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DIGITAL FIVE SDN BHD : MOBILE CONTENT SERVICE TERMS OF USE AND NOTICES
Dated : 8 Jan 2010
THESE TERMS OF USE APPLY TO YOUR ACCESS AND USE OF THE DIGITAL FIVE MOBILE CONTENT SERVICES MANAGED OR OFFERED BY DIGITAL FIVE LOCATED AT WWW. DIGITALFIVE.COM.MY AND/OR OTHER WEBSITES AUTHORISED BY DIGITAL FIVE FROM TIME TO TIME (HEREINAFTER COLLECTIVELY REFERRED TO AS “THE MOBILE SITES”).

PERSONAL DATA AND PRIVACY
To learn about how Digital Five collects & protects your personal data, refer to our Private Policy. Any non-personal information or material sent to Digital Five by you will generally NOT be treated as confidential.

1.       DEFINITION

        “Content” means the mobile download services managed and/or provided by Digital Five and/or its content providers which includes without limitation messages, songs, files, data, images, photographs, software, ring tones, pictures, logos, video clips, video streaming, news, live feeds, information on demand content (e.g. information about health, lifestyle, astrology etc) and games;
“You” and “your” means any user of the Mobile Sites;
“Us”, “We”, “Ours” means Digital Five Sdn Bhd (”Digital Five”);
“TOU” and “TOU & Notice” means this Terms of Use and Notice for the mobile content services managed by Digital Five.

2.    ACCEPTANCE OF TERMS - GENERAL
2.1 The use of the Mobile Sites is subject to this TOU & Notice. By accessing and using the Mobile sites you agree to be bound by this TOU & Notice.
2.2 You agree that Digital Five may modify and amend this TOU & Notice at any time without notice. By continuing to use the Mobile Sites, you are deemed to have agreed to be bound by any modifications and amendments to this TOU & Notice.
2.3 If you are under the age of eighteen (18) at the time of usage, you must seek parental and/or guardian approval before downloading any Content from the Mobile Sites. Digital Five considers it the responsibility of parents and/or guardian to monitor their children(s) use of the Mobile Sites.
2.4 The Content provided on the Mobile Sites are provided by Digital Five and/or its content providers that you may download or stream to your mobile device or personal computer which is equipped with the necessary functions or applications to support the Content to be downloaded or streamed. We advise you to check with your respective mobile phone operator or Internet service provider on whether your device can support or is compatible to download, view and stream the Content.

3.    USE AND SECURITY
3.1 Information on the Mobile Sites may contain technical inaccuracies or typographical errors. Information may be changed or updated without notice. Digital Five may also make improvements and/or changes to the Mobile Sites and to the fees and rates for the Content made available on the Mobile Sites, at any time without notice.
3.2 The Mobile Sites may not be available to all devices which connect to the Internet. You assume all responsibility regarding the end-user equipment and software necessary to access the Mobile Sites and Content and assume all risk associated therewith.
3.3 The Mobile Sites may not be available to be accessed from all regions and countries of the world. Digital Five reserves the right, in its sole discretion, to limit or terminate your ability to access the Mobile Sites from certain regions or countries, and you assume all risk associated with the accessibility of the Content, Mobile Sites from any given region or country of the world.
3.4 Digital Five reserves the right to limit or prohibit your entry into the Mobile Sites in its sole discretion and shall not be liable for such limitation or prohibition.

4. YOUR CONDUCT
4.1 You agree to use the Mobile Sites only for lawful purposes and in accordance with this TOU & Notices.
4.2 The Mobile Sites are provided to you for internal, personal use by you only. You are strictly prohibited from the followings :-
(a) resell, timeshare, sublicense, redistributing, reproduction, or otherwise transfer all or any portion of the Mobile Sites to any other party; or
(b) make commercial use of the Mobile Sites without the express written consent of Digital Five.
4.3 You agree to abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your usage, including the content of your communication through the Mobile Sites.
4.4 You may not use the Mobile Sites in any manner that could damage, disable, overburden, or impair the Mobile Sites or the network(s) or interfere with any other party’s use and enjoyment of the Mobile Sites. You may not attempt to gain unauthorized access to the Mobile Sites, computer systems or networks connected to the Mobile Sites, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Mobile Sites. You may not take any action that places an unreasonable burden or excessive load on the Mobile Site and Digital Five’s system(s). You agree not to infect this Mobile Site with any computer programming routine (e.g any virus, worm, time bomb, cancelbots or Trojan horse) that may damage, interfere with, delay, intercept or expropriate any system, data or personal information.
4.5 You agree to be responsible for payment of all applicable charges incurred as a result of your use of the Mobile Sites, including but not limited to the use or misuse by an unauthorised third party, or any error, accidental use or loss.
4.6 There is no registration required before you are able to download the Content but where you are prompted to provide personal information and/or any other information before you are able to download a particular Content you agree to provide true, accurate, current and complete information as prompted.
4.7 You agree to abide with the terms and conditions set by Digital Five’s content providers as notified in the Mobile Sites.

5. TERMINATION/ACCESS RESTRICTION
5.1 Digital Five reserves the right to cancel, withdraw, terminate or suspend your access to the Mobile Sites and the Content for any reason whatsoever at its sole discretion without notice to you.
5.2 In addition to any termination rights Digital Five may have under this TOU, Digital Five may also suspend or terminate your access to the Mobile Sites without notice and in its sole discretion if:
i. Digital Five, at its sole discretion ceases to offer any free, trial, or promotional services, but such termination or suspension shall solely relate to such services; or
ii. Digital Five suspects fraudulent use ; or
iii. You materially violate this TOU, any applicable law, rule or regulation relating to the use of the Mobile Sites; or
iv. Any law, regulation, or governmental action renders all or any portion of the Mobile Sites unlawful or impracticable; or
v. Your use of the Mobile Sites impairs or threatens to impair the integrity or functionality of the Digital Five network in any manner; or
vi. if Digital Five believes that you have violated or acted inconsistently with the letter or spirit of this TOU.
5.3 You agree that Digital Five shall not be liable to you or any third-party for any cancellation, termination, withdrawal or suspension of your access to the Mobile Sites and you hereby release Digital Five from any liability whatsoever.

6. DISCLAIMER & LIMITATION OF LIABILITY.
6.1 Digital Five makes no warranty that the Mobile Sites will meet your requirement or that the Mobile Sites will be secure, timely, uninterrupted or error free, or that any data, Content, information, software or other material accessible on or through the Mobile Sites are true, accurate, or are free of viruses or other harmful components. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Mobile Sites for the reconstruction of any lost data. All use of the Mobile Sites is at your own risk and you are solely responsible for all damages resulting therefrom.
6.2 The Mobile Sites is provided on an “as is”, “where is” and “as available” basis, without warranties of any kind, express or implied, including, but not limited to warranties of title, quiet enjoyment, non-infringement or implied warranties of merchantability or fitness for a particular purpose.
6.3 To the maximum extent permitted by applicable law, Digital Five disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, title and non-infringement with respect to the Mobile Sites and transactions performed through the service or on the Internet generally. Digital Five makes no representations or warranties as to the quality of the call or any connection to or any transmission over the Internet.
6.4 To the fullest extent permitted by applicable law, under no circumstances, including, but not limited to, negligence, shall Digital Five be liable for any direct, indirect, incidental, special or consequential damages, damages for loss of profits (even if Digital Five has been advised of the possibility of such damages or even if such damage is foreseeable), that result from the use of or the inability to use the Mobile Sites any changes to the Mobile Sites and unauthorized access to or alteration of your transmissions or data, any communication, transmission, material or data sent or received or not sent or received, or any transactions entered into through the Mobile Sites or arising in connection with the fraudulent or unlawful acts of any third party.
6.5 You specifically agree that Digital Five is not responsible or liable for any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of another’s rights, including intellectual property rights.
6.6 If you are dissatisfied with the Mobile Sites, the materials available on or through the Mobile Sites or with the provisions of this TOU, you agree that your sole and exclusive remedy is to discontinue using the Mobile Sites or any of Digital Five other products and services.
6.7 Digital Five will take reasonable measures to maintain the privacy and security of all private information provided by you to the Mobile Sites, but third parties (such as hackers) may breach or attempt to breach Digital Five’s security measures or may gain unauthorized access to the Digital Five database or other equipment containing your information. You agree that Digital Five shall not be liable for damages of any sort, whether arising under contract, tort, or otherwise, with respect to any breach of security of the Digital Five Website or any other company equipment or user information.

7. INDEMNITY
7.1 You agree to indemnify, defend and hold Digital Five, its officers, directors, employees, agents, shareholders, licensors, suppliers and any third party information providers to the Mobile Sites harmless from and against all losses, expenses, damages and costs, including attorneys’ fees, resulting from any violation by you of this TOU or asserted by any third party due to or arising out of your use of or conduct on the Mobile Sites.
7.2 The provisions of this paragraph are for the benefit of Digital Five and its officers, directors, employees, agents, shareholders, licensors and suppliers to the Mobile Sites. Each of these individuals or entities shall have the right to assert and enforce these provisions directly against you on its own behalf.

8. LINKS TO THIRD PARTY SITES
8.1 The Mobile Sites may contain links to third party Web sites (”Linked Websites”) and include advertisements. You agree that Linked Websites and advertisements are necessary for Digital Five to provide the Content and services. Such links and advertisements are provided to you only as a convenience. Digital Five shall not be responsible if the Linked Website is not working appropriately. Digital Five has no control over such websites and resources and shall not be responsible for the contents of any Linked Website or advertisement, including without limitation any link contained in a Linked Website and does not endorse any content, advertising, products, or other materials on or available from such websites or resources. You are responsible for viewing and abiding by the privacy statements and terms of use posted at the Linked Websites, and for taking precaution to ensure that whatever you select for your use is free of viruses, worms, Trojan horses and other items of a destructive nature.
8.2 Any dealings with third parties (including advertisers) over the Linked Websites or participation in promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the advertiser, merchant or other third party. You agree that Digital Five shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource. The purchase of any product or service from a merchant from a Linked Website is a transaction solely between you and that merchant, and any question or dispute you may have regarding any such product or service should be addressed directly to the responsible merchant. Digital Five assumes NO responsibility or liability whatsoever and howsoever for any merchant or third party or your relationship with such merchant or third party.

9. DISCLOSURE AND CONFIDENTIALITY
9.1 Digital Five reserves the right to disclose any personal information about you or your use of the Mobile Sites and without your prior permission if Digital Five in good faith, believes that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of Digital Five or its holding or affiliated company; (3) enforce this TOU; or (4) act to protect the interests of its members or others.
9.2 Any non-personal information or material sent to Digital Five by you will generally NOT be treated as confidential.
9.3 For further details on use and disclosure of your personal information please see our Privacy Policy.

10. PROPRIETORY RIGHTS
COPYRIGHT
10.1 The Mobile Sites and all Content found on the Mobile Sites are protected by trademark, copyright, or other intellectual property laws and international treaties. Any unlawful use of the Mobile Sites and Content found on the Mobile Sites are strictly prohibited, without Digital Five’s express and prior written consent. You agree that the Content is intended only for your personal viewing and that any reproduction, communication, rental, performance, redistribution or recording in any form or format of the Content or any part thereof whether for commercial reason or otherwise, is strictly prohibited by this TOU and by law, and may result in severe civil and criminal penalties.
10.2 Elements of the Mobile Sites, its design and layout are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
10.3 No logo, graphic, sound or image from the Mobile Sites may be copied or retransmitted or redistributed unless expressly permitted by Digital Five.

GRANT OF LICENSE AND RESTRICTIONS.

10.4 You acknowledge and agree that the Mobile Sites and any necessary software used in connection with the Mobile Sites (”the Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Digital Five reserves all rights in the not expressly granted herein, including without limitation ownership and proprietary rights.
10.5 The Software is made available for downloading solely for use by you for your individual, non transferable, non-exclusive and non-commercial use. The Software is made available solely for use by you in accordance with the terms of the end user license agreement (”License Agreement”) which accompanies or is included with the Software. You may not install or use any part of the Software unless you first agree to the License Agreement.

TRADEMARKS AND THIRD PARTY MATERIALS.

10.6Digital Five reserves all rights in its corporate names, service marks, logos, trade names, trademarks, websites and domain names (collectively “Marks”) and nothing in this TOU grants you the license to use such Marks. Additionally, other marks which appear on this site may be marks of third parties that are not affiliated with Digital Five. Digital Five do not control or endorse the content of third party websites.

11. CHARGES
11.1 You agree to be subjected to and pay for (i) registration or subscription fees (where applicable), (ii) the charges for the Content that is requested by you and (iii) any charges that Digital Five may stipulate from time to time (”Charges”).
11.2 You agree that you will be subject to an additional premium charges for the any mobile downloads or streaming services made available on the Mobile Sites. Such charges shall be made known to you on the Mobile Sites.
11.3 The Charges will be in addition to the standard fee charged by your mobile phone operator.
11.4 You will be charged accordingly with the Charges for the download when a request is made even if the download is incomplete.
11.5 You shall be responsible for any telecommunications charges for access to the internet charged to you by your service operator.
11.6 Digital Five will not be responsible or liable for any problem, loss or damage of whatsoever nature suffered by you due to any delay and/or failure in receiving and sending a SMS, MMS, video clips or video streams as a result of any network, communication or system error, interruption and/or failure experienced by the participating mobile phone operators and/or by Digital Five and/or resulting from participation or the downloading of any materials from the Mobile Sites.

12. GENERAL
12.1 This TOU is governed by the laws of Malaysia, without reference to conflict of laws principles. Any dispute between you and Digital Five regarding this TOU will be subject to the exclusive jurisdiction of the courts located in Malaysia and you expressly waive all defenses to jurisdiction. You agree that the Mobile Sites shall, for the purpose of determining jurisdiction and applicable law, be deemed to have originated and been provided by Digital Five in and from Malaysia.
12.2 This TOU contain the entire understanding between the parties hereto with respect to the Mobile Sites, and supersedes all previous oral or written agreements or understandings between you and Digital Five, and no advice or information, whether oral or written, obtained by you from this Website (whether before or after the date you accept this TOU) shall create any obligation or warranty on the part of Digital Five not expressly stated herein. You may also be subject to additional terms and conditions that may apply when you use any services offered by third-party content provider or third-party software provider. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this TOU.
12.3 Digital Five’s performance of this TOU is subject to existing laws and legal process, and nothing contained in this TOU is in derogation of Digital Five’s right and obligation to comply with governmental, court and law enforcement requests or requirements relating to your use of the Mobile Sites or information provided to or gathered by Digital Five with respect to such use.
12.4 If any provision of this TOU is held invalid, the remainder of this TOU will continue in full force and effect, and If any provision(s) of the TOU is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. This TOU shall not be construed against any party as the principal draftsperson hereof. A printed version of this TOU and of any notice given in electronic form shall be admissible in judicial or administrative proceedings.
12.5 Digital Five’s failure to insist upon or enforce strict performance of any provision of this TOU shall not be construed as a waiver of any provision or right unless acknowledged and agreed to by Digital Five in writing.
12.6 Notices to you shall not be modified, except by an express modification by Digital Five as described herein and may be made via either email or regular mail or by displaying notices or links to notices to you generally on the Mobile Sites.
12.7 You may not assert any claim against Digital Five in connection with the Mobile Sites unless you have given Digital Five written notice of the claim within fourteen (14) days after you knew or should have known of the facts giving rise to such claim. You agree that any cause of action arising out of or related to the Mobile Sites must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
12.8 Digital Five may assign its rights and duties under this TOU to any party at any time without notice to you and this TOU shall be binding upon and inure to the benefit of each party’s respective permitted successors and assignees.

If you have any questions about this TOU & Notice, please write to us via our website.