Terms & Conditions

Terms & Conditions

 

TERMS AND CONDITIONS BETWEEN

MERCHANTS

(hereinafter referred to as “MERCHANTS”) of one part

AND

SiliconNet Technologies Sdn. Bhd. (394813-H)

A company incorporated in Malaysia under the Companies Act, 1965 with a place of business at 3rd

Floor, Wisma Bapa Malaysia, Petra Jaya, 93502 Kuching, Sarawak (hereinafter referred to as

“SNT”) of the other part.

 

WHEREAS:

 

(A) MERCHANTS is desirous to engage SNT for the purpose of providing Hosting Services and Call

Centre Services (hereinafter referred to as “the Services”) for the eCommerce Suite Website (hereinafter referred to as “the System”) more particularly described in the Addendum A hereto and SNT is able and willing to undertake and provide the same upon terms and conditions hereinafter appearing.

 

1. Appointment of SNT

 

1.1 MERCHANTS hereby appoints SNT to provide the Services for the System and SNT accepts the

appointment on the terms and conditions hereinafter set forth, it being agreed and accepted

that SNT shall be solely responsible for carrying out the Services as described in

Addendum A hereto.

 

2. Duration and commencement of the Services

 

2.1 The Services under this Terms And Conditions shall commence upon creation of the eCommerce Suite Website for a year, unless sooner terminated or extended according to the provisions of this Terms And Conditions.

 

3. Definition

 

In this Terms And Conditions the following meanings shall apply.

 

3.1 “Hosting Services” means providing Data Centre Infrastructure to host the System for

MERCHANTS to use but excludes any of the services described in Clause 10 of this Terms And Conditions.

 

3.2 “Content Provider” means information supplier of the content for the eCommerce Suite

Website.

 

3.3 “Cut-off Time” means the cut-off period for SNT to respond to the logged call. Any call

made after the cut-off period shall only be responded to on the Next Working Day.

 

3.4 “Month” means calendar month.

 

3.5 “Negligent Act” includes but is not limited to accidental deletion of System components,

creating conflict among System components as well as virus contamination caused by

human negligence.

 

3.6 “Prime Coverage Hours” means the period of coverage for the support as specified under

Addendum A1.

 

3.7 “Response Time” means the time frame that a reported fault shall be responded to after it

is logged to SNT Call Centre.

 

3.8 “System” means the websites hosted on SNT Data Centre Infrastructure.

 

3.9 “Systems and Pricing Schedule” means the First Schedule attached to this Terms And Conditions

or any additional Systems and Pricing Schedule(s) as may be agreed by both parties from

time to time.

 

3.10 "Website" means web pages design containing textual information and other features as

specified in First Schedule.

 

4. Scope of Hosting Service

 

4.1 The scope of the services covered under this Terms And Conditions are specified in Addendum A1.

 

4.2 The Hosting Support Processes shall be as specified in Addendum A2.

 

5. Period Of Service

 

5.1 SNT or its designated representatives shall perform the Service(s) in respect of each

System during the standard Prime Coverage Hours.

 

5.2 The period of service for the System (which shall be the same for each day selected) shall

be the Prime Coverage Hours together with any optional period of Service selected by MERCHANTS.

Unless otherwise specified, the period of Service for all System (subsystems) in the System

Schedule(s) shall be the same.

6. Annual Hosting Charges

 

6.1 In consideration of SNT rendering the Services stipulated herein, MERCHANTS agrees to pay to

SNT the service fees as set forth in the First Schedule or any supplementary

schedule(s) executed by both parties from time to time.

 

6.2 SNT shall be responsible for all costs incurred for rendering the Services required under

this Terms And Conditions or for the discharge of any obligations hereunder.

 

6.3 MERCHANTS shall be responsible for the Service Tax of 6% or at other statutory rates prevailing at the time when such tax is chargeable or payable.

 

7. Mode of Billing and Payment

 

7.1 MERCHANTS shall opt to pay the annual maintenance charges yearly provided that SNT shall

present invoices to MERCHANTS in respect of the ensuing payment and that MERCHANTS shall make payment within thirty (30) days of the receipt of the invoice(s). Invoices shall be presented

and deemed payable at the beginning of each billing period.

 

7.2 SNT shall submit to MERCHANTS, in duplicate, invoices or other appropriate supporting

documents in support of any claim for payment of the sum stipulated in each bill.

 

7.3 Service may be terminated or the annual subscription service fee may be revised with either

party giving thirty (30) days prior notice in writing.

 

8. Obligations of MERCHANTS

 

8.1 MERCHANTS irrevocably and unconditionally agrees with, warrants and undertakes to SNT that:-

 

(a) it has taken all necessary action to authorize the execution and delivery of this Terms And Conditions;

 

(b) it has taken all necessary action to perform and observe the terms of this Terms And Conditions;

 

(c) it has taken all necessary action to authorize the person or persons who execute or

deliver this Terms And Conditions, to execute and deliver the same and thereby bind MERCHANTS to all

the terms and conditions of the same and to act for and on behalf of MERCHANTS as

contemplated hereby.

 

8.2 MERCHANTS shall authorize the access to all users of the System and ensure that they in using the System comply to the roles and responsibilities of MERCHANTS.

8.3 MERCHANTS is not to use this Service for illegal purposes or for the transmission of material that is unlawful, libelous, invasion of another’s privacy, abusive, threatening, harmful, vulgar,

obscene, or that infringes the intellectual property or rights of another party.

8.4 MERCHANTS shall inform SNT immediately in writing should there be changes in existing url link

or additions of url link.

 

8.5 MERCHANTS shall not reveal the password assigned to its individual accounts to other users and

agrees to indemnify and hold SNT harmless for any improper or illegal use of each

account. This includes illegal or improper use by someone to whom the password has

been revealed or communicated.

 

8.6 MERCHANTS shall ensure that all materials stored in the System is legitimate and in no way

contradicts the Copyright Act 1987.

 

8.7 MERCHANTS or its authorized representative shall be responsible for the accuracy, currency, and

appropriateness of the contents of the website.

 

8.8 MERCHANTS shall be responsible for domain name registration and renewal.

 

9. Obligations Of SNT

 

9.1 SNT irrevocably and unconditionally represents that it has the capacity and expertise to

execute, deliver and satisfactory perform the terms of this Terms And Conditions and has taken all the

necessary corporate and other action to authorize the execution delivery and performance

of this Terms And Conditions.

 

9.2 SNT reserves the right to review the performance of services under this Terms And Conditions from

time to time in order to improve availability, accessibility and other general qualities of

service with or without notice to MERCHANTS.

 

9.3 SNT shall exercise discretion and proper security measures to prevent unauthorized

access. Restricted access shall be provided as per requirements and request by MERCHANTS or its

representatives. SNT shall be informed accordingly to activate the access to the System.

 

9.4 SNT shall ensure continuity of the System and provide backup mechanism for the smooth

operation or running of the System.

 

9.5 SNT shall provide standard hard disk space up to 20GB. Additional hard disk space shall

be charged at the price that agreed by both parties.

 

9.6 SNT shall provide email, telephone and fax access to MERCHANTS for fault reporting to SNT

Call Centre as specified in Addendum A2.

 

9.7 SNT shall not be liable for any consequence of using the information from the System by

MERCHANTS, either directly or indirectly. In the event that unauthorized copy of the information is

made, SNT and its subsidiaries, affiliates, related companies, employees, officers,

directors and agents shall not be held responsible.

9.8 SNT does not assume any responsibility or liability for the data and information entered

into the System by MERCHANTS or its representatives.

 

 

 

10. Exclusions

 

This Terms And Conditions shall not include:

 

10.1 Repair to corrupted data, including data recovery efforts, where such damage or data loss

is caused by or attributed to:

 

(a) the intentional or negligent act default or omission of MERCHANTS, its servants, employees

or agents other than SNT personnel;

 

(b) failure of electrical power, telecommunications and other public utilities;

 

(c) fluctuations of power supply at MERCHANTS's site;

 

(d) vandalism, fire or water damage, lightning strike, electrical stress or force majeure;

 

(e) not following operation procedure implemented;

 

(f) any natural disaster;

 

10.2 Assistance which involves new program development, maintenance of contents or

functional enhancement to the existing System. Such service shall only be available upon

written request by MERCHANTS. SNT (at its discretion) may charge MERCHANTS and both parties shall agree on the charges before commencement of work.

 

10.3 Performance issues relating to network bandwidth.

 

10.4 Any interruption of service beyond the control of SNT.

 

10.5 Any infringement committed by the content providers or the users accessing the website.

 

10.6 Any work from SNT Data Centre for any subsequent new customer. It shall be managed

by MERCHANTS’s web administrator.

 

11. Additional Systems and Upgrades

 

11.1 MERCHANTS may add systems to the First Schedule at the then agreed additional system service fee. If it is additional systems or upgrades not purchased or installed by SNT, the

additional items are subject to the rights of SNT to perform an inspection on the system.

Coverage, type of service and validity period shall be similar to existing systems unless

otherwise specified in a revised First Schedule.

 

11.2 If MERCHANTS use system components or similar auxiliaries, consumable or media which is against recommendation of SNT as suitable for the System, SNT will not be responsible for

performance of the System, or system of which the system is a part and reserves the right

to impose an additional service charge for any or all subsequent periods.

11.3 If MERCHANTS shall require services of enhancement and/or upgrades to the System, such services shall be made available by SNT provided that the cost of such additional services be

agreed to by MERCHANTS prior to such additional services being carried out by SNT.

 

12. Assignment

 

12.1 Except with prior written approval of the MERCHANTS, SNT shall not assign or sub-contract or

sub-let the obligations or any benefit accruing under this Terms And Conditions or any part thereof nor

engage any independent consultant or sub-contractor to perform any part of the Services

for the System, provided that such consent shall not be unreasonably withheld.

 

12.2 When any portion of the Services is so assigned or sub-contracted or sub-let all the

provisions of this Terms And Conditions shall apply to such portion of the Services and to the persons

carrying it out as if it were being carried out directly by SNT.

12.3 The term “sub-contract” or “sub-let” in this clause shall include any form of Terms And Conditions by which work is carried out by persons not under the direct control or the direct employment of

SNT.

 

13. Confidentiality

 

13.1 Except with the prior written approval of the MERCHANTS, SNT or its personnel shall not:-

 

(a) at any time communicate to any person or body or entity, any confidential information disclosed to it or its personnel for the purpose of the provision of the Services or discovered by it in the course of the provision and performance of the Services;

 

(b) make public any information as to the recommendations, assessments and opinion formulated in the course of or as a result of the provision and performance of the Services;

 

(c) make or cause to be made any press statement or otherwise relating to the System nor publish or cause to be published any material whatsoever relating to the Services without the prior written approval of the MERCHANTS.

 

13.2 For the purpose of this Terms And Conditions, confidential information means any information,

documents, materials, record, data, notes, belonging to the MERCHANTS whether designated as

confidential or otherwise by the MERCHANTS.

 

14. Indemnifications

 

14.1 SNT shall indemnify, protect and defend at its own expense the MERCHANTS and its agents from or against all actions, claims and liabilities arising out of acts done by SNT or its

personnel in the performance of the Services under this Terms And Conditions including the use or

violation of any copyright works or literary property or patented invention, article or

appliance.

15. Settlement of dispute

 

15.1 If at any time any dispute or difference shall arise between the parties hereto, either party

shall, as soon as reasonably practicable, give to the other notice in writing of the existence

of such dispute or difference specifying the nature and the point in issue. Such dispute or

difference is recommended to be settled by mediation first before being referred to

Arbitration under the provision of the Malaysian Arbitration Act, 2005 or any statutory

modification or re-enactment thereof for the time being in force to a single Arbitration to be

mutually agreed upon between the parties. The arbitration shall be held in Kuching and the

decision of the arbitrator shall be final and binding on both parties.

 

15.2 Pending the award of the arbitration, SNT unless otherwise directed by the MERCHANTS shall

continue to perform the remaining part of the Services in accordance with the programme

as set out in the work schedule and no payment, the liability for which is not in issue or

contingent upon the results of the arbitration proceedings, shall be withheld on account of

such proceedings.

 

16. Termination of Terms And Conditions

 

16.1 If either party commits any fundamental breach of any term or condition of this Terms And Conditions and does not rectify such breach within three (3) months of written notice from the other

party (“non-defaulting party”) requiring him to do so, then without prejudice to any other

rights which the non-defaulting party may have, the non-defaulting party may exercise the

right to terminate this Terms And Conditions with immediate or future effect by giving written notice to

the other party.

 

16.2 Either party may terminate this Terms And Conditions at any time for any reason by giving at least thirty

(30) days notice in writing to the other party. If the Terms And Conditions is terminated by MERCHANTS as provided herein, MERCHANTS shall pay SNT for the service charges as of the date of termination based on the amount specified in First Schedule. If the Terms And Conditions is terminated by SNT as provided herein, SNT shall charge MERCHANTS for the service charges as of the date of termination based on the amount specified in First Schedule.

 

17. Extension

 

17.1 Subject to mutual Terms And Conditions by MERCHANTS and SNT, this Terms And Conditions may be extended by way of notice in writing not less than three (3) months prior to the expiration of the Terms And Conditions.

 

18. Situation beyond control of SNT

 

18.1 SNT shall immediately notify MERCHANTS in writing of any situation or of the occurrence of any

event beyond the reasonable control of SNT which makes it impossible for SNT to carry out its obligations hereunder. If MERCHANTS agrees in writing that any such situation or event exists, MERCHANTS may terminate this Terms And Conditions by giving not less than fourteen (14) days written notice and shall pay such charges due to SNT up to the date of termination of this Terms And Conditions as are still outstanding at the time of the event. In the event of disTerms And Conditions

between the parties as to the existence of such situation or event, the matter shall be submitted to arbitration in accordance to clause 15.

 

19. Force Majeure

 

19.1 If either party to this Terms And Conditions is temporarily unable by reason of force majeure or the laws or regulations of Malaysia to meet any of its obligations under this Terms And Conditions, and if such party gives to the other party written notice of the event within fourteen (14) days after

its occurrence, such obligations of the party as it is unable to perform by reason of the event shall be suspended for as long as the inability continues.

 

19.2 Neither party shall be liable to the other party for loss or damage sustained by such other

party arising from any event referred to in sub-clause 19.1 or delays arising from such

event.

 .

19.3 The term "force majeure" as employed herein shall mean acts of God, strikes, lock-outs or

other industrial disturbances, wars, insurrection, riots, epidemics, landslides, earthquakes,

storms, lightnings, floods, civil disturbances, explosions, and any other similar events not

within the control of either party and which by the exercise of due diligence neither party is

able to overcome.

 

20. General provisions

 

20.1 Both parties shall assume all responsibilities for compliance with local laws, ordinances or

other regulations relating to the operation and use of the System in the area where the

System is located.

 

20.2 Section headings are for convenience only and shall not be considered in the interpretation

of this Terms And Conditions.

 

21. Status of SNT

 

21.1 Nothing contained herein shall be construed as establishing or creating between MERCHANTS and SNT the relationship of master and servant or principal and agent, it being understood

that the position of SNT and of anyone else performing the Services, is that of an

independent contractor.

 

 

 

22. Severance

 

22.1 If any provision of this Terms And Conditions or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, or adjudged by a Court to be unlawful, void or

unenforceable, such provision shall to the extent required, be severed from this Terms And Conditions

and rendered void, illegal or unenforceable to that extent and no further.

 

23. Entire Terms And Conditions

 

23.1 This Terms And Conditions represents the entire Terms And Conditions between the parties  hereto and supercedes in all respects all previous and prior Terms And Conditionss or undertakings, if any, between the parties hereto with respect, to the subject matter hereof, whether such be

written or oral.

 

24. Variation of Terms And Conditions

 

24.1 This Terms And Conditions may be varied by Terms And Conditions between the parties. All such variations, including variations in the amount specified in First Schedule, shall be in writing signed by the duly authorised representatives of both parties.

 

25. Costs

 

25.1 Each of the parties shall bear its own costs in relation to and arising from the preparation and execution of this Terms And Conditions. All stamp duties chargeable and all fees payable on registration of this Terms And Conditions shall be borne by SNT.

 

26. Schedules

 

26.1 The Addenda and Schedules herein shall form part of this Terms And Conditions and shall be

construed accordingly.

 

27. MERCHANTS’s Representative

 

27.1 MERCHANTS appoints their representatives to carry out the obligations and exercise MERCHANTS's rights under this Terms And Conditions and he or she shall have the power to carry out such obligations and exercise such rights on behalf of MERCHANTS.

 

28. Notices

 

28.1 Any demand for payment, notice or approval required or permitted to be given or made under this Terms And Conditions shall be in writing in the English or Bahasa Malaysia Language. Such notice, approval or request shall be deemed to be duly given or made when it shall have been delivered by hand, mail or facsimile to the party to which it is required to be given or made at such party's address specified below, or at such other address as either party may specify in writing.

 

29. Time

 

29.1 Time shall be of the essence of this Terms And Conditions in relation to the parties’ obligations

hereunder.

 

30. Law Applicable

 

30.1 The construction, validity and performance of this Terms And Conditions shall be governed in all respects by the Laws of Malaysia and no suit or other proceedings relating to this Terms And Conditions shall be brought or filed in any court other than a court of competent jurisdiction in Malaysia.

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