BY SIGNING OR ACCCEPTING THE SERVICE ORDER (IN THE MANNER AS WE HAVE DETERMINED), YOU ARE DEEMED TO ACKNOWLEDGE AND AGREE TO BE BOUND BY ALL THESE TERMS AND CONDITIONS, THIS JMB GENERAL TERMS APPLY TO ALL SERVICES SUBSCRIBED BY YOU (UNLESS OTHERWISE PRESCRIBED IN A SERVICE SCHEDULE), AND WITH THE APPLICABLE SERVICE SCHEDULE, LETTER OF OFFER, SERVICE ORDER FORM, ORDER DETAIL FORM, TOGETHER FORMS THE ENTIRE AGREEMENT WITH TIME.
Digitally Signing. In addition to the conventional method of indicating your acceptance of the Service Order or any other document by signing a printed version thereof at the appropriate place, you may also do so by , (i) using a stylus-pen to sign on a portable digital device (such as a tablet or other portal electronic device) your signature or (ii) such manner as we may prescribed at our website periodically. If you are a legal entity, firm or proprietorship, unless you inform us otherwise, you are deemed to have represented that the individual indicating acceptance on your behalf is permitted by you to do so, and you are estopped from denying such representation.
Your Account. Upon acceptance of the completed Service Order or electronic order by Time we will create an account, and assign an account number. This account number identifies you as our customer in our system and in all communications, correspondences and invoicing from us to you. You will have one account number with us and it will be used for all services subscribed by you and it identifies you as our customer. If you already have an account number assigned by us, no new account number will be assigned. A change of account number is not the issuance of a new and independent account identifier.
1.1 The following words and phrases have the meanings ascribed, unless the context otherwise provides (a) “Agreement” means the Letter of Offer, Standard Terms and Conditions and all schedules, appendices and exhibits attached hereto as the case maybe may be; amended from time to time; (b) “Equipment(s)” includes goods, materials, equipment, trunking, ducts and/or conduits and tools in necessary for the performance of this Agreement; (c) “Service” means the service detailed in the Service Order; (d) “Works” means the works to install, lay, maintain, upgrade, improve, repair and/or construct the Equipment, horizontal and vertical fibre, cabling, splitters box, fibre termination box (FTB), manholes, optical network unit (ONU) and such other equipment(s) necessary for Time to be able to provide the Service.
2. Contract Term & Service Duration
2.1 Contract Term. The Agreement shall be effective from the “Start Date” as specified in the Service Order and shall expire by the “Expiry Date” as specified in of the Service Order unless if renewed pursuant to Clause 2.2 below (“Contract Term”).
2.2 Renewal. Unless otherwise notified by either Party in writing at least three (3) month’s prior to the Expiry Date, this Agreement shall be automatically renewed upon its expiry date for the same duration as specified in the Service Order on the same terms and conditions as contained herein, including this Clause 2.2.
2.3 All monthly recurring charges that You may be liable for due to Your use of the Service and/or VAS for the Contract Term are expressly waived, in consideration of which You agree to provide us with the branding and promotional avenues as set out in the Appendix 1 & 2 of the Letter of Offer.
3. Consideration for Service
3.1 In consideration of Us providing you with the Service and/or VAS collectively valued at the Service Value as specified in the Service Order, You agree to provide us with the branding and promotional avenues of an equivalent value as specified in the Letter of Offer for the Contract Term.
3.2 If any service, value-added or goods and services tax are imposed on a Party by reason of the relevant authority deeming that that Party consumed a service that is being provided by the other Party, then such taxes shall be borne by the Party who is considered as providing the services.
4. Preconditions for Service Activation
4.1 Authorisation. You acknowledge that You are authorised to represent the commercial buildings, residences, housing development or property area(s) of which the Service and/or VAS will be deployed, and will serve as the point of contact to Time in the handling of events including, but not limited to, troubleshooting, marketing & branding exercises and service renewal.
4.2 Provision of Information You agree to provide Us with all the information as requested by Us before the Start Date, and You warrant that such information is accurate, current and complete. You will inform Us of any changes thereto.
4.3 Designated Locations. Service shall only be made available at clearly identified and designated locations at the Service Area that displays Our branding and promotional materials, which You agree we can affix to any area without any charge to Us. You shall not directly or indirectly remove or damage these materials.
4.4 No refund or transfer. You acknowledge and agree that the Service and/or VAS is not refundable and/or transferable and cannot be redeemed for cash or any other service.
5. Provision of Service
5.1 Provisioning. As soon as reasonably practicable after the execution of this Agreement, Time shall use its best efforts to carry out and complete the Works and provision the Service by the Start Date, provided that: (i) the Subscriber shall, at all times and at its cost and expense, provide Time with such facilities and co-operation as Time may reasonably require to provision and/or supply the Service, including but not limited to: (a) suitable secure accommodation, assistance, facilities, power and environmental conditions for the installation and housing of any Equipment, including without limitation, a secure and constant electricity supply and the necessary back-up supply; and (b) all necessary electrical and other installations and fittings; (ii) the Subscriber shall procure in a timely manner all approvals, licences, permissions, consents, registrations and waivers that are necessary for Time to enter the Service Area and/or carry out the Works to provision the Service at the Service Area, including any trenching works; and (iii) all local authority permits, approvals, consents and wayleaves (including that of third parties, such as landlords, building managers, head tenants) are issued to Time in a timely manner.
5.2 Electricity and Air-Conditioning. The Subscriber shall provide Time with electricity and/or appropriate environmental control system in respect of, arising out of or in connection with the provision and use of the Service at the Service Area, and any and all costs and expense incurred and/or associated with the supply and/or use thereof shall be borne by the Subscriber, and not recoverable from Time.
5.3 Change/Re-Location. The Subscriber may request Time to make reasonable changes to the Service or relocate the Service to such other Subscriber premises, then either (a) Time may carry out such changes or relocation provided that the Subscriber agrees to pay any and all additional charges and costs that may be incurred in order to comply with the request of the Customer; or (b) Time may decide not to change or relocate the Service, and may terminate this Agreement and the Customer shall be liable for liquidated and ascertained damages as agreed in Clause 9.6 herein.
5.4 Upgrades or Downgrades. If the Subscriber requests Time in writing to upgrade or downgrade the Service, and within a reasonable time after receipt of the request, Time shall advise the Customer whether the request is technically and commercially feasible. Upon receipt of such advice, the Parties shall meet to finalise any and all technical and commercial terms of such upgrade or downgrade request, including a restart of the Contract Term. If the Parties so agree, then Time may require the Customer to enter into a new agreement for the upgraded service and thereafter perform the necessary work to upgrade the Service.
5.5 Customer Usage Rights. Time agrees that the Subscriber may use the Service for purposes set out under this Agreement. The Subscriber is not permitted to sell, resell, hire, lease (including sub-lease), licence (including sub-licence) or rent or sub-provision the Service, the Equipment or any portion thereto whether for consideration or otherwise to any third party; or offer or provide the Service to a third party whether using the intellectual property rights of Time or otherwise.
6. Rights & Responsibilities
6.1 Subscriber agrees to: (i) authorises and grants to Time for the Contract Term, full access and lawful entry to Time and its partners or contractors to:-(a) place the necessary Equipment(s) at the MDF Rooms, locations or other designated areas in the Service Area; (b) carry out and complete the Works; (c) to access the floor riser of the building for the purposes of carrying out and completing the Works, including activation of the Service; (d) carry out and complete the construction or repair of the access ducts; and (e) carry out, perform, discharge and complete such other functions, activities and responsibilities not specifically described in this Agreement but which are necessary or incidental to the provisioning, installation and activation of the Service; (ii) comply with all relevant communications issued by Us periodically; (iii) be solely responsible for obtaining, at Your own cost, all licenses, permits, consents, approvals as may be required for using the Service and/or VAS; (iv) comply with the rules of any network and websites to which You have access using the Service and/or VAS; (v) comply with any and all applicable Malaysian laws and regulations; (vi) be solely responsible for all information retrieved, stored and transmitted through the use of the Service and/or VAS, and that We shall have no obligation to ensure, and make no representation or warranties concerning the security of Your data; (vii) obtain Our prior approval before making any changes that may affect the Equipment, the Service and/or VAS and interconnecting a private network to any public network. (viii) make timely announcements regarding the availability of the Service to all Guests at the Service Area using at least an email blast; (ix) not disconnect any of Our equipment from each other or any power supply thereto; (x) perform routine checking on the status of the Service and/or VAS to ensure that the Service and/or VAS are up and running and to immediately report to Time in event of service disruption or quality issue; (xi) comply with all of Our policies as published at Our website, when using the Service and/or VAS; and (xii) not terminate this Agreement before the Expiry Date.
6.2 Right of Entry and Access. For the Contract Term, Time is hereby granted the rights to enter and be given access to the Service Area, location(s) as set out in the Letter of Offer to (a) place the necessary Equipment(s) at the specified locations or other designated areas in the Service Area for the purposes of carrying out the Works and providing the Service; (b) maintain, operate and upgrade Time’s fibre optic cables or the Service; (c) access the floor riser of the Building for the purposes of installation and activation of the Service; (d) all other services, functions and responsibilities not specifically described in this Agreement but which are necessary or incidental to or related to the provision of the Service.
6.3 Equipment Supplied. Title in all the equipment, materials and applications We supply to You shall remain with Us, but the risk of damage or destruction shall be borne by You. If Our Equipment is lost, stolen, damaged or destroyed, whether caused by You or not, You shall quickly notify Us and pay Us the cost of replacement once We have invoiced You. If You fail, neglect or refuse to pay Us, then We may terminate the Service and/or VAS.
6.4 Repairs. If any part of the structure in the Service Area is damaged due to work carried out by Us, We will carry out such reasonable repair and reinstate such damage so that the final work is presentable but excluding improvements.
6.5 Support & Service Interruption. (i) We or Our contractors will provide a 1st level troubleshooting guide to You for the Service, which shall only comprise of remote troubleshooting of the Service up until the access point and network diagnosis, during standard business hours on business days. Where any issues cannot be resolved remotely, on-site support will be provided as soon as reasonably practicable. On-Site support services requested to be performed outside of standard business hours on business days or on public holidays governing the state of Selangor or Federal Territory of Kuala Lumpur, shall be charged at the prevailing hourly rate. (ii) You agree that We may interrupt the Service and/or VAS (to conduct scheduled or emergency maintenance to Our network or otherwise), change the access codes and/or certain technical parameters associated with the Service and/or VAS.
7. Prohibited Use
7.1 You shall not:- (a) use the Service and/or VAS including any equipment, technology and intellectual property rights (i) for any unlawful and/or criminal purpose; (ii) for any unauthorised purposes such as connection to point of sales, hosted servers, CCTVs ,etc; (iii) to send unsolicited electronic messages or any message which is obscene, threatening, defamatory, offensive or contravenes the Content Code; (iv) in any manner, which in Our opinion may adversely affect Our other subscribers or the efficiency, efficacy or security of Our network; (v) in such manner as to disrupt the normal use of the Service and/or VAS by other subscribers; (b) compromise, introduce or infect any systems including Our network with computer viruses, malware or other malicious programs; (c) infringe Our, Our related companies and subsidiaries or any third party intellectual property rights; (d) 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; (e) share the Service and/or VAS with any person without Our prior written approval and shall use the Service and/or VAS only for the purpose for which it is subscribed; (f) resell, sublet or make available (whether for profit or otherwise) the Service and/or VAS to any third party; (g) modify, reverse engineer, translate, disassemble or decompile the Service and/or VAS or any software therein, or otherwise to attempt to derive the source code of the software that enables the Service and/or VAS.
7.2 In respect of Clause 7.1 above, Subscriber shall indemnify and keep Time indemnified against all costs, expenses, loss and damages that may arise out of Subscriber’s non-adherence thereof.
8.1 You must take all necessary measures to protect Your own equipment, system and network from being hijacked by third parties.
8.2 You are to maintain the confidentiality of any passwords provided by Us, (including without limitation changing Your passwords periodically) in order to access the Service and/or VAS provided by Us, and shall not reveal the same to any other person.
9. Suspension and Termination
9.1 Suspension. (a) Without prejudice to any other rights or remedies We may suspend the Service and/or VAS (in whole or in part) for such period as determined by Us whether for cause or otherwise. (b) If We suspend the Service and/or VAS, then We may, at Our sole discretion and upon such terms as We deem proper (if any), reconnect the Service and/or VAS, without compensation to You.
9.2 Termination for Cause. Either Party will have the right to immediately terminate this Agreement if: (a) the other Party shall breach any material term or condition of this Agreement and fails to rectify and remedy such breach within fourteen (14) days from the date of its receipt of a written notice requiring it so to do; or (b) the other Party shall commit an act of bankruptcy or suffer the presentation of a petition for liquidation or winding-up, as the case may be; or (c) the other Party shall make any arrangement for the benefit of or enter into any arrangement or composition agreement with its creditors; or (d) the other Party shall infringe or violate any law or regulation pertaining to the use of the Services and the Party shall fail to remedy the infringement or violation within the time frame stipulated by the relevant authority.
9.3 Termination by Subscriber. In addition to the above, but subject always to Clause 9.6 below, Subscriber shall, by providing to Time six (6) months’ written notice, have the right to terminate this Agreement under the following circumstances:- (a) Transfer of ownership of the premises comprising the Service Area; or (b) Management or control of the Service Area no longer vests in the Subscriber; or (c) Renovation or redevelopment of the premises comprising the Service Area.
9.4 Termination by Time. Time may terminate this Agreement immediately in writing where:- (a) Time is receipt of a direction, order or notice issued by the appropriate authority or statutory body having control over the operations of Time, either requiring that Time suspend the provision of the Service to the Subscriber or provide the Service in a manner which is unacceptable to Time; or (b) Time has suspended the Service or the VAS for for sixty (60) days or longer; or (c) without assigning any reason whatsoever.
9.5 Effect. (a) We shall not be liable for any damages, losses, wasted expense or costs of any nature whatsoever that maybe incurred or suffered by You as a result of the termination or expiry of this Agreement. (b) Notwithstanding the termination of this Agreement pursuant to Clause 9.2 You shall remain liable for all antecedent breaches. (c) We may collect all of Our equipment within fourteen (14) days of the termination or expiry.
9.6 Premature Termination. If Subscriber terminates this Agreement prior to the expiry of the Term, to the exclusion of the circumstances outlined in Clause 9.3 above, Subscriber shall:- (a) Be liable for all costs and expenses associated with terminating the Service, including but not limited to costs incurred to detach, dismantle and remove any or all of Time’s Equipment, as may be determined by Time; and/or (b) Continue to provide to Time the branding and promotional avenues until the Expiry Date notwithstanding that Time has ceased to provide the Services/VAS or to provide payment in lieu to Time amounting to a proportion of the Service Value for the unexpired Term from the date of termination, as the case may be.
10.1 THE SERVICE AND/OR VAS IS PROVIDED ON AN “AS IS” BASIS. TIME DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. TIME DOES NOT WARRANT THAT SERVICE AND/OR VAS WILL MEET SUBSCRIBERS SPECIFIC REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.
10.2 WE SHALL NEITHER BE LIABLE TO YOU FOR ANY SPECIAL DAMAGES, INCIDENTAL LOSS, COST AND EXPENSE, CLAIMS, LIABILITY, DEMANDS OR DAMAGES WHATSOEVER (INCLUDING ANY LOSS OF PROFITS, LOSS OF SAVINGS, INCIDENTAL OR CONSEQUENTIAL DAMAGES), ARISING OUT OF YOUR USE, MISUSE, OR FAILURE OR INABILITY TO USE THE SERVICE AND/OR VAS, NOR FOR ANY LOSS OR DAMAGE TO ANY PROPERTY, DEATH OR INJURY TO ANY PERSON HOWSOEVER CAUSED, WHETHER NEGLIGENT OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE AND/OR VAS BY YOU.
10.3 OUR LIABILITY (IF ANY) IS LIMITED TO ONLY RESTORING THE SERVICE AND/OR VAS AS SOON AS IS REASONABLY PRACTICABLE.
10.4 We shall not be liable to You for any loss that You suffers as a result of: (a) You not securing Your password and other security information; (b) a lack of security of Your data whilst using or being connected to Service and/or VAS; (c) any unauthorised access to Your data even where the access occurs as a result of a fault in Time’s Network or any other equipment or software supplied by Time; (d) any loss of information howsoever caused whether as a result of any interruption, suspension, or termination of the Service and/or VAS or otherwise; or (e) the inaccuracy or poor quality of the contents or information available, received or transmitted through the Service and/or VAS.
11. Force Majeure
11.1 Neither Party shall be liable for any failure or delay in performance of its obligations pursuant to this Agreement and/or any breach of the terms and condition of this Agreement, arising from a force majeure event, including, but not limited to acts of God, lightning strikes, labour/industrial disputes, fires, other casualties, weather or natural disaster, damage to facilities, commercial power failure, or the conduct of third parties. If the delay in performance or non-performance continues for more than sixty (60) days from such event, then either Party will have the right to terminate this Agreement with immediate effect and neither Party shall have any claim against the other in respect of such termination save for antecedent breaches. The provisions of Clause 9.5 shall apply.
12.1 Subscriber undertakes and agrees to indemnify, save and hold harmless Time at all times against all actions, claims, proceedings, costs, losses, expenses and damages whether for defamation, infringement of intellectual property rights, death, bodily injury or property damage howsoever arising which may be brought or established against Time by any person arising out of or in connection with or by reason of the operation, provision or use of the Service and/or VAS which may have been contributed by the act or omission of your servants or agents. This Clause 12 shall survive termination of the Agreement including the termination of the Service and/or VAS.
13. Confidential Information
13.1 You shall keep confidential any information that We may provide to You prior to and/or during the Contract Term, and You shall not disclose or give to any third party such information without Time’s prior written consent for a period of 2 years after the Expiry Date. You shall use the same means to keep the information confidential as You would have if the information was Your own, including ensuring that Your employees abide by this obligation of confidentiality.
13.2 You shall comply with all reasonable instructions issued by Us with respect to the handling of Our confidential information. This Clause 13 survives the termination or expiry of the Agreement.
14. Intellectual Property Rights
14.1. Subscriber acknowledges that any and all of the intellectual property identified as belonging to Time shall remain the property of Time and that nothing herein shall be deemed to operate or be construed as the grant of a licence for Subscriber to use Time’s intellectual property.
15.1. Entire Agreement This Agreement embodies our entire understanding, and constitutes the whole agreement, and supersedes any previous agreement, representation or understanding between the Parties with respect thereto.
15.2. (a) Inconsistency. If there is a conflict between these Standard Terms and Conditions and the provisions in any Schedule, the provisions in the Schedule shall govern. (b) Amendments. No amendments to these shall be effective unless evidenced in writing and signed by both Time and Subscriber. (c) Severability. If any provision herein should be invalid, illegal or unenforceable under any applicable law, such provision shall be fully severable and the Agreement shall be construed as if such provision had never comprised a part of the Agreement; and the legality and enforceability of the remaining provisions of the Agreement shall not be affected or impaired in any way.
15.3 (a) Novation. We may assign and/or novate this Agreement to any third party and Your consent for Us to do so is hereby deemed given. (b) Waiver. Any delay or failure of a Party to insist in any one or more instances upon the performance of any provisions in this Agreement shall not be construed as waiver or relinquishment of that Party’s right to future performance of such provision and the other Party’s obligation in respect of such future performance shall continue in full force and effect.
15.4 Costs & Stamp Duty. Each Party is to bear and pay its own costs and expenses incurred in relation to the negotiation, preparation and finalisation of this Agreement. Subscriber shall bear the stamp duty in respect of this Agreement.
15.5 Binding Effect. The Terms and Conditions shall be binding on the permitted assigns and successors in title of the parties hereto. The Terms and Conditions shall not be discharged or in any way affected by any change in the composition or identity of the parties hereto by amalgamation, reconstruction or otherwise.
15.6 You warrant that You have the legal capacity and required corporate authority to enter into and execute and be bound by this Agreement.