Terms of service
These are the terms we need you to agree to whilst using our services provided on this site.
Last revised on 3 December 2021
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. YOU SHOULD NOT REGISTER FOR THE SERVICE AND/OR YOU SHOULD IMMEDIATELY CEASE YOUR ACCESS TO AND/OR USE OF THE SERVICE IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS. BY CREATING AN ACCOUNT AND/OR INSTALLING THE SOFTWARE OR APP, YOU EXPRESSLY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET OUT HEREIN. YOU MUST BE AT LEAST 18 YEARS OF AGE TO REGISTER FOR THE SERVICE AND TO USE THE SERVICE OR HAVE OTHERWISE OBTAINED YOUR PARENT OR LEGAL GUARDIAN’S CONSENT TO DO SO AND SUCH PARENT OR LEGAL GUARDIANS DEEMED TO HAVE AGREED TO BE BOUND BY THE TERMS AND CONDITIONS SET OUT HEREIN.
For the purposes of these Terms of Service, “you” (and derivatives or variants of the term) when used herein refers to the party who sets up an account and/or contracts with Digi for the Service but shall include, where applicable or the context so demands, your directors, officers, employees, representatives, agents and/or Users. “Users” includes all parties who install, use and/or access the Service under your account from any device through the OMNI website (“Website”), OMNI mobile application (“App”) and/or OMNI software and network (“Software”). “We” (and derivatives or variants of the term) refers to Digi and includes, where applicable or the context so demands, its directors, officers, employees, representatives and/or partners.
1.1 By installing, registering, accessing and/or using the Service, you represent that:-
- you have read these terms and conditions and you agree to be legally bound by all provisions governing the Service; and
- you consent to the use and processing of your personal data in accordance with our Privacy Notice.
2. User License
2.1 All access to and/or use of the Service is subject to strict compliance with these Terms of Service, all applicable laws and such restrictions as may be imposed by us. As long as you abide by the Terms of Service, Digi grants to you a non-transferable, non-exclusive, limited personal right to access and use the Service, as upgraded from time to time.
2.2 You acknowledge that the Service may incorporate or be incorporated into software and technology owned and controlled by third parties. Such third party’s licence agreements shall fall under the scope of these Terms of Service. You hereby agree to be bound by and will abide by the terms of any applicable third party licence agreements essential to the provision of the Service.
3. Use of the Service
3.1 You agree to the following terms at all times in connection with your access to and/or use of the Service:-
- you will use the Service for valid and legal purposes only;
- you will not use or attempt to use the Service in any way or for any purpose other than as intended or offered by us. Practices we may consider as invalid or non-fair usage include without limitation the use of the Service for telemarketing, call center operations, subscription sharing between customers or any unusual calling patterns inconsistent with normal subscription use;
- you will not do anything which disrupts, interferes or interrupts with the proper operation of the Service;
- you will not attempt to defraud, spam or manipulate the Service to obtain any unauthorised, unlawful or fraudulent gains;
- you will not use the Service to engage in money-laundering, terrorism financing, drug trafficking or any other fraudulent, illegal or objectionable activity;
- you will not tamper with, misuse, reverse engineer, infect or damage our Website, App and/or Software;
- you will protect the security of your account and keep your password confidential and prevent unauthorised access to your account;
- you will take all reasonable steps to ensure that third parties do not gain unauthorised access to the Service through your account, equipment or devices;
- you will not use the Service in any way which undermines or infringes on our rights or the rights of any third party;
- you agree to be responsible for the content of any communication in your use of the Service and/or through the devices or equipment under your control and shall not use the Service to transmit data that may be deemed derogatory, offensive or objectionable in any way; and/or
- you represent and agree that the use of the Service is entirely at your own risk.
In the event of any misuse of the Service under your account or a breach of any of the foregoing, you agree that we may at our absolute discretion forthwith suspend or terminate your access to or use of the Service or any part thereof without notice and any liability to you and any payment of fees for the Service shall not be refundable.
3.2 You agree and undertake to be responsible and liable for all Users deriving under your account, whether authorised by you or otherwise, and will keep us fully indemnified against any claims or liabilities whatsoever arising from any default, acts and/or omissions by all Users.
3.3 You acknowledge and accept that the Service is not intended to support or carry emergency calls to any kind of emergency services. You shall ensure that you have additional or other arrangements, whether through general wireless, landline communications or other provisions, to access such services. We will not be liable to you or any party for any claim, damages or loss arising from or relating to an inability to use the Service to contact emergency services.
3.4 You agree that the phone number chosen by you (otherwise known as DID or Direct Inward Dialing number/line) under an OMNI Plan and all rights associated therewith are contractual. DID numbers shall at all times remain the property of Digi. Nothing in these Terms of Service shall have the effect of granting to you any ownership or proprietary rights in the DID numbers. We have the right to re-assign a DID number upon termination of the Service between us, in the event that a number has an “inactive” status in excess of such period as we may determine, and/or in such circumstances as we may reasonably deem necessary.
3.5 Without prejudice to any other rights or remedies we may have, You agree that we may at our absolute discretion without liability to you, with or without prior notice, modify, suspend or terminate your access to or use of the Service or any part thereof, for causes including but not limited to the following: (i) your violation or breach of any of these Terms of Service; (ii) your failure, delay or neglect to pay fees or other charges due for the Service; (iii) pursuant to a request by any governmental or law enforcement body or agency; (iv) pursuant to unexpected Software, technical or other related issues impacting the security or functionality of the Service; (v) for maintenance, repairs, improvements or other works on the Software or other matters related to the Service; (vi) suspicious activities which may be fraudulent and/or illegal; (vii) a force majeure event or such other unforeseen circumstances necessitating suspension or termination; (viii) discontinuation of the Service for whatsoever reason; and/or (ix) in such circumstances which we deem prudent or necessary.
4.1 The fees and charges for the Service are stated exclusive of taxes, duties or other levies which may be lawfully due. You will be responsible for all charges, fees, taxes and other payments incurred for the Service under your account and/or to be lawfully borne by you, including without limitation sales and service tax, stamp duty, bank charges and any increases in fees, charges, taxes and levies from time to time. You undertake to pay all sums due in a timely manner.
4.2 The recurring fees for your OMNI Plan is payable on a monthly basis in advance. All other charges or fees as may be incurred by you shall be billed at the end of your current billing cycle.
4.3 Where you have provided us with details of your credit/debit card, PayPal or other payment method, you hereby expressly authorise us to charge or deduct such fees and charges as may be incurred by you for the Service from your credit/debit card, PayPal or other payment method set up by you, as and when they fall due. Should you change or cancel your credit/debit card or applicable payment medium without informing us, we may suspend the Service to you without notice and we shall not be liable for any inconvenience, loss or damages you may suffer. Digi further reserves the right in its sole discretion to refuse, from time to time, to accept payment through specific credit/debit card issuers or payment methods as we may determine.
4.4 Payment sums, service items and other transaction information made available to you via the Service account dashboard are final and conclusive. You should notify us in writing within no more than fourteen (14) days of the occurrence in the event of any irregularities. We are under no obligations whatsoever to effect any charge-back, reversal, adjustment or credit to your account unless our investigations reveal a default or omission on our part or manifest error attributable to our Service.
4.5 We may take such legal or other action as we deem necessary against you to recover any outstanding sums due to us. In the event of any late payment, we will also be entitled to charge interest on any unpaid sum at the rate of 10% per annum and/or suspend the Service to you without notice, in addition to other rights we may have.
4.6 We may suspend your account after 14 days of your non-payment. If the Service to you is suspended due to your overdue account or other causes attributable to you, Digi shall not be responsible for any inconvenience, loss or damages whatsoever that you may suffer. We reserve the right to impose a re-connection fee for any reactivation of Service.
4.7 If any overdue payment is not settled within forty-one (41) days after your account is suspended or after a discontinuation of the Service and business by us due to your non-payment, we will terminate your account without any advance notice to you, and Digi shall not be responsible for any inconvenience, loss or damages whatsoever that you may suffer.
4.8 We reserve the right to investigate and categorise any account as fraudulent, resulting in immediate suspension and/or termination of the Omni service to you and any payment of fees made by you to us shall not be refundable.
5.1 Your OMNI Plan subscription will automatically renew on a month-by-month basis until and unless terminated in accordance with the terms hereof.
5.2 You may terminate the Service at any time without cause by issuance of no less than 30 days’ written notice; failing which the next month’s subscription fee will be charged and payable. We may forthwith terminate the Service by notice in email to you without liability in the event of causes including without limitation your insolvency, or where any underlying right, contract or approval necessary for the provision of the Service is revoked or ceases to be valid for any reason whatsoever.
5.3 Upon termination of the Service for whatsoever reason: (i) All licences and rights to use the Service shall immediately terminate; (ii) All monies owing to us shall become immediately due and payable whether demanded or not; (iii) We shall be entitled to charge your credit/debit card or other payment channels, or offset any outstanding amount or sums due to us against any credits, advances, deposits or other sums held by us on your behalf; (iv) You will immediately cease all use of the Service and delete or remove the Software and App from your devices and equipment; and (v) You will no longer be able to use the DID numbers associated with your account. Even if you were to subsequently reactivate your account, you will have no priority or claim whatsoever to the same DID numbers.
6. No Refunds
6.1 Payments of fees referred to in these terms and conditions shall not be refundable. We reserve every right to determine in what circumstance such refund may be made to you at our absolute discretion.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT THE WEBSITE, APP, SOFTWARE, CONNECTIVITY OR ANY FEATURE OF THE SERVICE SHALL BE FIT FOR ANY PARTICULAR PURPOSE, ACCURATE, UP-TO-DATE, ERROR-FREE, SECURE, RELIABLE AT ALL TIMES OR AVAILABLE AT ALL LOCATIONS, OR THAT THE SERVICE IS OF A PARTICULAR QUALITY OR YOUR USE OF THE SERVICE WILL PRODUCE CERTAIN RESULTS. YOU ARE AWARE AND ACKNOWLEDGE THAT THE SERVICE RELIES ON THIRD PARTY TECHNOLOGIES AND FACILITIES THAT ARE NOT WITHIN OUR CONTROL. YOU ARE ALSO AWARE OF THE LIMITATIONS AND CHARACTERISTICS OF DIGITAL AND WIRELESS NETWORKS AND THAT DATA MAY BE CORRUPTED, DIVERTED, DELAYED OR LOST DESPITE SECURITY AND OTHER MEASURES TAKEN BY US. YOU AGREE NOT TO HOLD US LIABLE FOR ANY SUCH OCCURENCES, INCIDENTS OR OTHER PERFORMANCE/OPERATIONS FAILURES OR INTERRUPTIONS.
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. YOU WILL RELY ON YOUR OWN REVIEW AND EVALUATION OF THE SERVICE TO ASSESS ITS RELIABILITY AND/OR SUITABILITY FOR YOUR PARTICULAR PURPOSE. YOU ACCEPT THAT YOUR SOLE REMEDY AGAINST US IN THE EVENT OF DISSATISFACTION IS TO CEASE USING THE SERVICE.
8. Limitation of Liability
8.1 Digi, its directors, officers, employees, representatives, and its holding, subsidiary and affiliated companies, shall not be held liable to you or any third party for any liability, loss or damages whatsoever arising out of your use or inability to use the Service, for: (i) any indirect, consequential, exemplary, special or incidental damages (including without limitation loss or corruption of data, pecuniary loss, computer failure and interruptions, damage to property, injury to persons or death); (ii) any loss of profits, income, business or opportunities (whether direct or indirect); (iii) any loss or damage which may be incurred as a result of quality, disruptions or a delay in the Service; (iv) any release of new App or Software versions, removal of features or other modifications to the Service; and/or (v) any loss or damage arising from suspension or termination of the Service for any reason. Your acceptance of this limitation is an essential term of use of the Service and you acknowledge that we would not have otherwise agreed to provide the Service to you without your agreement to this term.
8.2 If, notwithstanding the foregoing, we are held liable by a competent body for whatsoever reason, you agree that our total liability to you for any damages or loss in connection with the Service shall in no event exceed a sum representing the total subscription or fees and charges paid by you to us for the Service in the last immediate preceding three (3) months prior to the dispute. You agree that if any part of this clause is deemed inapplicable for any reason, all other parts or provisions hereof will continue to apply to their fullest intent and extent possible.
You agree to indemnify Digi including its directors, officers and employees, representatives and its holding, subsidiary and affiliated companies, to the fullest extent possible, from and against all liabilities, costs, demands or claims whatsoever, including reasonable legal fees, which may be incurred or made by any party in connection with or arising from your or your Users’: (i) breach of any of the provisions of these Terms of Service, other related conditions of use or any applicable law or regulation; (ii) violation of any rights of any third party; (iii) use or misuse of the Service and/or Software; (iv) default, negligence, act or omission relating to the Service; and/or (v) the contents of any communications distributed by you through the Service.
10. Intellectual Property Rights
10.1 You should assume that all systems, network, software and hardware in connection with the Service, Website, App and Software including the graphics, logos, text, photographs, user interfaces, sounds, music, design, “look and feel”, and the expression and arrangement of content, is owned, controlled by or licensed to Digi and/or protected by copyright, trademark or other intellectual property rights.
10.2 Save as expressly provided in the Terms of Service, no licence or right is granted to you by implication, estoppel or otherwise and you may not use, copy, reproduce, sublicense, transmit or distribute any component of the Service without our prior written consent.
10.3 You undertake that you will not reverse engineer, decompile, disassemble or translate any portion of the Software, App or Website or any part thereof, or attempt in any way to discover, derive or reconstruct any source code, schema or algorithms of thereof by any means whatsoever.
11. Privacy & Data Protection Obligations
11.1 You agree to our Privacy Notice incorporated herein by reference and accept that it forms an essential and integral part of these Terms of Service. The Privacy Notice sets out how we may collect, process, store and use the data we have of you.
11.2 You represent and warrant that the information provided to us when registering for the Service is true, accurate, current and complete. In the event that you have provided us with personal data of any other persons or party for the purposes of the Service, you represent and warrant that you have all necessary consents from such parties, shall continue to maintain such consents as required, and shall be responsible for having provided us such data.
11.3 You consent to our use of the personal data in accordance with the terms of our Privacy Notice and prevailing privacy policies. You agree that by registering an account with us and/or using the Service, you have authorised and consented to the personal data being transferred, disclosed to and/or processed at our partner’s data center in Los Angeles, USA or by such third parties as may be necessary for the purposes of providing the Service to you. You understand and accept that anonymous usage and quality statistics obtained from the use of the Service by you and your Users may be stored, monitored and analysed by us and our partner.
11.4 You accept that we may be required to revise our Privacy Notice or policy from time to time. All revisions will be notified through our Website and/or App. Your continued use of the Service shall mean that you have agreed and consented to our Privacy Notice and policy as revised.
12. General Provisions
12.1 These Terms of Service constitutes the entire agreement between us and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to the Service.
12.2 We reserve the right to amend, add or remove any provisions under these Terms of Service at any time as we deem necessary. Changes shall become effective immediately upon upload and publication on our Website and/or App. Your continued use of the Service shall constitute your acceptance of the prevailing Terms of Service, including any term which may have been amended from time to time. You are responsible to regularly check these Terms of Service for updates or amendments.
12.3 If any provision of these Terms of Service or any part of such provision is found by any court to be invalid, void or unenforceable under any applicable law, then such provision shall be excluded or deleted from these Terms of Service to the limited extent necessary without affecting the validity and enforceability of the remaining provisions which shall continue to apply to the fullest extent.
12.4 Our failure to enforce or insist on strict performance of any of these Terms of Service shall not be construed as a waiver of any provision or right herein unless such waiver is made in writing to you, nor shall any course of conduct between us or any other party be deemed to modify any provision of these Terms of Service.
12.5 The provisions herein that by their sense, nature and context, are intended to survive performance by either party or both parties shall survive the expiry or termination of these Terms of Service and continue in full force and effect including without limitation provisions as to liabilities, indemnities, warranties, personal data protection and intellectual property rights.
12.6 We reserve the right to reference you as a customer or user of the Service in our Website, App and customer lists, and you hereby expressly authorise us to use your business name and logo for this limited purpose.
12.7 These Terms of Service may not be construed or interpreted to confer any rights or remedies on any third parties.
12.8 These Terms of Service shall be binding on your successors-in-title and permitted assigns.
12.9 In the event of a dispute between the English and non-English versions of these Terms of Service, the English version shall be the prevailing and governing version.
12.10 Digi is allowed to assign, transfer, subcontract and/or novate its rights or obligations under these Terms of Service as it deems fit or necessary. You will not assign, transfer, subcontract or novate any of your rights or obligations under these Terms of Service without our prior written consent.
12.11 These Terms of Service are governed by the laws of Malaysia and you agree to submit to the exclusive jurisdiction of the courts of Malaysia.
Enterprise Services Agreement
This Enterprise Services Agreement (including all annexes and schedules attached here to, this "Agreement") is made by and between Digi Telecommunications Sdn. Bhd. (Company No.: 199001009711 (201283-M)), a company duly incorporated in Malaysia and having its principal place of business at Lot 10, Jalan Delima 1/1, Subang Hi-Tech Industrial Park, 40000 Subang Jaya, Selangor Darul Ehsan, Malaysia (“Digi”) and the party(ies) set out in Annex 1 of this Agreement ("Customer"). Digi and the Customer are collectively referred to as the “Parties” and individually referred to as a “Party”. In consideration of the mutual covenants and agreements contained in this Agreement, the Parties agree as follows: -
The Customer agrees to subscribe for the services supplied by Digi as described in Annex 1 (“Services”) upon the terms and conditions of this Agreement.
2. Services Requirements
Digi shall perform and carry out each of the Services in accordance with the provisions of this Agreement. The Parties recognise that changes to the Services and any other provision of this Agreement may be necessary or desired after the date of execution of this Agreement. Digi shall be entitled to propose reasonable charges for any agreed changes subject to the Customer’s confirmation and acceptance of the cost prior to effecting the change.
This Agreement shall be valid and enforceablefrom the date of this Agreement, or such other date as may be set out in Annex 1 (“Service Commencement Date”).
4. Fees & Charges
The Customer shall pay the fees and charges (“Fees”) set out in Annex 2 for the provision of the Services by Digi.
The Fees and/or any supply(ies) made by Digi to the Customer under this Agreement are inRinggit Malaysia and expressed exclusive of Taxes. Digi is entitled to chargeTaxes in addition to the Fees and/or any supply(ies) made under this Agreement which shall be borne by the Customer. For the avoidance of doubt, Taxes means any applicable taxes and regulatory charges at the prevailing rate, including but not limited to withholding tax (of any kind and howsoever computed), value added tax, consumption tax, goods and services tax, indirect tax, sales tax, service tax, duties, fees, levies and surcharges (including any fines and penalties),by whatever name called, which may now be or which may be in the future introduced and imposed by the relevant government authorities in Malaysia and/or the Customer’s country of domicile under any law, regulation, directive or guideline thereof including any amendment thereto from time to time.
Should any payment made to Digi by the Customer be subject to withholding tax, then such payment shall be grossed up such that Digi shall receive the full amount without deduction of any withholding tax. The Customer shall support Digi in obtaining any tax exemptions and tax relief achievable in connection with the performance of this Agreement, if any, and shall give all such other assistance as may be reasonably required to avoid or redeem any withholding tax. The Customer shall indemnify and keep Digi indemnified against any liability, claim, suit, penalty, fines, impost, loss, fee, cost (including cost on a solicitor and client basis) and expense whatsoever, so incurred and/or suffered by Digi, as a result of non-payment of Taxes pursuant to Clause 5 of this Agreement.
6. Roles and responsibilities
Each Party’s roles and responsibilities are as set out in Annex 1.
7. Invoices and Payments
Unless otherwise agreed between the Parties in the relevant attachments for each Service, Digi shall issue invoices to the Customer on the 1st of every month from the Service Commencement Date for the Service performed during each preceding month. The Customer shall make payment within thirty (30) days of receiving the original invoice(s) from Digi. All payments to be made under this Agreement shall be in Ringgit Malaysia.
8. Mutual Warranties and Representations
Each Party expressly warrants and represents to each other that: (i) it has the legal capacity and the requisite authority and corporate power to enter into and perform its obligations under this Agreement; and (ii) the execution and performance of this Agreement complies with all applicable laws, regulations, administrative or judicial decision or policy of the applicable government authority.
9. Confidential Information
Each Party (“Receiving Party”) undertakes to and shall ensure and procure that its employees, agents, representatives, contractors or subcontractors (“Representatives”) keep all information received from either Party (“Disclosing Party”) or disclosed to it pursuant to this Agreement, confidential and shall not disclose such information to any other person or third party during the Service Term or any time thereafter, save where: (i) disclosure is required by law; or (ii) the Disclosing Party had consented to such disclosure in writing (iii) the confidential information is or becomes publicly available or public knowledge other than as a result of a breach of this Agreement by the Receiving Party; (iv) the confidential information is known or available to the Receiving Party before the date the confidential information is provided to the Receiving Party by the Disclosing Party; (v) is received by the Receiving Party without restriction on disclosure or use from a third party lawfully entitled to disclose to the Receiving Party without such restriction; or (vi) has been independently developed without reference or use of any confidential information imparted by the Disclosing Party.
The Receiving Party shall ensure its Representatives shall use the information received from the Disclosing Party for the sole purpose of performing its obligations under this Agreement. Upon the expiration or termination of this Agreement, the Receiving Party shall destroy or, at the Disclosing Party’s request, promptly return all such confidential information to the Disclosing Party.
10. Limitation of Liability
Neither Party is liable to the other for any consequential, incidental, indirect, punitive or special damages, including commercial loss and lost profits, howsoever caused and arising under this Agreement. Digi’s total cumulative liability for any and all claims, liabilities, losses or expenses (if any) arising out of or in connection with this Agreement shall not exceed the total amount paid by the Customer to Digi for the Service in the last immediate preceding six (6) months prior to the dispute. Notwithstanding the foregoing, this limitation shall not apply for: (i) death or personal injury caused by either Party’s negligence; (ii) fraud, misrepresentation, corruption and/or willful default; (iii) breaches of confidentiality, intellectual property rights or personal data protection; and (iv) the indemnities given by a Party to the other.
Either Party shall indemnify and hold the other harmless against all claims, costs, damages, losses or liabilities resulting from personal injury or property damage caused by the defaulting Party as a result of a breach or non-observance by the defaulting Party of its covenants, undertakings, warranties and obligations under this Agreement.
12. Immediate Termination
Digi may terminate this Agreement immediately by written notice in the following circumstances: (a) if it is required by law; (b) if the Customer becomes insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of its creditor(s), enters into receivership, administration or any similar insolvency proceedings; (c) ceases to conduct business in the normal course; or (d) upon occurrence of a Force Majeure Event in respect of all the Services which continues for a period of thirty (30) days. All outstanding Fees or amounts due to Digi shall be payable by the Customer.
13. Termination for Cause
Digi may terminate a Service for default or breach of any material term of the particular Service if the Customer fails to remedy the breach within sixty (60) days of Digi’s written notice to remedy the default or breach. In the event if this Agreement is terminated pursuant to this Clause 13, Digi shall have the right to claim for any loss or damages suffered and costs incurred due to the termination and the Customer shall be liable to pay to Digi all outstandingFees due to Digi including any Termination Fee.
14. Termination without Cause
(a) Digi may terminate this Agreement at any time without cause, by written notice to the Customer. Digi shall have the right to claim from the Customer and the Customer shall be liable to pay to Digi all outstanding Fees for the remainder of the Service term or renewed service term; (b) Digi shall have the right to terminate this Agreement without cause by providing sixty (60) days’ prior written notice to the Customer. Where applicable, if the Customer wishes to cancel the Service prior to the Expiry Date, Digi may charge the Customer a Termination Fee as set out in Annex 2 (Fees).
15. Consequences of Termination
The Customer shall pay Digi for all Service which has been delivered or rendered to the Customer in accordance with the terms and conditions of this Agreement and the Customer’s rights to use or access to the Service shall cease.
16. Intellectual Property Rights
The Customer acknowledges and agrees that all intellectual property(“IP”) rights in the products and Service including rights in trademarks(registered and unregistered), logos and trade names associated with products and Service belong solely to Digi and/or its licensors. Digi is the sole and exclusive owner of all the product and Service and related technologies, including, without limitation, any hardware designs, firmware, client software, software stack, tools and utilities and any IP rights related to them. TheCustomer shall make no claims whatsoever to any IP rights of Digi and agrees that it shall not gain any rights to any of Digi’s IP by virtue of thisAgreement. The Customer shall not use any of Digi’s IP other than as expressly authorized by Digi. The Customer agrees to indemnify Digi against any losses, whether direct or indirect, for any infringement of Digi’s IP rights attributable to it arising out of this Agreement.
17. Personal Data Protection
(a) The Parties agree that where pursuant to this Agreement, any personal data are extended: (i) to the Customer and/or processed by the Customer, the Customer agrees not to conduct itself, and to procure that its employees and/or agents, shall not conduct themselves, in such manner as to cause Digi to be in breach of its obligations as a data user as stated in the Personal Data Protection Act 2010; (ii) to Digi by the Customer and/or processed by Digi, the Customer represents that it has obtained all necessary consents as may be required for the processing and transfer of data (including personal data) in relation to the provision of the product and Service herein; and agree that it shall be the responsibility of the Customer to advise Digi in writing should there be any relevant change in the information including the personal data supplied to Digi which requires action on the part of Digi; (b) the Customer agrees to indemnify Digi against all losses, costs, expenses, damages, liabilities, demands, claims, actions and proceedings which Digi may incur arising out of a breach of this Clause by the Customer, its employees or representatives.
18. Force Majeure
Neither Party shall be liable for continuous failure to perform solely caused by force majeure events beyond their reasonable control. Force majeure events include acts of God, pandemic, epidemic, explosion, flood, fire, accident, war, hostilities, invasion, act of foreign enemies, riot, civil commotion or disorder (“Force Majeure Event”).The Party experiencing a Force Majeure Event shall notify the other Party as soon as reasonably possible and shall cooperate in minimising the impact of such Force Majeure Event.
In addition to all other rights and remedies under this Agreement, at law or in equity available to the Parties, each Party shall be entitled to exercise the right of set-off.
20. Successors and Assigns
This Agreement shall be binding upon the permitted assigns, successors-in-title and authorized representatives of each Party.
21. Time is of the Essence
Time wherever mentioned shall be of the essence of this Agreement.
22. Assignment, Novation, Delegation and Subcontracting
Neither Party shall assign or transfer this Agreement or any of its rights or obligations hereunder, or delegate or subcontract the performance of any of its obligations under this Agreement to a third party, save for its affiliates (with written notification), without the other Party’s prior written consent.
Any notices required under this Agreement shall be sent to the latest addresses and/or details of the respective Parties as stated in Annex 1 and shall be deemed to have been received: (a) if delivered personally, the next business day after it has been delivered; (b) if sent by registered mail or courier, three (3) days after dispatch; (c) if sent by facsimile, upon successful completion of transmission; or (d) if sent by e-mail, on the date the e-mail is successfully delivered to the intended recipient’s email exchange server or such similar facility. All formal notice, demand or consent from one Party to the other must always be given in any of the aforesaid methods. The Parties may however informally give notice, demand or consent to the other Party via e-mail.
24. Advertising and Publicity
Neither Party shall use the other Party’s name, marks, codes, drawings or specifications in any advertising, promotional efforts or any publicity of any kind without the prior written consent of the other Party.
No waiver by either Party of any right or of a breach of any provision of this Agreement shall constitute a waiver of any other right or breach of any other provision, nor shall it be deemed to be a general waiver of such right or provision or to sanction any subsequent breach thereof.
26. Modifications or Amendments
No amendment or variation of this Agreement shall bind either Party unless such amendment or variation is agreed to in writing and signed by a duly authorised representative of each Party.
Any term or provision of this Agreement which is held invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforce ability without invalidating or rendering unenforceable the remaining provisions in this Agreement which shall remain in full force and effect.
The expiration or termination of this Agreement will not affect accrued rights, indemnities, representations and warranties, existing commitments or any other provisions that by their nature are intended to survive the expiration or termination of this Agreement to the extent consistent with, or necessary to carry out, the purposes thereof.
29. Independent Contractor
Nothing in this Agreement shall be construed as creating an agency, partnership or employment relationship between the Parties, it being understood that theParties are independent contractors vis-à-vis one another.
30. Governing Law
This Agreement shall be governed by the laws of Malaysia.
This Agreement may be signed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same instrument.
(i) References to business days or working days mean Mondays through Fridays excludingSaturdays, Sundays, national public holidays and state public holidays in the state of Selangor; (ii) Unless otherwise specified, references to clauses, attachments, schedules and annexes mean clauses, attachments, schedules and annexes to this Agreement; (iii) Headings used in this Agreement are inserted for convenience only and shall not be relied on to construe the provisions in this Agreement; (iv) Reference to this Agreement or any other agreement or instrument herein shall mean this Agreement and such other agreement or instrument as amended, modified, varied and/or supplemented from time to time;(v) Where the context so
(i) References to business days or working days mean Mondays through Fridays excludingSaturdays, Sundays, national public holidays and state public holidays in the state of Selangor; (ii) Unless otherwise specified, references to clauses, attachments, schedules and annexes mean clauses, attachments, schedules and annexes to this Agreement; (iii) Headings used in this Agreement are inserted for convenience only and shall not be relied on to construe the provisions in this Agreement; (iv) Reference to this Agreement or any other agreement or instrument herein shall mean this Agreement and such other agreement or instrument as amended, modified, varied and/or supplemented from time to time;(v) Where the context so admits or requires, words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (vi) Reference to any statute, legislation or statutory provision shall be a reference to that statute, legislation or statutory provision as amended, modified, extended, re-enacted or replaced from time to time and including all subordinate legislation made under it from time to time; (vii)Where any word or expression is defined in this Agreement, the definition shall extend to all grammatical variations and cognate expressions of the word or expression so defined; (viii) Any technical term not specifically defined in this Agreement shall be construed in accordance with the general practice of those in that profession in Malaysia; (ix) No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Agreement or any part of it.
33. Entire Agreement
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter under this Agreement and shall supersede all prior oral or written communications or agreements between the Parties (including any letter of offer) with respect to the Service.
34. Conflict of Clauses
In the event of conflict between any terms in this Agreement, its attachments, annexes, schedules and any other documents referred to herein, the conflict shall be resolved according to the following order of priority: (i) first – the annexes in this Agreement (including any supplemental letters or addendums thereto) on Service subscribed; (ii) second –this Agreement (excluding the annexes); (iii) third – service registration forms or purchase orders issued for the relevant Service (if any); and (iv)fourth – accompanying documents to the service forms or purchase orders (if any).
35. Legal Costs
Each Party shall be liable for their own legal cost and the Parties shall be equally liable for the stamp duty payable for this Agreement.
36. Dispute Resolution
In the event of a dispute or disagreement under this Agreement, the Parties shall first attempt to resolve the matter by mutual discussions to achieve an amicable resolution or settlement. Should Parties fail to come to a resolution or settlement within thirty (30) days from the date the dispute or disagreement arose (or such other period as the Parties may mutually agree), the Parties agree to submit the matter for resolution before the exclusive jurisdiction of the courts of Malaysia.
37. Prevention of Corruption
The Customer shall fully comply with (i) all applicable anti-corruption laws, regulations and guidelines including but not limited to the Malaysian Anti-CorruptionCommission Act 2009 (“MACC Act”) and the Guidelines on Adequate Procedures issued pursuant to Section 17A(5) of the MACC Act; (ii) Digi’s Anti-Corruption Policy (https:// images.digi.com.my/drupal-s3-production/s3fs-public/inlinefiles/Digi-anticorruption-policy-2020.pdfas); and (iii) Digi’s Whistleblowing Policy (https://images.digi.com.my/drupal-s3-production/s3fs-public/inline-files/Digiwhistleblowing-policy-2020.pdf), as amended from time to time. The Customer further agrees to promptly notify and keep Digi notified if any of its owners, directors, managers, employees or agents is being or has been investigated for, or been convicted of, any offences under the MACC Act or any similar legislation governing anti-corruption. Notwithstanding anything to the contrary and without prejudice to any other right available to Digi, Digi shall have sole and absolute discretion to immediately terminate this Agreement without liability for any breach under this clause.
Last revised on 3 December 2021