Terms & Conditions
24 October 2013
TERMS & CONDITIONS FOR ACCESS AND USE OF
THE SMARTMAP SERVICE AND/OR THE SMARTMAP API SERVICE
AND RELEVANT TM SMARTMAP WEBSITE
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE YOU SIGN UP FOR THE SMARTMAP SERVICE AND/OR THE SMARTMAP API SERVICE (“THE SERVICE”). BY INDICATING YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREOF AND BY ACCESSING THE RELEVANT TM SMARTMAP WEBSITE PROVIDED BY TELEKOM MALAYSIA BERHAD (“TM”) AND/OR USING OF THE SERVICE HEREIN, YOU ARE DEEMED TO ACKNOWLEDGE AND AGREE TO BE BOUND BY ALL THE FOLLOWING TERMS AND CONDITIONS FOR THE USE OF THE SERVICE AND THE RELEVANT TM SMARTMAP WEBSITE. TM RESERVES THE RIGHT TO UPDATE OR REVISE THESE TERMS AND CONDITIONS FROM TIME TO TIME IF UPDATING OR REVISION IS REASONABLY NECESSARY OR SPECIFICALLY, IF UPDATING OR REVISION IS NECESSARY IN THE INTEREST OF AND FOR ENSURING A FAIR LEVEL OF AVAILABILITY OF THE SERVICE TO YOU AND/OR YOUR USER. TM MAY GIVE NOTICE OF SUCH AMENDMENT TO YOU AND/OR YOUR USER IN SUCH MANNER AS TM DEEMS APPROPRIATE. CONTINUATION IN THE ACCESS OR USE OF THE SERVICE SIGNIFIES ACCEPTANCE OF THE CHANGES TO THESE TERMS AND CONDITIONS WITH REGARDS TO THE SERVICE AND THE RELEVANT TM SMARTMAP WEBSITE.
PART A – DEFINITIONS AND INTERPRETATIONS
- The Service
a) Smartmap Service
The Smartmap Service available via the Smartmap Website (www.smartmap.tm.com.my) is a map-based application as an Internet service for businesses that allow subscribers to utilise the Service and content available in the Service to perform geo-spatial analysis to support business-decision making. The Service and the relevant TM Smartmap Website are operated and owned by TM. By registering and/or using the Service, the Customer is deemed to have acknowledged, accepted and agreed to be bound by this Agreement.
b) Smartmap API Service
The Smartmap API Service is a map-based Application Program Interface (API) provided through Internet service that allows the Customer to embed TM’s map into the Customer’s web based or client application. The Service and the relevant TM Smartmap Website are operated and owned by TM. By registering and/or using the Service, the Customer is deemed to have acknowledged, accepted and agreed to be bound by this Agreement.
- Definitions and Interpretation
“Activation Date” means the date on which the Service and the Customer’s Account (hereinafter defined) are activated for the Customer by TM as more particularly described in Clause 3 of Part B hereunder.
“Agreement” means the completed Application Form (and its attachment(s)) and the terms and conditions herein contained.
“API” is the acronym for Application Program Interface.
“API Content” means any content provided through the Smartmap API Service (whether created by TM or the Customer’s vendor licensors), including map and terrain data, photographic imagery, traffic data, places data (including business listings), or any other content.
“Application Form” means the application form to which these terms and conditions are attached requesting particulars from an applicant offering to become a Customer (hereinafter defined) and furnishing the required and genuine information. Such application form and these terms and conditions shall form this Agreement.
“Brand Features” means the trade names, trademarks, service marks, logos, domain names and other distinctive brand features of each party respectively as secured by such party from time to time.
“Customer Content” means any content that the Customer provides in the Customer’s Website and/or Customised Application (as hereinafter defined) including data, images, video or software. The Customer Content does not include API Content.
“Customer” under this Agreement shall mean a natural person other than a minor and shall include corporate body, partnership, associations, company, government and/or non-government organization whose application to enter into this Agreement is accepted by TM and shall include his successors and permitted assigns and is synonymous with the term “subscriber” or “applicant” wherever used in other correspondence or documents.
“Customer’s Account” means an account under the name of the Customer in relation to the Service subscribed by the Customer.
“Customer’s Website” means the Customer’s website that uses the Smartmap API Service to obtain and display content in conjunction with the Customer’s Content.
“Customised Application” means the Customer’s software application that uses the Smartmap API Service to obtain and display content in conjunction with the Customer’s Content.
“Extended Subscription Period” means additional subscription period of the Service as specified in the Application Form which shall be renewed automatically upon submission of notice of extension of service renewal and payment of fee (in advance) from Customer to TM upon expiry of the initial Subscription Period, or unless earlier terminated by either party hereto in accordance with the provisions of this Agreement.
“License Key” means a unique identifier used during authentication. It is provided to the Customer upon account registration successful and must be installed into the Customer’s application or web server before the Customer can start using the Smartmap API Service.
“Registration Date” means the effective date of this Agreement which is the date upon which TM approves the Customer’s application for the Service, as more particularly described in Clause 1.1 of Part B herein.
“Service” means either the Smartmap Service and/or Smartmap API Service, as the case may be.
“Smartmap Service” means the service as defined in Clause 1(a) hereof.
“Smartmap API Service” means the service as defined in Clause 1(b) hereof.
“Subscription Period” means the subscription period of the Service as specified in the Application Form and/or the terms there under or, in the absence of any specified subscription period there under, a period of twelve (12) months from the Activation Date of the Service.
“Smartmap ID” means an authentication login to Smartmap Service provided by TM upon successful activation.
“TM” means TELEKOM MALAYSIA BERHAD (Company No. 128740-P), a company incorporated under the laws of Malaysia and having its registered address at Level 51, North Wing, Menara TM, Jalan Pantai Baharu, 50672 Kuala Lumpur.
“User” meansany authorised user of the Service and reference to “Users” shall be construed accordingly.
Word and expressions donating the singular include plural numbers and words and expressions denoting the plural shall include the singular number unless the context otherwise requires.
Word denoting natural persons include bodies corporate, partnerships, sole proprietorship, joint ventures and trusts. The expression “him” or any other expressions appear herein shall be deemed to include the masculine, feminine, plural thereof where the context so admits.
PART B – GENERAL CLAUSES
- Subscription Period
1.1 This Agreement shall be effective upon the execution of the Application Form by the Customer and upon the acceptance of the Application Form together with the required attachments hereunder and the registration thereof by TM. TM reserves the right to decline any application subject to the Customer being informed of the ground for any rejection.
1.2 The Customer shall subscribe to the Service for a period of not less than the Subscription Period effective from the Activation Date.
1.3 This Agreement shall remain in full force and effect for the duration of the Subscription Period. Upon expiry of the Subscription Period, the Service and this Agreement will automatically be renewed on a yearly basis for another Extended Subscription Period, subject to submission of notice of extension of service renewal and payment of fee (in advance) from Customer to TMunless earlier terminated by either party hereto in accordance with the provisions of this Agreement.
- Application for the Service
2.1 The Customer may apply for the Service via:-
i) TM Point(s), respective Account Executive(s) or TM’s appointed reseller, or via online registration through https://www/tm.com.my/Office/Business/SME/
Pages/BizAppStore.aspx for the Smartmap Service; and
ii) respective Account Executive(s) or TM’s appointed reseller for the Smartmap API Service.
2.2 Upon submission of the Application Form, whether manually or online, the Customer shall ensure that all information and documents submitted to TM or its appointed reseller for the purpose of subscribing to the Service (including information requested to be submitted with the Customer’s Application Form or information upon TM’s request) are accurate, current and complete and the Customer hereby undertakes to inform TM of any updates to such information in the event any changes thereto.
- Account Activation
Subject to the terms and conditions herein contained, the Customer Account and the Service will be activated automatically by TM upon:-
i) receipt of full payment from the Customer of the rates based on the package subscribed, as agreed and stated in the Application Form; and
ii) acceptance of the Application Form and other relevant document(s) by TM.
4.1 The fees for the Service shall be at the applicable rate as indicated in the Application Form or such rates as may be prescribed and informed to the Customer by TM from time to time.
4.2 Except as otherwise provided in this Agreement, payment of the fees for the Service shall be payable in advance from the Activation Date. The Customer shall be liable for and shall promptly pay to TM, within the time period specified in TM’s bill for the Service, all charges, fees, rentals, costs or other amounts whatsoever as shown in TM’s bill, notwithstanding that the Customer may dispute the same for any reason(s) whatsoever.
4.3 In the event of suspension or termination of the Service or this Agreement at any time during the Subscription Period, except where such termination arises from TM’s material breach or wilful default or due to Force Majeure Event, then the Customer shall be liable to pay to TM, in addition to all outstanding fees and charges as at suspension or termination, the total fees for the remaining part of the Subscription Period as agreed liquidated damages for suspension or early termination.
4.4 Customer will pay all fees specified in Application Form. Except as otherwise specified herein or in an Application Form, (i) fees are based on Services purchased and not actual usage, (ii) fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Period or Extended Subscription Period (whichever is applicable).
- Payment and Billing
TM will issue receipt of payment and activate the Customer Account to the Customer upon full payment received.
- Change of Service Package Plan
6.1 The Customer is neither allowed to upgrade nor downgrade the Service package plan subscribed during the Subscription Period or Extended Subscription Period (whichever is applicable), as stipulated in the Application Form.
- Customer’s Responsibilities
The Customer shall:-
i) comply with and not contravene any and all applicable laws and regulations of Malaysia, whether relating to the Service or otherwise including but not limited to the Communications and Multimedia Act 1998;
ii) comply with all reasonable notices or instructions given by TM from time to time in respect of the use of the Service;
iii) pay and settle all fees and any other charges due to TM in accordance with this Agreement;
iv) abide and adhere to all the terms and conditions of this Agreement;
v) be solely responsible for obtaining, at his own cost, all licenses, permits, and consents, approvals, and intellectual property or other rights as may be required for using the Service.
- Prohibited Use
8.1 The Customer shall NOT:-
i) use the Service for any unlawful purpose including without limitation for any criminal purposes;
ii) use the Service to send unsolicited electronic messages or any message which is obscene, threatening or offensive on moral, religious, racial or political grounds to any person including a company or a corporation;
iii) infringe any intellectual property rights of TM, its related companies and subsidiaries or any third party;
iv) share the Service with any person including a company or corporation without the prior written approval of TM and shall use the Service only for the purpose for which it is subscribed;
v) resell or sublet the Service to any third parties without prior written consent from TM;
vi) use of the Service in any manner, which in the opinion of TM may adversely affect the use of the Service by other customers or efficiency or security as a whole.
8.2 The Customer understands that he shall not charge the User any fee for the use of the Service, the Customer’s Website and/or Customised Application or the Customer Content.
8.3 Save for the Customer own use, the Customer agrees that he shall not print any copy of sales collateral materials containing the screenshots of the Customer Content for the purposes of commercial sales or incorporate the Customer Content as a core of the printed matter unless with TM’s written consent.
- Security and Other Features
9.1 The Customer shall be responsible for maintaining the confidentiality of his Customer Account, user identification, username, passwords, if any, (including without limitation changing his passwords from time to time) or his License Key, as the case may be, and shall not reveal the same to any other person. Where user identification is necessary to access the Service, the Customer shall use only his user identification.
9.2 The Customer shall report to TM within twenty four (24) hours if the Customer Account, user identification, username or password or the License Key, as the case may be, is stolen or lost. Until such report has been made, the Customer shall be responsible for all transactions and access to the Service using the Customer’s Account, user identification or password by any third party whether or not authorise by the Customer and TM shall not be held responsible for any prohibited and/or unauthorised use of the Service as provided in this Agreement.
- Proprietary Rights
10.1 Except as otherwise stated herein, all rights, title and interest in and to the Website is owned by TM and/or its subsidiaries.
10.2 The Customer agrees and acknowledges that all proprietary rights of the Website and other intellectual property rights displayed in the Website are the property of TM and where applicable, third party proprietors as identified in the Website or as agreed between TM and the third party. Hence, no right or license is granted directly or indirectly to any party accessing the Website to use or reproduce any such proprietary content, trademarks, service marks, brand names, logos and other intellectual property and no party accessing the Website cab claim any right, title or interest therein.
10.3 Any uploaded materials or content in the Website belong to the person who lawfully uploaded such material or content in the Website.
10.4 The content and/or the Service owned, operated, licensed or controlled by TM shall not be copied, reproduced, republished, uploaded, posted, transmitted, altered or distributed in any manner without the written consent of TM. The Customer understands that without prior consent from TM, the Customer shall not mirror or frame all or any part of the Website on any other server or as part of any other website(s).
10.5 The Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws.
10.6 The Customer further acknowledge and agree that content contained in information presented to the Customer through the Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
10.7 Except as expressly authorised by TM, the Customer agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
10.8 The Customer acknowledges that TM grant the Customer a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that the Customer do not (and do not allow any third party to) copy, reproduce, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Service. The Customer agrees neither to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorised access to the Service. The Customer agrees not to access the Service by any means other than through the interface that is provided by TM for use in accessing the Service.
10.9 The Customer agrees to grant a license to TM during the Subscription Period, to use the Customer Brand Features and the Customer Content to publicise or advertise that the Customer is using the Service or by creating marketing or advertising materials that show screenshots of the Service in which the Customer Content is featured. The Customer represents and warrants to TM that the Customer shall have all the rights and authority to grant such licenses.
- Lawful Purpose
11.1 The Customer shall only use the Service for lawful purposes, for the purposes that are permitted in this Agreement, to any applicable third party contract, law or regulation and in any case, in compliance with all applicable policies or guidelines made available by TM from time to time.
11.2 Transmission of any material in violation of any international, federal, state or local laws or regulations is prohibited. These included, but shall not be limited to copyrighted material, material legally judged to be threatening or obscene, pornographic, profane, or material protected by trade secrets. These also included links or any connection to such materials.
11.3 The Customer shall not use the Website, the Service and/or the Customer Content available in the Website to, directly or indirectly, interfere or attempt to interfere with:-
i) the proper working of the Website and/or the Service; or
ii) other party’s use or enjoyment of the Website and/or the Service.
- Suspension of Service
12.1 Without prejudice to any other rights or remedies and notwithstanding any waiver by TM of any previous breach by the Customer, TM may suspend the Service for a period determined by TM in its sole discretion, subject nevertheless that TM shall take all reasonable effort to notify the Customer of any breach prior to suspension and/or, in the event that:-
i) any fee and/or payment due hereunder for the Service provided is not settled in full on due payment date;
ii) the Customer fails to comply with any of the terms and conditions as herein contained;
iii) any scheduled or unscheduled outages occur which cause interruption to the Service including but not limited to maintenance of TM’s equipment or systems;
iv) TM has reasonable suspicion that all and/or any part of the Service are involved in fraudulent activities; or
v) due to whatsoever reason(s), TM decides to conduct telecommunication fraud preventive actions.
12.2 In the event of any suspension of the Service by TM in accordance with Clause 12.1(i) and (ii) hereof, TM may, if it deems appropriate at it sole discretion and upon such terms, as it deems proper reconnect the Service, in which event the Service and this Agreement shall continue in effect as if the Service had not been suspended. TM shall have the right to impose on the Customer a reconnection fee at a rate as specified by TM from time to time.
12.3 For the avoidance of doubt, the abovementioned suspension exercise shall not prejudice the right of TM to continuously bill the Customer (if such right to continuous billing is permitted under the terms and conditions herein) for the subscription fees and/or recover all other charges, costs, and interests due and any other incidental charges incurred during the period of suspension. In the event of non-payment by the Customer and subsequent suspension of the Service by TM, the Customer will still be liable to pay the fees for the Service during the period of suspension. Further, where the Customer defaults in payment, TM may at its discretion charge the Customer a reconnection fee for the Service at the rate stated in the Application Form or any other rate as may be prescribed by TM from time to time.
- Change of Customer’s Details
The Customer undertakes to inform TM of any change of the Customer’s information provided earlier to TM within fourteen (14) days of such changes. Failure by the Customer to notify TM of such changes shall be a waiver of the Customer’s right including the right to be notified under this Agreement, as the case may be.
14.1 Without prejudice to any other rights or remedies of the parties under this Agreement or at law, either party may terminate this Agreement if:-
i) the other party breaches any term, condition, undertaking or warranty under this Agreement and such breach remain unremedied for a period of thirty (30) days after receipt of the written request to remedy the same;
ii) winding up petition has been served on the other party; or
iii) the other party becomes bankrupt or enters into any composition or arrangement with or for the benefit of creditors or either party or allow any judgment against either party to remain unsatisfied for the period of twenty-one (21) days; or
iv) any event of Force Majeure occurs as specified in Clause 26 hereof, which continues for a period of more than sixty (60) days
14.2 Without prejudice to any other rights or remedies of TM under this Agreement or at law, TM may terminate this Agreement by giving the Customer fourteen (14) days notice, in writing, if the Customer:-
i) fails to comply with TM’s policy(ies) and/or instruction(s) communicated to the Customer from time to time, in writing; or
ii) is in breach of any provisions under Communications and Multimedia Act 1998 or any other rules, regulations, by-laws, acts ordinances or any amendments to the above.
14.3 Notwithstanding the above, TM may terminate the Service under this Agreement immediately, subject nevertheless that TM shall take all reasonable effort to notify the Customer of any breach prior to termination and without penalty, if:-
i) the Customer fails to make payment of fees, charges and/or any sum due to TM within the stipulated time. Notwithstanding the termination by TM, the Customer shall remain liable for all fees due and owing to TM during the Subscription Period.
ii) the Customer fails to comply with the terms of this Agreement, and TM, in its sole discretion is of the opinion that such breach shall not be tolerated and not falling under provision of Clause 15.1(i) above; and/or,
iii) the Customer provided false or incomplete information to TM.
14.4 Such termination, as hereinbefore mentioned in Clauses 15.2 and 15.3, shall not prejudice the right of TM to recover all charges, cost, and interests due and any other incidental damages incurred thereto.
14.5 Notwithstanding to the contrary, due to whatsoever reason(s), this Agreement may be terminated by TM upon thirty (30) days written notice to the Customer.
14.6 Upon termination of the Service or this Agreement, all monies owing by the Customer to TM shall immediately become due and payable and the Customer shall upon demand by TM settle all amounts within the time stipulated by such demand.
14.7 Any fees and/or charges paid by the Customer to TM pursuant to this Agreement shall not be refundable upon termination of the Service by the Customer.
14.8 TM shall not be liable to the Customer for any claim for damages or costs of any nature whatsoever arising out of discontinuance of the Service or termination or expiration of this Agreement in accordance with its term including but not limited to any claim for loss of profits or prospective profits or for anticipated loss.
15.1 The Service and the materials contained are provided on an “as is” and “as available” basis. TM makes no warranty of any kind, either expressed or implied, and expressly disclaims all implied warranties, including but not limited to warranties of accuracy, completeness and reasonableness of the Service for a particular purpose of the Customer. Further, TM does not warrant that the Service will not be interrupted or error-free.
15.2 Save for loss or damage due to injury or death arising from the gross negligence or willful default of TM, TM shall not be liable to the Customer for any direct and incidental loss, cost, claim, liability, expenses, demands or damages whatsoever (including any loss of profits, loss of savings or incidental or consequential damages), arising out of the Customer’s failure or inability to use such Service or arising from the use of the Service as provided by TM hereunder. TM’s liability (if any) is limited to restore the Service and if necessary to replace the defective materials in the Website.
15.3 TM shall not be liable to the Customer for any loss or any damages sustained by reason of any disclosure, inadvertent or otherwise in any information concerning the User Account particulars unless due to gross negligence or willful default of TM.
15.4 While every care is taken by TM in the provision of the Service, TM shall not be liable for any loss of information howsoever caused whether as a result of any interruption, suspension, or termination of the Service or otherwise, or for the contents accuracy or quality of information available, received or transmitted through the Service.
15.5 The Customer shall be solely responsible, and TM shall not be liable in any manner whatsoever, for ensuring that in using the Service, all applicable laws, rules and regulations for the use of any telecommunications system, service or equipment shall be at all times complied with.
16.1 The Customer undertakes and agrees to indemnify, save and hold harmless TM at all times against all actions, claims proceedings, costs, losses and damages whatsoever including but not limited to libel, slander or infringement of copyright or other intellectual property rights or death, bodily injury or property damage howsoever arising which TM may sustain, incur or pay, or as the case may be, which may be brought or established against TM by any person including a company or corporation whomsoever arising out of or in connection with or by reason of the operation, provision or use of the Service and/or equipment under and pursuant to this Agreement, and which are attributable to the act, omission or neglect of the Customer, his servants, agents or the Users.
16.2 The Customer hereby further agree to defend, indemnify, and hold TM and its affiliates harmless from any claim or liability arising out of the Customer’s use of the Service in breach of the terms and conditions in this Agreement or any applicable policies;
16.3 The Customer agrees that he shall be solely responsible for any breach of his obligation under the terms and conditions in this Agreement and further understands that he shall be solely responsible for the consequences, including to any loss or damage suffered by TM due to such breach.
16.4 TM shall use its best endeavours to ensure the continuity and efficiency of the Service at all times but shall not be liable for any loss, damage, consequential or otherwise, arising out of any failure of the Service caused unless such default, error, omission or loss is due to the willful neglect or willful fault of TM. Notwithstanding the aforementioned, the extent of TM’s liability shall be limited to correcting the failure of the Service only.
- Confidential Information
Except with the prior written consent of the other party and/or save as expressly allowed under this Agreement, either party shall not at any time communicate to any person any confidential information disclosed to him for the purpose of the provision of the Service or discovered by him in the course of the provision and performance of the Service. For the avoidance of doubt, TM may disclose any confidential information in regards to this Agreement to its affiliates in its ordinary course of business and/or on need to know basis, as the case may be.
- Compliance with applicable laws
The Customer shall comply with and not to contravene any and all applicable laws and regulations of Malaysia relating to the Service or otherwise, including but not limited to Communications and Multimedia Act 1998 and its subsidiary legislation, other Acts of Parliament, local by-laws, rules and regulations issued by relevant government bodies and/or authorities.
TM reserves the right to update or revise the terms and conditions herein contained at any time if updating or revision is reasonably necessary or specifically, if updating or revision is necessary in the interest of and for ensuring a fair level of availability of the Service to the Customer and any Users and/or the specific terms at any time and the Customer shall be bound by the amended terms and conditions. Notice of the amendment may be given by TM to the Customer in such manner as TM deems appropriate. Continuation in the access or use of the service signifies acceptance of the changes to these terms and conditions with regards to the service and the relevant TM Smartmap website.
If any provision herein contained should be invalid, illegal or unenforceable under any applicable law, such provision shall be fully severable and this Agreement shall be construed as if such illegal or invalid provision had never comprised a part of this Agreement and the legality and enforceability of the remaining provisions of this Agreement shall not be affected or impaired in any way.
The Customer shall not assign any of his rights or obligations under this Agreement to any other person whatsoever except with prior written approval of TM. TM may assign or novate this Agreement or any part thereof to anybody corporate which is a parent company, subsidiary or related company of TM and consent for the abovementioned is hereby given by the Customer.
- Binding on Successors
These terms and conditions are binding upon the successors, executors, administrators, personal representatives and permitted assign of the Customer and upon the substitute and assigns of TM.
- Indulgence and waiver
23.1 No delay or indulgence by TM in enforcing any term or condition of this Agreement or granting of time by TM to the Customer shall prejudice the rights or powers of TM under this Agreement or at law.
23.2 Failure by TM to exercise any part or all of its rights under the terms and conditions of this Agreement or any partial exercise shall not act as a waiver of such right nor shall any waiver by TM of any breach constitute a continuing waiver in respect of any subsequent or continuing breach.
All notices, requests or other communications required or permitted to be given or made hereunder shall be in writing and delivered either by hand, or sent by prepaid registered post or electronic mail or legible telefax addressed to the party at his address set out in the Application Form for the Service or to such other address or facsimile number as any party may from time to time duly notify to the other party. Such notices, requests or other communications shall be deemed to have been given by facsimile immediately after transmission thereof or if sent by post, forty-eight (48) hours after posting.
- Force Majeure
Neither party shall be liable for any breach of this Agreement arising from cause beyond its control including but not limited to Acts of God, insurrection of civil disorder war or military operations, national or local emergency, acts or omissions of government, highway authority or other competent authority, industrial disputes of any kind (whether or not involving either party’s employees), fire, lightning, explosion, flood, subsidence, inclement weather, acts or omissions of persons or bodies for whom neither party is responsible or any other cause whether similar or dissimilar outside either party’s control. The parties hereby agree that either party may terminate this Agreement, by giving fourteen (14) days notice to the other party, in the event that the Force Majeure event which has occurred prevents either party from performing and/or continuing its obligations for more than a period of sixty (60) days.
- Governing Law
This Agreement shall be governed and construed in accordance with the laws of Malaysia.
- Costs and Taxes
27.1 The Customer shall bear the stamp duty on this Agreement.
27.2 Any cost incurred in relation to preparation and legal vetting of this Agreement shall be borne by the parties respectively.
27.3 The Customer shall bear all government taxes, levies and other costs imposed by law in relation to the provision of the Service by TM. In particular, where Goods and Service Tax (“GST”) is applicable to TM as the supplier under this Agreement, TM is entitled to charge the GST payable to the Government on the Service and/or any TM services or equipment supplied to the Customer.
27.4 If TM is liable for GST as contemplated by Clause 27.3 then:
i) TM shall:-
– provide to the Customer information that may be reasonably required to establish its liability for GST; and
– provide such information and documents as may reasonably be required by the Customer to enable the Customer to claim an input tax credit under the law applicable to GST; and
ii) where a taxable supply has been made and consideration charged but not applicable GST has not been charged, the increase in the consideration required by Clause 28.3 shall be paid by the Customer.
27.5 If the fees, charges, damages or any other monies due hereunder by the Customer to TM shall be required to be recovered through any process of law, or if the said monies or any part thereof shall be placed in the hands of solicitors for collection, the Customer shall pay (in addition to the said monies) TM’s solicitors fees and any other fees or expenses incurred in respect of such collection as may be determined by court of law.
- Customer’s Warranties and Acknowledgement
28.1 The Customer hereby warrants that:-
i) he has the legal capacity to enter into this Agreement and is not a minor; and
ii) if the Customer is a body corporate, it has the required corporate authority to enter, execute and be bound by the terms and conditions of this Agreement.
28.2 The Customer acknowledges that:-
i) he has read and fully understood all the terms and conditions herein upon signing the Application Form and agrees to be bound by the same upon TM accepting the application;
ii) the details and documents provided to TM together with the Application Form are true, genuine and contain the latest information and allow TM to conduct independent verification of the same with any organization or body.
28.3 Notwithstanding the above, TM reserves the right to reject the application or require the Customer to furnish details or documents as TM deems fit and necessary without assigning any reason whatsoever.
29.1 The Customer understands that by submitting the Application Form and subscribing to the Service, the Customer is providing information to TM including where applicable, personal information.
29.2 The Customer hereby agrees and consent to TM’s processing of the Customer’s information including personal information provided in the Application Form and/or further information and data that may be required by TM either from the Customer or from any third parties especially from credit bureau, banks, credit reporting agencies and other businesses that provide like information or reference agencies from time to time.
29.3 The Customer understands and agrees that the purpose of such processing would include:-
i) assessing the Customer’s application and/or continued provisioning of the Service provided herein (whichever is applicable);
ii) customizing advertisements and content on the website(s) and the sites of TM and its group of companies (for further information on the TM’s group of companies, please visit www.tm.com.my);
iii) responding to the Customer’s enquiries;
iv) research purposes including historical and statistical purposes;
v) general operation and maintenance of the Service or goods provided herein including audit and its related website(s);
vi) matching any data held by TM or its group of companies relating to the Customer from time to time;
vii) provide the Customer with regular communications (other than direct marketing materials) from TM relating to the Service or goods provided herein; and
viii) investigation of complaints, suspected suspicious transactions and research for Service or goods improvement.
29.4 By submitting the Application Form and/or subscribing to the Service, the Customer consent and authorises TM for the purpose of obtaining and verifying any information about the Customer which TM may requires in connection with the Customer’s application or subscription of, any of TM’s services and/or review of the existing account with TM from any third party, especially credit bureau or reference agencies. Such consent and authorisation herein will be extended to any information obtained from any of the account(s) presently maintained for the Customer, any new application for any form of services rendered or goods provided by TM, such historical financial or credit records, data or information whether or not provided personally or by any other sources relating to the Customer which was collected, gathered, received, captured, compiled, secured and/or obtained by TM through or by whatever means or methods or forms.The information as required herein (unless stated otherwise) is obligatory on the Customer and failure by the Customer to provide any information as required may affect the Customer’s application or the continued provisioning of the services provided herein.
29.5 The Customer agrees that in the course of processing the Customer’s application or during the Customer’s subscription of the Service, TM may disclose the Customer’s information including personal information to the following parties for the purposes stated above:-
i) TM’s service providers or agents who are involved in providing the Service or goods provided herein;
ii) third parties (including those overseas) who provide data processing services;
iii) any credit reference agencies or, in the event of default, any debt collection agencies;
iv) any person, who is under a duty of confidentiality to which has undertaken to keep such data confidential, which TM has engaged to fulfil its obligations to the Customer; and
v) any actual or proposed assignee, transferee, participant or sub-participant of TM’s rights or business.
29.6 TM may also disclose the Customer’s information including personal information if required to do so by law or in good faith, if such action is necessary to (i) comply with any law enforcement agency requirement, court orders or legal process or; (ii) protect and defend the rights or property of TM and its group of companies and their users.
29.7 If the Customer would like to make any inquiries or complaints or request access or correction of the Customer’s information including personal information, the Customer may also contact TM Contact Centre or the Customer can visit the nearest TMpoint outlet. Any request of access or correction of personal data may subject to a fee and also to any privacy or data protection laws.
29.8 Where the Customer elects to limit TM’s right to process personal information, the Customer may contact Customer Support at http://www.tm.com.my/ap/contact/Pages/contactus.aspx or 100 or TM’s Privacy Officer in writing. For avoidance of doubt, the limitation does not include processing of mandatory personal data.
PART C – ADDITIONAL TERMS AND CONDITIONS APPLICABLE FOR SMARTMAP API SERVICE
1. Deprecation Policy
TM shall notify the Customer in such manner as TM shall deem appropriate if TM intends to discontinue or make backwards incompatible changes to the Smartmap API Service. TM will use its commercially reasonable efforts to continue to operate those Smartmap API Service versions and features without changes for such period as TM shall deemed reasonable unless (as TM determines in its reasonable good faith judgment):-
i) required by law or third party relationship (including if there is a change in applicable law or relationship); or
ii) it could create a security risk or substantial economic or material technical burden.
2. Display of Customer Content
The Customer shall display the Customer Content using the Customer’s own software and website.
3. Determination of Compliance
TM reserves the sole right and discretion to determine whether the Customer’s use of the Smartmap API Service and/or the Customer Content and/or the Brand Features is in compliance with the terms and conditions of this Agreement.
4. Additional Indemnity
4.1 The Customer hereby agree to defend, indemnify, and hold TM and its affiliates harmless from any claim or liability arising out of the Customer’s Website and/or Customised Application;any claim or liability arising out of any use by Users of the Customer’s Website and/or Customised Application and;any claim or liability arising out of any claim that the Customer’s Website and/or the Customised Application or the Customer Content violates any applicable law, including but not limited to any claim that the Customer’s Website and/or Customised Application infringes the rights of a third party.
4.2 The Customer understands that TM shall not hold any responsibility to the Customer or to any third party’s obligation under the terms and conditions in this Agreement.
5. License Restrictions
5.1 The Customer must not modify, reorder, augment or manipulate search results in any way unless the Customer has indicated to the User that this has occurred.
5.2 The Customer must not modify, replace, obscure, or otherwise hinder the functioning of links to TM or third party websites provided in the Customer Content. For the avoidance of doubt, titles for place results must link to the applicable URL provided in the result, unless the title is intended to be selected only for purposes of navigation by the User accessing the Customer’s Website and/or the Customised Application from a device with appropriately space-constraining the Customer’s interface options. In such cases, the title linking to TM-provided URL must be displayed as the top and primary link on the subsequent landing page or user interface component.
6. Geolocation Privacy
6.1 The Customer’s Website and/or the Customised Application must notify the User in advance of the type(s) of data that the Customer intends to collect from the User or the User’s device. The Customer’s Website and/or the Customised Application must not obtain or cache any User’s location in any manner except with the User’s prior consent. The Customer’s Website and/or the Customised Application must let the user to revoke the user’s consent at any time.
6.2 If the Customer’s Website and/or the Customised Application provide TM with geolocation data, the geolocation data must not enable TM to identify an individual User.
6.3 If the Customer intends to obtain the User’s location and use it with any other data provider’s data, the Customer must disclose such requirement to the User.
7. Restriction against Data Export and Copying
7.1 The Customer agrees that he cannot copy, translate, modify, or create a derivative work (including creating or contributing to a database) of, or publicly display any Customer Content or any part thereof except as explicitly permitted under this Agreement. The Customer further agrees that the following activities are prohibited:-
i) creating a server-side modification of map tiles;
ii) stitching multiple static map images together to display a map that is larger than permitted in the Smartmap API Service documentation;
i) creating mailing lists or telemarketing lists based on the Customer Content;
ii) exporting, writing, or saving the Customer Content to a third party’s location-based platform or service.
7.2 The Customer must not pre-fetch, cache, or store any Customer Content, except that the Customer may store:-
i) limited amounts of the Customer Content for the purpose of improving the performance of the Customer’s Website and/or Customised Application if the Customer do so temporarily (and in no event for more than 30 calendar days), securely, and in a manner that does not permit use of the Customer Content outside of the Service; and
ii) any content identifier or key that the Smartmap API Service documentation specifically permits the Customer store. The Customer must not use the Customer Content to create an independent database of “places” or other local listings information.
7.3 The Customer must not use the Service in a manner that gives the Customer or any other person access to mass downloads or bulk feeds of any Customer Content, including but not limited to numerical latitude or longitude coordinates, imagery, visible map data, or places data (including business listings). The Customer is not permitted to offer a batch geocoding service that uses the Customer Content contained in the Smartmap API Service.
8. Restriction on the Types of Application
8.1 Unless obtained TM’s written consent, the Customer is not permitted to use or provide any part of the Service or the Customer Content (such as imagery, geocoding, directions, places or terrain data) in the Customer’s Website and/or Customised Application that the Customer offers to other user and to create a Website and/or Customised Application that re-implement or duplicates Smartmap API Service.
8.2 The Customer must not display any of the business listings content provided by the Smartmap API Service in any of the Customer’s Website and/or Customised Application that has the primary purpose of making available business, residential address or telephone directory listing.
8.3 Unless with TM’s consent, the Customer must not use the Service or content with any products, systems, or applications for or in connection with any of the following:-
i) real-time navigation or route guidance, including but not limited to turn-by-turn route guidance that is synchronised to the position of the Customer’s sensor enable device;
ii) any systems/functions for automatics or autonomous control of vehicle behaviour;
iii) enterprise dispatch, fleet management, business asset tracking or similar application.
9. Exclusion of Warranty
The Customer expressly understand and agree that the Customer use of the Smartmap API Service and the Customer Content is at the Customer’s sole risk and that the Smartmap API Service and the Customer Content are provided on “as is” and “as available” basis. TM, its subsidiaries and affiliates, and its licensors and their suppliers, do not represent or warrant to the Customer that:-
i) the Customer use of the Smartmap API Service will meet the Customer’s or any User’s requirements;
ii) the Customer or User’s use of the Smartmap API Service will be uninterrupted, timely, secure or free from error;
iv) the information obtained by the Customer or any User as a result of the Customer’s or User’s use of the Smartmap API Service will be accurate or reliable; and
v) the defects in the operation or functionality of any software provided to the Customer as part of the Smartmap API Service will be corrected.
10. Other Content on the Customer’s Website
10.1 The Smartmap API Service may include hyperlinks to other websites or content or resources. Customer acknowledges that TM has no control over any web sites or resources that are provided by companies or persons other than TM. The Customer acknowledges and agrees that TM is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products, or other materials on or available from such websites or resources.
10.2 The Customer acknowledges and agrees that TM is not liable for any loss or damage that may be incurred by the Customer as a result of the availability of those external sites or resources, or as a result of any reliance placed by the Customer or Users on the completeness, accuracy, or existence of any advertising, products, or other materials on, or available from, such websites or resources.
If the Customer develops a Customer’s Website and/or the Customised Application for the use by Users, the Customer must:-
i) display to the Users of the Customer’s Website and/or the Customised Application the terms and conditions in this Agreement; and
ii) explicitly state that in the Customer’s Website and/or the Customised Application terms and conditions that, by using the Customer’s Website and/or the Customised Application, the Users are agreeing to be bound by the terms and conditions in this Agreement.
- Subscription Period and Allocation of Page View
13.1 This Agreement shall remain in full force and effect for the duration of the Subscription Period. Upon expiry of the Subscription Period or exhaustion of the allocated page view, the Service and this Agreement will automatically be renewed on a yearly basis for another Extended Subscription Period, subject to submission of notice of extension of service renewal and payment of fee (in advance) from Customer to TMunless earlier terminated by either party hereto in accordance with the provisions of this Agreement.