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Terms and Conditions

Background
(A)
The Operator is the owner and operator of the Platform.
(B)
The User is desirous of registering an account with and using the Platform.
(C)
The Operator is agreeable to allowing the User to register an account with and use the Platform, subject to these Terms.
1.
DEFINITIONS AND INTERPRETATION
1.1
The following words and expressions shall have the following meanings:

“Advertisements” means advertisements which the Users are desirous of having displayed and/or published on the Media Owners’ assets;

“Booking(s)” means booking(s) submitted by the User vide the Platform for placing Advertisements;

“Booking Acknowledgment” shall bear the meaning assigned to it in Clause 3;

“Booking Confirmation” shall bear the meaning assign to it in Clause 3;

“Claims” means claims, losses, damages, expenses, judgements, fines, penalties, taxes and other liabilities whether in contract, tort or otherwise;

“Intellectual Property” means intellectual or industrial property including, without limitation: (a) patents, trade or service marks, semiconductor topography rights, database rights, rights in know-how, moral rights, copyright, unregistered designs, registered designs, trade secrets, rights in confidential information, any other rights or forms of protection of a similar nature or having equivalent or similar effect in any country, in each case whether or not registered, and any applications for registration of any of the foregoing, and any goodwill in any of the foregoing; and (b) licences or other rights to use or to grant the use of any of the foregoing or to apply to register or to be the registered proprietor or user of any of the foregoing;

“Media Owners” means owners of mass media assets (including but not limited to newspapers, magazines, radio, television and websites) where the Advertisements will be published;

“Operator” means IPG Mediabrands Sdn Bhd (Company Number 44958-K);

“Parties” means the Operator and the User collectively and “Party” means either of them, as the context permits;

“Platform” means the electronic platform known as Pasar Media which is developed and operated by the Operator for the placing of Bookings by registered users of the Platform and accessible for the time being vide the uniform resource locator address www.mypasarmedia.com and/or such other method or means that the Operator may make available or allow from time to time, including but not limited to a mobile phone based application;

“Terms” means these general terms and conditions.

1.2
Any reference to any statute or legislation shall unless otherwise indicated, be a reference to the statute of Malaysia and include any statutory modification or re-enactment thereof.
1.3
Any reference to any Clause, paragraph, sub-paragraph, or attachment, except where it is expressly stated to the contrary, is to be construed as a reference to such Clause, paragraph, sub-paragraph, or attachment of or to these Terms.
1.4
References to “RM” and “Ringgit Malaysia” are to the lawful currency of Malaysia.
1.5
Clause headings are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms. In the event of conflict and/or ambiguity between the headings and the text contained therein, the plain and obvious meaning of the text contained therein shall always prevail over the heading.
1.6
Words importing the singular include the plural and vice versa, words importing gender include both genders and the neuter and references to persons include bodies, corporate and unincorporated.
1.7
No rule of construction shall apply to the detriment of any Party by reason of that Party having control and/or was responsible for the preparation of these Terms or any part thereof.
1.8
The term “day”, “week” or “month” shall be a reference to a calendar day, week or month, as the case may be, unless the context otherwise requires.
2.
PLATFORM
2.1
The Operator agrees to allow the User to register an account with and use the Platform subject to these Terms and, in consideration of the aforesaid, the User hereby agrees to and shall abide by these Terms.
2.2
To use the Platform, the User is required to complete the registration process in the manner prescribed by the Operator, including providing any documents or information that the Operator may require. For the time being, the Operator does not impose any fees to register for or access the Platform. The Operator reserves the right to impose any fees for the same in the future, subject to giving prior written notice to the User.
2.3
Where the User is:
(a)
not a natural person (including but not limited to corporations or partnerships) and acts through a representative (including but not limited to the User’s directors, partners or employees); or
(a)
a natural person (including but not limited to a natural person who is using the Platform for purposes of the User’s business) and the User’s account is created and/or used by a third party (including but not limited to the User’s employees) on behalf of the User, the third party represents and warrants he/she/they are duly authorised by the User to register on behalf of such User and access and operate the User’s account. These Terms shall be binding on the User as if the User personally registered for and/or used the account. Without prejudice to the Operator’s right to verify the identity of any person, the Operator has no obligation to verify that the person who has created or is accessing the account is duly authorised by the User. The User is solely responsible for safeguarding unauthorized access to and use of the account.
2.4
The User shall be responsible for designing or creating any Advertisements. In the event the User requires design services, the Operator may be able to provide the same, subject to separate terms (including pricing) to be advised.
2.5
All Bookings, if accepted by the Media Owners, shall be made by the Operator in the Operator’s own name as principal and not as agent of the User.
3.
BOOKINGS
3.1
All Bookings shall be submitted by the User in the manner prescribed by the Operator from time to time. The User shall provide any documents or information that the Operator may require for purposes of the Booking. Unless otherwise agreed in writing by the Operator, all Bookings shall be made vide the Platform. The total charges for the Booking shall be displayed by the Operator on the Platform prior to the User submitting the Booking. Unless otherwise stated, all amounts displayed do not include goods and services taxes and any other applicable taxes.
3.2
After submission of a Booking by the User, the Operator shall endeavor to acknowledge the Booking as soon as reasonably possible (“Booking Acknowledgement”). A Booking Acknowledgement is not intended to be nor shall be construed as an acceptance of the Booking. Booking Acknowledgements are subject to the User making all payments in accordance with these Terms. The Operator does not guarantee or assure that all or any Bookings shall be successful. The User acknowledges and agrees that Bookings are subject to, amongst others, acceptance by the Media Owners and availability of advertising space. In addition, the User acknowledges and agrees that, by default, all Bookings are on a ‘run-of-paper’ (ROP) basis and the Operator does not warrant that any Advertisement(s) will appear in the location selected by the User, if any. Any Bookings on a ‘preferred placement’ basis shall be subject to the Operator’s and Media Owners’ confirmation as to availability and applicable pricing and other special terms.
3.3
After issuance of the Booking Acknowledgement, the Operator shall endeavor to revert as soon as reasonably possible to notify the User as to whether the Booking is accepted. Bookings shall only be deemed confirmed and accepted upon the Operator issuing a booking confirmation to the User (“Booking Confirmation”). The Operator shall be entitled to refuse, reject or cancel any Booking prior to issuance of the Booking Confirmation without giving any reasons for the same to the User.
3.4
The User may modify a Booking after submission, subject to acceptance by the Operator and Media Owners at their discretion. The User acknowledges that a modification, if accepted, may be subject to revised terms, including pricing if there is a change in the publication date.
3.5
If a Booking is rejected or not accepted by the Operator or the Media Owner, then, except where such rejection or non-acceptance is attributable to the User’s negligence or breach of these Terms or applicable law, the Operator shall refund the amounts paid by the User as soon as reasonably practicable after notification of the rejection of non-acceptance.
3.6
The User may cancel a Booking that has been submitted subject to the following conditions:
(a)
if the User notifies a cancellation of a Booking to the Operator no later than five (5) clear business days before the publication date of the relevant Advertisement, the User is entitled to a refund of the entire amount paid by the User to the Operator for the Booking.
(b)
if the User notifies a cancellation of a Booking to the Operator less than five (5) clear business days before the publication date of the relevant Advertisement, the Operator is entitled to forfeit up to fifty percent (50%) of the amount paid by the User to the Operator for the Booking as liquidated damages and which the User agrees is a genuine pre-estimate of the expenses and losses that will be incurred and suffered by the Operator due to the cancellation.
For purposes of this clause, “clear business days” means any day other than a Saturday, Sunday and public holiday in Selangor or Kuala Lumpur and does not include the date of notification and the date of publication.
4.
PAYMENTS
4.1
The User agrees that payments to the Operator pursuant to these Terms shall be made in such manner or method (including but not limited to credit card, direct deposit or online banking), at such time and within such deadlines that the Operator may determine or prescribe by notice in writing from time to time. The Operator shall be entitled to require the User to pay the entire amount for a Booking when the User submits a Booking or within such other period stipulated by the Operator. If the User fails to make full payment as aforesaid, the Operator is entitled to reject or cancel the Booking.
4.2
If and where the Operator allows or requires payment by way of credit card (including as security for a Booking) the User hereby agrees to provide the User’s credit card details and authorizes the Operator to take such action as may be necessary to verify the credit card (including charging a nominal customary verification fee to the credit card).
4.3
All payments made by the User shall be made free of any withholding, deductions, set-off, counter-claim or otherwise.
5.
USER’S OBLIGATIONS
 
As a condition to continued access to and use of the Platform and without prejudice to any other obligations of the User, the User covenants and undertakes to the Operator as follows:
(a)
to promptly pay all amounts payable to the Operator as they become due and payable;
(b)
ensure all information provided (including contact and payment information) to the Operator is correct and accurate and kept up-to-date;
(c)
not to use any other person’s credit card for making payments pursuant to these Terms unless with the prior written consent of such person;
(d)
not to disclose the User’s login details for the Platform to any external third parties or allow any external third parties to access the User’s account with the Platform;
(e)
not to access the accounts of any other users of the Platform;
(f)
not to create or register multiple accounts with the Platform;
(g)
not to infringe any third party’s Intellectual Property in connection with the use of or access to the Platform;
(h)
not to copy, hack, reverse engineer or decompile the features or source code for the Platform;
(i)
not to distribute, launch, upload or execute any viruses, scripts, codes or applications or do anything else (including but not limited to performing any distributed denial of service attempts) that would potentially or actually cause or result in disruption or damage to the Platform, the Operator or any other users of the Platform.
(j)
not to use the Platform (including but not limited to any Bookings) to transmit, distribute or publish any unlawful, obscene, threatening, racist, abusive, false or defamatory content or materials or any other content or materials which the Operator in its sole and absolute discretion believes would or is likely to be undesirable.
6.
TERMINATION
6.1
The Operator shall be entitled to immediately delete the User’s account with the Platform or revoke or terminate the User’s access to the Platform by notice in writing to the User in the event any of the following events occur:
(a)
the User breaches these Terms and does not remedy such breach within seven (7) days from the date of the Operator’s written notice to the User requesting for the same to be remedied or such other period as the Operator may allow in writing.
(b)
the User is adjudged or becomes a bankrupt or, where the User is a body corporate, has a resolution or order passed for its winding up or has a liquidator, administrator, receiver and/or manager or judicial manager appointed over itself or all or any part of its business and/or assets.
6.2
Notwithstanding Clause 6.1, the Operator shall be entitled to delete the User’s account with the Platform or revoke or terminate the User’s access to the Platform by notice in writing to the User at any time, for any reason and whether permanently or temporarily.
6.3
Notwithstanding Clause 6.1, the Operator shall be entitled to take the Platform ‘off-line’ or cease operating or providing access to the Platform at any time, for any reason and whether temporarily or permanently.
6.4
The User shall be entitled to delete the User’s account with the Platform at any time in accordance with such process and other terms prescribed by the Operator from time to time.
6.5
Deletion of accounts or revocation, termination or cessation of use or operation of or access to the Platform pursuant to these Terms (collectively “Terminating Event(s)”) shall not affect any Party’s rights or relieve any Party from any liabilities or obligations that have accrued or remain outstanding prior to the Terminating Event. Without prejudice to the generality of the foregoing:
(a)
all Bookings submitted by the User prior to a Terminating Event shall be binding on the User.
(b)
if the Operator has issued a Booking Confirmation prior to the occurrence of any Terminating Event, the Booking Confirmation shall be binding on the User.
(c)
all monies that remain unpaid by the User to the Operator shall be a debt due and payable to the Operator immediately upon demand by the Operator.
(d)
the Operator is entitled to forfeit any amounts that have been paid by the User in accordance with these Terms.
7.
INDEMNITY
The User hereby agrees to indemnify the Operator against all Claims suffered or incurred by or claimed against the Operator as a result of any act or mission of the User which amounts to a breach of these Terms or any applicable laws or negligence or fraud on the part of the User.
8.
EXCLUSION OF LIABILITY
To the fullest extent permitted by law, the Operator:
(a)
excludes and makes no representations and warranties, whether implied, customary or otherwise, in respect of the Platform, including but not limited to the security of the Platform from third party unauthorized access (including access to the User’s credit card or other details), suitability for the User’s purpose and the ‘uptime’ or ‘online’ status of the Platform. Without prejudice to the generality of the foregoing, the User shall be solely responsible for ensuring that the User’s information technology equipment and internet connection is able to support access to the Platform and taking such measures as may be necessary to secure the User’s data.
(b)
excludes liability for all Claims suffered or incurred by or made against the User for any act or omission of the Operator save and except for such Claims are attributable to a breach of these Terms by the Operator.
(c)
notwithstanding paragraph (b), excludes liability for all Claims suffered or incurred by or claimed against the User which are indirect or inconsequential in nature, including but not limited to loss of profits, loss of goodwill, loss of reputation or loss of business.
9.
LIMITATION OF LIABILITY
Notwithstanding anything to the contrary in these Terms (including but not limited to Clause 8), the Operator’s maximum and cumulative liability to the User for all Claims shall not exceed the aggregate amounts paid by the User to the Operator for Bookings.
10.
INTELLECTUAL PROPERTY
10.1
Each Party shall continue to be the owner of their respective Intellectual Property. Neither Party shall:
(a)
acquire or have any rights to the Intellectual Property of the other Party, save and except that the User hereby grants the Operator a royalty free license to use, transmit, store and process the User’s Intellectual Property to such extent as may be necessary for the Operator pursuant to these Terms (including but not limited to processing of any Bookings)
(b)
do anything to infringe the other Party’s Intellectual Property.
10.2
The Parties acknowledge that third parties may own or have rights over, title to or interest in certain Intellectual Property which are incorporated in or form part of software, tools, work, technology or materials used or produced in connection with these Terms. Unless and except to the extent otherwise agreed in writing, any such third party rights, title or interests shall remain with such third parties and not pass to any of the Parties.
11.
USER’S DATA
The User hereby acknowledges and agrees that, to the extent allowed by applicable laws and solely for lawful purposes, the Operator shall be entitled to log, store, retain, monitor, track and process any Data that may be disclosed or transmitted by the User or which pertains to the User and/or appoint any third party subcontractor or service provider to do any of the aforesaid on behalf of the Operator. Without prejudice to the generality of the foregoing, the User acknowledges and agrees that the Operator may deploy tools that track and analyse the habits and patterns of users of the Platform. For purposes of this clause, “Data” includes but is not limited to name, age, gender, race, religion, contact details, internet protocol address, browser and computer details, geographic location, payment details, business activities, profession and any other data which may fall within the ambit of the Personal Data Protection Act 2010.
12.
FORCE MAJEURE
12.1
For purposes of this Clause, “Force Majeure Event” means any circumstances beyond the reasonable control of any Party (including, without limitation, any law, war, strikes, riots, vandalism, acts of war, nuclear disaster, or natural causes such as fire, flood, water, wind, earthquake or other acts of God) which renders the performance of these Terms unlawful or impossible to perform.
12.2
If a Force Majeure Event occurs, any Party affected by it (“Affected Party”) shall promptly give the other Party written notice of the Force Majeure Event (“Force Majeure Notice”), including full information about the Force Majeure Event and the actions and estimated time necessary to resume performance of the Affected Party’s obligations under these Terms and use, at its own respective costs, all reasonable efforts to remedy its inability to perform and to resume full performance of its obligations under these Terms as soon as practicable (provided that an Affected Party shall not be required to take any steps that are adverse to the Affected Party).
12.3
Notwithstanding anything to the contrary in these Terms, the following provisions shall apply if a Force Majeure Event occurs:
(a)
the Affected Party shall be excused or relieved from the performance of its obligations to the extent that such obligations are affected by the Force Majeure Event;
(b)
any relief of an Affected Party’s obligations shall be subject to any limitations explicitly set out in these Terms;
(c)
the Parties shall only be able to claim the benefit to be excused of their obligations under these Terms for an Force Majeure Event that occurs, or is in effect, after the entry into these Terms;
(d)
any obligations of the Parties that are required to be completely performed before the occurrence of a Force Majeure Event shall not be excused as a result of the Force Majeure Event occurring unless and to the extent that such obligations are affected by a Force Majeure Event; and
(e)
no Party shall be relieved of any obligations under these Terms solely because of increased costs or other adverse economic consequences that may be incurred through the performance of such obligations of the Parties.
12.4
If a Force Majeure Event prevents either Party from substantially performing any material obligation under these Terms for a period which exceeds thirty (30) days from the date of the Force Majeure Notice, either Party may terminate these Terms by written notice.
13.
TIME
Time, wherever mentioned in these Terms, shall be of the essence.
14.
WAIVER
No waiver by any Party of a failure by any other Party to perform any provision of these Terms shall operate or is to be construed as a waiver in respect of exercising any other right or power in these Terms.
15.
SUCCESSION
These Terms shall be binding upon and inure for the benefit of the respective heirs, personal representatives, successors-in-title or permitted assigns, as the case may be, of the Parties.
16.
ASSIGNMENT
The User shall not assign its rights or obligations to any third party without obtaining the prior written consent of the Operator. The Operator is entitled to assign its rights and/or obligations to any third party by giving written notice to the User.
17.
GOVERNING LAW
These Terms and the registration for, access to and use of the Platform shall be governed by and construed in accordance with Malaysian law.
18.
CONFLICT
18.1
In the event of any conflict or inconsistency between these Terms and any other terms and conditions that may be contained in any notices or documents from time to time (including but not limited to the Booking Acknowledgement or Booking Confirmation), these Terms shall prevail over such other terms and conditions to the extent of such conflict or inconsistency.
18.2
Unless otherwise expressly agreed to in writing by the Operator, no terms or conditions contained in any notices or documents issued by the User shall operate to modify these Terms or any other notices or documents issued by the Operator (including but not limited to the Booking Acknowledgement or Booking Confirmation) or impose any liability on the Operator.
19.
NOTICES
19.1
Any notices to be given by the Operator may be given by one or more of any the following modes as selected by the Operator:
(a)
if by e-mail, to the e-mail address on record for the User’s account, which shall be deemed received by the User if no failed delivery report is received by the Operator within twenty four (24) hours from transmission or upon the Operator’s receipt of a successful delivery report, as the case may be.
(b)
if by short-message-service or other mobile phone message applications, to the mobile phone number on record for the User’s account, which shall be deemed received by the User if no error message is received by the Operator upon transmission (if by short-message-service) or the Operator receives other evidence of delivery (if by other mobile phone message applications).
(c)
if by hand or courier, to the postal address on record for the User’s account, which shall be deemed received by the User when delivered to the postal address (if by hand) or by 11am on the 3rd day of dispatch (if by courier).
(d)
by a pop-up or other notification vide the Platform, either to the User directly or to all users of the Platform generally.
(e)
by such other mode as the Operator may select from time to time.
Notices given as aforesaid shall be deemed to be given upon the occurrence of the earliest event of deemed receipt.
19.2
Any notices to be given by the User shall be given in the manner prescribed and notified by the Operator through the Platform from time to time.
20.
AMENDMENTS
The User agrees that the Operator shall be entitled to modify these Terms and/or any other terms and conditions that govern the registration, access to or use of the Platform at any time, for any reason and on such terms that the Operator deems fit. The Operator shall notify the User in writing of such modifications in such manner as may be reasonable.
(Last updated: 18 August 2017)