Last updated on 16 August 2017
I
Introduction to ADS Hub

Hi! Thank you for visiting us.

We, Axiata Digital Services Sdn Bhd (“ADS”), provide a Mobile Internet and Fulfilment Exchange (MIFE) hub (“ADS Hub”) which includes an API management platform called the “MIFE Access Gateway” or “MAG”, which facilitates, integrates and enables telecommunications companies and mobile network operators with network capabilities who have contracted with us (“Participants”) to connect with anyone who wishes to make use of such network capabilities.

The services available on the ADS Hub provided by the Participants include short message services, direct operator billing, location based services, identity services and more. The entire suite of services can be viewed in the Services Catalogue (collectively “Services”).

In this TOU, “we”, “us”, “our” or “ADS” refer to Axiata Digital Services Sdn Bhd (Company No. 1079391-H), a company incorporated under the laws of Malaysia with its registered address at Level 5, Corporate Headquarters, Axiata Tower, 9 Jalan Stesen Sentral 5, Kuala Lumpur Sentral 50470 Kuala Lumpur, and our Affiliates (defined below).

“You”, “Your” or "Yourself" will refer to you, or if you are registering for an Account, using the ADS Hub or the Services on behalf of an Affiliate, you AND the Affiliate.

An ‘Affiliate’ is any entity or person that has control over us, whom we have control over, is under common control with us or is acting under our direction. Examples of Affiliates are our subsidiaries, parent companies, employees, employers, agents, third party contractors, or any related third party.

II
Explanation of the TOU

This TOU sets out the legally binding terms that govern your use of this Account portal, the ADS Hub and the Services made available by the Participants for your use of the ADS Hub.

We have pleaded with our lawyers to draft these terms in a simple, understandable language, using as little legalese as possible. We have even provided a snapshot summary of the full terms on the right column for your reading pleasure. Where there are inconsistencies between the snapshot summary and the terms in the body on the left column, the full terms will prevail. .

III
Other Binding Terms

In addition to this TOU, the documents below also form an essential part of our relationship and are binding when using the ADS Hub or the Services:

  1. Billing & Settlement Report Specification – this describes the specification for our billing and settlement reports.
  2. Business & Services Operations Process Handbook – this describes the operations of the ADS Hub service and the related business and service operations processes.
  3. Services Operations Reference – this describes the operations of the services, and description of the ADS Hub.

The above documents and any other document referred to in this TOU (apart from the service order forms) are known as “Incorporated Documents”.

The Services available in the Services Catalogue are to be purchased from a particular Participant via service order forms using your Account. Each Participant may set different terms and conditions to meet the different regulatory requirements. Therefore, upon selecting a specific Service that you wish to purchase from a specific Participant in a service order form, we will make available for your consideration additional terms and policies that are applicable to the specific Service subscribed. Be sure to read these terms and policies carefully

IV
Order of Precedence

The TOU deals with the general terms and conditions while the service order form and Incorporated Documents comprises of the specific terms. If there is any conflict or inconsistency between the service order form, this TOU and any Incorporated Documents, it will be resolved in the following order of precedence:

  1. the service order form and specific terms and policies set by the Participants;
  2. this TOU; and
  3. any Incorporated Documents,

The above order will apply unless any clauses are specifically identified as on “Overriding Term”, which will prevail over any other inconsistent provision in the TOU.

V
Acceptance

Please only proceed to use the ADS Hub or register an Account if you are above 18 years of age and after you have thoroughly reviewed, understood and agree to these terms.

By registering for an Account and using our ADS Hub means that you agree to this TOU which creates a BINDING LEGAL COMMITMENT between you and ADS.

When you purchase any of the Services through the service order forms on the ADS Hub, you will also be deemed to have accepted the specific terms and policies applicable to that Service.


Full Terms Snapshot Summary

If inconsistent, the Full Terms takes precedence over this Summary.

1
Changes to the TOU

Any revisions that we may make to the TOU will replace the older versions. The date the revisions come into effect will be uploaded on this Account portal or ADS Hub so please check in from time to time.

We will try to give you sufficient notice before any changes are effected, but we encourage you to check regularly of any changes to the terms.

If you continue using the ADS Hub or the Services, you are deemed to have accepted to the changes.

Should you disagree with our TOU or any future changes to the TOU, you may not be able to continue your use of the ADS Hub or the Services.

Changes to the Services

The ADS Hub and the Services available on the ADS Hub are strictly on an ‘as is where is basis’ and we are unable to accommodate your requests for changes to the Services.

On the other hand, there may be circumstances in which changes including removals, need to be made either by us or the Participants to the Services available on the ADS Hub. For changes that are planned, reasonably foreseeable, or within our control, we will give you advance notice.

Urgent Changes

However, please understand that there may be instances where we have no control over changes that might have to be implemented right away. These urgent changes include regulatory changes that prohibits ADS or the Participants from making available the ADS Hub or the Services. If these changes have to be implemented, we are unable to guarantee that such changes will not affect you nor should we be liable to you whether for any refunds, compensation or otherwise.

Do note that we will abide by our no-refund policy strictly, even for pre-payments.

This TOU may change from time to time, but you will be informed in advance by checking this page regularly.




Even the Services that you have pre-paid for are subject to changes too, most of which are beyond our control. However, we will give you as much notice as possible, and we will try our best to help in such a situation.

Note that we do strictly abide by a no-refund policy.

2
Your Affiliates

Your Affiliates may order the Services from us, subject to compliance with our terms and conditions. However, you are fully responsible of your Affiliates in connection with their use of the ADS Hub and the Services.

You are responsible for Affiliates and for what they do when using the Services.

3
Creating your Account

To use the ADS Hub to purchase or use any of the Services, you will need to have a valid and active registered Account with us. Click this link to commence the on-boarding process, which is required for us to conduct verifications and approve the registration of your Account.

Be reminded that all information you provide to us during this on-boarding process are regarded as representations by you, and mustwhich shall be truthful and accurate.

Any service requests, variations or proposals that you submit to us during the on-boarding or registration process which has not received our express agreement to you will merely be regarded as proposals, which are not be legally binding on us nor deemed to be accepted by us, by virtue of your Account being successfully registered.

While your Account is registered and valid, do co-operate with us by updating any changes to your account information to avoid interruptions to the Services.

You must take all reasonable precautions to prevent unauthorized access to your Account, as you are solely responsible for all use of the ADS Hub and the Services, and any acts or omissions connected with your Account. This includes the acts or omissions of your end users.

We are not liable for any damages, liabilities, losses or any other consequences caused (directly or indirectly) arising from the use, whether or not authorized, of your Account.

To use the Services, you will need to complete our on-boarding process and create an Account. In doing so, the information you provide must be true.


You are also responsible for anything that happens under your Account, regardless of who was actually using your Account at the time.

4
Access and Use

We grant you permission to access and use the ADS Hub and this Account portal on a limited, personal, non-exclusive, non-transferable, non-sublicensable basis, to:

  1. develop your software applications that interface with the ADS Hub or the Services (“Your Applications”) or provide the Services through Your Applications;
  2. consume the Services or to provide the Services to your subscribers or end users within one of your own service offerings (for example, in connection with the use of Your Applications) according to the agreed scope set out in the applicable service order forms and this TOU, in a manner which abides by the applicable laws of the Territory; and
  3. use the Services solely in connection with and as necessary for your activities allowed under this TOU, and in a manner which abides by the applicable laws of the Territory.

You may update any of your service offerings (for example, releasing a new version of Your Applications), provided that such update does not affect the integration with the ADS Hub, our systems or our API specifications.

IT IS YOUR RESPONSIBILITY TO ENSURE THAT THE SERVICES YOU CONSUME OR PROVIDE TO YOUR END USERS COMPLIES WITH THE LAWS IN THE TERRITORY YOU AND YOUR END USERS ARE BASED IN.

If you comply with all our terms in the TOU, you may use the ADS Hub and the access the Services.

Please ensure that your use of the ADS Hub or the Services complies with the laws applicable to the Territory.

5
Restrictions & Covenants

By using the ADS Hub and the Services, you (which includes your Affiliates, your end users and any relevant third party contracted by you) agree to actively do, and where the context requires, refrain from doing the following:

  1. Your contractual relationship is with us only, and we will in turn contract with the Participants in respect of the Services. You shall not enter into any contracts or arrangements relating to the Services on the ADS Hub with the Participants directly;
  2. You must ensure that the Services are not targeted for end users outside the relevant Territory, and must take reasonable steps to ensure protection against the use of those Services outside of the relevant Territory (including using digital rights management technologies);
  3. Ensure that you possess all legal or regulatory approvals, consents, or licences required in your Territory or by third parties to use ADS Hub or the Services;
  4. Except in accordance with the Section on “Access & Use”, do not license, resell, or transfer the Services to third parties in any other manner, without having first consumed the Services. You may, however, make available the consumed Services to your subscribers and end users;
  5. You do not use the Services to access or allow access to any forms of emergency services (e.g. police, ambulance, fire and rescue);
  6. Ensure that you only use the ADS Hub and the Services in a manner that is allowable and compliant with under any applicable laws of the Territory (especially those laws relating to telecommunications and electronic commerce) and do not infringe any third-party rights, policies and rules;
  7. Ensure that you only use the ADS Hub and the Services in accordance with this TOU, and any applicable Incorporated Documents;
  8. Ensure you allow us access to the data of your end users, to the extent required for us to provide the ADS Hub and the Services;
  9. You shall not reverse engineer, decompile, disassemble or otherwise create, attempt or create or derive, extract source codes, or permit or assist anyone else to create or derive the source code of the ADS Hub or of any software, systems or data provided in connection with the Services;
  10. Ensure you do not prejudicially affect the ADS Hub or the Services, by putting in place adequate security measures in accordance with good industry standards and practices;
  11. Ensure that you do not use ADS Hub or the Services in a way which is or could be seen as:
    1. Unsolicited, unauthorised, inappropriate, offensive, indecent, defamatory, abusive, harassing or threatening;
    2. Damaging, disruptive, destabilizing, destructive, corruptive, intrusive, probing, circumventing or dangerous;
    3. Infringing a third party’s rights;
    4. Adversely affecting or damaging the goodwill and reputation of ADS and its Affiliates.
    (l) Ensure that you do not make any public statements which is likely to disparage, criticise, or bring into disrepute ADS or the other parties involved in enabling the Services;
    (m) Ensure that you comply with any additional policies or guidelines imposed by the relevant Participants or that are relevant to the Territory, which we will do our best to alert you of;
    (n) Ensure you provide, operate, update, maintain and support systems, infrastructure and architecture required to interface or function with the ADS Hub, our systems, infrastructure and architecture;
    (o) Ensure that the ADS Hub or the Services will not be used in a manner which will adversely affect our reputation or goodwill; and
    (p) Ensure that you co-operate with us when we notify you of any troubleshooting that may be required.

“Territory” means Malaysia AND any other jurisdiction that:

  • You operate or are based in;
  • Your end users operate or are based in or where they consume the Services;
  • Are specified as such in a relevant Service Catalogue or service order form;
  • Your Applications and other products and services are consumed; and/or
  • Ancillary or accessory services to maintain and host Your Applications are provided.

Please note the do’s and don’ts when using ADS Hub and the Services below:

  1. You deal with us directly and we deal with the Participants. Don’t two-time on us by contracting with the Participants for the Services we are providing or can provide you;
  2. If your Applications are made for specific Territories, you must ensure, using whatever means at your disposal, that they are only used in those Territories;
  3. You have fulfilled the requirements in your jurisdiction to allow you to enter into this TOU and subsequently to service your end users;
  4. You shall not make the Services available to third parties in any manner except for final consumption;
  5. You shall not use us or the Services to reach emergency services;
  6. You shall not use us or the Services to break any laws or breach any other parties’ rights;
  7. You shall only use us and the Services in accordance with the TOU and relevant terms;
  8. You shall ensure we are allowed to use your data as needed to provide the Services; and
  9. You shall not deconstruct the source code of ADS Hub;
  10. You or your friends shall not to harm the ADS Hub in any way;
  11. You shall not to use us or the Services in any unsavoury ways;
  12. You shall not to make any public statements that will make us look bad;
  13. You shall comply with requirements by the Participants and the Territory;
  14. You shall make sure your technology can interface with ours; and
  15. You shall not use us or the Services in a way that will make us look bad.

Work with us when we ask you need to troubleshoot some stuff.

6
Export Controls

The Services we provide, including any accessory products and services, may be subject to export control laws and economic sanctions and regulations.

You acknowledge and agree to fully comply with the domestic and international laws, regulations, and sanctions, including any licensing or authorization requirements, and any restrictions on use, end use, end users and destinations.

If you are restricted by such laws, regulations and sanctions, or are listed on any government exclusion lists that prohibits your use of ADS Hub or the Services, then do not use us or the Services.

If you are subject to any export control laws or any economic sanction laws which restricts your use of us or the Services, you shall fully comply with those laws.

7
Usage Record

We have automated the process of tracking your usage. The calculations and itemization of your usage will be available via your Account. Our calculations of your usage are final and we will not be able to respond to or entertain your disputes of our usage calculations.

We have an automated system that calculated your usage of the Services. The details are available to you. Our calculations are final.

8
Records and Reporting

We may require you to furnish us with certain information or documentation relating to your use of the Services. Please be sure you keep clear, accurate and up to date records and information in accordance to generally accepted accounting principles. You shall make such information or documentation available to us upon request with 5 days written notice.

We may ask you to provide us with some information about your use of the Services. Please ensure you have clear, understandable records of such information available to us when we ask for it.

9
Add Ons

Add-ons that you get through the ADS Hub are not our products, but are being offered by third parties (“Add-on Partners"). Add-on Partners are responsible for their Add-ons, not us. So, if something goes wrong with an Add-on, you need to go to the Add-on Partner for help and we are not responsible for troubleshooting, payment or other issues you may face with the Add-on Partner.

The available Add-Ons are provided by the Add-on Partners and you should approach them directly for assistance where required.

10
Tested Services

You may be invited to participate in an alpha or beta test of our services, products, features and documentation (“Tested Services”). These Tested Services are on an invite-only basis, and may contain bugs, errors, defects or potentially harmful components. These Tested Services are offered to you on an “AS IS” basis, with no warranties of any kind whatsoever.

If you do decide to participate in an alpha or beta test of our Tested Services, you agree to waive any liabilities on our part in accordance with this TOU.

If you participate in an alpha or beta test of any new services, you acknowledge that the services may contain bugs and defects and some other problems. We will not be responsible for any damages caused by you using the Tested Services.

11
Fees & Payments
Payments and Pre-Payments by You

The fees and specific payment terms that are applicable to the various Services will be displayed in our Rate Schedule.

Most Services will require advance payments or pre-payments for the consumption or access to the Services. The payment method and the payment currency will be displayed to you when you place an order for the Services.

All amounts paid, whether pre-paid or deposited in advance, or whether the Services have been consumed, are non-refundable.

You agree to pay the fees and applicable Taxes for the Services you purchase or consume using your Account via the ADS Hub.

You shall also pay any other applicable fees in connection with the order of any accessory services, including support and technical services, which will be communicated to you prior to you placing an order.

Payments to You

For some of the Services (as such services that you provide to your end users which feature carrier billing), we will be collecting payments which originate from your end users on your behalf and transfer the balance to you after making the necessary deductions for fees (displayed in the Rate Schedule) that are due to us, applicable bank charges and/or applicable Taxes. These amounts and the dates of transfer to you will be displayed in our statements which are accessible through your Account.

Notwithstanding the above, even where you have promised refunds to your end users, we will not be entertaining any requests of refunds or clawback of any pre-paid fees or payments which are collected by us on your behalf.

All payments you make shall be made in Malaysian Ringgit unless otherwise stated in the Rate Schedule.

You are required to pay in advance for the Services in a manner and currency that will be communicated to you when you place the order.

You agree to pay any fees for the Services you order through the ADS Hub.

If the Services you consume or subscribed for requires us to collect fees on your behalf, we will transfer to you the balance after deducting any charges or fees owed to us as displayed in your Account.

There will be no refunds or return of payments even if you have promised your end users the same.

All payments will be made in the currency stipulated in the Rate Schedule and we are not responsible to you for any exchange control losses.

12
Taxes
Not responsible for bad debts, etc:
We will not be responsible for any bad debts, unrecovered sums or withholding for tax purposes and we will charge, add or deduct or offset any such sums to or from you.
All payments be made by you
All payments must be made to us in accordance to this TOU regardless of any bad debts, unrecovered sums or withholding tax purposes and must be accounted for in full and be grossed up to make whole all amounts specified in our invoices or Rate Schedule.
Withholding Tax
If any payment by you to us is subject to any taxes under the law in the relevant Territories, and such tax is required to be withheld from the payment to us, you are not entitled to deduct any taxes from the amounts payable to us. Instead, you shall pay us the gross amount owed to us and you shall bear and remit the applicable tax amount to the tax authorities at your own expense. On the other hand, if any payment by us to you is subject to tax by the relevant tax authority in Malaysia, and such tax is required to be withheld from the payment to you and is permitted to be withheld under any applicable convention or treaty between your country and Malaysia, the amount of such tax will be deducted and remitted to the Malaysian tax authority on your behalf. This deduction shall be made on all payments to be made by us to you in accordance with laws of Malaysia. The applicable tax receipts will be made available in your Account portal. You shall be responsible for complying with all Malaysian tax laws and regulations, including but not limited to the filing of any required Malaysian tax return.
Indemnity
You will indemnity ADS and hold us harmless against any claims or penalties that may be imposed on us by reason of the above, or your failure to comply with your obligations under the tax laws of your jurisdiction.
Taxes and Duties
Duties and other governmental or administrative charges and levies of any kind whatsoever arising from your consumption of Services or this TOU, including sales, services, use, value‑added, goods and services or others ("Taxes") may be levied by us in addition to any payment for Services.
Your obligations to pay for the taxes
Where any service tax, goods and services tax, value added tax or tax of similar nature is applicable on any goods or services supplied under this TOU imposed by the relevant Malaysian authorities, you shall bear and pay for such tax, provided that we have complied with the following: We are duly licensed by the relevant Malaysian authorities to charge and collect such service tax or goods and services tax, or tax of similar nature;
  1. the appropriate service tax or goods and services tax, or tax of similar nature for each invoice or transaction is included under the relevant invoice or statement at the time of the issuance of the same; and
  2. all invoices or statement provided by us to you comply with the relevant Laws in respect of service tax or goods and services tax, or tax of similar nature enforced by the Malaysian authorities.
Our obligation to pay for the taxes
If we are required to pay any Taxes to any relevant third party in connection with this TOU or the Services, we may pass through such Taxes which may be levied in addition to any payment for Services and other Taxes to be made in accordance with this TOU and will be payable in accordance with this TOU.
Other taxes
All other taxes shall be the responsibility of the relevant party in compliance with the prevailing tax treaty or tax regulations in the relevant Territories.
13
Publicity

We must cooperate with each other in relation to public relations, promotional and advertising relating to the Services.

Neither of us shall make any public announcements or communications on behalf of each other without the other’s prior written consent.

We shall not make any public announcements on behalf of each other, unless we are legally required to make such announcements.

14
Data Protection

By using the ADS Hub or the Services, you agree that you have read, understood and agree to comply with our Privacy Notice.

By using the ADS Hub and the Services, you warrant and represent that you have consented, obtained or have procured sufficient informed consent from the relevant individuals for us, the Participants and our contractors to collect, use, handle, store, disclose, transfer (collectively known as “Process”) the personal data relating to you and your end users, for the purposes set out in this clause and in accordance with our Privacy Notice.

You also grant to us a delegated authority to appoint such contractor or subcontractor as we deem fit to Process the personal data of you and your end users.

Where any personal data is provided to you in connection with the use of the ADS Hub or the Services, you must:

  1. only Process such personal data to the extent necessary to receive the Services or otherwise in order to comply with the law or as permitted by this TOU;
  2. comply with the applicable privacy laws, and not do engage in any practice that would breach or cause us, the Participants or our contractors to breach any privacy laws; and
  3. ensure that sufficient technical and organisational security measures are adopted in relation to the personal data, including such measures to protect personal data from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction.

Information required for invoicing or audit purposes relating to this TOU or the service order forms may be retained in accordance with any requirements of applicable law.

In respect of personal data provided by you to ADS, ADS will process the personal data and use any other information supplied by you to provide the ADS Hub and the Services, including but not limited to the various purposes mentioned in the Privacy Notice, marketing, aggregating data and analysis of such data, and to inform you about any relevant services you or your end users can obtain from us or the Participants.

You will also be responsible for obtaining the consent of your end users to use, process, record, hold, store, share and disclose such end users’ personal data, and for us to process end user personal data only to the extent necessary for the abovementioned purposes, failing which you will indemnify us fully against any damages or claims that we suffer from your failure to do so.

We take data protection and privacy very seriously. Please read our Privacy Notice, and ensure you are able to comply with it.

15
Ownership

We own exclusively and reserve all right, title and interest (legal or beneficial) in and to the ADS Hub, any data arising from the Services.

You exclusively own and reserve all right, title and interest (legal or beneficial) in your Applications and the content of any communications sent through integration with the ADS Hub and the Services.

We own the ADS Hub. You own your Applications. There will be no change of ownership.
16
Use of Trademarks

As a starting point, neither of us should be using each other’s name and logo without the other’s authorization. If you would like to use our name and logo on your website, your Applications, or any promotional materials in connection with our activities under this TOU, please first obtain written authorization from us.

If we would like to use your name and logo on our Account portal, website or any promotional materials, we shall do the same.

If you want to use our name and logo to promote your services or your Application you shall first ask for our permission and we will extend to you the same courtesy.

17
Intellectual Property

You agree that all any intellectual property, data (including personal data of third parties), technology, systems or materials (including designs, graphics, text, sounds, pictures, page headers, button icons, scripts, files) and the selection and arrangement (collectively “Intellectual Property”) available on the ADS Hub or through the Services are property of ADS and/or its licensors, and are protected by domestic and international intellectual property laws.

You will not acquire any rights, goodwill or ownership in any Intellectual Property through the use of the ADS Hub, Account portal or Services except as expressly allowed by this TOU. All rights to the Intellectual Property not expressly granted in these terms are reserved to their respective owners.

Except as otherwise set out in this TOU, neither party shall receive any right, title, goodwill or interest in respect of any Intellectual Property owned or made available by or on behalf of the other party in connection with this TOU or any of the Services.

You shall grant us, or procure from any relevant third parties (for example, your licensors), all permissions and licences to use any of your Intellectual Property as may be required by ADS or our third party service providers (such as our contractors, infrastructure and service providers) to make available the ADS Hub and provide you with the Services.

Where it is necessary for you to procure a licence from a third party, the terms and conditions of that licence will apply to the extent that those terms and conditions are set out in this TOU or in a separate licence agreement between us and the relevant third party.

On the other hand, we shall grant you:

  1. a non-exclusive, royalty-free, non-transferable licence (which is revocable if we have suspended or terminated the ADS Hub or the Services in whole or part pursuant to this TOU) in the Territory to interface with the ADS Hub; and
  2. the right to use ADS’ and our licensors’ Intellectual Property (bearing in mind that our prior authorization is required to use our trademarks) to the extent provided by us and relating to the ADS Hub for the exercise of your rights and the performance of your obligations under this TOU, including marketing the Services and identifying ADS as the provider of the Services or the ADS Hub, subject to ADS’ branding guidelines.

Both parties must ensure that each of us and our Affiliates do not take steps to register any Intellectual Property owned by the other party, and without the prior written consent of the other party, use any Intellectual Property owned by that party in a manner that is not permitted or contemplated by this TOU.

The ADS Hub contains some third party open source components (“OS Software”). The OS Software and its components is distributed and licensed to you under the terms and conditions of the OS Software licence or such other licence accompanying the OS Software (each a "Licence"), and you agree to abide by such terms and conditions for the OS Software Licence and its components. Please refer to the Licence for the specific language governing permissions and limitations under the Licence.

Unless required by applicable law, the OS Software distributed under the Licence is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, and we shall not be responsible for any and all losses incurred by you in connection with the use of the OS Software.

This TOU (apart from this clause and Clause 20 on Suspension and Termination of the main body of this TOU) does not apply to your use of the OS Software.

Everything you see on the ADS Hub are our property and you may only use them in accordance to this TOU.

Neither of us will acquire any of the other’s Intellectual Property Rights, but we shall grant each other a licence to use each other’s Intellectual Property sufficient for us to carry out our obligations under this TOU and not beyond.

Some of elements of the ADS Hub or the Services contain open source software. We will not be responsible for anything negative that you experience for the use of the open source software.

Your use of ADS Hub or the Services is therefore also subject to the terms applicable to the open source software. However, this TOU still takes precedence if there are any inconsistencies.

18
Confidentiality
  1. Confidential Information, in the context of this TOU, includes:
    • all information (whether in oral, written, electronic or other recorded form) and Intellectual Property disclosed by or on behalf of the disclosing party to the receiving party in connection with the ADS Hub or the Services; and
    • all copies of that information,

    whether or not it was marked or otherwise designated the information to be confidential, but does not include:

    • publicly available information;
    • information independently developed by the receiving party without use of or reference to Confidential Information
    • information which becomes known to the receiving party from a third person who is not, in any form or manner, in breach of any obligation of confidentiality;
    • if the receiving party is obliged to disclose the information by law or the rules of any stock exchange to which the receiving party is subject or a court order.
  2. We both agree that we shall use the Confidential Information only in accordance to these terms and shall not disclose such Confidential Information to any other third-parties without each other’s prior written consent except in accordance to these terms. We both may disclose Confidential Information to your key personnel, professional advisors or any party required by law on a need to know basis only, and provided that they are legally bound to keep such information confidential.

We both agree to not disclose to anyone else the confidential information we get from each other, and that we will only use the confidential information as agreed to in these terms.

19
Injunctive Relief

You acknowledge that in the case of breach by you of the Clause 18 “Confidentiality”:

  1. The breach may result in loss to us that may not be adequately compensated by payment of damages; and
  2. We are entitled to equitable relief, including enforcing of our rights by specific performance or injunction proceedings.

If you breach the confidentiality clause, money may not be sufficient to compensate us. We will seek other remedies (like stop orders), if needed.

20
Suspension and Termination

We may suspend or terminate your access to the ADS Hub or any of the Services to you immediately for any of the following reasons:

  1. If you breach, or where we have reason to think that you are in breach of this TOU or misusing the ADS Hub or Services, which include gamifying any components of our ADS Hub;
  2. Where we have justifiable grounds to believe that the traffic created from your use of the ADS Hub or the Services is fraudulent or negatively impacting our operations, goodwill or reputation;
  3. Any changes to the requirements, policies or practices of the regulatory regime of a Territory or Participants that make the ADS Hub or Services no longer practical, feasible or legal;
  4. If there is any lawsuit or claim (including third party Intellectual Property claims) against you, us or any third party relevant to the ADS Hub or the Services;
  5. Where we need to comply with any injunctions, court orders or directives from regulators or Participants to us or any relevant third party; or
  6. If our hosting provider suspends or ceases to provide the hosting services or where any (force majeure) event occurs beyond our control;
  7. Where your account has been dormant or inactive for more than 90 days;
  8. Where you or your business ceases to carry on business, undergoes a change in control, faces insolvency or similar proceedings.

Upon suspension, we will endeavour to resume the use of the ADS Hub and the Services within a reasonable time, taking into account all relevant facts leading to the suspension, if resumption is commercially practicable and feasible in our reasonable view.

However, where we are unable to do so, we may in our sole discretion and upon written notice to you, terminate the affected Services or your access to the same. We will not be liable for any losses or damage arising from a suspension or termination pursuant to this clause.

Your obligations under this TOU shall continue during suspension. This clause is an Overriding Term.

We may terminate or suspend your Account or Services to you under different circumstances. If we do so, we will endeavour to resume the Services to you if it is commercially viable for us to do so.

You will have no remedy against us if we terminate or suspend the Account or Services in these circumstances.

21
Warranties and Disclaimers

Without limiting ADS’ express warranties and obligations stated here, we disclaim all other warranties, express or implied, including, warranties of merchantability, title, non-infringement, and fitness for a particular purpose and warranties related to third party equipment, material and services.

The ADS Hub and the Services are provided “AS IS” to the fullest extent permitted by law. To the extent this disclaimer conflicts with applicable law, the scope of duration of any applicable warranty shall be the minimum permitted under that law.

We are only responsible for the provision and the maintenance of the ADS Hub. The Participants’ Services are provided by the Participants which we are not responsible for.

Specifically, we do not make any assurances to you regarding the quality of the Participants' Services, nor are we able to ensure that the Participants will exercise a standard of care, skill or diligence reasonably expected of a competent service provider.

We are not be responsible for any delay, interruption or failure in relation to the performance of its obligations under this TOU or service order form where such delay, interruption or failure is caused, whether directly or indirectly, by:

  1. any government agency or a court of competent jurisdiction issuing any order, directive or instruction;
  2. you failing, neglecting or omitting in performing your obligations and responsibilities in an efficient and timely manner; or
  3. the occurrence of a force majeure event beyond our control,

which has a material impact on the performance of our relevant obligations.

Except as stated in this TOU and the Incorporated Documents, the ADS Hub and the Services are offered “as is”.

Just to clear, we are only responsible for the ADS Hub, the Participants' Services are provided by the Participants themselves.

22
Indemnification

You shall defend, indemnify and hold us and our Affiliates harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action arising out of or relating to your activities under this TOU or your acts or omissions in connection with the provision of your Applications, including, without limitation:

  1. the consumption or onward supply of Services and Participants' Services by you or to any third party (your subscribers or permitted reseller who are “end users”);
  2. breach of this TOU, terms in the service order form or the Incorporated Documents or any laws of the Territory by you or your end users;
  3. any act or omission by you or your end users which results in us breaching our agreement with any Participant or third parties relevant to the Services;
  4. any dispute between you and your end users, and you and the Participants; or
  5. any intellectual property claims relating to your Applications and any violation by you or your end users of the terms of set out in the Clause 5 “Restrictions and Covenants”.

We will cooperate as reasonably required in the defence of any claim, at your expense. We reserve the right, at your expense, to retain separate counsel for ourselves in connection with any claim or, if you have not responded reasonably to the applicable claim, to assume the exclusive defence and control of any claim in which you are a named party and that is otherwise subject to indemnification under this Clause 22 “Indemnification”. You shall pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against us in connection with any claim. You shall also be liable to us for any costs and attorneys’ fees we incur to successfully establish or enforce our right to indemnification under this Section.

You have to defend us on your dime if someone comes after us due to something you or your end users have done with the ADS Hub or the Services. You also have to reimburse us for any money we have spent because of the dispute.

23
Exclusion of Damages for Indirect Damages

Under no circumstances shall we be liable to you for any indirect, special, incidental, consequential or punitive damage of any character, including, but not limited to, damages for loss of goodwill, lost profits, loss of revenue, work stoppage, computer failure or malfunction, lost data, or for any and all other damages or losses arising from your use of the ADS Hub or Services, even if we had been advised, knew, or should have known about the possibility of such damages.

We will not be responsible, in any way, shape or form, for any damages indirectly we caused via the provision of the ADS Hub or the Services.

24
Exclusion for Liability caused by Hosting Provider

We shall not be liable for any losses arising out of or caused by the act or omission of our hosting services provider.

If our hosting provider messes up, we shall not be responsible.

25
Limitation of Liability for Direct Damages

Under no circumstances shall we be liable for any direct damages, costs or liabilities in excess of the:

  1. the amount paid or payable by you in respect of the transaction in dispute; or
  2. the amount paid or payable by you to us within the period of one month immediately prior to the date on which the transaction you are disputing arose, less:
    1. any taxes leviable by us in accordance to this TOU; and
    2. any amounts payable by ADS to you or any third party in connection with the Services.

whichever is lower.

If we cause any direct damages to you, the damages we owe you is capped.

26
Regulatory Changes

If a change in the laws, regulations or any directions of the relevant authorities of a Territory results in ADS being unable to perform our obligations under this TOU :

  1. without breaching any applicable laws or regulations;
  2. because the changes has rendered the continued provision of the Services commercially unfeasible.

we shall promptly notify you.

If the above occurs, we will have the right to terminate or suspend the Services to you immediately.

If a change in laws or regulations makes it impossible for us to perform our obligations under this TOU legally or commercially, we shall have the right to terminate or suspend the Services immediately.

27
Dispute Resolution

Before commencing legal action, please serve us a written notice to AXIATA DIGITAL SERVICES SDN. BHD., Level 5, Corporate Headquarters, Axiata Tower, 9 Jalan Stesen Sentral 5, Kuala Lumpur Sentral, 50470 Kuala Lumpur, Malaysia. stating the details of the dispute. We will strive to resolve any disputes amicably.

The following dispute procedures shall be followed:

  1. the party raising any dispute shall first serve notice of the dispute on the other party (a "Dispute Notice");
  2. within 7 days after service of a Dispute Notice, the nominated representatives of each party must seek to settle the dispute amicably and in writing;
  3. if the dispute is unresolved in writing or no meeting for the purpose of settling the dispute has taken place within 7 days after the service of a Dispute Notice, then the Chief Executive Officer of ADS (or person with equivalent level of seniority) and your counterpart (or person with equivalent level of seniority) shall meet to resolve the dispute; and
  4. However, if that is not possible, the dispute shall be referred to and finally and exclusively resolved by arbitration under the rules of the Singapore International Arbitration Centre in force as at the date of application for arbitration (“SIAC Rules”). The SIAC Rules shall be deemed incorporated into this TOU.

Arbitration shall be conducted before a sole arbitrator. The seat, or legal place of arbitration, shall be Singapore. The language of the arbitration shall be English. All documents submitted in connection with the proceedings shall be in the English language, or, if in another language, accompanied by an English translation.

The arbitration award rendered shall be in writing and shall set out the reasons for the arbitrator’s decision. The award shall apportion the costs of the arbitration as the arbitrator deems fair.

The parties agree that the arbitration award shall be final and binding on the parties and may be enforced in any court of competent jurisdiction.

Without prejudice to the above provisions, either party may seek injunctive relief, including restraining orders and preliminary injunctions, in any court of competent jurisdiction, and either party may request that a court refers the proceedings to arbitration in accordance with this TOU.

If, in the unfortunate event that a dispute arises between us, we should first attempt to resolve this amicably between our representatives.

If it cannot be resolved amicably, we shall resolve this via arbitration in Singapore.

28
Survival

Upon termination or expiration of this TOU, the Clauses below will survive the termination:

  1. clause 5 “Restrictions and Covenants”
  2. clause 14 “Data Protection”;
  3. clause 15 “Ownership”;
  4. clause 16 “Use of Trademarks”;
  5. clause 17 “Intellectual Property”;
  6. clause 18 “Confidentiality”;
  7. clause 21 “Warranties & Disclaimers”;
  8. clause 22 “Indemnification”;
  9. clause 23 “Exclusion of Damages for Indirect Damages”;
  10. clause 24 “Exclusion for Liability caused by Hosting Provider”;
  11. clause 25 “Limitation of Liability for Direct Damages”; and
  12. clause 29 “General Terms”.

The listed clauses continue to bind you and ADS even after termination of this TOU.

29
General Terms
  1. Governing Law and Jurisdiction: This TOU, including both contractual and non-contractual disputes or claims, is governed by, and shall be construed in accordance with the laws of Malaysia.
  2. Severability: If any terms in this TOU shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
  3. Relationship: The performance of the terms shall not be construed as creating an employer-employee relationship, partnership, agency, joint venture, or franchise. You and ADS are independent contractors, solely responsible for all claims, liabilities or damages or debts of any type that may arise on account of each of our respective labour costs and expenses arising in connection with our respective employees and agents. You and ADS shall also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these terms. Neither you nor ADS have the authority to commit the other of us in any way and shall not attempt to do so or imply that it has the right to do so.
  4. No Waiver: No failure to exercise or any delay in exercising any right of remedy by us under this TOU shall operate as a waiver thereof.
  5. Notices: Any notice required or permitted to be given under this TOU shall be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt. Notices to us shall be copied to AXIATA DIGITAL SERVICES SDN. BHD., Level 5, Corporate Headquarters, Axiata Tower, 9 Jalan Stesen Sentral 5, Kuala Lumpur Sentral, 50470 Kuala Lumpur, Malaysia and send a copy to our email mag@admife.com.
  6. No Assignability: This TOU shall be binding on your successors. Unless we agree in writing, you shall not assign any rights or obligations under this TOU. However, we may by informing you, assign or novate this TOU and/or any rights hereunder to any entity within our group of companies or any entity that we establish pursuant to either a joint venture or partnership arrangement with a third party in connection with the ADS Hub.
  1. This TOU is governed by the laws of England and Wales;
  2. If any changes in law causes one or more of the terms in this TOU to be illegal, the other unaffected terms shall remain valid;
  3. We are only independent contractors providing Services to you;
  4. If we do not exercise our right, it does not mean that we have waived our rights under this TOU;
  5. If you need to notify us, you must use our headquarters’ address and send a copy to mag@admife.com;

You cannot assign your rights and obligations under this TOU to a third party without our approval.