TERMS AND CONDITIONS FOR SMART SATELLITE SERVICES
 
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE CUSTOMER SIGN UP FOR THE SMART SATELLITE SERVICES (“THE SERVICES”). BY INDICATING CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREIN, CUSTOMER ARE DEEMED TO ACKNOWLEDGE AND AGREE TO BE BOUND BY ALL THE FOLLOWING TERMS AND CONDITIONS FOR THE USE OF THE SERVICES PROVIDED BY SMART. SMART RESERVES THE RIGHT TO UPDATE OR REVISE THE TERMS AND CONDITIONS FROM TIME TO TIME. NOTICE OF AMENDMENT MAY BE GIVEN BY SMART TO THE CUSTOMER IN SUCH A MANNER AS SMART DEEM APPROPRIATE. CONTINUATION IN THE USE OF THE SERVICES SIGNIFIES ACCEPTANCE OF THE CHANGES TO THE TERMS AND CONDITIONS WITH REGARD TO THE SERVICES.
 
Definitions and Interpretation
 
Agreement means the agreement made between SMART and the Customer for provision of the Services and shall include the Registration Form, these terms and conditions (“Terms and Conditions”), and all amendments and variations made by SMART from time to time;
 
Customer means the person who had subscribed to the Services and as referred to in the Registration Form, which may include but shall not be limited to a sole proprietorship, partnership, company or any other entity on whose behalf this Agreement is executed and whose particulars are as stated in the Registration Form;
 
Equipment means the equipment duly authorised and installed by SMART and/or its authorised contractors, leased from SMART for the provision of the Services to the Customer which shall consist of satellite modem, satellite dish, low noise block converter, block up converter and cable;
 
Fees means the monthly subscription fees for the Services;
 
Minimum Subscription Period means the minimum period of subscription by the Customer for the Services which shall be twenty four (24) months for Ku-band Services and twelve (12) months for C-Band Services;
 
Party means reference to any of the parties to this Agreement, either SMART or the Customer individually;
 
Parties means reference to all of the parties to this Agreement, SMART and the Customer collectively;
 
Reactivation Fees means reconnection fee of Ringgit Malaysia Fifty (RM50.00) for Ku-Band Services and Ringgit Malaysia Hundred (RM100.00) for C-Band Services which shall be imposed by SMART to the Customer for any reactivation of Service;
 
Registration Form means SMART’s prescribed form and as may be varied by SMART from time to time, printed overleaf or as attached to these Terms and Conditions;
 
Services means the satellite connectivity carrying the bandwidth provided to the Customer, the particulars as provided herein the Registration Form;
 
Site means the approved location for installation of the Equipment for purposes of provision of the Services in accordance to the terms and conditions of this Agreement as specified in the Registration Form;
 
SMART means Smart Digital Communications Berhad (Company No. 351126-K) a licensed Network Facilities Provider, Network Services Provider and Application Service Provider by virtue of licences issued by the Minister of Energy, Water and Communications, which provides Satellite Services, with its business address at No. 31, Jalan Pelukis U1/46, Seksyen U1, Temasya Industrial Park, 40150 Shah Alam, Selangor Darul Ehsan;
 
Subscription Period means the period subscribed by the Customer for the Services, the particulars as provided herein the Registration Form.

1.       Commencement and duration of this Agreement

1.1               The Subscription Period for the Services shall only commence and this Agreement shall become effective only upon the successful provisioning   of the Service at Site as specified in the Registration Form and shall continue throughout the Subscription Period until terminated earlier by Customer or SMART in accordance with Clause 9.

1.2               At the expiry of the Minimum Subscription Period, the term of this Agreement shall automatically be extended on a yearly basis until and unless terminated in accordance with Clause 9.

2.       Our Provision of The Service

2.1               SMART shall provide the Services with reasonable skill and care and in accordance with the provisions of this Agreement. SMART shall provide the Service at its best effort in areas where technically feasible.

2.2               SMART does not guarantee that the Services will be fault free or that it shall not disrupt other existing signals and/or telecommunications services. However, if a fault or disruption occurs, Customer should report the fault by telephone, electronic mail or in writing to the Customer Service the contact details as provided herein and SMART shall endeavour to rectify the fault as soon as reasonably practicable. Customer hereby acknowledges that SMART’s effort to rectify the fault is confined to its network only and not beyond where connectivity to other networks or infrastructure belong to third parties and SMART shall not be liable for any disruption or interruption whatsoever.

2.3               SMART may suspend the Service where necessary for operational reasons such as repair, maintenance, improvement of the Services, governmental or regulatory directive or due to emergency reasons. Except in the event of an emergency, SMART will attempt to give the appropriate notice as and when required. SMART will restore the Service after suspension as soon as reasonably practicable.

2.4               SMART may for operational or other reasons, change any codes of the numbers allocated to Customer or the specification of the Services. SMART may also modify or update the Service without prior notice to Customer.

2.5               In order to register for the Services, Customer shall be (and hereby warrant that Customer are), if an individual, at least 18 years of age and a resident in Malaysia and if a Company, Customer shall submit supporting documents such as a copy of Company Forms 9, 49, 24 or 13 with the Registration Form. In registering for the Service, Customer shall undertake to provide all the necessary genuine information and documents as required by SMART from time to time.

2.6               Unless otherwise specified, Equipment is leased to Customer at a rate specified in the Registration Form and at all time remains the property of SMART. Customer shall take good care of the Equipment according to SMART’s instruction issued to Customer from time to time. If SMART finds that the damage or fault to the Equipment was caused by Customer, Customer shall be responsible for the replacement, repair or reimbursement of the value of the Equipment as determined by SMART. Customer shall at all times abide by SMART’s instructions on the use of the Equipment. Customer shall not sell, give on loan or part with the Equipment thereof at any time.

2.7               Customer shall bear all the charges and costs if Customer requests for alteration, modification and/or relocation of the Service. The charges and costs shall conform to the rates as set by SMART from time to time.

2.8               Any request by Customer for upgrades or downgrades of the Services shall be subject to SMART’s approval. For any allowable upgrades or downgrades, installation and activation fees will be charged to Customer at a rate as specified by SMART.

2.9               The Service availability level shall be at 99.5 %* up time for Ku-Band Services and 99.7%* up time for C-band Services from the Network Operating Centre (NOC).

3.       Equitable Use Policy

At SMART, our goal is to give each of our customers the fastest service possible at the lowest possible price. We are always striving to develop programs and policies that help make that possible.

SMART estimates that a small percent of customers account for a disproportionate share of data usage on the SMART network. To ensure that all SMART customers have equitable access to the SMART network, SMART has implemented an Equitable Use Policy (or “EUP”). If your usage chart indicates that you are abusing the Service, SMART will temporarily limit the speed at which you can send and receive data over the SMART access network. You will still be able to use the SMART Internet access service but your speed will be slower. In cases of extreme and continued violation of the EUP limitations, your service may be suspended. SMART may use other traffic management and prioritization tools to help ensure equitable access to the SMART network for all customers.

4.       Fees & Payment

4.1               Unless otherwise specified, Customer is required, upon registration, to pay the advance fee as specified in the Registration Form. The advance fee shall be used to set-off against any outstanding amount due to SMART including dismantling charges at the end of Subscription Period or termination date. Services shall be activated at the Customer’s premise within fourteen (14) days upon clearance of cheque for the payment above subject to Site survey and accessibility of Site.

4.2               On a monthly basis, Customer shall receive from SMART a statement of account (the “Statement of Account”) informing Customer the Fees payable to SMART in relation to the Services. Such Statement of Account shall be delivered to Customer by hand, courier, post, fax, e-mail or by an electronic medium. Customer shall pay to SMART the Fees as detailed in the Statement of Account within the stipulated time period. Non-receipt of Statement of Account does not in any manner relieve Customer of Customer’s obligation to settle the Fees on time.

4.3               Any payments be it advance fee, recurring monthly fees and Equipment lease cost shall be made payable to Smart Digital Communications Berhad, by way of cash, cheque, telegraphic transfer, postal order, credit card, auto pay/debit, e-banking or any other mode of payment to be advised by SMART. SMART shall disclaim all its liabilities if payments are made to a party other than SMART.

4.4               Payment of Fees shall accrue from the date Service is activated at Customer’s premise. All information in the Statement of Account is deemed accurate and if Customer wishes to dispute any part of the Statement of Account, Customer is required to contact customer service within seven (7) days from the date of the Statement of Account.

4.5               If Customer fails to pay the undisputed Fees fourteen (14) days from the stipulated time period in the Statement of Account, SMART shall deactivate the Services. If the Customer continues not to pay, SMART shall terminate the Services and reserve the right to recover all the amounts due up to the Minimum Subscription Period or the termination date through any means allowed by law whereby the fees incurred for such means shall be borne by the Customer. The Services shall be reactivated upon payment of Reactivation Fees by the Customer.

4.6               All sums which are due and payable by Customer on the due date shall bear interest from day to day at the rate of 1.5 % upon the total amount due.

4.7               Customer hereby acknowledge that non-receipt of the statement of account, bill, statement or any correspondence in relation to the Services shall not be a valid reason for Customer to hold back or delay any outstanding payment for the Services.

5.       The Use of Equipment and Service

5.1               Title to the Equipment shall remain with SMART at all times however risk of loss and/or damage shall pass to Customer upon delivery of the same to the designated installation Site. The Equipment is provided solely for Customer’s use and Customer may not resell or attempt to resell the Equipment to any third party.

5.2               Customer shall not use the Service:

5.2.1          In a way that is unlawful or fraudulent; or

5.2.2          To deliver, knowingly receive, upload, download, use or re-use any information or material which is abusive, defamatory, obscene or menacing, or in breach of any copyright, privacy or any other rights, illegal intrusion or hacking, computer viruses or spamming; or

5.2.3          To send or to promote the sending of any unsolicited advertising or promotional material; or

5.2.4          In a way which infringes any third party’s Intellectual Property Rights; or

5.2.5          In a way that does not comply with our instructions sent to Customer from time to time.

5.3               Customer’s redistribution of the Services to external parties shall not implicate SMART by virtue of its name, logo and branding.

5.4               Customer shall be responsible for any losses, expenses or other costs incurred by SMART that are caused by Customer or Customer’s breach of this Clause 5 and agree to waive any claims against SMART for any distress, injury, loss, liability, damage and expenses arising from or in connection with Customer’s use of the Service and Customer shall indemnify SMART against any claims arising from the Customer and/or Customer’s sub-account holders’ use of these areas or any content of the areas which Customer post or create.

5.5               Customer shall provide accurate information in Customer’s Registration Form and inform SMART immediately if there are any changes to that information.

5.6               Customer accepts and acknowledges that the Services like other internet applications, are not secure and SMART does not guarantee the prevention of detection of any unauthorized attempts to access the Service. The quality of service is provided to Customer on best effort basis.

6.       Personal Data

6.1               SMART may contact Customer before, during and after the term of this Agreement in order to administer, evaluate, develop and maintain the Service.

6.2               By registering for the Services Customer consent to our using and /or disclosing Customer’s personal information for the following purposes:-

6.2.1          Processing Customer’s application, which may involve credit checking by a licensed credit reference agency who may record that a credit check has been made and disclose certain personal information and account details to a bank for the purposes of setting up a direct debit machine;

6.2.2          Providing, or arranging for third parties to provide, help desk facilities which may be available to Customer and to bill Customer for the Services which may involve disclosing Customer’s personal information to third parties solely for those purpose;

6.2.3          disclosing to selected third parties for the purposes of providing and operating the Services; and

6.2.4          providing, or arranging for third parties to provide any additional services Customer request from SMART as required or permitted by law from time to time.

6.3               SMART will not use Customer’s personal data for any third party products and services without having given Customer the opportunity to opt out of such marketing opportunities except for marketing other SMART’s products and services.

7.       Copyright, Patent, Trademark and Intellectual Property Rights

7.1               The Service and Equipment that accompanies it is protected copyright, patent trademarks and other intellectual property rights or is pending protection. Customer shall not permit anyone else to distribute externally, broadcast or publish any part of the same.

8.       Disclaimer and Indemnity

8.1               SMART makes no warranty of any kind and expressly disclaims all implied warranties. SMART shall not be liable for any loss of information howsoever caused whether as a result of any works, installation, configuration, provision, interruption, suspension or termination of Service or otherwise, or for the quality of information available, received or transmitted through the Service.

8.2               Customer undertake and agree to indemnify, save and hold SMART harmless at all times against any actions, claims, proceedings, costs, losses and damages whatsoever including but not limited to libel, slander, infringement of copyright or other intellectual property rights or death, bodily injury or property damage or howsoever arising which may sustain, incur or pay, or as the case may be, which may be brought or established against SMART by any person or body whomsoever arising out of or in connection with any reason of or pursuant to this Agreement and attributable to the act, omission or negligence by Customer, Customer’s servants or agents. SMART shall not be held liable for any loss or damages sustained by Customer for any disclosure of Customer’s information or details of Customer’s Statement of Account.

9.       Right of Termination

9.1               Customer may terminate this Agreement by giving SMART thirty (30) days prior written notice, PROVIDED always that Customer shall only be entitled to exercise this right after expiry of the Minimum Subscription Period, failing which Customer agree to pay to SMART the full charges for the remaining term of the Subscription Period and the dismantling charges incurred for the removal of Equipment from Customer’s premise.

9.2               SMART may at its sole discretion immediately suspend or terminate this Agreement or suspend the provision of the Service in the event that:

9.2.1          SMART is directed by any competent authority to cease the provision of the Services or any part of it; or

9.2.2          Customer fails to pay the Fees where Customer is required to do so, as set out in Clause 4; or

9.2.3          any bank details submitted by Customer for payment cease to be valid; or

9.2.4          Customer’s use of the Services is in breach of any provision of this Terms and Conditions; or

9.2.5          Customer’s use of the Services materially disrupts the provision of our services to other customers.

9.2.6          Customer alters, modifies and/or relocates the Equipment to other premises without SMART’s prior written approval.

9.3               If Customer chooses to terminate the Services and /or this Agreement after the Minimum Subscription Period, Customer shall pay and fully settle the outstanding Fees as at the termination date immediately.

9.4               On termination of this Agreement:

9.4.1          Customer shall pay to SMART all amounts due up to the Minimum Subscription Period or the termination date and any interest due on these amounts upon setting off the advance fee;

9.4.2          Pursuant to Clause 13.3 hereinbelow, Customer shall allow and procure the access including all the necessary permission to the site where the Equipment was installed to enable SMART and/or its contractors to uninstall and return the same to SMART. Customer shall, whenever required by SMART, procure that SMART’s authorised personnel and/or contractor be permitted to enter any sites occupied or controlled by Customer at such time for such period as may be required for such works contemplated pursuant to this Clause.

10.   Force Majeure

Neither party shall be liable to the other for any failure to deliver the Service or for any breach by it of this Agreement, where such failure or breach is due to a reason outside the reasonable control of such party, including, but not limited to, failure of a third party service provider, lightning, exceptionally severe weather, fire, explosion, war, riots, industrial disputes, acts of terrorism, government action, regulation or any emergency. If such failure to deliver continues for more than 3 months after the commencement of such failure, then either party may terminate this Agreement on notice in writing to the other party.

11.   General Provision

11.1            SMART may change the terms of this Agreement (including the Fees) at any time without any prior notice to Customer.

11.2            Any notice from Customer to SMART shall be in writing and sent via post, fax, or e-mail to our designated customer service address or e-mail provided hereinbelow. Any notices, claims or demands by SMART to Customer under this Agreement, other than a notice under Clause 2.4, may be delivered by hand, courier, post, fax, e-mail or any electronic means at the contact and address details given by Customer in the Registration Form.

11.3            SMART may assign, sub-contract or otherwise deal with its rights or obligations under this Agreement without any prior notice. Customer shall not assign, sub-contract, sell or transfer Customer’s rights or obligations under the Agreement.

11.4            If any part of the terms, conditions or provisions contained in this Agreement shall be determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such term, condition, or provision shall to that extent be severed from the remaining terms and conditions, which shall continue to be valid and enforceable to the fullest extent permitted by law.

11.5            No failure by either Party to exercise any right or remedy available to it hereunder nor any delay so to exercise such right or remedy shall operate as a waiver by of it nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.

11.6            SMART may set additional terms and conditions (“Supplementary Terms and Conditions”) for each of our products and services from time to time. Such Supplementary terms and conditions shall form and be read together with the Terms and Conditions of this Agreement.

12.   Customer Service

12.1            The Customer Service contact details are as follows:-
Hotline : 1800-88-6868
E-mail : smartcare@smartmalaysia.com

13.   Law

13.1            Relevant Malaysian law applies to this Agreement and the parties submit to the exclusive jurisdiction of relevant Malaysian Courts.

13.2            For the purpose of Court proceedings, service of letter of demand, statement of claim or any other legal document is sufficient and deemed accepted and sent to Customer’s address given in the Registration Form by ordinary or registered mail.

13.3            A person commits an offence by virtue of Section 239 of the Communications and Multimedia Act 1998/ Act 588, and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or both for unlawful use, possession or supply of non-standard equipment or device.

* Service availability may vary.