Terms and Conditions |
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A. TERMS AND CONDITIONS 1. DEFINITIONS "Agreement" means the agreement between Extiva and Subscriber relating to the Service comprising the Terms and Conditions including all details in the registration form overleaf and any other document(s) executed by Extiva and Subscriber and expressed to be supplemental hereto (all of which as may from time to time be modified in accordance with this Agreement). "Business Day" means any day other than Sunday. "Equipment" means such hardware, equipment and/or gadgets made available by EXTIVA to Subsciber with which EXTIVA determines is necessary for Subscriber to access or use the Service. "EXTIVA" means Extiva Communications Sdn. Bhd. (Company No. 460823-A). "Subscriber" means the person/firm/corporation/other entity named in the registration form for the Service overleaf whose application is subject to EXTIVA's approval. An individual applicant must be at least 18 years of age. "Service" means EXTIVA's internet telephony services called ie Net (or such other name as EXTIVA decides) which route calls to destinations/locations for the time being covered under the Service as EXTIVA determines at its absolute discretion OR the high speed broadband access to the Internet as may be provided by EXTIVA to the Subscriber pursuant to this Agreement and any other additional services from time to time, if any, as the case may be. 2. DURATION OF AGREEMENT This Agreement shall be effective from the date of EXTIVA's approval of Subscriber's application for the Service and shall continue until terminated in accordance with this Agreement. 3. CHARGES & PAYMENT 3.1 All charges and other amounts whatsoever payable by Subscriber relating to the Service shall be calculated in accordance with the rates or tariffs determined by EXTIVA at its absolute discretion. EXTIVA shall be entitled at any time and from time to time to change such rates or tariffs as EXTIVA deems fit in its absolute discretion by giving Subscriber at least seven (7) days advance notice. Subscriber hereby agrees to and shall be automatically bound by all of EXTIVA's rates and tariffs, including all changes to the same. 3.2 Subscriber shall pay EXTIVA late payment charges at the rate of 1.5% per 30 days (or part thereof) which shall accrue on all outstanding principal sums and late payment charges added thereto from the payment due date until full settlement. Late payment charges shall not be regarded as granting Subscriber time or forbearance or waiver by EXTIVA of its rights or remedies as regards Subscriber's failure/delay to pay when due. 3.3 All amounts shall be paid directly to EXTIVA in cash/crossed cheque/other payment mode acceptable to EXTIVA. Any payment(s) made to/through EXTIVA's agent(s) shall be at Subscriber's sole risk. 3.4 If applicable, Subscriber may request EXTIVA for a change in Subscriber's Service rate plan and shall be liable for all charges incidental or related to such request. 4. SUBSCRIBER'S RESPONSIBILITY 4.1 Subscriber shall: (a) be responsible and liable for every use of the Service, including any unauthorised use thereof and all transactions and/or activities carried out via Subscriber's account or means established for Subscriber to access the Service ("Subscriber's Account") with EXTIVA, including the transmission or distribution of viruses, worms or any other harmful material; (b) be responsible at all times for the security of its username and password and for the security and integrity of Subscriber's network or equipment or computer system including protecting against any virus attacks or receipt of any other harmful material through the use of the Service and/or the Internet; (c) pay all charges and other amounts whatsoever stated in each monthly invoice/statement of accounts EXTIVA issues to Subscriber relating to the Service within thirty (30) Business Days from the date of the relevant invoice/statement of accounts regardless of whether Subscriber approved/knew about the use of Service via Subscriber's Account or the charges that are incurred due to other causes whatsoever and notwithstanding any interruption, suspension, unavailability or otherwise of the Service (regardless of the cause and length thereof). Amounts stated in such invoice/statement of account as payable by Subscriber shall be binding and conclusive on Subscriber and shall be settled without deduction, set-off, counterclaim, condition or qualification whatsoever. Without prejudice to the foregoing, Subscriber shall notify EXTIVA in writing of any disputed amount within fourteen (14) days from the date of the invoice/statement of accounts. Disputes raised thereafter shall not be entertained by EXTIVA; (d) cease to use the Service as and when requested by EXTIVA from time to time; (e) inform EXTIVA at least fourteen (14) days in advance of any change in Subscriber's billing address, telephone and/or facsimile number; (f) not use the Service for any purpose prohibited under any law, regulation, order, directive or requirement of any licensing or relevant authority (whether or not having the force of law) or for any purpose or engage in any behaviour or activity which may be deemed improper or inappropriate or unacceptable by EXTIVA in its absolute discretion but shall use the Service only for the purpose for which it is subscribed. Subscriber shall not, inter alia, (a) send, receive, publish, post, transmit, distribute, disseminate, encourage the receipt of, upload, download or use any material which is harassing, threatening, abusive, defamatory, seditious, offensive, obscene, or a breach of the trade secrets, intellectual property and privacy rights of any third party or which is otherwise in contravention of any law; or (b) send or transmit any "spam" or any other form of unsolicited bulk mail or cause "flooding" attacks against a host or network through the Service; or (c) engage in, abet or otherwise allow any unlawful or illegal or inappropriate or improper or unethical behaviour including committing, or attempting to commit, or carrying out any preparatory acts towards, unauthorised access into the computer system or network of any third party. Notwithstanding anything contained herein, Subscriber shall comply with and not contravene any law regulation, order, directive or requirement of any licensing or relevant authority (whether or not having the force of law) whatsoever whether or not relating to the Service. (g) not directly/indirectly cause EXTIVA to violate any law, regulation, order, directive or requirement of any licensing or relevant authority (whether or not having the force of law); and (h) at all times indemnify EXTIVA and its officers, shareholders, employees and agents, fully and effectively, against all losses, damages, liability, demands, claims, actions, proceedings, fines, costs and expenses whatsoever which EXTIVA may sustain in connection with or arising from the provision of the Service to Subscriber or incurred or arising directly or indirectly out of any error, default, negligence or other act or omission of Subscriber, its officers, shareholders, employees or agents or third party(s) whatsoever including when using or use of the Service and/or the Internet through Subscriber's Account whether with/without Subscriber's approval/knowledge including without limitation claims for libel/invasion of privacy/copyright or patent infringement/breach of confidence/privilege/violation of law, regulation, order, directive or requirement of any licensing or relevant authority (whether or not having the force of law) in relation to the material transmitted/received/stored through the Service or otherwise or breach of this Agreement by Subscriber, its officers, shareholders, employees, agents or third party(s) and all legal costs and expenses (on full indemnity basis) to enforce this Agreement and for the recovery of all outstanding amounts. 4.2 Subscriber shall adhere to all security, authentication, verification and authorisation procedures to access the Service as EXTIVA determines at its discretion, which EXTIVA shall be entitled to vary/revise from time to time by notice to Subscriber. 5. FAIR USAGE 5.1 EXTIVA's network is a shared resource and Subscriber is required to use the Services in a considerate manner. Each Subscriber must be responsible in his or her usage of the Services and how it affects other Subscribers. Subcriber must not engage in, abet or otherwise allow any activity which may cause adverse effect to the Services or other Subscriber's use of, or access to, the Services. 5.2 Subscriber must not use the EXTIVA service connection to run programs or servers that provide network content or connectivity to any third party not at the location where the connection is installed. Examples of prohibited programs include, but are not limited to, mail, FTP, HTTP, game, newsgroup, proxy and IRC servers. 5.3 Subscriber is prohibited from using the Services in any manner which may compromise the security of, or tamper with EXTIVA's system or network resources or accounts on EXTIVA's system or on any other site accesible via the use of the Services or of EXTIVA's system or network. 5.4 Subscriber shall be responsible for the security of Subscriber's own devices that are directly or indirectly connected to EXTIVA's system or network. 5.5 For the Internet Broadband Service, Subscriber's total usage per month shall not exceed the maximum capacity specified in the subscription plan selected by the Subscriber namely 5 GB or, as the case may be, 50 GB, of data volume transmitted (aggregate of upload and download usage). This is to ensure that no Subscriber congest the bandwidth at all times. 5.6 EXTIVA reserves the right at all times to take any measures as it deems necessary in, or related to, the provision of the Service to Subscriber including, without limitation, restricting and/or filtering access to the Internet and/or website(s) or otherwise . 5.7 The system that is used to provide the Internet Broadband Service can identify very high bandwidth users among its Subscribers. In order to manage a Subscriber's usage of the Internet Broadband Service and to ensure fairness to all other Subscribers, EXTIVA may, at its discretion, throttle the bandwidth to reduce the broadband speed and/or throughput capacity in respect of such Subscriber 5.8 If Subscriber wishes to request for more than the data volume permitted, Subscriber may submit a written request to EXTIVA. EXTIVA reserves the right to reject or approve, with or without conditions, such request. The conditions, if any, may include the imposition of additional charges for the provision of additional data volume. 5.9 In respect of Subscribers who are in violation of this Policy, EXTIVA may, at its option and absolute discretion, adjust bandwidth availability, suspend the Services or terminate this Agreement (with or without notice as EXTIVA considers appropriate). 5.10 to report any illegal or unacceptable use of the Services, please contact EXTIVA by writing to custcare@extiva.com.my. 5.11 EXTIVA may from time to time amend these terms and conditions, including the fair usage provisions, without further notice to its Subscribers. Please visit the EXTIVA web site at www.ie.net.my periodically to check on any changes to these terms and conditions. Any changes to these terms and conditions shall become effective on the date that such changes are posted on the EXTIVA web site or on such other date as may be notified by EXTIVA. 6. EXTIVA'S RIGHTS 6.1 Scope of Service coverage or list of call destinations/locations shall be determined by EXTIVA at its absolute discretion. EXTIVA shall be entitled at its absolute discretion, at any time and from time to time, to change the scope or to temporarily or permanently suspend or terminate the Service (or any part(s) thereof) including any call destinations/locations/access to website(s) for the time being available under the Service without being liable in any way to Subscriber or any other person(s) (whether claiming through Subscriber or otherwise). 6.2 Subscriber shall, upon executing this Agreement, consent and permit EXTIVA to use and/or disclose to third parties, inter alia, related corporations, shareholders and relevant governmental departments/bodies/authorities, Subscriber's personal data and particulars and to share Subscriber's database and all other data for purposes including but not limited to data matching, transborder transfer of data, Call Line Identification Presentation (CLIP), provision of integrated or other services to the Subscriber or provision of connectivity/network/support services to EXTIVA related or ancillary to the Service; 7. EXTIVA'S LIABILITY 7.1 EXTIVA shall provide the Services on a best efforts basis and makes no representation, warranty or guarantee whatsoever, expressed or implied, concerning the Service including without limitation in respect of the availability, accessibility, reliability, continuity, clarity or quality of the Service or savings to Subscriber or security of material/data transmitted/received/stored through the Service or the security of Subscriber's network/equipment/computer system in terms of viruses or other harmful material or otherwise or that the Service shall meet any requirement of the Subscriber. Without prejudice to the foregoing, Subscriber acknowledges that it has not relied upon any statement, oral or written, that may have been made by EXTIVA, its officers, shareholders, employees, agents and/or representatives concerning the Service. Subscriber acknowledges that the use of the Service is entirely at Subscriber's own risk, including that EXTIVA is not responsible for and does not represent or warrant that any information transmitted through the Service or EXTIVA's network is secure. Subscriber alone is responsible for any such information. Subscriber further acknowledges and agrees that EXTIVA is not liable for any unauthorised access to or loss of any such information whatsoever whether as a result of a fault or defect in EXTIVA's network or otherwise. 7.2 Notwithstanding any contrary provisions herein, expressed or implied, neither EXTIVA nor EXTIVA's officers, shareholders, employees, agents and/or representatives shall be liable to Subscriber or third party(s) (whether claiming through Subscriber or otherwise) for any losses, damages, liability, costs and/or expenses whatsoever (whether direct, indirect, special and/or consequential, loss of/damage to business, goodwill, reputation, revenue, profits, anticipated savings, property, person or otherwise and/or any other damages or losses of whatsoever nature) incurred or arising directly or indirectly from Subscriber's use of the Service or any act and/or omission whatsoever (whether default, negligence, delay or otherwise) of EXTIVA, its officers, shareholders, employees, agents and/or representatives in relation to the Service including without limitation any permanent/temporary unavailability, breakdown, suspension, congestion, delay, interruption and/or degradation of the Service (or part(s) thereof) or breakdown of any system/facilities/circuits/equipment/services provided by third party(s) to EXTIVA in relation to the Service, no matter what the cause(s) and howsoever long it may last. 7.3 Without prejudice to Clause 7.2 above, if any disclaimer or limitation of liability by EXTIVA is ineffective/unenforceable, then the aggregate liability of EXTIVA, its officers, shareholders, employees, agents and representatives for any matter whatsoever related to this Agreement or the Service shall in no event exceed the total amount paid to EXTIVA by Subscriber in relation to the Service during the period of thirty (30) days immediately preceding the occurrence of the event giving rise to the liability enforceable against EXTIVA, its officers, shareholders, employees, agents and/or representatives. 8. FORCE MAJEURE 8.1 EXTIVA shall not be liable for any failure or delay in performing its obligations due to any Acts of God, insurrection, civil disorder military operations, emergency acts or omission of Government/any competent authority, change in or new Laws, technical/operational breakdown/failure, acts, omissions, delays or failure of third party(s) involved in routing/transmission of traffic/calls under the Service or providing connectivity/network/support services, service outage, power failure, industrial disputes, fire, lightning, explosion, flood, inclement weather, act or omission of person(s) over whom EXTIVA has no control and/or any other cause/circumstances beyond EXTIVA's reasonable control. 9. SUSPENSIONS AND TERMINATION 9.1 Subscriber may terminate this Agreement by giving EXTIVA at least thirty (30) days prior written notice of its intention to terminate. 9.2 Without prejudice to other rights or remedies available to EXTIVA and without being liable in any manner to Subscriber, EXTIVA may at its absolute discretion (a) at any time and from time to time, and without notice to Subscriber, suspend or terminate the Service or any part(s) thereof for any reason whatsoever including any call destinations/locations for the time being available under the Service; or (b) forthwith and without notice to Subscriber, terminate the Service and this Agreement if Subscriber breaches this Agreement or is unable to pay its debts or uses/attempts to use the Service fraudulently/for any unlawful purpose/to cause damage to the Service; or if Subscriber (or its parent company) is wound up or becomes bankrupt or compounds or makes any arrangement with or for the benefit of its creditors or (being a company) enters into compulsory or voluntary liquidation or amalgamation or has a receiver and/or manager appointed of the whole or any part of its property or distress or execution shall be threatened or levied upon all or any of its undertaking or property; or if Subscriber ceases/threatens to cease business/operations; or if EXTIVA believes Subscriber may not fulfil any obligation herein; or if EXTIVA's operations/reputation/goodwill is threatened/may be threatened if Service to Subscriber continues; or (c) terminate this Agreement without any reason by giving Subscriber at least five (5) Business Days prior notice of its intention to terminate. 9.3 Subscriber shall upon any suspension of the Service or termination of this Agreement for any cause immediately settle all amounts (including late payment charges) owing/incurred by Subscriber up to and including the date of suspension/termination as EXTIVA may stipulate. Termination or suspension of this Agreement shall not affect or prejudice any claim EXTIVA may have against Subscriber for any breach or repudiation of this Agreement occurring prior to any termination or suspension of this Agreement or out of which such termination or suspension shall have arisen. 9.4 If the Service (or any part(s) thereof) is suspended due to Subscriber's breach, default, error or negligence, Subscriber shall pay EXTIVA's reconnection fees if EXTIVA agrees (which it is not obliged to) to reconnect/resume the Service. 10. SUBSCRIBER'S WARRANTIES AND ACKNOWLEDGMENT 10.1 Subscriber hereby warrants that: (a) Subscriber has the legal capacity to enter inot this Agreement and is not a minor; (b) if Subscriber is a body corporate, it has the required corporate authority to enter, execute and be bound by the terms and conditions of this Agreement. 10.2 Subscriber acknolwedges that: (a) Subscriber has read and fully understood the terms and conditions herein upon signing the [Application / Registration] Form and agreed to be bound by the same upon EXTIVA accepting the application; 10.3 Subscriber further acknowledges and agrees that: (a) it is EXTIVA's policy to use Subscriber's personal data and information acquired through the registration process or through Subscriber's use of the Services or any of EXTIVA's products for EXTIVA's business purposes. (b) EXTIVA may use Subscriber's personal data and information for the internal purposes of customising advertisements and content on EXTIVA's website and EXTIVA's partner sites, providing information to Subscriber of other products and/or services available from EXTIVA or any of its related corporations, processing and fulfilling Subscriber for products and services, responding to Subscriber enquiries, conducting research for the improvement of the Service and statistical analysis and the general operation and maintenance of the Service and EXTIVA's related websites. 10.4 EXTIVA will disclose Subscriber's personal data and information if requried to do so by law or in good faith, if such action is necessary to: (a) comply with an order of any court of competent jurisdiction, directive or requirement of any legal authority or law enforcement agency; and/or (b) protect and defend the rights or property of EXTIVA, its licensors and its users 11. MISCELLANEOUS 11.1 EXTIVA shall provide the Services on a best efforts basis and makes no representation or warranty that the Services shall meet the requirements of the Subscriber or, during the subsistence of this Agreement, be error-free or available to the Subscriber without interruption. 11.2 Subscriber acknowledges and agrees that EXTIVA is not liable for any unauthorised access to or loss of any such information whatsoever whether as a result of a fault or defect in EXTIVA's network or otherwise. 11.3 Subscriber shall at all times comply with EXTIVA's usage policies, guidelines, rules and regulations relating to the Service and/or use of the Service as may be determined by EXTIVA from time to time and all notices or instructions given by EXTIVA. 11.4 If any provision of this Agreement is invalid/illegal/unenforceable, the legality and enforceability of the remaining provisions shall not be affected/impaired in any way. 11.5 This Agreement constitutes the entire agreement between EXTIVA and Subscriber and supersedes all their previous negotiations/arrangement/agreement, oral or written. Save where expressly provided for otherwise, EXTIVA shall be entitled at any time to change, modify, alter, vary, add, omit or otherwise the terms and conditions of this Agreement as EXTIVA deems fit in its absolute discretion and Subscriber hereby agrees to and shall be automatically bound by such changes. This Agreement shall be governed by and construed in accordance with the laws of Malaysia. EXTIVA and Subscriber each submits to the exclusive jurisdiction of the Malaysian courts. 11.6 Any notice from EXTIVA to Subscriber may be in writing and sent by hand, post or facsimile to Subscriber's address or facsimile number last known to EXTIVA. Any notice from Subscriber to EXTIVA must be in writing and sent by hand, post or facsimile to EXTIVA at address: Level 3, Annexe Block, Lot 10 Shopping Centre, 50 Jalan Sultan Ismail, 50250 Kuala Lumpur, Malaysia or facsimile number: 03-23302701 or such other address or facsimile number EXTIVA hereafter notifies Subscriber in writing. Any notice given pursuant to this Clause shall be deemed served on the addressee if: (a) sent by pre paid registered post, on the 3rd day from the date of posting; (b) sent by ordinary post, on the 5th day from the date of posting; (c) hand delivered, upon delivery; or (d) sent by facsimile, upon transmission subject to fax transmission confirmation and the hardcopy of which is hand delivered/posted in accordance with this Clause. 11.7 Subscriber shall not assign, transfer or in any other manner deal with all or part(s) of their rights, interests, powers, benefits and/or obligations under this Agreement without prior written consent of EXTIVA. EXTIVA shall be entitled to assign or transfer all or part(s) of their rights, interests, powers, benefits and/or obligations under this Agreement to any of its related corporations or associated companies. 11.8 No delay or indulgence or failure by EXTIVA in enforcing any term or condition of this Agreement nor the granting of any time, forbearance or indulgence by EXTIVA to Subscriber shall prejudice EXTIVA's rights, powers or remedies nor shall any waiver by EXTIVA of any breach constitute a continuing waiver in respect of any subsequent or continuing breach. A waiver by EXTIVA is binding and effective only if given in writing and signed by EXTIVA's authorised officer. 11.9 Subscriber shall bear all stamp duty, service tax, costs, expenses and any other cost, charges or taxes now or hereafter imposed by any Laws in connection with the Service. 11.10 Words importing the singular number include the plural number and vice versa. An expression importing a natural person includes any company, partnership, sole proprietorship, joint venture, association, corporation or other body or agency. 11.11 This Agreement shall benefit EXTIVA, its successors-in-title and assigns and shall bind the Subscriber, its successor(s)-in-title, heirs, estates, personal representatives and permitted assigns (as the case may be). I/We acknowledge that I/we have read the above terms and conditions and I/we unconditionally agree to be bound by the said terms and conditions and all amendments, revisions and additions which you may at your absolute discretion effect from time to time. |
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