These General Terms and Conditions shall apply to each and all our Services in addition to any specific terms and conditions except to the extent, if any, expressly excluded in the specific terms and conditions.
BY EXECUTING THE AGREEMENT OR ACCEPTING OR USING THE SERVICES RENDERED OR TO BE RENDERED BY US (IN THE MANNER AS WE HAVE DETERMINED), YOU ARE DEEMED TO ACKNOWLEDGE AND AGREE TO BE BOUND BY THIS GENERAL TERMS AND CONDITIONS. THIS GENERAL TERMS AND CONDITIONS APPLY TO ALL SERVICES SUBSCRIBED BY YOU (UNLESS OTHERWISE PRESCRIBED IN THE AGREEMENT), AND WITH THE APPLICABLE SERVICE SCHEDULE, SERVICE ORDER FORM, ORDER DETAIL FORM, TOGETHER FORMS THE ENTIRE AGREEMENT WITH HIGHFI.
1.DEFINITION AND INTERPRETATION
1.1 In these General Terms and Conditions, except to the extent that the context requires otherwise or has specifically defined, the following expressions shall have the meanings ascribed to them below:
| “Agreement” | – | means the agreement, including without limited to our application form, for the supply of Services entered or made between you and us or if applicable, with our wholly owned subsidiaries (collectively, the “Highfi Group of Companies”) which comprises one or more completed application forms, this General Terms and Conditions, the specific terms and conditions for use of the Services, our acceptable use policies from time to time for the regulation of the use of the Services; or any other terms and conditions as may be agreed between us (if any), as may be amended, modified or varied by us from time to time; |
| “Business Days” | – | means any day (other than Saturday, Sunday or public holiday) on which commercial banks are open for business in Wilayah Persekutuan, Malaysia; |
| “Confidential Information” | – | means any information which is proprietary and confidential to Highfi including but not limited to the terms and conditions of this Agreement, negotiations relating to this Agreement and any agreement entered into pursuant to this Agreement, information concerning or relating in any way whatsoever to its contractual, business or other arrangements, any of the confidential operations, processes or inventions carried on or used by you, any information concerning the organisation, business, finances, transactions or affairs of Highfi, dealings of Highfi, secret or confidential information which relates to the business of Highfi or any of its principals’, clients’ or customers’ transactions or affairs, any Highfi’s technology, designs, documentation, manuals, financial statements or information, customer lists, and the information contained therein, any information therein in respect of trade secrets, technology and technical or other information or plans relating to the development, manufacture, analysis, marketing, sale or supply of any products or services by Highfi, and information and material which is either marked confidential or is by its nature intended to be exclusively for your knowledge alone. |
| “Customer” or “you” or “your” | – | means the party submitting or entering into the Agreement with Highfi in respect of the Services rendered or to be rendered by Highfi; |
| “Equipment” | – | means any and all hardware and software and parts thereof used by you to access and use the Services, which may be loaned or supplied by us. |
| “Fees” | – | means any fees, price, rental, charges and expenses as may be indicated in Highfi Application Form or this General Terms and Conditions for or in respect of Services rendered or to be rendered by Highfi from time to time including but not limited to any fees, deposits, price, rental, charges or expenses (whether in advance or not) for equipment, software, access, connection, installation, maintenance, subscription, usage, government charges, third party charges, license fees and administrative charges; |
| “Force Majeure Events” | – | Shall mean an event beyond a party’s reasonable control including but not limited to:-
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| “General Terms and Conditions” | – | means the terms and conditions herein contained; |
| “Highfi” or “us” or “we” or “our” | – | means HIIFI (M) SDN. BHD. (Company No.: 202101006020 (1406319-P). |
| “Network” | – | means all networks maintained, operated by us, owned by us, leased to and/or licensed to us, which is used by us for the provision of Services to you, which ownership or such rights in our network shall belong to us at all times; |
| “Services” | – | means such services, products, facilities, equipment and software as provided to you in our discretion and Services refer to each and every Service to be supplied under the Agreement , and include services provided by third parties which we are billing on behalf of, or otherwise collecting under the Agreement; |
| “Services Term” | – | means the tenure or duration for the Services subscribed as may be indicated in the application form submitted by you. Should the tenure or duration for the Services is not provided in the application form, the tenure or duration shall be for the period of one (1) year from the date the Services is made available to you or ready to be made available to you but is delayed due to reason attributed to you. Upon expiry, the tenure or duration shall be automatically extended for additional tenure(s) or duration(s) of one (1) year each unless otherwise indicated by us or you in writing at least one (1) month prior to the expiry of the existing tenure or duration. |
| “Unauthorized Acts” | – | means modification, tampering, destruction, damage or unauthorized connection to the Network or our systems (including without limitation our websites, self-service terminals and smartphone applications), including without limitation any connections that cause or may cause interruption in or congestion or disruption to the Network or our systems or any third party’s network and/or systems; and/or the use of the Network or our systems or any part thereof for any purpose other than for our provision of Services to you, in accordance with the terms and conditions provided in the Agreement; |
| “Website” | – | means our website at www.highfi.com.my or other address as may be informed to you from time to time. |
1.2 In this General Terms and Conditions, unless there is something in the subject or context inconsistent with such construction or unless it is otherwise expressly provided: –
(i) words denoting the singular number only shall include the plural and vice versa;
(ii) words denoting natural persons shall include any body of persons, company, corporation, firm or partnership corporate or unincorporated and vice versa;
(iii) words denoting any gender shall include the feminine and neuter genders and vice versa;
(iv) the headings and sub-headings in this General Terms and Conditions are inserted for convenience only and shall in no way affect the meaning and interpretation of the provisions of this General Terms and Conditions;
(v) the contra proferentem rule shall not apply in the construction or interpretation of this General Terms and Conditions or Agreement and the language in all parts of this General Terms and Conditions shall be construed and interpreted as a whole and neither strictly for nor against any of the parties.
2. THE SERVICES AND DECLARATION BY THE CUSTOMER
2.1 The Services that you subscribed is as indicated or specified in our application form or Agreement. They shall contains terms that governs and are specific to that Services and does not apply to other services that may be subscribed. Different application form will apply to different Services that are subscribed.
2.2 The Services to be provided to you shall on “as is” and “as available” basis and we expressly disclaims all warranties of any kind, whether express or implied including implied warranties of merchantability, fitness for a particular purpose and non-infringement to the fullest extent under applicable law. By continuing your use of the Services rendered, you are deemed to have accepted and agreed that the use of the Services shall be at your own risk.
2.3 No alteration or modification of the Services by you would be permissible, at any time during the Services Term, save and except otherwise agreed by us. Should you requires any upgrade to the existing Services (“Services Upgrade”), you may notify us in writing and we will provide to you a quotation or application form together with revised or new terms for the Service Upgrade. Upon agreed by the parties in writing or via executing the application form provided by us to you, the Service Upgrade shall commence on the Services Term as stipulated in the application form executed.
2.4 Our provision of the Services is subject to the connection of the Services’ address to our network. We may, at our sole discretion, reject your application for the Services, for any reason or no reason
2.5 You acknowledge and agree that you are the registered owner of the Services’ address provided by you in the application form or Agreement. If you are not the registered owner of the Services’ address, by signing up for the Services, you are deemed to have sought and received all necessary authorizations and approvals from the registered owner for our provision of the Services to you at the Services’ address, including without limitation for your subscription to the Services, any necessary installations to be performed at the Services’ address and/or any charges which may be incurred. Upon request by us or any third party authorized by us, you shall submit a letter of authorization signed by the registered owner as evidence of such approval.
2.6 In the event that you are not satisfied with the Services or this Agreement, you may and your sole and exclusive remedy is to, discontinue your use of the Services and terminate our provision of the Services by informing our Customer Service any time within a period of fourteen (14) days prior to the intended date of termination. However, if (a) you terminate the Services within the minimum commitment period as stated in your application form or Agreement or Services Term for the Services (“Commitment Period”) or (b) we terminate this Agreement or suspend the Services during the Commitment Period due to your breach of this Agreement or other lawful ground owing to your default, acts or omissions, you shall pay to us the subscription fees for the remaining months of the Commitment Period based on the prescribed rates. You may not temporarily suspend or temporarily disconnect the Services prior to expiry of the Commitment Period without our prior written agreement.
2.7 We shall have the right to, at any time, change or otherwise modify any aspect or feature of the Services. We shall have the right to, at any time, amend any rules, rates, Fees, and/or terms and conditions in respect of the Services, by publishing such amendments on our Website. You agree that such publication will constitute notice of the amendments. Your continued use of the Services will constitute acceptance of the amendments.
2.8 The Services is subject to lawful intercept and/or monitoring as may be required by the country’s regulatory and law enforcement agencies. We will ensure that such requirements are in full compliance according to the Applicable Laws.
3. PROVISION OF SERVICES AND EQUIPMENT
3.1 Any submission of the application form from you shall not be contractually binding until it has been accepted and counter signed by us. For the avoidance of doubt, we shall have the right to reject any application form submitted by you without providing any reason whatsoever.
3.2 Access and use of the Service may require the use of the Equipment which may be loaned or provided by us, or procured by you at your own expense. In the event the Equipment is procured by you, you shall ensure that the Equipment satisfies all applicable regulatory requirements and system requirements.
3.3 The Equipment will be assigned a serial number, and you shall promptly notify us of any replacement of the Equipment in order to minimize Services disruption and to facilitate the necessary update of the serial number by us. You will be charged a standard administrative fee by us for your request to update the serial number.
3.4 You acknowledge and agree that we are not the manufacturer of the Equipment and that we shall not be responsible for any Equipment defects or any loss or damage arising out of such defects, even if we supplied the Equipment.
3.5 You acknowledge and agree that you, and not us, are responsible for ensuring that the computer system and any and all peripherals thereto as utilized by you to access and use the Services meet the minimum system requirements for the Services as may be published by us from time to time. We shall not be responsible for any degradation or disruption of Services or any loss or damage arising out of any failure to meet such system requirements or any change in your system configuration.
4. CUSTOMER OBLIGATIONS
4.1 You shall:
(1) comply with the terms of our Agreement;
(2) comply with our policies and procedures concerning the Services which may be notified to you; or as may be communicated to you from time to time by our representatives; and amended by us from time to time, and provide us with all such information as we may require thereunder;
(3) be responsible for the use of the Services under your accounts and for any content which is disseminated through your accounts;
(4) use the Services for lawful purposes only and in accordance with these General Terms and Conditions, any other applicable terms and conditions; and all laws, code of practice, regulations, guidelines, instructions or other instruments having the force of law in whatsoever form that any competent regulatory, governmental or judicial authorities (“Authority”) in Malaysia may issue from time to time relating to the Services or otherwise (“Applicable Laws”);
(5) comply with all notices or instructions issued by us or any Authority which concern your use of the Services and all relevant equipment;
(6) be solely responsible for all content which you transmit or make available via the Services or on any website; and
(7) ensure that all information (including but not limited to your personal data) provided to us is accurate, complete and updated in all respects, and promptly inform us of any changes to such information.
4.2 You shall not allow the Services (whether wholly or in part) or any Equipment, as the case may be:
(a) to be resold, distributed, provided, sub-licensed or otherwise offered in any manner whatsoever, to any third party whether for profit or not without our prior approval in writing;
(b) to be modified, altered or otherwise tampered with without our prior approval in writing;
(c) to be used for any fraudulent, illegal or improper purposes or to violate any person’s rights or in any way which may affect other users’ enjoyment or access to any Services or cause irritation, annoyance, disturbance, embarrassment, nuisance, harassment, inconvenience or anxiety to anyone;
(d) to be used to transmit any content which contains viruses, worms, trojan horses, or any other harmful, destructive or adverse component or programming routine that may interrupt, disrupt, congest, adversely impact or harm the Network, the Services, or the systems or networks of other persons;
(e) to be used in any manner which may constitute an infringement or violation or misappropriation of the rights of any person or entity (including but not limited to intellectual property rights and rights of confidentiality) or a violation or infringement of any statutory duty or obligation or any duty or obligation in contract, tort or otherwise, to any third party;
(f) to be used to transmit or distribute or broadcast any bulk emails or spam unless otherwise permitted under Applicable Laws, or to transmit or distribute or broadcast any commercial advertisements or marketing messages in a significant or voluminous manner, without our prior approval in writing or unless an appropriate service bundle has been subscribed to;
(g) to be used for any purpose that is against public interest, public order, national harmony or offends against good taste or decency;
(h) to be used for any Unauthorized Acts; and
(i) to be used in breach of any Applicable Laws.
5. SERVICES TERM AND TERMINATION
5.1 The Services shall commence on the date provided or stated in the application form or this Agreement and shall continue to be binding and applicable for the Services Term unless terminated by either party in accordance with terms and conditions herein contained.
5.2 Without prejudice to any other rights or remedies of the parties under this General Terms and Conditions or Agreement or at law, either party may terminate this Agreement, in the event:
(i) the other breaches any term, condition, undertaking or warranty under this Agreement and such breach is not remedied for a period of thirty (30) days after receipt of the written request to remedy the same from the other party;
(ii) the other becomes bankrupt or enters into any composition or arrangement with or for the benefit of creditors or either party or allow any judgment against either party to remain unsatisfied for the period of twenty-one (21) days; or
(iii) any Force Majeure Event occurs, which continues for a period of more than sixty (60) days
5.3 We expressly reserves the right to terminate this Agreement without any liability or damages by providing you with at least fourteen (14) calendar days notice in writing should;
(a) you fails to comply with our policy(ies) and/or instruction(s) communicated or provided in writing; or
(b) you are in breach of any provision under this Agreement or Applicable Law which shall include without limitation to Communications and Multimedia Act, 1998; or
(c) you failed to fully settled the Fees, charges and/or any sum due to us as when it falls due; or
(d) it is of our view that the provision of Services is no longer viable or appropriate, at our sole discretion.
Such termination, shall not prejudice the right of Highfi to recover all charges, costs, damages and interests due to and any other incidental damages that it has incurred.
5.4 Notwithstanding any contrary provisions, we may terminate this Agreement without any liability or damages anytime, without the need to cite any reason, by providing you with thirty (30) calendar days’ notification in writing.
5.5 Upon termination of this Agreement, you shall discontinue the use of the Services and return to us all the Equipment belonging to us within seven (7) days of the termination of the Services or this Agreement. Should you fails to return to us the Equipment within the aforesaid period, you shall become liable for the cost of the Equipment.
6. SUSPENSION
6.1 We may suspend the Services until further notice if:-
(i) we are required to suspend or withdraw provision of all or part of the Services pursuant to any regulatory, governmental or legal prohibition, or to comply with applicable laws or any applicable requirement, regulation, policies, order, or directive of any relevant Authority;
(ii) any Force Majeure Event occurs;
(iii) any act or omission by you or due to the Equipment which affects our ability to provide all or part of the Services, or your ability to receive all or part of the Services;
(iv) in our reasonable opinion that it is necessary to suspend the supply of the Services in the event of an emergency or for operational reasons in order for us to carry out repair, maintenance, improvement, or upgrading of any equipment of facility or diversion works forming part of or in relation to the Services;
(v) use of the Services causes or is likely to cause physical or technical harm to any telecommunications network, system, or service (whether of us or any other person) including but not limited to causing damage, interfering with, or causing deterioration in the operation of our network; or
(vi) you fails to make payment in accordance with terms and conditions provided in this Agreement;
6.2 In the event that the suspension is implemented pursuant to Clause 9.1 hereinabove, you shall continue to pay to us the Fees during the period of suspension, and shall be liable for all costs and expenses incurred by us in respect of the implementation of such suspension and re-activation charges for the recommencement of the provision of the Services, where applicable.
7. PAYMENT
7.1 All Fees or invoices shall be settled and fully paid by you to us within thirty (30) calendar days from our date of invoice (the “Payment Term”).
Any disputed fees shall be communicated to us in writing within fourteen (14) calendar days from the date of invoice, and adjustment (if any) in respect of the dispute shall be reflected in the subsequent month invoice.
7.2 We are entitled to impose late penalty interest on any overdue amount at the rate of twelve per centum (12%) per annum from the date of invoice to the actual date of payment, on pro rate basis, for any overdue fees beyond the Payment Term.
7.3 In addition to Clause 7.2 above, we reserves the right to suspend the Services, partially or in whole, should the outstanding Fees or invoices remain not fully settled after the Payment Term. For the avoidance of doubt, the interest as per Clause 7.2 above shall continue to apply during such suspension.
7.4 The fees expressly set out in this Agreement excludes any and all mandatory charges or taxes as may be imposed by the applicable regulatory from time to time which shall be borne by you. The Fees provided in this Agreement shall be the nett sum payable to or to be received by GRAPESEED under this Agreement.
8. INDEMNITY AND LIABILITY
8.1 Except for death and personal injury caused by our negligence, we expressly excludes all other liability it may have to you, including in contract, tort, negligence, misrepresentation, strict liability or statute. This exclusion applies for our benefit and that of any other service provider whose network is connected to our network, all companies, directly or indirectly owned, wholly or partly owned or controlled by us or any such service provider, and all officers, employees, contractors, and agents or anyone else to whom we or these parties are responsible and whether it relates to anything caused by or resulting from anything we does or does not do or delays in doing, whether or not it is contemplated or authorized by any agreement between the parties.
8.2 Notwithstanding any contrary provision, in no event would we be liable or caused to be liable for any services disruption, liability or damages due to any reason beyond our reasonable control.
8.3 Under no circumstances will we be liable to you for any special, incidental, indirect, consequential, or punitive damages, losses, costs, or expenses; and for any lost profits, revenue, business, or anticipated savings.
8.4 If we cannot for any reason, rely on the exclusion of liability set out above, then our total liability (including any liability for the acts and omissions of our employees, agents, or sub-contractors) to you in tort, contract, or otherwise, arising out of or in connection with the performance or contemplated performance or non-performance of any obligations or services under this Agreement shall not exceed the total Fees paid over the immediately preceding period of twelve (12) months by you to us under this Agreement. This Clause 8.4 shall not apply to limit the payment of any Fees payable by you to us under this Agreement.
8.5 You shall indemnify us against all claims, damage, loss, or other liabilities made against or suffered by us relating to your use of the Services or arising from your breach, negligence, or omission, including but not limited to claims for damages, defamation, infringement of intellectual property rights, death, bodily injury, property damage, or otherwise.
9. CONFIDENTIALITY
9.1 You shall not use (other than for the purpose of utilizing the Services) or disclose any Confidential Information relating to us or any Services which is acquired from or provided by us and/or any contractor of ours in connection with or in the course of the provision of any Services, other than information which is or has become publicly available otherwise than through a breach of any obligation by you.
10. DATA PROTECTION
10.1 We shall, in its collection, processing, disclosure or other use (“Use”) of any information and data which can be related to you (“Personal Data”), for any purpose arising out of or in connection with this Agreement, adhere to the requirements of the Personal Data Protection Act 2010.
10.2 Pursuant to the Credit Reporting Agencies Act and the Central Bank of Malaysia Act, you are hereby subjected to and hereby consents to us and our third party registered credit reporting agency to process your Personal Data for the purposes of conducting a credit check upon signing up for any Services with us.
10.3 By using the Services, you hereby consents to us using your Personal Data for the purposes set out in our Data Protection Policy, which may be accessed on our website. In the event that you wishes to withdraw consent under this Clause 10, you may email or contact to us in writing.
11. RELATIONSHIP
11.1 Nothing in this General Terms and Conditions or Agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between you and us. Neither party would have any authority to enter into binding agreements of any nature or make any representations or warranties on the other party’s behalf and agrees not to misrepresent to any party any such authority.
12. WAIVER
12.1 Failure or neglect by us to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of our rights hereunder nor in any way affect the validity of the whole or any part of this General Terms and Conditions nor prejudice our rights to take subsequent action.
13. GENERAL
13.1 This General Terms and Conditions and Agreement and its attachments shall constitute the sole and exclusive statement of the terms and conditions hereof and supersede any prior discussions, writings, and negotiations with respect thereto.
13.2 If any provision in this Agreement shall be found or be held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining of the said provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect.
13.3 This General Terms and Conditions may be varied or amended from time to time by giving you seven (7) days’ notice thereof and any such variation or amendment shall take effect as from the date specified in such notice. You, by continuing to use any Services after any notice of any variation or amendment is given by us, shall be deemed to have agreed to be bound by these General Terms and Conditions as so varied or amended. No consent, assent, approval, or agreement from any third party shall be necessary for such amendment.
13.4 The parties shall at all times comply and adhere to all laws, rules and regulations affecting this Agreement including Personal Data Protection Act, Malaysia Anti-Corruption Commission Act and any guidelines issued from time to time by a body having jurisdiction over the parties.
13.5 This Agreement may be executed in two (2) counterparts in the English language by the parties on separate occasions and each counterpart shall be as valid and effectual as if executed as an original, and a set of counterparts, containing the signatures of all parties together shall be deemed to constitute one and the same instrument. Each counterpart may be signed and executed by the parties and transmitted by email transmission and shall be as valid and effectual as if executed as an original.
13.6 This Agreement shall be interpreted and enforced in accordance with the laws of Malaysia.
13.7 Time whenever mentioned herewith shall be the essence.
13.8 The stamp duty of this Agreement (if any) shall be solely borne by you.
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