|
ASIA MOBILE COMMERCE PRIVILEGE (M) SDN BHD
TERMS & CONDITIONS
These are the Terms and Conditions of membership, and includes without limitation, the terms and conditions governing the products, services, information and software (“Services”) provided by Asia Mobile Commerce Privilege (M) Sdn. Bhd. (“Company”). Please read them entirely. By participating in the business of the Company herein and using the Website and SMS Ordering System services herein, you (“Member”) are deemed to have unconditionally accepted, acknowledged and agreed to comply with these Terms and Conditions.
By accepting these Terms and Conditions, a Member is deemed to expressly understand and agree that the use of the Website, SMS Ordering System and the products and services of the Company (which collectively shall be included in the definition of “Services”) is entirely at his/her own risk. The Website, SMS Ordering System and the products and services of the Company are provided on 'as is' and 'as available' basis. Except when they are explicitly specified, the Company disclaims, to the fullest extent permitted by law, all guarantees and promises, whether expressed or implied, including but not limited to guarantees of merchantability, fitness for any particular purpose and non-infringement of proprietary rights.
A. Membership Requirements
- The Company operates its Services under the brand name ‘MyMode’ (“MyMode”).
- Membership is open to any individual above the age of 18, regardless of gender, race, ethnicity, nationality, religion or sexual orientation so long as the prospective Member shall have been introduced by an appropriate party approved by the Company (“Introducer”). A person becomes a Member upon receipt, approval and registration of his application with the Company.
- Applicants wishing to apply for corporate registration must submit and attach a certified true copy each of its corporate secretarial documents (Form 9 or 13, 24, 44, 49 and its Memorandum & Articles of Association, together with its board of directors’ and members’ resolutions authorizing it to be registered with the Company) and submitted directly to the Company’s head office at C1-1, Dataran Palma Ampang, Jalan Selaman 1, 68000 Ampang , Selangor Darul Ehsan.
- Each membership application shall be subject to the Company’s final approval and the decision of the Company shall be final and non-negotiable.
- True, accurate, complete and current information must be provided in the registration application sign-up form, showing that the applicant is not an existing Member. The Company only allows one membership per individual or per corporation. By submitting the registration application, the applicant agrees to comply with all local, state, provincial, federal or regional legal restrictions that may be applicable to his membership. In the event that after any period of time, all or any portion of the information submitted during application is no longer true, accurate, complete or current, the Member must ensure that the Company is informed of the changes so that its records can be updated.
B. Status of Member
- MyMode Members are deemed to be independent contractors, and shall operate their membership as independent dealers/distributors of the Services marketed by MyMode. Members shall not be deemed to be partners, representatives, legal or otherwise, franchisees, agents and/or employees of MyMode.
C. Membership Procedures
- Each Member will use his/her mobile phone number as his/her Member ID and setting his/her own password, which will grant him/her access to the Member Area and SMS Ordering System via the mobile phone to order products and services of the Company. It is the responsibility of the Member to protect the confidentiality of his/her account information and password.
- Each Member is allocated a statement [listing out his/her transactions] (“MyPoints Statement”) and the Member is able to collect points (“MyPoints”) based on the transactions carried out by that particular Member.
- A MyPoints Statement will be considered inactive and will be temporarily suspended if the Member does not perform any transactions for a consecutive period of six (6) months. Reactivation of the inactive MyPoints Statement can only be requested by the Member’s Introducer with valid reasons given for non-performance of any transactions and one (1) MyPoints will be deducted from the Introducer’s MyPoints Statement.
- Sales incentives are only payable to active MyPoints Statements only. Inactive MyPoints Statements will not be eligible to the sales incentives until such time that the inactive MyPoints Statements has been reactivated.
- The Company’s Services allows the Member to purchase and check information (“Items”) using Short Messaging Service (SMS) through the SMS Ordering System. The Member is fully responsible for all charges incurred even if he/she accidentally erases, replaces or deletes any one of the Items by receiving another Item or otherwise.
- The Company will directly deduct 0.20 MyPoints from the Member’s MyPoints Statement for every message reply sent to the Member, EXCEPT for new member sign-up, new Mobilepreneur sign-up, upgrading to Mobilepreneur, withdrawal and purchase of products.
- The Company will directly deduct 2 MyPoints from the Member’s MyPoints Statement as an administration fee for every withdrawal.
- The Company will charge 1 MyPoint per page for printing of the MyPoints Statement or report of activities.
- A Member may be entitled to Leadership Bonus if the Member has been nominated by the Company as a leader, and fulfills the monthly maintenance leadership conditions stipulated by the Company, both on a personal and group level. The maintenance conditions may include but shall not be limited to maintenance of top up cards and e-products sales and new sign-ups, amongst others, which shall be determined by the Company at its sole discretion, and the Company shall, from time to time, be entitled to vary and stipulate the maintenance conditions in respect of each Member who is a leader.
- After receiving the Member’s request via SMS, the Company’s SMS Ordering System will send the reply message together with the Member’s request item. If the Member’s request via SMS is insufficient or incorrect, or if the Company for any other reason considers it necessary, the Company has the right to decline from sending the Item to the Member without further notice.
- In the event that an SMS sent to the Company’s SMS Ordering System contains mistakes or is of the wrong format, a penalty charge will be imposed. The Company will automatically deduct 0.20 MyPoints from the Member’s MyPoints Statement per reply.
- The airtime reload cards, which can be purchased through the SMS Ordering System, are non-transferable upon activation and non-refundable.
- The Company will not be responsible for any loss arising from the incorrect use of the airtime reload cards.
- The Company will impose a minimal cost on marketing materials supplied to the Member. The delivery cost of the marketing materials is fully borne by the Member.
- The Company reserves the right to deny, suspend or terminate any Member's access to any or all of its products and services at any time for any reason whatsoever, without the obligation to provide cause for termination or notice in advance.
- Any personal information provided to the Company via the Website or SMS is maintained as private and confidential, and is only accessible by the Company, its related corporations and affiliates. Certain information may also be used by the Company in some or all of the following ways:
(a) To enhance the user-friendliness of the Website i.e. a Member does not have to enter the same information during repeat visits.
(b) To help a Member find the services and products needed more efficiently.
(c) To inform a Member of services and product updates, product availability status, new products and other related information.
(d) To send materials to a Member for marketing purposes.
(e) To help the Company’s advertisers deliver better targeted advertisements through anonymous click stream data
- Save as stipulated above, the Company will not disclose any information about any of its Members except to comply with applicable laws or requests or directives from any regulatory, authority or Governmental body or agency or other valid legal processes, or to protect the personal safety of users or the public.
D. Membership Renewal
- Members will be charged an annual fee of 5 MyPoints (“Annual Fee”). The Annual Fee will be automatically deducted from the Member’s MyPoints Statement. The Annual Fee, however, will be waived if the Member spends an accumulated minimum amount of 1000 MyPoints (which must be derived from sales of mobile phone reload cards and/or the Company’s products and services only) in a period of twelve (12) months.
- Should the Member’s MyPoints Statement bear insufficient MyPoints to enable the Annual Fee to be deducted, the Member shall upon demand by the Company, pay to the Company such amount as may be determined by the Company as Annual Fee.
E. Members’ Responsibility
- A Member is entirely responsible for any damage, loss, claims or liability arising from the use or misuse of his/her Member Area or SMS Ordering System. Members must notify The Company immediately of any suspicion concerning unauthorised entry into the Member Area or any breach of security detected.
- Members must not upload onto the Website, or otherwise transmit any content that is unlawful, harmful, threatening, abusive, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethically or otherwise objectionable.
- A Member must not attempt to restrict any other user from using the Website or SMS Ordering System to purchase the Company's products and services.
- A Member must not use any copyrighted, trademarked, patented or service-marked material without the expressed permission of the author or owner. The Member shall at all times ensure that the use of software, information or material is guarded against computer virus, corrupted data or any other harmful or damagingcomponent.
- A Member must not impersonate or pretend to represent any person or entity, including, but not limited to a Company official, forum leader, guide or host, or forge anyone else's digital or manual signature, or attempt to gain unauthorised access to the Company's or any other person's data.
- Members shall be responsible for providing information about the Company’s business concept and the products and services in a forthright and thorough manner. It is the Members’ responsibility to generate the right information regarding the Company’s products and services.
- Members must at all times maintain the image and reputation of the Company. A Member is also responsible to preserve the goodwill of the Company.
- A Member shall be responsible for providing a thorough clarification of the Company’s products and services when conducting product and/or service demonstrations.
- A Member shall be responsible to ensure that he/she is adequately trained on the business concept that the Company has devised.
- A Member must use his/her best endeavours to carry out his/her business diligently.
- A Member must not tarnish the reputation of other Members as a means to draw the other party’s Members.
- A Member must not provide misleading or incorrect information about the Company’s business concept to gain benefit for himself/herself.
- In the event of a Member’s failure to be responsible for any of the matters as well as violation of any other part of these Terms and Conditions, the Company reserves the right to suspend its services to theMember and/or terminate his/her membership or lock or deactivate his/her MyPoints Statement at any time and if there is any balance of MyPoints in his/her MyPoints Statement, the Company shall be entitled to off-set the balance MyPoints in the MyPoints Statement against any sums which may be due from the Member to the Company and refrain him/her from using the SMS Ordering System without prior notice.
- If there is any balance of MyPoints in the MyPoints Statement after such set-off referred to in Clause 13 above, the Company shall refund the same to the Member.
- If the balance MyPoints in the MyPoints Statement shall be insufficient to off-set against any sums which may be due from the Member to the Company, the Member shall upon demand by the Company, pay to the Company such amount as may be determined by the Company in the Company’s sole discretion.
- Without prejudice to any rights that the Company may have at law and in addition to the remediesprovided to the Company in the above Clause 13 for the Member’s failure of responsibility herein and violation of any other part of these Terms and Conditions, the Company shall have the right (but shall not be obliged) to forfeit [ ] MyPoints from the Member’s MyPoints Statement as agreed liquidated damages.
F. Intellectual Property
- The Company and/or its licensors are the sole owners of the Services, which includes any software, domain names, content and any information whatsoever made available through it. The Services is protected by Malaysian and international copyright and other intellectual property laws.
- Notwithstanding any provision in this Agreement, the Member hereby undertakes to indemnify the Company against any and all losses, damages, claims, demands, actions, costs (including legal fees on solicitor client basis), charges, expenses and liabilities of whatsoever nature incurred by the Company arising directly or indirectly out of or in connection with the products, goods and/or services provided by the Member to any persons or entities whomsoever pursuant to this Agreement containing material, works or matter in respect of which any intellectual property rights or proprietary rights belong to any third party or any claim that the possession or use thereof by the Member infringes at any time the intellectual property rights of any third party wheresoever and howsoever arising.
G. Termination
- The Company reserves the right in its sole discretion to terminate or restrict the Member’s participation in the Services, without notice, for any or no reason whatsoever.
- Notwithstanding anything herein contained, this Agreement shall forthwith terminate with respect to the Member upon written notice to it by the Company, upon the occurrence of the following events (“Termination Events”):-
(a) the Member ceases to do business, becomes unable to pay its debts when they become due, becomes or is deemed insolvent, has a receiver, manager, administrative receiver or other similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt, an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or enters into liquidation whether compulsorily or voluntarily;
(b) the Member is in breach of any of its obligations under this Agreement and such breach, (if capable of remedy), has not been remedied at the expiry of thirty (30) days after receipt of a written notice giving particulars of the breach and requiring it to remedy the breach; or
(c) the adoption of any applicable law or the imposition of any administrative sanction which prohibits performance of this Agreement by the Member, or which renders performance hereunder commercially impracticable; provided that if any such law or sanction affects only partial performance of this Agreement, the Parties may agree to continue this Agreement to the extent it is not so affected.
H. Limitation of Liability and Indemnity
- 1 The Company provides the Services on an “as is” and “as available” basis and without any warranty or condition, whether express and/or implied (whether by statute or otherwise). The Company specifically disclaims any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement of intellectual property rights.
- The Company assumes no liability and/or responsibility for any errors or omissions in the Services or any failures, delays or interruptions in the Services or any losses or damages whatsoever arising from the use of the Services.
- The Company assumes no liability for any loss or damage to the Member’s goods or systems or any conduct whatsoever by the Members including damage from viruses and other harmful goods.
- In no event shall the Company, its shareholders, directors, officers, employees, representatives or agents be liable (joint or severally) to the Member in any way whatsoever, including but not limited to any loss of use or any direct, special, incidential, direct or consequential damages arising out of or in connection with the Services or this Agreement, on any theory of liability and whether or not advised of the possibility of such damage. If any applicable authority holds any portion of this section to be
unenforceable, then liability will be limited to the fullest possible extent permitted by applicable law.
- The Member shall indemnify and keep indemnified and hold the Company and its related companies, and each of their respective shareholders, directors, officers, employees, agents and merchant partners harmless from and against any third-party claim or cause of action, including legal fees on a solicitor-client basis and court costs, arising, directly or indirectly, out of the Member’s use of the Services or breach by the Member of any terms and conditions herein contained or the Member’s
violation of any law or the rights of any third party arising out of the use of the Services hereto.
I. Revision Of Agreement
- The Company reserves the right to revise these Terms and Conditions at any time at its sole and absolute discretion. Any change to the Terms and Conditions herein will be posted on the Website and is deemed to be effective from the date that it is posted.
- A Member’s continued use or patronage of the Services is deemed to signify his/her acceptance of the revised Terms and Conditions. It is the Member’s responsibility to ensure that he/she is aware of any such change by frequently checking the Website.
- The Company shall not be liable for any misuse, errors, losses, claims or damages suffered or incurred by the Member’s participation in the Services in ignorance of any changes or variations to this Agreement.
J. Force Majeure
- “Force Majeure Event” shall mean any circumstance beyond the reasonable control of any party for which the party affected could not have been expected to take effective precautions, including but not limited to:-
(a) war, hostilities (whether war be declared or not), invasion, act of foreign enemies, rebellion, revolution, insurrections, military or usurped power, civil war, terrorism;
(b) natural catastrophe including but not limited to earthquakes, floods or any operation of the force of nature against which either Party could not reasonably have been expected to take effective precautions;
(c) labour unrest or other industrial disturbances affecting the performance of this Agreement which are not the fault of either Party and/or its contractors or sub-contractors; and
(d) nuclear explosion, radioactive or chemical contamination or ionizing radiation.
- Neither party shall be in breach of their obligations under this Agreement if it is unable to perform its obkigations herein or any part of them as a result of a Force Majeure Event.
- Neither party shall be entitled to rely upon the provisions of this clause if both parties determine that an event of force majeure has not occurred.
- If an event of force majeure occurs by reason of which either party is unable to perform its obligations under this contract, it shall inform the other as soon as reasonable practicable after the occurrence of the force majeure event and shall use all reasonable endeavours to mitigate any delay or interruption to its obligations hereunder.
- If the Member is unable to perform its obligations herein as a result of the continuance of the Force Majeure Event for a continuous period of more than 3 months and such event is of such severity so as to frustrate the intention of the contract, then the Company may by written notice, terminate this Agreement.
- The parties shall continue to perform those parts of those obligations not affected, delayed or interrupted by a Force Majeure Event and such obligations shall continue in full force and effect.
K. Miscellaneous
- Time whenever mentioned shall be of the essence of this Agreement.
- The Member hereto shall not be entitled to assign its rights or obligations hereunder without the prior written consent of the Company. The Company may assign its rights or obligations hereunder without the prior written consent of the Member.
- This Agreement (together with any documents referred hereto, if any) constitutes the whole agreement between the parties and it is expressly declared that no variation hereof shall be effective unless made by the parties in writing. This Agreement shall also supersede all prior communications or proposals, whether electronic, oral or written, between the Member and the Company with respect to the use of the Website and the products and services of the Company. A Member may also be
subjected to additional terms and conditions when he/she uses certain products and services.
- Knowledge or acquiescence by either party of the breach of any of the warranties, covenants and undertakings or misrepresentation herein contained shall not operate as or be deemed to be a waiver of such representations, warranties, covenants or undertakings, or any of them and notwithstanding such knowledge or acquiescence, either party shall be entitled to exercise its rights under this Agreement and to require strict performance of the other of the terms and conditions herein.
- Nothing contained in or relating to this Agreement shall constitute or shall be deemed to constitute a partnership or agency relationship between any of the parties and no party shall have any authority on behalf of any other party.
- If any provision or part of a provision of this Agreement shall be, or be found by any authority or court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
- This Agreement shall be governed and construed in accordance with the laws of Malaysia and the Parties irrevocably submit to the non-exclusive jurisdiction of the courts of Malaysia.
|
