Terms & Conditions

DIRECT CARRIER BILLING SERVICE 

TERMS & CONDITIONS 

1.DEFINITIONS

Whenever used in this T&C, unless the context shall otherwise require, the following expressions shall have the following meanings: 

“Confidential Information”	means all information whether commercial, financial, technical or otherwise and material which by its nature should be treated as secret and confidential or which is designated as such, including without limitation any information, processes, materials relating to business affairs, databases, protocols, diagrams, customers, market opportunities, financial statements, financing documents, trade secrets, new products, design rights, know-how, plans, product information, reports, copyrights, computer software, documentation, specifications, systems, hardware, concepts, designs, configurations, schedules, costs, performance features, techniques, data, tables, calculations, documents or other paperwork, computer program narratives, flow charts, source and object codes, business and marketing plans, dealings, arrangements, objectives, locations and information (whether in writing, oral, digital, magnetic, photographic, machine-readable and/or other forms) received from the other that the parties are obligated to treat as confidential;
“Digital Services”	means the services more particularly as described in the Digital Service Form including but not limited to text, articles editorials, news, tutorials, tips, suggestions, graphics, photographs, video, audio, all headlines, abstracts, meta tags and/or data or information relating to any subject and/or advertisements, embedded software therein provided or made available by you and/or any application required to deliver the Digital Services to users and/or subscribers and reference to “Digital Services” includes any new digital services added to this T&C;
“Digital Service Form”	means the application form you submit to us to apply for DCB Service. The Digital Service Form incorporates the T&C;
“Direct Carrier Billing Service” (“DCB Service”)	means a payment system provided by us that provides a seamless payment experience for the purchase/ subscription of Digital Services which is made from the user/subscribers’ mobile, through applying the charges directly to the user’s/subscriber’s bill or to be deducted directly from the user’s/subscriber’s balance;
“Force Majeure Event”	means any of the following events which is beyond the control of the affected Party which was not a result of the fault or negligence of the Party in question or which could not have been prevented or avoided through the exercise of due diligence by that affected Party:- natural catastrophe including but not limited to earthquakes, floods, subsidence, lightning, exceptionally inclement weather or any operation of the forces of nature; or ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste, from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof, which causes or can reasonably be expected to cause, either Party to fail to comply with its obligations hereunder;
“Intellectual Property Rights”	means copyrights, computer code or scripts (whether compiled or not in any computer language or program), patents (whether registered or applications), utility models, trademarks and service marks (each whether registered or unregistered), trade names, domain names, inventions, all rights in computer software and data, databases, confidential information, trade secrets and know-how, design rights, registered designs (whether registered or applications), performance rights and all intangible rights, privileges and forms of protection of a nature or having a similar effect to any of the above, including all registrations, applications, renewals, extensions, continuations, divisions and re-issuances associated therewith which may subsist anywhere in the world; and
“Liabilities”	means any kind of costs, expenses, claims, demands, loss, all damages and actions including but not limited to loss of profits, loss of income, loss of turnover, consequential damages, direct damages, indirect damages and any occupier’s liabilities including but without prejudice to the generality of the foregoing, any injury to a third person.
T&C”	means this terms and conditions for the provision of Digital Services and any corresponding commercial documents and such variation, amendment or alteration as the Parties may agree to incorporate as part of this T&C from time to time in accordance with the provisions of this T&C;
”us”/”we”	means Forest Interactive Sdn Bhd. (Company No.: 578874-M) or its affiliates and where relevant includes its employees and agents;

2.DIGITAL SERVICES

2.1   This T&C takes effect from the date the Digital Service Form is accepted by us and our acceptance is deemed to have been communicated to you upon our provision of the Digital Service. 

2.2   Each Digital Service Form accepted by us:- 

(a) constitutes a separate contract, existing independently from any other Digital Service Form; and 

(b)   is deemed incorporated as part of this T&C. 

2.4  Despite Clause 2.2  above, if you default under this T&C and/or any specific terms for a Digital Service for which you applied under a Digital Service Form,  we are entitled to invoke default procedures in this T&C in respect of the affected Digital Service Form or other Digital Service Form or both. 

2.5 If there is any inconsistency between any terms of the Digital Service Form and this T&C the following order of precedence will apply so that a document further down the order is read down to the extent of the inconsistency: 

1. any terms in the Digital Service Form; and 

2. this T&C. 

3.OBLIGATIONS OF PARTIES

3.1 You shall:- 

1. provide the Digital Services as specified in the Digital Service Form, which we shall select any or all of it for commercialization and the respective telecommunication company’s distribution; 

2. strictly adhere to the Service Level for the Digital Services as specified in the Digital Service Form; 

3. provide us with suitable data and technical specifications and ensure the technical specifications are complete, accurate and up to date; 

4. does not breach any third party’s Intellectual Property Rights; 

5. connect with our system via API and maintain all necessary communications facilities to perform its obligations under this T&C; 

6. comply with all applicable laws, ordinances, codes, rules, regulations, notices, instructions or directives of the relevant authorities; and 

7. ensure the Digital Services does not contain other material that could give rise to any civil or criminal liability under the applicable law. 

3.2 We shall:- 

1. provide the DCB Service to you enabling you to offer the Digital Service through DCB Service, to the telecommunication company’s users; 

2. pay Fee, being the revenue share agreed by the Parties, specified in the Digital Service Form for the Digital Services; 

3. not copy, translate, modify, adapt, decompile, disassemble or reverse engineer in relation to your software including any data or information related to its Digital Services; and 

4. in the event of an additional channel to be added in respect of payment of the Digital Services, such additional channel shall be incorporated into an addendum to the Digital Service Form and executed by both Parties.  

4.FEES & PAYMENT

4.1 For the DCB Service rendered by us and the Digital Services rendered by you, the Parties agree that you shall be entitled to revenue share as prescribed in the Digital Service Form known as a service fee.  

  

2. We will remit to you the Service Fee, stated in the Digital Service Form within seven (7) days from the date of receipt by us of such revenue share on particular arrears month from the respective telecommunication company. We shall not be liable to remit payment to you unless we have received the payment from the respective telecommunication company.   

3. Within seven (7) days of the receipt of the final monthly report from the respective telecommunication company on all billing transactions carried out during the billing month as recorded, we will issue you with a report (“Usage Report”) setting out the number of successful billing transactions processed in the relevant month for reconciliation.  On receipt of the Usage Report, you will issue us an invoice for the Service Fee to be paid by us.  

4. All undisputed transactions shall be paid in accordance with clause 4.2 of this T&C.  

5. We shall ensure that each respective telecommunication company remits the Service Fee within thirty days (30) days after receipt of the payment notices monthly in arrears from us. For clarification purposes, we will be able to issue a payment notice to the respective telecommunication company after both parties reconcile the Usage Report for such month and payment by the telecommunication company to us is due and payable thirty (30) days after receipt of payment notices from us, which shall be provided monthly in arrears. 

6. Each party must during the term and for three (3) years thereafter, keep records of accounts including, invoices, correspondence, banking, financial and other records in relation to the subject matter of this T&C which will be handled in strict confidentiality.  

5.REPRESENTATIONS AND WARRANTIES 

5.1 You hereby represents and warrants to the other that:- 

(a) you full legal right, power and authority to enter into and perform its obligations under this T&C; 

(b) this T&C has been duly authorised, executed and delivered by you and constitutes legal, valid and binding obligations of the Party and enforceable in accordance with its terms; 

(c) there is no order of any court or other governmental agency or any provision of any existing terms binding on you of which it is subject which would be breached by the execution, delivery and performance of this T&C. 

(d) there is no action before any court or governmental authority, pending or to the best of your knowledge, threatened against you which would adversely affect the performance of the obligations hereunder;  

(e) there is no litigation, arbitration, tax claim, dispute or administrative proceeding presently current, pending or threatened, which is likely to have a material adverse effect upon its ability to perform its obligations under this T&C; and 

(f) it has not been wound-up/adjudicated bankrupt and no winding-up/bankruptcy petition has been filed against it; 

(g) it is the author and/or creator and/or legitimate licensee of the Digital Services provided pursuant to this T&C with the rights to distribute the Digital Services which includes authorizing us to distribute the Digital Services to the respective channel; 

(h) the Digital Services developed or furnished by you to us does not and will not infringe any intellectual property rights of any third party and does not and will not constitute a defamation or invasion of the rights of privacy or publicity of any third party; and 

(i) the Digital Services does not violate the laws, statutes and/or regulations, any local, state or federal, financial services or privacy laws and regulations, of any applicable jurisdiction. 

6.INDEMNITY

6.1 You shall fully indemnify and hold us including our officers, directors, employees and agents harmless against any costs, claims, demands, expenses, losses and liabilities of whatsoever nature caused directly or indirectly by the act, omission,  negligence or default by you or by any third party arising out of any breach or non-observance of the covenants, conditions or other provisions of T&C including any of the provisions in Clause 7 or non-compliance with any statutes, regulations or requirements of any appropriate authority and shall reimburse us for all court costs and legal costs incurred. 

7.TERM AND TERMINATION

7.1 The Term will begin on the Effective Date and shall unless terminated at an earlier date in accordance with Section 7.2, 7.3 and 7.4, remain in effect for a minimum period of one year (“Initial Term”). After the Initial Term, this T&C and the Digital Service Form will be automatically renewed for successive periods of one year at a time unless a Party provides written notice of its intent to not renew this T&C and the Digital Service Form at least sixty (60) days prior to the renewal date. 

7.2 This T&C may be terminated by:- 

1. you commit any breach of its obligations or covenants under this T&C and fail to remedy such breach (if capable of being remedied) to the notifying Party’s satisfaction; 

2. you become insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of its creditor(s), permits the appointment of a receiver and manager for its business or assets, or becomes subject to any legal proceedings relating to insolvency, reorganization or the protection of creditors’ rights or otherwise ceases to conduct business in the normal course; 

3. if a material of the Digital Services is required as a result of a legislative and/or regulatory change and should the concerned Party not adhere to the specified legal requirement within a reasonably practicable period of time,   

then it shall be lawful for the other Party to terminate this T&C by a written notice to rescind this T&C and neither Parties shall have any further Liabilities against each other save for any antecedent breach of this T&C.  

7.3 Upon termination, all rights and licenses in relation to the Digital Services shall immediately terminate. 

7.4 Any termination of this T&C shall be without prejudice to any other rights or remedies that a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party. 

8.SECURITY

8.1 You will take reasonable security and other measures to protect its own data (including confidential information, subscriber information, personally identifiable information, all sign-in credentials, and the like) from unauthorized access, use, disclosure, alteration and destruction and will comply with mandatory applicable data protection law in this regard. You will have in place an information security policy that is reasonably designed to protect the security, confidentiality, integrity and availability of data, and at a minimum, includes risk assessment and controls for system access, system and application development and maintenance, change management, asset classification and control, incident response, physical and environmental security, disaster recovery/business continuity, and employee training. 

9.INTELLECTUAL PROPERTY RIGHTS 

9.1 All Intellectual Property Rights in the Digital Services and your trademarks, brands and logos belong or are licensed to you. Nothing in this T&C transfers ownership, or any aspect of ownership in and to the Digital Services, your trademarks, brands or logos to us. Furthermore, nothing in this T&C is deemed to grant to us a license in your Intellectual Property Rights except as expressly set out in this T&C. 

10.APPLICABLE LAWS AND DISPUTE RESOLUTION

10.1 The T&C shall be governed by and construed in all respects in accordance with the laws of Malaysia. 

10.2 Any disputes arising from or related to this T&C, including disputes arising from or related to its interpretation, non-validity, implementation or termination hereof, the Parties agree to consult and negotiate with each other and recognizing their mutual interest, attempt to reach a satisfactory solution. If the Parties do not settle within a period of sixty (60) days, then upon notice by any party to the other party, any unresolved matters or claims shall be settled by the courts of Malaysia. 

11.ANTI-BRIBERY AND ANTI-CORRUPTION

11.1 You shall, and/or shall procure and/or ensure that its directors and/or employees, subcontractors, agents or other third parties who are performing services in connection with this T&C shall: 

1. comply with all laws and/or regulations relating to bribery and corruption; 

2. have in place and to adhere to throughout the Term its own anti-bribery and anti-corruption policies and procedures including adequate controls and accurate records of transactions to meet the requirements of such laws; and 

3. Not cause the other Party or its directors or employees or agents to be in breach of any applicable anti-bribery and anti-corruption laws and regulations. 

11.2 Notwithstanding any provisions of this T&C, if either Party breaches Clause 15.1 above, the other Party shall be entitled to terminate this T&C by giving seven (7) business days written notice without any liability to the other Party.