The Service (as hereinafter defined) is made available by Celcom subject to these general terms and conditions for Celcom’s Enterprise Services (“General Terms and Conditions” or “GTC”) and the specific terms and conditions of each Service (“Specific Terms and Conditions” or “STC”) that the Customer subscribes to. The Customer acknowledges that Customer has read and fully understood the Terms and Conditions (as hereinafter defined). The Customer’s execution of the Service Agreement Form (“SAF”) or other relevant documents (as required by the STC) and continued use of the Service subsequent to Activation, constitutes unconditional acceptance to comply and to be bound by the Terms and Conditions. The Customer must ensure that any person it allows to use the Service complies with the Terms and Conditions and Customer will be liable for any breach of the Terms and Conditions by the Customer or the persons allowed/authorized by the Customer to use the Service. Customer further acknowledges that Celcom’s Fair Usage Policy governs its subscription to the Service and in the event of any inconsistency between the terms of the Fair Usage Policy and the terms set out in the Terms and Conditions, the latter shall prevail.
In the event of any inconsistency between the English version and the Bahasa Malaysia version (if any) of the Terms and Conditions, the English version shall prevail.
Definitions
“Account” means an account opened for the Customer with Celcom for subscribing to the Service;
“Activation” or “Activated” means the point in time when the Service is activated in Celcom’s System;
“Agreement” means the completed and executed SAF, the Terms and Conditions and all subsequent amendments and variations thereto which forms the contractual agreement between Celcom and the Customer;
“Authorized Signatory” means the person who is authorized by the Customer to enter into the Agreement for and on behalf of the Customer whose name appears in the SAF;
“Bill” means the statement issued by Celcom, in the format as determined by Celcom, to the Customer from time to time in respect of the Service and the term “Bill” shall also include Invoice;
“Celcom” means Celcom Mobile Sdn Bhd (Company No. 197601002188 [27910-A]) a company incorporated in Malaysia having its registered address at Level 5,Corporate Headquarters, Axiata Tower, 9 Jalan Stesen Sentral 5, Kuala Lumpur Sentral, 50470 Kuala Lumpur and business address at 6 Persiaran Barat, Seksyen 52, 46200 Petaling Jaya, Selangor;
“Celcom Enterprise Services” means enterprise services and solutions offered by Celcom to its enterprise and corporate Customers which consist of the following services: (a) SIM Based Services; (b) Corporate Access Services; (c) Business Fibre; (d) Business Wireless; (e) Enterprise Bulk Messaging; (f) Office CallSaver; (g) VirtuExt; (h) Fixed Wireless Desktop Phone; (i) Mobile Device Management; (j) Smart Parking; (k) OMNI Communication; (l) Celcom Cloud Secure; (m) Safepay mPOS; (n) Location Based Advertising; and other enterprise services and solutions introduced by Celcom from time to time;
“Celcom’s System” means the telecommunication system utilized by Celcom in providing the Service;
“Celcom Marks” means all Celcom trademarks, Celcom service marks, Celcom logos and other Celcom commercial symbols including any additional, discontinued or substituted trademarks, service marks, logos and other commercial symbols as notified by Celcom to the Customer from time to time;
“Celcom’s Website” refers to the website available at www.celcom.com.my;
“Change of Rate Plan” or “CRP” refers to migration of the Customer from one Celcom Plan to another Plan in accordance with the Terms and Conditions and the respective Service’s terms and conditions;
“CMA” means the Communications and Multimedia Act 1998;
“Credit Limit” means the limit on monthly charges as may be imposed by Celcom against the Customer at its sole and absolute discretion from time to time;
“Customer” means the organization as reflected in the SAF that subscribes to the Service;
“Confidential Information” shall mean all information pertaining to the Party disclosing the information (“Disclosing Party”) furnished, communicated or made available by the Disclosing Party to the other Party receiving such information (“Receiving Party”) in any fashion in connection with the Agreement and shall include, but not be limited to, the following information, whether communicated in writing, orally, in graphic or electronic form and regardless of the form or storage medium: (a) all business information, plans, tactics, or materials, including, without limitation, Personal Data, business plans and strategies, marketing strategies, employee lists, employee benefit programs, personnel matters, customer lists, market information, pricing policies, methods, financial information, or information regarding financing plans, current planned and optional considerations for capital structure and liquidity needs, any customer contract or proposal for a customer contract, investor information, test data relating to any research or pilot projects, work in process, present or future products; (b) all computer programs (including object and source code), software processes, systems writings, technical know-how or ideas, and algorithms; (c) all technical data, or know-how research, product plans, products, services, customers, markets, software, developments, inventions, process, designs, drawings, engineering, hardware and software configuration information; (d) all manuals, systems documentation, confidential reports, correspondence, memoranda or other materials related to any of the items described in clauses (a), (b) and (c) above; and (e) any information received from the Disclosing Party that is marked PROPRIETARY AND CONFIDENTIAL, or similarly marked, or any other information (whether delivered in writing or verbally) which by its nature would be reasonably considered as confidential whether or not labeled as “Confidential”, to any other person, firm or corporation or delivered in connection with Agreement, except as provided herein;
“Content” means any contest, java games, information, text, sound, music, software, photographs, videos, graphics, data messages or other materials received by the Customer including but not limited to VAS;
“Consequential Loss” shall include the loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages;
“Data User” is as defined in the PDPA;
“Device” means a wireless device together with accessories for the use of the Service, including but not limited to mobile devices and personal computers;
“Donor Network Operator” or “DNO” means a mobile service provider from which a mobile number has been or is to be ported out;
“End Users” means the legitimate and authorized employees of the Customer whom Customer allows to use the Service;
“Equipment” means the hubs, routers, servers (for Networking purposes), the Customer’s personal computer (equipped with CD Drive and LAN connection card (NIC)) which conform to the specifications prescribed by Celcom upon the Customer’s registration for the Service or other equipment required and necessary as described in the STC;
“Inappropriate Content” means content of any messages sent using the Service that includes but is not limited to any content which: (a) is unlawful and prohibited under Malaysian law or is being disseminated for any unlawful purposes under the Malaysian law; (b) is unsolicited, including without limitation, junk mail, bulk e-mail, Spam or other unsolicited advertising material; (c) causes embarrassment, distress, annoyance, irritation, harassment, inconvenience, anxiety or nuisance to any person; (d) causes the introduction of viruses, worms, trojan horses, e-mail bomb, cancelbots, malware or other similar destructive computer programming routines into Celcom’s System or the Customer’s Device or the message recipient’s mobile communication devices; (e) causes instability or technical damage to Celcom’s System or interfere with, damage, disrupt or unlawfully gain access to any service, equipment, network or system owned or used by Celcom; (f) is fraudulent, indecent, obscene, offensive, abusive, threatening, defamatory, discriminatory, menacing, misleading, inaccurate or libellous; (g) infringes Intellectual Property Rights, rights of privacy and/or personal data protection of any person or entity; (h) has negative impact on the quality of social life and order; (i) is against public interest, public order, national peace and security and/or national interest, social norms, culture, political and religious belief of the people of Malaysia or those which are socially, ethically or racially offensive; or (j) is deemed inappropriate as announced and issued by the regulators, authorities, governmental bodies, statutory bodies or Celcom from time to time;
“Intellectual Property Rights” means: (a) rights in, and in relation to, any patents, registered designs, design rights, trademarks, trade and business names (including all goodwill associated with any trademarks or trade and business names), copyright and related rights, moral rights, databases, domain names, semi-conductor and other topography rights and utility models, and including the benefit of all registrations of, applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable, including Celcom Marks; and (b) trade secrets, confidentiality and other proprietary rights, including rights to know how and other technical information;
“Invoice” means the statement issued by Celcom to the Customer to supplement or as supplement to the Bill;
“MMS” means multimedia messaging service;
“MSISDN” means Mobile Subscriber Integrated Services Digital Network-Number;
“Package” means any a package including promotional package which may include any existing Plan or promotional Plan offered by Celcom to the Customers;
“Party” refers to either Celcom or the Customer, “Parties” refers to Celcom and the Customer collectively;
“PDPA” means the Personal Data Protection Act 2010;
“Personal Data” as defined in the PDPA;
“Principal User” refers to any person nominated by the Customer to be the principal user;
“Service” means either one of Celcom Enterprise Services to be provided by Celcom to Customer pursuant to the Agreement;
“Service Agreement Form” or “SAF” refers to the form duly completed and executed by the Customer to subscribe to the Service;
“SIM Card” means the microprocessor card provided by Celcom which is inserted into the Device and contains a personal identification number (PIN) for access into the Service;
“SKMM” means Suruhanjaya Komunikasi dan Multimedia Malaysia also known as the Malaysian Communications and Multimedia Commission (“MCMC”), established under the Communications and Multimedia Commission Act 1998;
“SMS” means short messaging service;
“Spam” for the purpose of the Agreement, means unsolicited electronic messages sent through various communication modes including but not limited to email, SMS, MMS or instant messaging services regardless of existence of prior relationship between the sender and the recipient and regardless of content whether commercial, non-commercial or messages including malicious program and/or content and/or data including unsolicited messages, videos, advertising, marketing or promotional materials;
“Termination Fee” means the termination fee payable by Customer to Celcom in the event the Service or the Agreement is terminated within the Term of the Agreement, the Minimum Subscription Period or as otherwise specified in the STC;
“Terms and Conditions” means this General Terms and Conditions and the Specific Terms and Conditions applicable as may be varied or modified from time to time at Celcom’s sole discretion. For the avoidance of doubt, policies, procedures and user guide shall also constitute the Terms and Conditions;
“Value Added Service” or “VAS” means additional functions, features or facilities which are currently available or will be made available by Celcom from time to time and may be subscribed to and/or used by the Customer in connection with the Service to enable the Customer to access and use information, data, content, WAP and other interactive applications and/or services over the Internet and/or intranet;
“Working Days” means save for the states of Kedah, Kelantan, Johor and Terengganu, Mondays to Fridays excluding public holidays, Saturdays and Sundays. In the states of Kedah, Kelantan, Johor and Terengganu, Sundays to Thursdays, excluding public holidays, Fridays and Saturdays; and
“You” or “Your” refers to the person aged eighteen (18) years and above and authorized to use the Service subject to the Terms and Conditions and/or an entity of whatsoever description including but not limited to a sole proprietorship, a partnership, a body corporate or otherwise governmental bodies and agencies of any kind established under the laws, rules and/or regulations for the time being in force and which may come in force more particularly described in the SAF.
The following rules apply unless the context requires otherwise:
References to clauses and schedules are to be construed as references to clauses and schedules of the Agreement, unless otherwise provided herein.
A cross reference to a clause number is a reference to its sub clauses.
Words applicable to natural persons shall include any body of persons, company, corporation, firm or partnership incorporated or unincorporated and vice versa.
Words importing a gender shall include any other gender.
Words importing the singular number shall include the plural number and vice versa including the definitions referred to in Clause 1.1 hereof.
The headings and sub-headings to the clauses of the Agreement are for convenience of reference only and shall neither affect the interpretation and construction thereof nor shall limit or extend the language of the provisions to which they refer.
For the purpose of calculating any period of time stipulated herein, or when an act is required to be done within a specified period after or from a specified date, the period is inclusive of and time begins to run from the date so specified.
Any technical term not specifically defined in the Agreement shall be construed in accordance with the general practice of those in the industry in which the term is used.
Any reference to a “day”, “week”, “month” or “year” is a reference to that day, week, month or year in accordance with the Gregorian calendar.
Any reference to “approval” or “consent” shall mean approval or consent in writing.
Monetary references are references to Malaysian currency or other currencies mutually agreed by the Parties.
Content (if applicable)
Any dispute regarding billing must be communicated to Celcom in writing within one (1) month from the date of the Bill failing which the Bill is deemed to be accurate and Customer shall pay the amount as billed save where the Bill contains any manifest error. To raise a valid billing dispute, Customer shall make a good faith request to Celcom to investigate the specific Bill, providing at the same time specific evidence, which demonstrates that a particular Bill is incorrect.
If Customer raises a valid billing dispute, then Celcom shall conduct investigations, which are reasonably necessary and appropriate in the circumstances of the dispute. Celcom may invoice the Customer a daily professional services charge to audit and validate any independent advice on the disputed amount. Customer shall pay any such reasonable professional services charge.
If Customer has paid its Bill on the Due Date and subsequently chooses to dispute the charges, Customer has six (6) months to do so from the date of such payment. An administrative charge may be imposed for disputes raised by the Customer after the Due Date.
If there is a dispute regarding the amount in the Bill, Customer shall promptly pay any outstanding amount which is not in dispute. If the dispute is resolved in Celcom’s favour, Customer shall pay the disputed amount immediately plus late payment interests, any legal costs and collection expenses incurred by Celcom. In the event the dispute is resolved in the Customer’s favour, Celcom shall rebate the disputed amount which shall be reflected in the next months’ Bill.
If the Customer has more than one Account with Celcom, Celcom may transfer any credit or debit balance under one Account to another to settle any outstanding charges upon prior written notice to the Customer.
Celcom may notify the Customer on any transaction of debit balance under the Customer’s inactive Account to the Customer’s active Account.
The Parties agree and acknowledge that the consideration for the Service under the Agreement shall be exclusive of any taxes including but not limited to the Malaysian Sales and Service Tax (“SST”) (collectively Applicable Taxes”), unless otherwise specifically stated.
If any Service provided by Celcom under the Agreement is a taxable supply to which the Applicable Taxes would apply, then Celcom reserves the right to levy the Applicable Taxes at the prescribed rate and the Customer agrees to pay the amount of the Applicable Taxes in addition to the consideration for the Service.
Auto-Billing
Celcom may, at its discretion, allow the Customer’s bills to be paid through a third party credit or charge card, or via Tele-Payment (by a third party credit or charge card via telephone) or other means of payment (“Auto Billing”) subject to the terms and conditions of the Auto Billing as provided on Celcom’s Website.
Customer must make a separate application for the Auto Billing at any Celcom branch, which shall only be applicable for settlement of periodic bills.
Any outstanding bills prior to the commencement date of the Auto Billing must be settled by the Customer in the ordinary manner.
If Customer chose to register for the Auto Billing, Customer shall be responsible to inform Celcom immediately if the Customer’s credit or charge card is lost, stolen, expired or terminated or if Customer wants to terminate Auto Billing.
In the event that Celcom fails to make the deduction or settlement of the Customer’s bill through Celcom’s processing bank, Celcom shall not be held liable to the Customer in any way for such failure and Customer must make the payment for outstanding amounts before the Due Date or before the Customer’s billing cycle date.
By registering for the Auto Billing, Customer authorizes Celcom to verify the information provided by the Customer with the credit card issuer or any third party as may be necessary including but not limited to forwarding the Customer’s bills and other details to the card issuer, financial institution and other relevant parties for and in connection with the Auto Billing.
If Celcom does not receive the full payment of the outstanding sum due from the Customer following a completed Auto Billing transaction or the bank or financial institution claims back or deducts back any payment made to Celcom, Celcom reserves the right upon prior written notice to the Customer to reverse any payment entry in the Customer’s statement of account or reinstate the charge in the Customer’s Account.
Credit Limit (if applicable)
Customer shall ensure that the Customer’s usage of the Service does not exceed the Credit Limit, if any, as specified by Celcom.
Celcom may, but shall not be obliged to, apply a Credit Limit for all charges incurred under the Customer’s Account and any of the Customer’s supplementary lines, including those yet to be billed and any amounts in dispute, and Celcom reserves the right to revise the Credit Limit from time to time at Celcom’s sole discretion.
Celcom may give Customer a notice or a message to the Customer notifying Customer if the Customer’s charges in the Customer’s Account exceed the Credit Limit and such notice is deemed to be received by the Customer when Celcom issues the notice or message to the Customer.
Celcom is not obliged to ensure barring of the Service which may occur in the event that the Customer’s usage of the Service exceeds the Credit Limit. In such event, Customer shall be liable for the charges exceeding the Credit Limit.
Confidentiality
The Parties agree that all Confidential Information shall be received in strict confidence, and shall be used only for the purpose of the Agreement, and that no such information or data shall be disclosed by the Receiving Party, its agents, employees or representatives without a prior written consent of the Disclosing Party save and except in the event that such information is: (a) already known by the Receiving Party prior to disclosure; (b) publicly available through no fault of the Receiving Party; (c) rightfully received from a third party without a duty of confidentiality; (d) disclosed by the Disclosing Party to a third party without a duty of confidentiality on such third party; (e) independently developed by the Receiving Party prior to or independent of the disclosure; (f) disclosed under operation of law; and/or (g) disclosed by the Receiving Party with the Disclosing Party’s prior written consent.
Each Party agrees to take all reasonable precautions to prevent the disclosure to external parties of such information, including without limitation, the terms of the Agreement except as may be necessary by reason of legal, accounting or regulatory requirements imposed by any legal, governmental, regulatory, statutory body and other competent authority.
After the expiry or early termination of the Agreement or at any other time during the term of the Agreement and upon Disclosing Party’s request, the Receiving Party will immediately and completely either return any and all information received from the Disclosing Party, including without limitation the Confidential Information including any copies thereof to the Disclosing Party or upon request by the Disclosing Party, destroy everything and confirm the destruction to the Disclosing Party in writing. The Receiving Party is not entitled to claim a right of retention with respect to such Confidential Information.
The Customer shall not make news release, public announcement, advertisement or publicity concerning the Agreement or any information, document or know-how relating to the Agreement without prior written consent from the Celcom.
The obligations of either Party under this clause shall survive the termination of the Agreement.
Force Majeure
Without limiting the generality of any provision in the Terms and Conditions, Celcom shall not be liable for any failure to perform its obligations resulting from matter beyond Celcom’s control including Force Majeure events. Force Majeure events refers to any cause beyond either Party’s reasonable control and shall include any act of God (not limited to fires, explosions, earthquakes, drought, lightning, tidal waves and floods), war (not limited to rebellion, revolution, insurrection, military or usurped power, civil war) hostilities (whether war declared or not), invasion, act of foreign enemies, requisition, embargo, military mobilization or operations, acts or threats of terrorism, all emergency acts, directives or omission of the government or any competent authority, riot, commotion, strikes, go slows, lock out, disorder, labour trouble or industrial disputes of any kind, subsidence, or acts or omission of persons or bodies for whom either Party has no control over.
Notwithstanding Clause 23.1 above, Customer shall remain liable to pay all fees and charges which are outstanding and/or due and payable to Celcom in accordance with the Agreement.
The Service may occasionally be affected by interference caused by objects beyond Celcom’s control such as buildings, underpasses and weather conditions, electromagnetic interference, equipment failure or congestion in Celcom’s System or telecommunication systems. In the event of such interference, Celcom shall not be responsible for the Customer’s inability to use or access to the Service, and interruption or disruption of the Service.
Notice of Event of Force Majeure Events: (a) If a Party wishes to claim protection in respect of an Event of Force Majeure, it shall, as soon as reasonably practicable but no later than fourteen (14) days following the occurrence or date of commencement of such Event of Force Majeure, notify the other Party in writing of the nature and expected duration of such Event of Force Majeure and shall thereafter keep the other Party informed until such time as it is able to perform its obligations. The Parties shall use their reasonable endeavours to: (i) overcome the effects of the Event of Force Majeure; (ii) mitigate the effect of any delay occasioned by any Event of Force Majeure, including by recourse to alternative mutually acceptable (which acceptance shall not be unreasonably withheld by either Party) sources of services and materials (if applicable); and (iii) ensure resumption of normal performance of the Agreement as soon as reasonably practicable and shall perform their obligations to the maximum extent practicable; and (b) Subject to Clause 23.4(a), as soon as reasonably practicable following the date of commencement of an Event of Force Majeure, and within seven (7) days following the date of termination of the Event of Force Majeure, any Party invoking the Force Majeure event shall submit to the other Party reasonable proof in writing of the nature of the Event of Force Majeure and of its effect upon the performance of the Party’s obligations under the Agreement.
Consequence of Force Majeure Event: (a) Neither Party shall be considered in breach of the Agreement to the extent that performance of their respective obligations (excluding payment obligations) is prevented by a Force Majeure event that arises after the Commencement Date/Service Start Date; and (b) In the event that the Force Majeure event prevents a Party from performing its obligations under the Agreement for an aggregate period of thirty (30) days during the term of the Agreement, the other Party shall be entitled to terminate the Agreement by giving a seven (7) day’s written notice. Upon the exercise by the other Party of the option to terminate the Agreement in the manner prescribed in Clause 23.5(b) above and the performance of the Parties’ respective obligation under this clause, neither Party shall have any further claim against the other in respect of the Agreement except for antecedent breach.>/p>
No Inducement, Gifts, Canvassing or Soliciting of Confidential Information
Customer shall not under any circumstances give or at any time offer to give or agree to give any person, including any personnel employed by Celcom or acting on Celcom’s behalf, any gift, commission or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to the provision of the Service or forbearing to show favour or disfavour to any person in relation to the terms set out herein.
For the avoidance of doubt, without limitation, Customer shall not directly or indirectly exchange, offer any gift, bribe, commission, provide rebate, consideration, personal service, indulge in unusual hospitality of any kind as an inducement or reward for any act or omission by Celcom’s personnel in relation to any events related to the provision of the Service. Customer is further refrained from soliciting confidential information from Celcom’s personnel for unethical or illegal advantage with the expectation of unfair gain, profit or advantage.
In the event that Celcom has reasonable grounds to believe that Customer has not complied with this Clause 24, then Celcom may at its own discretion: (a) terminate the Agreement; and/or (b) seek such remedies available to it under the law including injunctive relief.
;Severability and Effect of the Terms and Conditions
If any of the provisions of the Terms and Conditions should be invalid, illegal or unenforceable under any applicable law, the legality and enforceability of the remaining provisions shall not be affected or impaired in any way so long as the substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party and such invalid, illegal or unenforceable provision(s) shall be deemed deleted.
Upon determination that any provision of the Agreement is invalid, illegal or incapable of being enforced, Parties shall negotiate in good faith to amend the Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to ensure that transactions contemplated hereby are fulfilled to the fullest extent possible.
Governing Law
The Agreement shall be governed and construed in accordance with the laws of Malaysia and Parties agree to submit to the exclusive jurisdiction of Malaysian courts.
Subject to Clause 26.1 above, the Agreement is subject to the CMA and any applicable subsidiary legislation, rules, regulations, directives, determinations, standards and/or orders.
In the event of any and all disputes, controversies or conflict ("Dispute") between the Parties hereto in connection with the Agreement, the following procedures shall be followed:
VERSION: 3 October 2018