AGREEMENT TERMS
General Terms:
BOURNSHELL SDN BHD (Bournshell) at the Customer’s request, hereby agrees to provide Voice Service on the following terms and conditions Bournshell reserves the right to amend or revise these terms and conditions as it deems appropriate.
1. SERVICE
Bournshell offers to provide particularly on the Voice service and other related services (hereinafter referred to as the “Service”).
2. PERSONAL INFORMATION
Any personal information provided by the Customer shall be processed pursuant to the Personal Data Protection Act 2010 and shall be kept confidential at all times.
Bournshell shall take reasonable precautions to preserve and prevent any leakage of personal information provided by the Customer.
3. CUSTOMER’S OBLIGATION AND RESPONSIBILITIES
The Customer shall:
Comply with the Agreement in its entirety;
i) Comply with the instructions issued by Bournshell from time to time in respect of the use of the service;
ii) Make the subscription payments accordingly and in a prompt manner;
iv) Be solely responsible to maintain in good condition any Bournshell’s equipment; and
v) Comply with and not contravene any applicable laws and regulations of Malaysia.
4. PROHIBITION OF SERVICE
The Customer shall:-
i) Not use the service for any unlawful purposes and or illegal activities including but not limited to sending spam, fraud, gambling, infringement of intellectual property rights,
publishing any defamatory statements which may cause Bournshell to face network congestion and other issues that may arise;
ii) Not resell or sublet the service to any third parties without prior written consent from Bournshell
iii) Keep hardware equipments provided by Bournshell in good condition and return the same upon the termination of this Agreement;
iv) Be responsible to compensate Bournshell for any damages imposed on the hardware equipments provided by Bournshell; and
v) Agree that the Customer will use the service at its own risk.
5. BOURNSHELL’S ROLE & RESPONSIBILITIES
i) Bournshell agrees to provide integrated technical and support teams to the Customer to ensure the smooth operation of business to the Customer.
ii) Bournshell shall provide the service on an “as is” and “as available” basis
iii)No Service Level Agreement is provided under this Agreement. Any SLA requirements requested by the Customer shall be considered an additional chargeable service and subject to separate quotation, agreement, and applicable fees.
6. CHANGE OF SERVICE PLAN
i) Any change of service plan shall be made by the Customer to Bournshell by submitting a written request.
ii) Any request for a change of service plan shall be based on Bournshell’s approval.
iii) The Customer shall be responsible for all costs incurred for this change of service plan.
7. CONTRACTUAL PERIOD
This Agreement shall be effective from the date on which the service is activated by Bournshell until the expiry of contract and shall be renewable on monthly basis unless earlier terminated by either Party.
8. FEES
i) The monthly subscription fee for the service shall be based on the rates stated in the Application Form
ii) Sales and Service Tax (SST) will be implemented on all invoices issued by Bournshell to the Customer.
iii) Any additional services requested and/or added by the Customer shall be charged according to the rates fixed by Bournshell on case-to-case basis.
9. PAYMENT AND BILLING
i) Bournshell reserves the right to charge the Customer late payment interest at the rate of 1.5% per month calculated from the due date to the date of full payment.
ii) Bournshell will issue bills to the Customer for the service rendered on a monthly basis.
iii) The Customer shall be fully responsible for ensuring the accuracy of the billing address and shall inform Bournshell in the event there are any changes to the billing address in written form.
10. SUSPENSION OF SERVICE
a) Without prejudice to any other rights or remedies and notwithstanding any waiver by Bournshell of any previous breach by the Customer, Bournshell may, without giving prior notice to the Customer, suspend the service for a period determined by Bournshell in its sole discretion for any reason whatsoever and/or, in the event that:-
i) The Customer fails to settle or fails to pay the outstanding bill for an accumulative period of three (3) months;
ii) The Customer reaches its credit limit of its account;
iii) The Customer fails to comply with any of the terms of this Agreement; or
iv) The Customer has committed any action that falls within the Prohibition of Usage as stated in this Agreement.
b) In the event of any suspension of service by Bournshell, Bournshell may at its sole discretion and upon such terms, reconnect the service, in which event the service and this Agreement shall continue in effect as if the service had not been suspended.
c) In the event of any suspension of service by Bournshell that falls under Clause 10(a), Bournshell shall reserve the right to pull back and/or claim possession of all the hardware equipment installed by Bournshell in the Customer’s premise.
d) The above mentioned suspension shall not prejudice the right of Bournshell to continuously bill the Customer for the fees and/or recover all other charges, costs and interests due and any other incidental charges incurred during the period of suspension.
11. TERMINATION OF SERVICE
a) Without prejudice to parties’ rights or remedies under this Agreement, either party may terminate this Agreement, in the event:-
i) The other party breaches any term, condition, undertaking or warranty under this Agreement and such breach is not remedied for a period of 30 days after the breach occurred;
ii) The Customer is adjudged bankrupt and/or wound up; or
iii) Any Force Majeure Event occurs, which continues for a period of more than sixty (60) days.
b) Bournshell may terminate this Agreement by giving the Customer fourteen (14) days’ notice in writing due to the following event:-
i) The Customer fails to comply with Bournshell’s policies and instructions;
ii) The Customer is in breach of any provision under Communications and Multimedia Act 1998 or any other rules, regulations, by-laws, acts, ordinances or any amendments pertaining to it;
iii) The Customer is using the service for improper purposes; or
iv) The Customer provided false or incomplete information to Bournshell.
c) This Agreement may be terminated by either party upon thirty (30) days written notice to the other party.
d) Should the service be terminated by the Customer before the expiry of the Contract Period, Bournshell reserves the right to charge Early Termination Penalty which is Balance of contract period to the Customer.
e) Notwithstanding the above, Bournshell reserves the right to terminate this Agreement with immediate effect in the event the Customer fails to settle any outstanding payment for an accumulated period of six (6) months. Bournshell further reserves the right to commence litigation or other legal action for recovery of the outstanding amount, and all costs, fees, and expenses incurred in connection with such action shall be borne by the Customer.
f) Such termination shall not prejudice Bournshell’s right to recover all costs and interests due from the Customer.
12. FORCE MAJEURE
Neither party shall be liable for any breach of this Agreement arising from cause beyond its control including but not limited to Acts of God, insurrection of civil disorder, terrorism attack, war
or military operations, national or local emergency, declaration of sporadic, endemic, epidemic of pandemic of disease by the authority or other competent authority, acts or omissions of
government, highway authority or other competent authority, industrial disputes of any kind, electricity or power failure, cable cut, fire explosion, flood, acts or omissions of persons or bodies
for whom neither party is responsible or any other cause whether similar or dissimilar outside either party’s control. The Parties hereby agree that either party may terminate this Agreement
by giving fourteen (14) days’ notice to the other party, in the event that the Force Majeure event which has occurred prevents either party from performing and/or continuing its obligations for
more than a period of sixty (60) days.
13. SECURITY
a) The Customer shall take all measures he deems necessary to protect his own system and network.
b) The Customer shall be responsible for the safety, security and maintaining the confidentiality of his own log on details and shall not reveal the same to any other person.
c) The Customer shall report to Bournshell within twenty-four (24) hours if the log-on details are stolen or lost. Until such report is made, the Customer shall be responsible for any transactions
and access made by any third party and Bournshell shall not be held responsible for any prohibit and/or unauthorized use of the Service.
14. INDEMNITY
a) The Customer undertakes and agrees to indemnify, save and hold harmless Bournshell at all times against all actions, claims, proceedings, costs, losses and damages whatsoever including
but not limited to libel, slander or infringement of copyright or other intellectual property rights howsoever arising which Bournshell may sustain, incur or pay, or as the case may be, which
may be brought or established against Bournshell by any person, company or corporation whomsoever arising out of or in connection with or by reason of the operation, provision or use of the
service and/or equipment under and pursuant to this Agreement and which are attributable to the act, omission or neglect of the Customer, his servants or agents.
b) The Customer understands that the service is provided on best effort basis. Bournshell shall use its best effort to ensure the continuity, efficiency and stability of the service at all times but
shall not be liable for any loss, damage, consequential or otherwise, arising out of any failure of the service caused unless such default is due to the willful neglect or willful fault of Bournshell.
Notwithstanding the aforementioned, the extent of Bournshell’s liability shall be limited to correcting the failure of the service only.
c) In the event of any loss or damage to Bournshell’s equipment, the Customer will reimburse the cost of the said equipment based on the rate fixed by Bournshell.
15. LIMITATION OF LIABILITY
a) Bournshell shall not be liable to the Customer for any indirect, consequential and incidental loss, cost, claim, liability, expenses, demands or damages whatsoever, loss of profits, loss of savings, loss of data or loss of business arising out of the Customer’s failure to use the service or Bournshell’s equipment provided by Bournshell hereunder. Bournshell’s liability (if any) is limited to restoring the service but subject to technical limitations or other limitations beyond Bournshell’s control and if necessary, to replace Bournshell’s equipment or any part thereof if Bournshell determines that the equipment is not in working conditions or faulty not due to the Customer’s act or omission.
b) Bournshell shall not be liable to the Customer for any loss or damages sustained by reason of any disclosure, inadvertent or otherwise in any information concerning the Customer’s particular
unless due to gross negligence or willful default of Bournshell.