content herein is non-exclusive and that each Party may, at its sole discretion and from time to time, enter into similar Main Terms and Conditions with other third parties.|
|3.1||The Main Terms and Conditions shall commence on the Commencement Date and shall continue for two (2) years unless otherwise terminated earlier in accordance with the provision of these Main Terms and Conditions (“Initial Term”). Upon the expiry of the Initial Term, the Main Terms and Conditions is automatically renewed for successive two (2) year periods unless terminated in accordance with the provisions of the Main Terms and Conditions.|
|4.||PROPOSAL(S) FOR THE CONTENT|
|4.1||The Content Provider shall forward their proposal(s) in writing for the provision of the Content from time to time to Digi for Digi’s consideration, this may for avoidance of doubt include the order forms (hereinafter referred to as “the Proposal(s)”).|
|4.2||The Parties agree that the Proposal(s) to be submitted for Digi's consideration from time to time shall include but are not limited to the following:-|
- A full description of the products and services offered;
- The commercial terms of the product and services offered;
- The Commencement Date and the expiry date of the product and services respectively;
- The service level provisions; and
- Such other necessary and relevant details.
|4.3||Digi is entitled, at its sole and absolute discretion to accept or reject any Proposal(s) or any part thereof.|
|4.4||The Parties hereby agree that in the event of the acceptance of the Proposal(s) by Digi in writing, the terms and conditions of the Main Terms and Conditions shall apply to the Proposal(s) and governs the obligations of the Parties in respect of the accepted Proposal(s).|
|4.5||Once the Proposal(s) or any part thereof is approved and/or accepted by Digi, the Content Provider shall at its own cost deliver or cause to deliver to Digi the Content in accordance with the terms contained in the approved and/or accepted Proposal(s) by Digi and the terms and conditions of the Main Terms and Conditions. The Parties also agree that in the event of any inconsistencies, the terms of the Main Terms and Conditions shall prevail.|
|4.6||In the event the Content Provider fails to deliver the approved and/or accepted Content within the time frame set out by Digi or a period as mutually agreed in writing between the Parties, then the Content Provider shall indemnify and keep indemnified Digi for and against any and all loss or damage which Digi may suffer or incur as a result hereof.|
|4.7||The Proposal(s) which are duly approved and/or accepted by Digi in writing shall be read construed and form an integral part of the Main Terms and Conditions.|
|4.8||For the avoidance of doubt, the initial Proposal pertaining to the Main Terms and Conditions accepted by Digi is as set out in the Service Order Form.|
|4A.||RESPONSIBILTIES OF CONTENT PROVIDER|
|4A.1||The Content Provider, at all times;|
- undertakes that it shall be fully responsible to comply with the licensing requirements including but not limited to the licensing requirements in respect of the Content as stipulated by any regulatory authorities, copyright in the content, product and service provided hereunder (which have to be obtained or may be required in respect of the Content);
- shall be responsible for the accounting of and payment of the royalties and fees payable to the copyright owners or their agents in relation to the use and/or reproduction of the compositions and literary works subsisting in the Content;
- shall provide to Digi all necessary and approved marketing assets for marketing purposes;
- conduct its business affairs relating to the Content and its obligations under the Main Terms and Conditions in a professional, efficient manner and with all due diligence including without limitation, adhering and/or complying with the Service Levels; and
- undertakes to abide by any and/or all directive, procedures and/or policies which relates to the provision of the content, product and/or services as may be reasonably set and communicated by DiGi from time to time.
|4A.2||The Content Provider further accepts that any other related Content Provider specific terms and conditions as specified on Digi’s website (including product and services specific terms and conditions) (“Additional CP T&C”) shall be integral part of and read together with the Main Terms and Conditions. In this regard, Digi may revise and/or modify the Additional CP T&C from time to time and in the event of such revision and/or modification, Digi will communicate the same to the Content Provider.|
|5.||REVENUE SHARING |
|5.1||Unless otherwise indicated and whenever applicable :-|
- the Parties agree to the Revenue Sharing as stated in the Service Creation Table found at http://www.digi.com.my/aboutus/collaboration/api/premium_sms.do and / or on terms as agreed by Parties in writing ; and
- all other revenue generated including from airtime, SMS Mobile Originating ("MO") and/or General Packet Radio Service ("GPRS") traffic and/or 3G traffic (if any) in relation to the Customers' use of the content, product and service provided herein via the Infrastructure shall not be shared and shall solely be Digi's revenue.
- The revenue share shall be tabulated periodically based on agreed duration.
- Any payment shall be made within thirty (30) days, after the end of each calendar month.
- Payment amount shall be exclusive of any banking or forex related fees.
- Digi shall be entitled to withhold any withholding tax or related taxes from such payment if required by the applicable law at the prevailing rates. Digi will have no obligation to pay any additional amount to the Content Provider in relation to the withheld amount.
- Digi may, at its sole and absolute discretion set-off any monies owing by the Content Provider including over-paid revenue share against any payment payable to the Content Provider provided that Digi informs the Content Provider of the set-off as soon as practicable.
- Payment made by Digi shall be final and conclusive and Digi shall not be responsible for any claim by any third party on the Content provided by the Content Provider to Digi.
|6.||WARRANTIES OF THE CONTENT PROVIDER|
|6.1||The Content Provider warrants that it has obtained, complied with and conformed to and will ensure that it obtains, complies with and conformed to all necessary acts, conditions, approvals, consents, authorisations, licenses and agreements required to be done, fulfilled or performed in order to :-|
- enable the Content Provider to lawfully enter into, exercise its rights under and perform the obligations expressed to be assumed by it in these Main Terms and Conditions;
- ensure that the obligations expressed to be assumed by the Content Provider in these Main Terms and Conditions are legal, valid, binding and enforceable; and
- render these Main Terms and Conditions admissible in evidence in Court.
|6.2||The Content Provider warrants that these Main Terms and Conditions constitute legal, valid and binding obligations of the Content Provider in accordance with the respective terms.|
|6.3||The Content Provider warrants that the provision of the Content conforms to and is in compliance with all laws including but not limited to data protection, licensing, copyright, trademark, patents and other intellectual property laws and does not infringe the property or proprietary rights, including but not limited to intellectual property rights of any third party or that may constitute a criminal offence or give rise to civil liability.|
|6.4||The Content Provider warrants that the Content at all times, shall not be libellous and/or does not contain any text, graphics, music, sound, art, multimedia work and/or other material, information and/or data which :-|
- contains any elements that is contrary to law including but not limited to elements which promotes or encourages defamation, theft, fraud, drug-trafficking, money-laundering or terrorism; or
- incites violence, sadism, cruelty or racial or religious hatred; or
- contains blatant bigotry; or
- promotes, encourages and/or facilitates prostitution, paedophilia and any unnatural acts of a carnal nature; or
- contains nudity or is pornographic or excessively obscene, indecent, abusive, offensive or menacing; or
- contains any element which may be and/or deemed offensive to the public at large and/or Digi.
|6.5||The Content Provider further warrants:|
- that the Content is free from viruses, worms, trojan horses, cancelbots or other harmful, destructive and/or deleterious files or programs.
- that the Content shall not cause instability to Digi's Infrastructure. The Content Provider undertakes to immediately notify DiGi of any possible instances that could cause instability to Digi's Infrastructure.
- to protect its own equipment including the equipment of any of its appointed third party sub-contractor against unauthorised access physically and electronically.
- that the Content shall not contain advertisements or solicitations to make purchases, including but not limited to spamming, without obtaining the prior written consent from Digi.
- not to do or allow to be done anything that may jeopardize, harm, destroy and/or damage the reputation or image of Digi.
|6.6||The Content Provider warrants that the Content provided to Digi is accurate. If the Content Provider later discovers that there are inaccuracies, discrepancies and/or mistakes in the Content, the Content Provider undertakes to immediately notify Digi and Digi reserves the right to immediately remove the Content from transmission or to withhold the Content from being transmitted upon receiving such notice from the Content Provider.|
|6.7||DiGi may assign a Short Code to allow the Customers to access to the Content. The Content Provider shall not have any rights to this Short Code except for the sole purpose of providing the services in accordance with these Main Terms and Conditions. The Content Provider shall not sell, transfer or agree to sell or transfer this Short Code to anyone else. The Content Provider shall not apply or try to apply for registration of this Short Code as any intellectual property rights including without limitation to trademark, whether on its own or with any word or mark. Digi may, for operational or technical reasons or compliance with any requirement of the relevant authority withdraw or change such Short Code.|
Digi shall at its sole and absolute discretion terminate or move the Content Provider to any short code of Digi's choice as and when necessary with prior written notice to the Content Provider.
|6.8||For the avoidance of doubt, the Content Provider shall at its own costs be responsible for matters in relation to the Content and ensure that all Content shall comply with all the laws, content code, regulation and/or direction from the relevant authorities.|
|6.9||The Content Provider also warrants that all information provided to Digi, which may or may not, include personal data, has been fairly and lawfully obtained and that it has the authority to disclose such information to Digi for the purposes of fulfilling the intended transaction between Digi and the Content Provider or for any other purposes as may be required by law. In this regard, the Content Provider:|
- shall fully indemnify and hold Digi harmless for any costs, expenses, loss or damage howsoever arising out of the failure to comply with this warranty.
- agrees that it shall be the Content Provider's responsibility to advise Digi in writing should there be any relevant change in the information supplied to Digi.
|7.||WARRANTIES OF Digi|
|7.1||Digi warrants that it has obtained, complied with and conformed to and will use its best endeavours to ensure that it obtains, complies with and conforms to all necessary acts, conditions, approvals, consents, authorisations, licenses and agreements required to be done, fulfilled or performed in order to :-|
- enable Digi to lawfully enter into, exercise its rights under and perform the obligations expressed to be assumed by it in these Main Terms and Conditions;
- ensure that the obligations expressed to be assumed by Digi in these Main Terms and Conditions are legal, valid, binding and enforceable; and
- render these Main Terms and Conditions admissible in evidence in Court.
|7.2||Digi warrants that the Main Terms and Conditions constitute legal, valid and binding obligations of Digi in accordance with the respective terms.|
|7.3||Digi hereby acknowledges that all proprietary and property rights, including but not limited to copyright, trademark, patents and other intellectual property rights and other interests in the Content, in any and all forms, are exclusively owned by the Content Provider or other respective third parties and Digi warrants not to infringe or violate any such rights of the Content Provider or other third party in the Content.|
|8.||RIGHT TO REJECT|
|8.1||The Parties agree that Digi has the absolute right to reject the Content supplied by the Content Provider for any reason whatsoever. Digi shall not be liable to the Content Provider for any losses or damages which the Content Provider may suffer or incur as a result hereof.|
|9.||INTELLECTUAL PROPERTY RIGHTS|
|9.1||Each Party shall retain all rights, title and interest to the Confidential Information and intellectual property rights, including but not limited to copyright, trademarks, patents, registered and industrial designs in their respective services and constituents thereof (hereinafter collectively referred to as “Intellectual Property Rights”).|
|9.2||The Content Provider shall retain all rights, title and interest to the Intellectual Property Rights attaching to the Content.|
|9.3||The Content Provider hereby agrees to indemnify and keep indemnified Digi against any loss, cost, expenses, demands, liabilities or damage, whether direct or indirect, arising out of a claim by a third party against Digi alleging that the Content Provider's Content infringes any Intellectual Property Rights.|
|9.4||The indemnity referred to in Clause 9.3 herein shall be granted whether or not legal proceedings are or have been instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.|
|9.5||Digi shall notify the Content Provider as soon as practicable of any infringement, suspected infringement or alleged infringement of the Content Provider's Content of the Intellectual Property Rights of any third party.|
|9.6||Without prejudice to Digi's right to defend a claim alleging such infringement, the Content Provider shall, upon the request of Digi and at the Content Provider's expense, conduct the defence of such a claim by a third party which alleges the infringement of the said Intellectual Property Rights. The Content Provider shall observe and adhere to Digi's directions relating in any way to that defence or to negotiations for settlement of the claim or legal proceedings.|
|9.7||All losses, costs, expenses, demands, liabilities or damage incurred or suffered by Digi as a result of the infringement of the said Intellectual Property Rights shall be reimbursed by the Content Provider within fourteen (14) days of receipt of Digi's written demand for the same.|
For avoidance of doubt, such claim would have to be substantial and agreed between the Content Provider and Digi save and except in the event, Digi have provided a definite evidence to show such infringement has been committed by the Content Provider.
|9.8||Without limit to the generality of the foregoing sub clauses, if it is determined by an independent tribunal of fact or law or if it is agreed between the Parties to the dispute that an infringement of the said Intellectual Property Rights has occurred, the Content Provider shall immediately and at its sole expense :-|
- modify its Content in order to avoid further or continuing infringement of the said intellectual property rights; or
- procure for Digi the right to continue the use of the infringing elements of the Content; or
- if the solutions in either of the preceding paragraphs cannot be achieved, remove the infringing elements of the Content, and/or extend for Digi the right to continue the use of the infringing elements of the Content for no less than thirty (30) days as reasonable time needed to remove Content from its content library.
|10.1||The Content Provider hereby agrees that no news releases, public announcements or publicity statements, messages or notices shall be released by the Content Provider concerning the Main Terms and Conditions or any contract or subcontract resulting there from without the prior written approval of Digi.|
|11.||CONFIDENTIALITY AND CONFIDENTIAL INFORMATION|
|11.1||Both Parties hereby agree that no Party hereto shall, without the prior written approval of the other Party, disclose the other Party's Confidential Information or any information, material or data which may be deemed to be confidential by both Parties from time to time and agree that the Confidential Information disclosed shall be used strictly only for the purposes of these Main Terms and Conditions.|
|11.2||A Party shall not be deemed to have been in breach of Clause 11.1 in circumstances where it is legally compelled to disclose such Confidential Information.|
|11.3||Both Parties hereby agree to take all reasonable steps necessary to ensure that its employees, agents, officers, directors and sub-contractors engaged for the purposes of these Main Terms and Conditions do not make public or disclose the other Party's Confidential Information.|
|11.4||Either Party may from time to time require the other Party to arrange for its employees, agents, officers, directors and sub-contractors engaged for the performance and purposes of these Main Terms and Conditions to execute a suitable confidentiality or non-disclosure agreement and the other Party shall arrange for the execution of such agreements by the respective persons within the timeframe reasonable specified.|
|11.5||Either Party shall on demand return to the other Party any documents supplied to it by the other Party in connection with or for the purposes of performance of these Main Terms and Conditions.|
|11.6||Notwithstanding any provision of this clause, either Party may disclose the terms of these Main Terms and Conditions, but not Confidential Information of a technical nature, to its related companies, solicitors, auditors, insurers and accountants.|
|11.7||Both Parties agree that the protection accorded to the Confidential Information does not and shall not extend to any information, material or data which can be proved by documentary evidence or other evidence produced by the receiving party upon the written request of the disclosing party which :-|
- is already known to the receiving party or is in its possession before the disclosure herein free of any obligation to keep such information confidential; or
- is or becomes publicly known through no wrongful act or default of the receiving party; or
- is received from a third party without similar obligations of confidence and without breach of these Main Terms and Conditions; or
- is already possessed or independently developed by the receiving party; or
- is disclosed to a third party by the disclosing party without similar restrictions on the third party's right of disclosure; or
- is approved for release by the prior written authorisation of the disclosing party; or
- is required by any laws or regulations to be disclosed.
|11.8||This Clause shall survive the termination of these Main Terms and Conditions for a period of six (6) years.|
|11A.1||For the purposes of this Clause 11A, “Personal Data” shall have the meaning as defined in Malaysia’s Personal Data Protection Act 2010 (“PDPA”).|
|11A.2||The Parties agree that where, pursuant to these Main Terms and Conditions, any of the data/information which includes Personal Data are extended;|
- to the Content Provider by Digi and/or collected/processed by the Content Provider on behalf of Digi, the Content Provider agrees not to conduct itself, and to procure that its employees and/or agents, shall not conduct themselves, in such a manner as to cause Digi to be in breach of its obligations (as a "data user") as stated in the PDPA.
- to Digi by the Content Provider and/or collected/processed by Digi for and on behalf of the Content Provider, the Content Provider;
- warrants that it is in possession of all necessary consents and shall continue to maintain such consents as may be required for the processing and transfer of data in relation to the provision of the product and/or services herein; and
- agrees that it shall be the responsibility of the Content Provider to advise Digi in writing should there be any relevant change in the information including the Personal Data supplied to Digi which requires action on the part of Digi.
|11A.3||The Content Provider agrees to indemnify Digi against all losses, costs, expenses, damages, liabilities, demands, claims, actions and proceedings which Digi may incur arising out of a breach of this Clause 11A.|
|12.1||The Content Provider hereby agrees and undertakes to indemnify and keep indemnified at all times Digi and its employees, agents, officers and directors from and against all loss, damage or liability incurred, suffered as a result or arising from any actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by Digi directly or indirectly in respect of :-|
- any breach by the Content Provider of any of the provisions of these Main Terms and Conditions or of any law, code or regulation relating thereto to the use of the Content; or
- any wilful, unlawful or negligent act or omission of the Content Provider.
|12.2||For the avoidance of doubt, Digi may, at its sole discretion, set-off any indemnity, charges, fees and/or costs, due and owing to it by the Content Provider against the revenue payable to the Content Provider under Clause 5 or any other revenue, charges, fees and/or costs payable under any other provision(s) of these Main Terms and Conditions.|
|13.1||Any condition or warranty, which would otherwise be implied in these Main Terms and Conditions, is hereby excluded.|
|14.1||Either Party shall be entitled to terminate these Main Terms and Conditions by giving at least fourteen (14) days prior written notice to the other Party without assigning any reason whatsoever.|
|14.2||Notwithstanding Clause 14.1 herein, either Party shall be entitled to terminate the Main Terms and Conditions forthwith by prior written notice to the other Party if :-|
- the other Party ceases to do or reduces substantially the size and/or scope of its business; or
- the other Party fails to comply with any of its obligations under these Main Terms and Conditions and the failure, if capable of remedy, remains unremedied for a period longer than fourteen ( 14) days after being called to its attention by written notice from the first Party; or
- the other Party convenes a meeting of its creditors or suffers a meeting to be convened or other action to be taken with a view to its liquidation or dissolution except, with the prior written approval of the first party, for the purposes of and followed by amalgamation or reconstruction; or
- the other Party if, for any reason whatsoever, is struck off the Register of Companies; or
- proceedings are commenced, including but not limited to winding-up proceedings whether voluntary or involuntary, for the appointment of a receiver or receiver and manager or judicial manager over the other Party or over any of its assets; or
- any distress or execution is levied against the other Party or upon the goods or assets thereof and such distress or execution is not discharged within twenty-one (21) days thereafter or the other party makes or seeks to make any composition or arrangements with its creditors.
|14.3||In addition and without prejudice to any other provision herein, the Main Terms and Conditions shall be terminated without liability to either Party if :-|
- such termination is necessitated by any directive or regulation from any governmental or statutory authority having jurisdiction over the matters herein; or
- such aforementioned directive or regulation expressly prohibits either party from performing its obligations under the Main Terms and Conditions.
|14.4||Upon termination of the Main Terms and Conditions as hereinbefore provided, both Parties shall cease to be entitled to use the other Party's name or refer to the other Party in all its subsequent messages, notices, promotions or advertisements.|
|15.||FORCE MAJEURE |
|15.1||Both Parties hereby agree and acknowledge that either Party shall not be held responsible or liable for any delay or failure to comply with any of the provisions of these Main Terms and Conditions due to Force Majeure.|
|15.2||If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party's obligations will be suspended.|
|15.3||If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds thirty (30) days, either Party may immediately terminate these Main Terms and Conditions on providing prior written notice to the other Party.|
|16.1||These Main Terms and Conditions constitute the entire understanding between the Parties hereto.|
|17.||ASSIGNMENT AND NOVATION|
|17.1||The Content Provider shall not assign or transfer the benefit of this Agreement without the other Party's prior written consent, however Digi may assign and/ or novate and / or transfer the benefit of this Agreement or any part thereof to an affiliate without prior written consent of the Content Provider.|
|18.1||No right under these Main Terms and Conditions shall be deemed waived except by prior written notice signed by both Parties.|
|18.2||The failure or neglect of either Party to enforce at any time any of the provisions of the Main Terms and Conditions shall neither be construed nor shall be deemed to be a waiver of that Party's rights hereunder nor does it in any way affect the validity of the whole or any part of these Main Terms and Conditions nor does it prejudice the rights of that Party to take subsequent action if it so chooses.|
|19.1||The Parties agree to submit to the exclusive jurisdiction of the Malaysian Courts in the event of any disputes.|
|20.||SURVIVAL OF THE AGREEMENT|
|20.1||Subject to any provision to the contrary, the Main Terms and Conditions shall enure to the benefit of and be binding upon the Parties and their successors in title, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.|
|20.2||The covenants, conditions and provisions of these Main Terms and Conditions which are capable of having effect after the expiration of the Main Terms and Conditions shall remain in full force and effect following the expiration of the Main Terms and Conditions for a period of six (6) years.|
|21.1||In the event that any or any part of the terms, conditions or provisions contained in these Main Terms and Conditions be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.|
|22.1||Any notice or communication under or in connection with this Agreement shall be in writing and shall be delivered personally, or by post, email or facsimile to the addresses given in this Agreement or at such address as the recipient may have notified to the other Party hereto in writing or by advertising or by advertisements in the newspapers. Proof of posting or dispatch of any notice or communication to the other Party shall be deemed to be proof of receipt:-|
- in the case of a letter, on the fifth (5th) Business Day after posting;
- in the case of hand delivery, at the time the notice or communication was delivered; and
- in the case of email, on the Business Day of the transmission provided there is no notification of a transmission error of failure to deliver on the day of delivery.
|22.2||The initial contact representatives of each Party are as set out in the Service Order Form.|
|23.||RELATIONSHIP OF THE PARTIES|
|23.1||Nothing in this Agreement shall constitute or be deemed to constitute a partnership between both the Parties and none of them shall have any authority to bind the other Party in any way nor shall this Agreement be construed to constitute any of the Parties hereto as the agent of the other Party.|
|24.1||These Main Website Terms and Conditions shall be binding upon each of the Parties hereto and their respective successors in title and permitted assigns.|
|25.1||All notices and any other communication under or in connection with these Main Website Terms and Conditions shall be in the English Language.|
|26.1||The Parties hereby agree and acknowledge that these Main Website Terms and Conditions and all the terms, conditions and provisions therein shall be governed by and construed in accordance with the Laws of Malaysia and Parties shall submit to the exclusive jurisdiction of the Court of Malaysia.|
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