In this Agreement:
|“Affiliate”||Means any of our or your related or associate company including its successors-in-title and permitted assigns.|
|“Agreement”||Means the agreement between you and us comprising these General Terms and Conditions, Service Terms and Conditions, and any other terms in documents which are expressly agreed to form part of the Agreement and any other terms and conditions that you and us agree from time to time.|
|“Charges”||Means all setup, connection, re-connection, monthly subscription, usage, cancellation and administrative charges and other fees relating to the Service.|
|“General Terms and Conditions”||Means these terms and conditions governing the Service we provide to you and any other terms and conditions stated or referred to in the Service Application Form.|
|“Games/ Apps”||Means the games that is in the format of .apk that is offered to the Subscribers, by you.|
|“Confidential Information”||Means oral and written information of any kind, whether in printed or electronic format, including but not limited to technical information, data, know-how and information relating to either of our or your (including our or your holding, related or subsidiary companies’) business, marketing strategies, financial condition and operations whether or not labeled as “Confidential” and submitted by us to you, whether before or after the date of this Agreement, for the purposes relating to this Agreement. The terms of this Agreement shall also be “Confidential Information”. For the avoidance of doubt, Personal Data is Confidential Information for the purposes of this Agreement.|
|“Disclosing Party”||Means a party disclosing Confidential Information.|
|“Equipment”||Means all servers, routers, access devices and other related equipment, software and facilities owned by you which are connected to the Network to facilitate access to the Content.|
|“Force Majeure”||means any circumstance beyond the reasonable control of a party which results in that party being unable to observe or perform on time an obligation under this Agreement, including but not limited to, acts of God, floods, storms, and any other natural disaster, acts of war, civil commotion, malicious damage, strikes or fire. An event or act shall not be excused or delayed by Force Majeure if it could reasonably be circumvented through use of alternative sources, work around|
|“GSM”||Plans or other means as may be agreed between the parties
e earth-based digital global system for mobile communications;
|“MMS”||Means Multimedia Messaging Services; the message sent to and from mobile phones which may comprise text with images, audio, video and other media;|
|“Network”||Means Tune Talk’s telecommunications network including any third party network operated by or on behalf of Tune Talk and includes any other necessary infrastructure to enable the delivery of the Content to the Subscribers.|
|“Personal Data”||Means any information that relates directly or indirectly to an individual who can be identified from that information or from that and other information in the possession of the Disclosing Party or the Receiving Party, including but not limited to a customer or employee of the Disclosing Party.|
|“Receiving Party”||Means a party receiving Confidential Information.|
|“Revenue Share”||Means the rates and percentage of revenue shared between you and us which is described in the relevant Service Terms and Conditions.|
|“Settlement Report”||Means the report that shows a summary of the billed transactions generated by you over a specific period and all other relevant details that supports the amount of revenue payable by us to you.|
|“Service”|| Means any service provided by us to you including the Short
Code which is described in the Service Application Form.
|“Service Application Form”||Means the application form you submit to us to apply for a Service. The Service Application Form incorporates these General Terms and Conditions.|
|“ServiceCommencement Date”||Means the commencement date on which:
a) the Service is ready for use as notified by us; or
b) if earlier, you first use the Service
|“Short Code”||Means a five (5) digit code assigned by us or other service provider in relation to the Service.|
|“SMS”||Means a mobile text message within 160 characters or its binary equivalent, which can be sent to and received from a GSM-device.|
|“Service Termsand Conditions”||Means the specific terms and conditions that govern a Service, including any amendments made from time to time.|
|“Subscribers”||Means the subscribers or other users of TuneTalk who access or obtain the Content offered by you.|
|“we” or “us” or “our”||Means Tune Talk Sdn Bhd. (Company No.: 720957-V) or its Affiliates and where relevant includes its employees and agents.|
|“Website”||Means the official website for the CPA, currently having www.tunedcb.com as its Universal Resource Locator (“URL”).|
|“you” or “your”||Means the applicant described in the Service Application Form whose application is accepted by us and where relevant, includes your employees, agents.|
In this Agreement:
- singular includes the plural and vice versa;
- headings have been inserted for guidance only and do not affect the interpretation of the provisions in this Agreement;
- a reference to a statute includes regulations, ordinances or by-laws, amendments, replacements and regulations under it;
- a person includes its executors, administrators, successors and assigns;
- a reference to a clause, party, annexure, or schedule is a reference to a clause of and a party, annexure, or schedule to this Agreement;
- a business day means any day other than Saturday, Sunday or a day that is a public holiday in Kuala Lumpur, Malaysia;
- the meaning of general words is not limited by specific examples introduced by “including” or “for example” or similar expressions; and
- no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement.
If there is any inconsistency between the terms of this Agreement the following order of precedence will apply so that a document further down the order is read down to the extent of the inconsistency:
- the Service Terms and Condition;
- these General Terms and Conditions;
- any terms the Service Application Form.
2.1 This Agreement takes effect from the date your first Service Application Form is accepted by us and our acceptance is deemed to have been communicated to you upon our provision of the Service.
2.2 Acceptance by us of your Service Application Form for one Service does not mean that we accept your application for other Services or any services which are provided by us in the future.
2.3 Each Service Application Form accepted by us:-
- constitutes a separate contract, existing independently from any other Service Application Form; and
- is deemed incorporated as part of this Agreement together with the relevant Service Terms
3.1 You agree to the Revenue Share as stated in the relevant Service Terms and Conditions.
3.2 If applicable, we will provide you with a Settlement Report on the use of the Content. We will send you the Settlement Report by the 10th business day of every month.
3.3 Computation of the revenue due to you shall be based only on the transactions set out in the Settlement Report. Despite this, only if there is an inconsistency of more than five percent (5%) between the Settlement Report and your own report by reference to the number of transactions in the Settlement Report, you shall notify us in writing within 20 days of receipt of the Settlement Report. If you fail to notify us within 20 days, the Settlement Report will be deemed final and conclusive. When we receive your written notice, each party will at its own cost and expense investigate the variance and when resolved, and if it is determined that we have to pay you, our payment will be made in the following month together with the payments due to you for the transactions for the following month.
3.4 We will pay you the revenue based on the Revenue Share within 60 days of receipt of your invoice. However, we may, at our sole discretion, withhold your entire or any part of your Revenue Share for the duration that you delay or fail to make payments which are due and payable to us under this Agreement. We are also entitled to set-off your entire or any part of your Revenue Share against the total monthly charges of each month which are payable by you under this Agreement.
4.1 You agree to the Revenue Share as stated in the relevant Service Terms and Conditions.
4.2 If applicable, we will provide you with a Settlement Report on the use of the Content. We will send you the Settlement Report by the 10th business day of every month.
4.3 Computation of the revenue due to you shall be based only on the transactions set out in the Settlement Report. Despite this, only if there is an inconsistency of more than five percent (5%) between the Settlement Report and your own report by reference to the number of transactions in the Settlement Report, you shall notify us in writing within 20 days of receipt of the Settlement Report. If you fail to notify us within 20 days, the Settlement Report will be deemed final and conclusive. When we receive your written notice, each party will at its own cost and expense investigate the variance and when resolved, and if it is determined that we have to pay you, our payment will be made in the following month together with the payments due to you for the transactions for the following month.
4.4 We will pay you the revenue based on the Revenue Share within 60 days of receipt of your invoice. However, we may, at our sole discretion, withhold your entire or any part of your Revenue Share for the duration that you delay or fail to make payments which are due and payable to us under this Agreement. We are also entitled to set-off your entire or any part of your Revenue Share against the total monthly charges of each month which are payable by you under this Agreement.
5.1 You shall maintain the Equipment in good order and repair.
5.2 You are responsible for establishing a connection between our Network and your Equipment, to enable the provision of the Content to the Subscribers.
5.4 If the Content causes instability to our Network, we shall be entitled without any liability, to disconnect you from our Network without any prior notice.
5.5 If you have information which will assist us in the investigation of any system failure to the Network, you shall provide such information at our request.
6.1 We have the absolute right to carry out any changes or upgrades to our Network, which may affect the connection between our Network and the Equipment. Wherever practicable, we will provide you with reasonable prior notice of such changes or upgrades. We are not responsible if you incur additional expenditures or losses due to such changes or upgrades to our Network.
6.2 If we give you prior written notice that you are required to upgrade your Equipment due to any upgrade on our Network, you shall complete your Equipment upgrade within the period stated in our written notice to continue to integrate with the upgraded Network. If you do not to upgrade your Equipment, the Service may be interrupted or adversely affected. Upgrade to our Network includes any change of servers, software and/or application protocol interphase.
7.1 We reserve the right to suspend the Service at any time without giving any reason or if you breach any provisions or warranties in this Agreement or if we reasonably believe that you are involved in any of the following:-
- fraudulent activities, suspected or otherwise; or
- misuse the Short Codes in any manner whatsoever.
7.2 If we suspend the Service under Clause 7.1, we will give you written notice which states the nature of your breach. If you rectify such breach satisfactorily, we will reinstate the Service. During the suspension, we may, at our sole discretion, withhold your entire or any part of your Revenue Share until the suspension is lifted. However, the Charges shall remain payable by you during such suspension.
7.3 We may suspend the Services for operational reasons and we will endeavor to give you written notice if practicable.
8.1 You shall:-
- comply with all applicable laws, ordinances, codes, rules, regulations, notices, instructions or directives of the relevant authorities or with any instructions, guidelines or directives we give in connection with the Service. Such applicable laws or regulations include subversive, defamatory, obscene or pornographic materials or other content standards or breach of copyright, patent or other proprietary rights or in a manner which in our reasonable opinion may adversely affect the use of the Service by other users or the efficiency of our Network or Service; and
- unless you notify us in writing, use the Service only for providing the Content to the Subscribers and shall not use the Service for or on behalf of any other party.
8.2 You shall not use our Service:-
- in a manner which may violate any laws and/or generate a change in traffic in excess of your normal use (unless you have obtained our prior written consent) or which causes disturbance, interference, disruption or congestion to or adversely affects the efficiency of the Service, the Network;
- to send unsolicited mail messages;
- for any purpose which is against public interest, public order or national harmony;
- to publish defamatory, obscene or other unlawful material;
- in any manner which may infringe the copyright, patent, trademark, trade secret or other proprietary rights of any third party or rights of privacy; and
- interfere with, damage, disrupt or unlawfully gain access to our Network or to any service, equipment or computer network belonging to us.
You warrant and represent to us that:-
- you have the power and authority to enter into this Agreement and to perform fully your obligations;
- you are under no contractual or other legal obligation which will in any way interfere with your performance under this Agreement;
- you shall at all times inform the Subscribers of the full charges to be levied on the Subscribers for the Content;
- you have all necessary rights to distribute, display, promote and provide the Content;
- the Content does not and will not infringe any intellectual property rights of any third party and does not and will not constitute a defamation or invasion of the rights of privacy or publicity of any third party;
- you have all the necessary consents, licenses and approvals from the relevant regulatory authorities, bodies and organizations which supervises any of the Content and the distribution of such Content;
- you shall comply with all applicable laws, regulations and directives as may be issued from time to time by any governmental agency (including without limitation MCMC) in the provision of the Content under this Agreement including the Communications and Multimedia Act, 1998 and the Personal Data Protection Act 2010 (as and when it becomes enforceable) relating to any Personal Data;
- you shall ensure that the Content is provided according to the highest standards of professionalism and skill and otherwise in accordance with instructions, specifications, procedures, standards, guidelines, timeframe, if any, as we may issue from time to time
- you shall provide the Content in such a manner so not adversely affect our reputation;
- you shall maintain proper and accurate records relating to the conduct of the Content, if any, for duration required by law and shall at our request, copies of such records;
- the Content is an original work and has not been copied and or otherwise reproduced, derived or adapted marginally, wholly or substantially from any other work or material belonging to any third party,
You acknowledge that we have entered into this Agreement in reliance on your representations and warranties set out in this Clause.
10.1 You shall inform us of any expected increase in transaction volume that is likely to be substantially higher than our expectations. Content that generates high transaction volumes within a limited time including but not limited to voting, polling and contest within television or radio shows, shall not be carried out without our prior consent.
10.2 We may at any time request additional or new transaction volume forecast from you if we believe that there will be a significant change in the transaction volume.
10.3 You shall use reasonable commercial efforts to ensure that your Equipment has the capacity and performance capability to meet the expected increase in transaction volume. Upon our request, you shall provide information detailing the capacity and performance specifications of your Equipment.
11.1 All Subscribers’ personal information obtained by you through or in connection with the Content belongs to us.
12.1 You indemnify and keep us and our employees, agents, officers and directors indemnified at all times from and against all loss, damage or liability (including reasonable legal fees), incurred as a result or arising from any actions, proceedings, claims and demands sustained, incurred or paid by us from any of your act, default or omission.
13.1 We will provide the Services to you on “as is” and “as available” basis and you agree and accept that you must use the Service at your own risk. We do not make any representation and disclaim warranties of any kind in relation to the Service including availability, accessibility, timeliness and uninterrupted use of the Service; or sequence, accuracy, completeness, timeliness or the security of the Content and we also disclaim all implied warranties of merchantability, fitness for a particular purpose and non-infringement to the fullest extent allowed by law. This exclusion applies for our benefit and that of other service provider or telecommunication operator whose networks are connected to each other or to the Network and all our Affiliates.
13.2 We exclude all liabilities including our negligence from your use of the Service.
13.3 We will not be liable to you or to any persons claiming through you for any costs, loss or damage (whether direct or indirect), or for loss of revenue, loss of profits or any special or consequential loss including loss of profits, data, revenue, business and anticipated savings of any nature whatsoever.
13.4 Despite the above, our entire liability in contract, tort (including negligence or breach of statutory duty) or otherwise to you shall be limited to either RM 5,000 or the total of the Charges in the 3 months preceding the relevant event or series of events, whichever is lower.
14.1 Unless the Service Terms and Conditions of the Service state otherwise, either party may terminate a Service or this Agreement without any reason by giving at least 30 days prior written notice.
14.2 Despite Clause 14.1, we shall be entitled to terminate this Agreement or the Service immediately if:-
- you fail to remedy a breach (which is capable of remedy) of any your obligations under this Agreement including payment of Charges by the due date, within 21 days of receiving our notice of beach; or
- a winding-up has been made against you and the order remains or will remain in effect for a continuous period of sixty 60 days
- a receiver, receiver and manager, official manager, provisional liquidator, liquidator, or like official is appointed over the whole or a substantial part of your undertaking and property; or
- an order is made or an effective resolution is passed, for your reconstruction and amalgamation or otherwise under Section 176 of the Companies Act 1965 or any other similar action or proceeding under any other law and the order or resolution remains or will remain in effect for a continuous period of 60 days
14.3 We may suspend any part of the Service if any of the events specified under Clause 14.2 occurs on your part.
14.4 Without prejudice to any other provisions, this Agreement shall be terminated without further liability to either party if :-
- such termination is necessary due to any directive or regulation from any governmental or statutory authority having jurisdiction over the matters in this Agreement; or
- such directive or regulation expressly prohibits either party from performing its obligations under this Agreement.
14.5 Upon termination of this Agreement, both parties shall cease to use the other party’s name or refer to the other party in all its subsequent messages, notices, promotions or advertisements. All sums due or payable to us in respect to the Service up to the date that the Service is terminated will upon the termination of that Service become immediately due and payable to us.
15.1 Either party shall not be held responsible or liable for any delay or failure to comply with any of the provisions of this Agreement due to Force Majeure events.
15.2 If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
15.3 If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 30 calendar days, either party may immediately terminate this Agreement on providing prior written notice to the other party.
16.1 The Receiving Party agrees and undertakes with the Disclosing Party to use the Confidential Information of the Disclosing Party only for the purposes of this Agreement and to protect the Confidential Information of the Disclosing Party using not less than the standard of care with which it treats its own Confidential Information but in no event less than reasonable care and shall ensure that the Confidential Information of the Disclosing Party is stored and handled in a way to prevent unauthorized disclosure. Further, the Receiving Party and the Disclosing Party agree to comply with all applicable and enforceable laws including the Communications and Multimedia Act, 1998 and the Personal Data Protection Act 2010 (as and when it becomes enforceable) relating to any Personal Data disclosed by or on behalf of the Disclosing Party to the Receiving Party. The Receiving Party agrees to comply with all reasonable requests in relation to any Personal Data disclosed by the Disclosing Party, to enable the Disclosing Party to comply with its obligations under those acts.
16.2 Each party shall use its best efforts to limit dissemination of the Confidential Information of the Disclosing Party to its employees, consultants, officers, agents or sub-contractors and its holding or related companies’ employees (collectively called “Personnel”) to whom disclosure is necessary for each of them to perform his duties under this Agreement. Each party shall impose the above obligations of confidentiality on their Personnel.
16.3 The obligations above shall not apply, however, to any part of the Confidential Information which:
- was already in the public domain or becomes so through no fault of the Receiving Party; or
- is independently developed by the Receiving Party; or
- is approved for release by prior written authorization by the Disclosing Party; or
- is required by law to be disclosed, provided, however, that prior to any such compelled disclosure, the Receiving Party will :
- assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure; and
- cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the Receiving Party will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
16.4 Subject to Clause 16.3 and the balance of this Clause 16.4, these obligations of confidentiality shall be of no legal force or effect three (3) years after the expiration or termination of this Agreement. Despite anything contained in this Agreement, all Confidential Information relating to Personal Data shall be kept confidential at all times without limitation of time.
16.5 Each party further agrees, upon termination for whatever cause of this Agreement, to forthwith return to the other all documents and any materials received in connection with the Agreement containing any of the Confidential Information of the other party.
17.1 We may at our sole and absolute discretion amend, add or delete any provisions of this Agreement with immediate effect without any prior notice to you except for variations made to the Charges and Revenue Share which we will give least 30 days prior written notice before such variations become effective. We may at our option, notify you according to Clause 18 or by posting a notice on the Website. You are advised to review these General Terms and Conditions and all the relevant Service Terms and Conditions applicable to you which we post on the Website from time to time.
17.3 If the changes are necessary due to any directive or regulation from the regulatory authority or any governmental or statutory authority having jurisdiction over the matters in this Agreement, we will endeavor to notify you by giving reasonable written notice to you by posting the notice on the Website or according to Clause 18.
18.1 Any notice given by you to us under this Agreement shall be in writing and sent to:-
Tune DCB Team
Forest Interactive Sdn Bhd. (578874-M)
C-5-1 Megan Avenue 2, Jalan Yap Kwan Seng, 50450, Kuala Lumpur, WP, Malaysia.
Tel: +603 2162 2728 (Ext. 162)
Fax: +603 21622729
Or to any address notified by us from time to time.
18.2 Unless otherwise provided in this Agreement, any notice or communication given by us to you shall be in writing and sent to the address given in the Service Application Form or at such address as you may notify from time to time.
18.3 Any notice given under this Clause shall be deemed served if:-
- sent by prepaid registered post, on the 3rd day after posting;
- hand delivered, on delivery;
- if sent by email, on the next business day immediately after transmission; and
- if sent by facsimile, upon completion of transmission as evidenced by the transmission report generated by the transmitting.
19.1 This Agreement contains the entire agreement between you and us and supersedes all prior agreement, undertakings, negotiations and discussions between us.
19.2 The relationship of the parties is that of independent contracting parties. Nothing in this Agreement shall be construed as creating a partnership, agency or joint venture between the parties.
19.3 You shall not use Tune Talk’s logo, trademark and name without our prior written consent. Our prior approval must be obtained for all publicity and promotional material carrying our logo, trademark before they are released or published to the public.
19.4 If any of the terms in the Agreement are not valid or legally enforceable, the other terms will not be affected.
19.5 The laws and courts of Malaysia will govern this Agreement. Any processes or judgment may be served on you in the same way as the notices.
19.6 The clauses which by their nature survive termination of this Agreement shall so survive including Clauses 12, 13 and 16 shall apply even after the Agreement comes to an end.
19.7 If we delay or do not take action to enforce our rights under the Agreement, this does not stop us from taking action later.
19.8 You may only transfer your rights under this Agreement without our prior written consent.
Alternatively if you would like to download a PDF version of the TuneDCB General & Service Terms and Conditions document please click the download button below. (448kb PDF File)