Terms And Conditions
A. Terms of Online Service ("Terms")
Please read these Terms of Online Service ("Terms", "Terms of Online Service") carefully before using the http://www.smsdeenjewels.com.my website and/or the SMS DEEN GOLD Trading & Saving mobile application (the "Service") operated by SMS Deen Jewellers Sdn Bhd ("SMS DEEN").
Your access to and use of the Online Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.
By accessing or using the Online Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access our Online Service.
B. Details of Terms & Conditions Agreement
- INTERPRETATION
In this Agreement, unless otherwise expressly stated or if the context requires otherwise, the following terms shall have the meanings set out below: - “Agreement” means these terms and
conditions, any account-opening documentation (including an electronic
registration form you complete when applying for SMS DEEN GOLD SCHEMES), and
any other documents, terms and conditions, or policies which are
expressly stated by SMS DEEN to form part of the agreement between us and
you;
- “SMS DEEN Gold Schemes Account” means the electronic record of:
- gold
that you own, identified by quantity and purity of the gold, and
delivered to us for storage in the Vault;
- payments
to and from us in relation to the purchases, sales and withdrawals of
gold and any other transactions between you and us under this Agreement;
- the
fees levied by us for services provided to you.
- “Customer”, “you” or “your”
means a person who has registered and has been accepted by us for a SMS
DEEN Account on the SMS DEEN Website or SMS DEEN Mobile App including
satisfactorily completing the applicable verification requirements in
accordance with this Agreement;
- “Force Majeure” means any circumstance,
act, or event beyond our reasonable control, including (but not limited
to) any:
- lock
outs, strikes or other industrial disputes (in each case, whether or not
relating to our workforce and whether or not beyond our reasonable control);
- changes
to applicable laws, acts, or regulations of any governmental or
supranational bodies or authorities;
- breakdown,
failure, malfunction, or hacking of telecommunications or computer
services or systems (including the internet) including, without limitation,
any third party services or systems or acts of hackers;
- unusual
volatility in the market, hacking, Denial of Service (DoS) attack,
deliberate market distortion or manipulation, and disruptions to trading
or the trading price;
- act
of God, fire, act of government or state, terrorist act, war, civil
commotion, insurrection or embargo, earthquake, nuclear incident,
floods, volcanic action;
- inability
to communicate with brokers or market makers for whatever reason or late
or mistaken delivery or payment by any bank or counterparty;
- prevention
from or hindrance in obtaining any energy or other supplies; and
- any
other reason (whether or not similar in kind to any circumstance, act or
event described in (a) to (g) above).
- “SMS DEEN”, “we”, “us”,
or “our” means SMS Deen Jewellers Sdn Bhd, a company incorporated
in Malaysia with its registered address at No 52, Jalan Masjid India,
50100 Kuala Lumpur, Wilayah Persekutuan.
- “SMS DEEN Platform” means the SMS DEEN private
and public website accessible at www.smsdeenjewels.com.my
amended from time to time (the “Website”), the SMS DEEN Application
Programming Interface (“API”), and any associated SMS DEEN-hosted
websites or mobile applications (“Mobile App”) (collectively the “SMS
DEEN Platform”);
- “SMS DEEN Services” means any and all of the
services provided to you through the SMS DEEN Platform and includes the
use of the SMS DEEN Platform;
- “Password” means the string of
characters in length that you may use to access your SMS DEEN Account;
- “Privacy Policy” means the privacy policy
of SMS DEEN that is available on the SMS DEEN Website (as amended from
time to time);
- “Vault” means the location where
gold is physically stored pursuant to an agreement entered into by SMS
DEEN;
- ACCEPTANCE OF AGREEMENT
- This Agreement takes effect
upon acceptance by the Customer of these terms and conditions during the
account opening process by which Customer reads and agreed by an
electronic tick through the SMS DEEN Platform. The relationship between SMS
DEEN and the Customer arising from or in connection with the Customer’s SMS
DEEN Account shall be defined and governed by this Agreement.
- This Agreement applies to
your SMS DEEN Account and your use of:
- the
SMS DEEN Platform; and
- any
of the services provided to you by SMS DEEN together with the SMS DEEN
Platform (the “SMS DEEN Services”).
- By signing up to use the SMS
DEEN Platform through the SMS DEEN Website or SMS DEEN Mobile App, you
agree:
- that
this Agreement will document the contractual relationship between you
and us;
- to
be bound by the provisions of this Agreement;
- to
comply with all relevant laws of any territory of which you are a
citizen, national, or subject, and of any territory in which you are
resident from time to time, and of any other territory from which you
access the SMS DEEN Platform, and including, without limitation, the
laws of Malaysia; and
- to
authorize and allow SMS DEEN to disclose your personal information and
documents to parties providing loan, credit and/or any other financial
services to you.
- You understand, acknowledge
and agree that:
- the
gold recorded in your SMS DEEN Account is held by SMS DEEN as bailee and
is stored in our vault;
- you
may only withdraw funds to your personal bank account. However, your
funds withdrawal is subject to a daily withdrawal limit , to which SMS
DEEN may update time to time;
- any
money credited to your SMS DEEN Account is not a deposit with or loan to
us and your SMS DEEN Account is not a bank account under the Financial
Services Act 2013 (as amended);
- any
money or gold balance incorrectly credited to any of your SMS DEEN
accounts shall be subject to a clawback or recoupment policy currently
in effect or as may be adopted by SMS DEEN. Such a decision is at the
sole discretion of SMS DEEN.
- any
money standing to the credit of your SMS DEEN Account represents payment
for gold that you intend to purchase under this Agreement, which is
subject to SMS DEEN acceptance and approval, and SMS DEEN is authorized
without any further action required from you and without prior notice to
you to convert such money to gold, at a price and subject to fees
determined under clauses 6 and 7, at any time, OR to reject and refund this
Agreement, and SMS DEEN is authorised without any further action
required from you and without prior notice to you to clawback or
recoupment of any money or gold balance incorrectly credited to any of
your SMS DEEN accounts, and to refund to you the whole sum of payment
without any contractual binding in place as may be adopted by SMS DEEN.
Such a decision is at the sole discretion of SMS DEEN.
- any
money unutilized under clause 2.4 constitutes a non-interest bearing
security deposit that is held by us as security against any breach of
your obligations under this Agreement and may be applied by us towards
the performance of any obligation you owe to us under this Agreement;
- there
is no interest payable to you on any amount in your SMS DEEN Account;
- the
gold in your SMS DEEN Account is insured under insurance policies
arranged by SMS DEEN and are not insured by the Perbadanan Insurans
Deposit Malaysia.
- you
are only allowed one SMS DEEN account per mobile phone number per email and
it is your responsibility to retain control of your mobile number and/or
email. If you change your phone number or email, then it is your duty
and obligation to inform us if your new mobile phone number or email. SMS
DEEN reserves the right to close the account(s) where there is
duplication of transactions on different phone numbers or emails. SMS
DEEN reserves the right to close accounts which are dormant and/or lock
accounts whenever necessary.
- the
SMS DEEN account can be operated on most Android devices and iOS devices
subject to any restrictions or settings applicable to the devices.
- except
as required by law, no person shall be recognized by SMS DEEN as holding
any gold under this Agreement upon any trust, whether, express, implied
or constructive, and SMS DEEN shall not be bound by or be compelled in
any way to recognize (even when having notice thereof) any equitable,
contingent, future, or partial interest in your SMS DEEN Account except
an absolute right to the entirety of the SMS DEEN Account.
- You acknowledge that the SMS
DEEN Platform and the SMS DEEN Services do not constitute a “capital
market service” under the Capital Markets and Services Act 2007 (as
amended), trading of, or an exchange in, securities, investment contracts
or any document, instrument or writing commonly known as a “security” or
“derivative”, at law or otherwise.
- You understand that you may
only sell gold through your SMS DEEN Account by way of:
- transfers
to, a personal bank account, in your own name which you have linked to
your SMS DEEN Account; or
- physical
withdrawals of gold as described in clause 8;
- COMMUNICATIONS
- Communications between you
and SMS DEEN may be conducted by written email, online platform, or by
other electronic means that we offer from time to time. Any instructions
that you give to us in any such manner will have the same legal effect as
if you gave them to us in traditional written form. You agree that all
telephone calls and electronic communications may be recorded and kept by
us as a record of your instructions.
- You are responsible for the
accuracy of your instructions for all transactions in your SMS DEEN
Account and through the SMS DEEN Platform. Instructions once sent, in any
form acceptable under the SMS DEEN Platform in relation to your SMS DEEN
Account, are final and irrevocable. It is your responsibility to ensure
that your personal information registered on the SMS DEEN Platform is
accurate at all times.
- You agree to promptly
review the transaction history pertaining to your SMS DEEN Account that
you receive to ensure that your instructions have been carried out and
that there have been no unauthorized dealings in your SMS DEEN Account.
You must inform us of any errors or omissions by written email, online
platform, or by other electronic means that we offer from time to time,
within seven (7) calendar days of the disputed transaction(s) and the
final decision for the disputed transaction(s) shall be under the
reserved rights of SMS DEEN.
- CUSTOMER DUE DILIGENCE
- You agree to provide SMS
DEEN with such information as SMS DEEN may require or request, in its
discretion, in relation to this Agreement and your relationship with SMS
DEEN, including all information required to comply with all applicable
laws and regulations, including all applicable anti-money laundering
rules and regulations.
- Without prejudice to the
generality of the foregoing, you must provide a copy of your current
valid government-issued photo identification document details visible
and/or such other identifying and verifying information or documents as
we determine from time to time in our discretion (the “ID Documentation”)
at a time to be determined by us, prior to selling gold or withdrawal of
any gold in your SMS DEEN Account, upon your funding reaching a certain
level prescribed by us, or at any other time at our discretion.
- You agree that your ID
Documentation will be a colour reproduction of the original document
without obstruction, of sufficient size, resolution and legibility. You
agree that SMS DEEN is entitled to perform a background check prior to
approving your application to open a SMS DEEN Account or at any other
time during the course of the relationship at our discretion. You further
consent to SMS DEEN contacting credit bureaux to obtain information about
you for purposes of confirming your identity under applicable
“know-your-customer” rules. You understand that failure to provide any of
the information we request from time to time under such rules may result
in your SMS DEEN Account being frozen and/or terminated without any
notice to you.
- You represent and warrant
to us at all times that, to the best of your knowledge, any information
provided to us by you is complete, accurate, and not misleading in any
material respect and you agree to notify us should such information
change.
- SECURITY AND PRIVACY
- To protect your privacy and
information about your SMS DEEN Account and access to your account, when
you open a SMS DEEN Account, you must create a Password. Unless you enter
the correct Password upon logging in to your SMS DEEN Account, we are
unable to take your instructions regarding your SMS DEEN Account. You are
responsible for, and give us your authorization to carry out, all
instructions given to us online where and when your correct Password is
entered to access your SMS DEEN Account. SMS DEEN will not be liable to
you for any loss or claim arising out of our relying on oral or
electronic instructions provided to us using your Password.
- You accept that it is your
responsibility to keep your Password confidential. You alone are
responsible for your Password security. When you give us instructions by
cellular phone, email, or other non-secure methods, including
instructions sent through the Mobile App, we cannot guarantee
confidentiality because third parties can intercept those methods of
communication. If you suspect that any other person has become aware of
your Password, you must immediately notify us in writing by email or via
the SMS DEEN Application customer service chat and you agree to cooperate
with us in any subsequent investigation. Until you notify us, you will be
liable for all transactions that are made using your Password. In
addition to Passwords, you may be required to adopt other security
measures that we make available to protect the security of your
information.
- You must exercise safe
security practices when accessing and conducting electronic transactions.
This includes signing out and closing any online electronic transaction
services once all transactions have been completed regardless of your
method of accessing the SMS DEEN Platform. You must also maintain any
security measures that we recommend relating to requirements for
encryption technology, virus scanning, software, firewall systems,
anti-spyware software, cybersecurity measures and similar safeguards to
maintain security for all electronic transaction activities.
- SMS DEEN does not store
Passwords on the backend, only on the user’s phone; consequently only one
device can be used by a user for one account at any point in time.
- Every network communication
with SMS DEEN servers is secured by the Transport Layer Security (TLS)
protocol.
- SMS DEEN maintains the
master copy of ownership records. Records relating to you and your SMS
DEEN Account will only be modified upon the execution of your valid
instructions, in accordance with the terms of this Agreement.
- SMS DEEN ensures that at
least two widely separated data system storage running, parallel with
dual separated system, of the full SMS DEEN online based customer database.
- PRICE
- You agree that the price
for any purchase or sale of gold for any transaction within your SMS DEEN
Account will be based on the calculated price by our pricing engine. The
pricing engine, among other things, collects and distributes real-time
gold prices from its bullion counterparties quoting BUY AND SELL price for
the purchase or sale of physical gold bullion from each respective
Bullion Provider SMS DEEN transacts with. You accept that the price is
determined at SMS DEEN’s sole and absolute discretion taking into account
all factors it deems relevant, including without being limited to the
prevailing world and local market conditions for gold, the exchange rate
between United States Dollar (or any other foreign currency adopted) and
Ringgit Malaysia and the gold fineness. Every gold transaction in your SMS
DEEN Account is executed at the current prevailing price published on the
SMS DEEN Platform.
- Physical withdrawal of gold
are subject to a processing fee payable from your SMS DEEN Account.
Taking possession of physical gold will incur service charges which will
be confirmed with you in advance within the platform itself. It is your
responsibility to ensure that sufficient funds are available in your SMS
DEEN Account at the effective time of any funds transfer or payment to
satisfy in full any such funds transfer or payment. Requested
transactions may not be processed if you do not have sufficient funds in
your SMS DEEN Account.
- In the case of market
distortion, volatile markets, systems (including third party systems upon
which SMS DEEN is reliant) being hacked, and market disruption, SMS DEEN
reserves the right to adjust an order if the metal and currency quotes
received from SMS DEEN’s data source, when the order was placed, is found
to be incorrect. SMS DEEN will contact you if an order needs to be
adjusted due to incorrect market data, and SMS DEEN shall cancel the
order if you do not want to trade on the corrected market rate.
- STORAGE AND INSURANCE
- You authorize us to arrange
for the storage, transportation, and insurance of your gold. We will hold
your gold as bailee and to enter into storage agreements with by SMS DEEN
in its sole discretion.
- Any storage agreement
entered into with a SMS DEEN provides that gold allocated under the
storage agreement will be specifically identified and physically
segregated at all times.
- You authorize us to act as
bailee and to provide instructions to the SMS DEEN and insurance company
in such capacity under the terms of the bailment.
- SMS DEEN will ensure your
bullion is insured against theft and damage according to the accepted
insurance standards of the bullion industry, and at a cost which is
included in the charge you pay to SMS DEEN in respect of custody of your
bullion.
- FEES AND LIMITS
- You may, by initiating a
withdrawal request via the SMS DEEN Platform, together with such
identifying information as requested by SMS DEEN, at any time request
physical withdrawal of your gold, provided that you hold sufficient gold
(as specified in clause 9.2) and subject to the withdrawal limits
described below.
- Physical withdrawals of
gold are subject to a minimum quantity in the form of whole grammes when making a physical withdrawal
request through the SMS DEEN Platform. Physical withdrawals of gold may
be subject to daily maximum withdrawal limits. You are responsible for
the payment of any service charges, and/or other fees, which will be
advised to you and agreed with you in advance.
- You may sell the gold in
your SMS DEEN Account and the gold in your SMS DEEN Account will then be
sold at the prevailing SELL market price at the time of the SELL pursuant
to clause 6. The transfer of your SELL gold value from SMS DEEN Account to
your personal bank account may be subject to transfer limits based
maximum daily allowance that is prescribed by our third-party banking
operator.
- SMS DEEN reserves the right
to reject any incoming or outgoing wire. Outgoing wire instructions may
be rejected if the details provided are insufficient, the receiving
institution cannot be identified, it is uneconomical to do so, the
currency is not one of currencies accepted by SMS DEEN from time to time
or if there are insufficient net funds in the SMS DEEN Account. Incoming
wire transfers will be rejected if they are sent from a third party or
from a bank in a country which SMS DEEN deems to pose a high risk.
- LIMITATION OF LIABILITY; NO
WARRANTIES
- SMS DEEN, its agents,
employees, or officers, shall under no circumstances be liable:
- to you, whether in
contract, tort, breach of statutory duty, or otherwise, for any loss of
profit, or any indirect or consequential loss arising under or in
connection with this Agreement;
- for any special, general,
direct, indirect, incidental or consequential damages, even if we had
been advised of the possibility thereof;
- for any fees, duties,
taxes, or loss as a result of theft or any other loss of gold after it
has been removed from the Vault at your request for delivery or
collection;
- for any damages resulting
from latent defect, loss of data or loss of profits;
- for any damages resulting
from any of your instructions not being sufficiently clear or any
failure by you to provide correct or requested information;
- for any loss as a result
of risks associated with online trading, including software and hardware
failure latent defect, loss of data, delays, failure, errors, omissions,
or losses of transmitted information or instructions, power outages,
internet failure, hackers, denial of service (DoS) attacks, viruses, or
other contaminating or destructive properties;
- for any penalties, fees,
interest, costs or damages imposed upon or incurred by you with respect
to any transfers or payments, or for our inability to retrieve electronic
payments from accounts held at financial institutions.
- SMS DEEN will not be in
breach of this Agreement or otherwise liable for any loss suffered or
incurred as a result of any delay in performance or any non-performance
of any obligations under this Agreement (and, where relevant, the time
for performance will be extended accordingly) if and to the extent that
the delay or non-performance is owing to:
- Force Majeure; or
- neglect, serious fault or
wilful misconduct on the part of you including any failure to keep your
Password secure and any failure to comply with this Agreement or
associated policies.
- In case of Force Majeure,
we will use our reasonable endeavours to mitigate the effect of the Force
Majeure and to carry out our obligations under this Agreement in any
other way that is reasonably practicable. We will, as soon as reasonably
practicable, notify you of the nature and extent of the circumstances
giving rise to Force Majeure. If the Force Majeure in question prevails
for a continuous period in excess of six (6) months after the date on
which the Force Majeure begins, you shall be entitled to give notice to
us to terminate this Agreement in accordance with clause 13.
- In the case of market
distortion, volatile markets, systems (including third party systems upon
which SMS DEEN is reliant) being hacked, and market disruption, SMS DEEN
reserves the right to adjust an order if the metal and currency quotes
received from SMS DEEN’s data source, when the order was placed, is found
to be incorrect. SMS DEEN will contact you if an order needs to be
adjusted due to incorrect market data, and SMS DEEN shall cancel the
order if you do not want to trade on the corrected market rate.
- Our total liability to you
in respect of any losses arising under or in connection with this
Agreement, whether in contract, tort (including negligence), breach of
statutory duty, or otherwise, shall in no circumstances exceed the value
of the SMS DEEN Account at the time of the alleged claim, subject always
to a maximum liability limit of MYR50 (fifty) Malaysian Ringgit or
equivalent.
- Information sent over the
Internet may not be completely secure and the Internet and related online
systems may not function at all times. We are not responsible for any
loss or damages you may incur if a third party obtains access to your
confidential information transmitted over the Internet or if you are
temporarily unable to determine your balance on the SMS DEEN Platform.
- If you grant express
permission for a third party to connect to your SMS DEEN Account, either
through the third party’s product or through the SMS DEEN Services, you
acknowledge that granting permission to a third party to take specific
actions on your behalf does not relieve you of any of your
responsibilities under this Agreement. Further, you acknowledge and agree
that you will not hold SMS DEEN responsible for, and will indemnify SMS
DEEN from, any liability arising from the actions or omissions of this
third party in connection with the permissions you grant.
- SMS DEEN shall not be
responsible for any loss or damages resulting from any failure on your
part to conduct appropriate due diligence on parties with whom you choose
to deal. You accept that you may make and receive payments from other SMS
DEEN users and understand that SMS DEEN does not accept liability for the
fraudulent or misleading actions of parties to whom you make and from
whom you receive payments. It is your entire responsibility to conduct
appropriate due diligence and your choice whether or not to make a
payment or agree to receive a payment in return for goods or services.
- You will be held
responsible for any fraudulent transactions on your SMS DEEN Account
directly resulting from:
- fraudulent, or grossly
negligent acts committed from your account; or
- a breach of security of
the SMS DEEN Platform where such transactions resulted from the misuse
of your Password.
- TO THE FULLEST EXTENT
PERMISSIBLE BY LAW, SMS DEEN DISCLAIMS ALL WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.
- This clause 9 shall survive
termination of the Agreement or closure of any SMS DEEN Account.
- INDEMNITY
- Subject to clause 9 above,
except to the extent that it results from SMS DEEN’s gross negligence or
wilful default or arises from any contravention or breach by SMS DEEN of
any applicable law, you irrevocably and unconditionally agree to
indemnify and keep SMS DEEN and its directors, officers, employees, and
agents indemnified against any loss, claim, damage, cost, or expense or
any other liability whatsoever (including, without limitation, legal fees
on a full indemnity basis and all taxes and other duties payable in
connection therewith) which may be suffered:
- in connection with any
service provided to you under this Agreement;
- as a result of your
failure to comply with its obligations under this Agreement;
- in the enforcement of this
Agreement; or
- in connection with any
instruction given by you, any transaction effected for you or any
service provided to you, including any action properly taken by SMS DEEN
or by its agents under this Agreement.
- The indemnity in this
clause 10 shall continue notwithstanding the termination of this
Agreement or closure of any SMS DEEN Account.
- TERM AND TERMINATION
- Subject to clause 11.6,
this Agreement will remain in effect and will bind you and us until such
time as your SMS DEEN Account is closed. We may, at our absolute
discretion, close your SMS DEEN Account and terminate this Agreement by
notice to you with immediate effect for any reason whatsoever, including
any breach of this Agreement by you or if you become a bankrupt. You may
close your SMS DEEN Account and terminate this Agreement by giving
written notice to us if your SMS DEEN Account has a nil or zero balance.
- SMS DEEN reserves its right
to immediately suspend or terminate your access to any or all of the SMS
DEEN Services and/or deactivate or cancel your SMS DEEN Account if you
are in default, including if
- SMS DEEN is required to do
so by a valid subpoena, court order, or order from a regulatory
authority, or otherwise required by law,
- your SMS DEEN Account is
being misused or SMS DEEN suspects that it is being used in furtherance
of illegal activity (with or without actual knowledge of the same),
- you take any action to
circumvent SMS DEEN’s controls, including, but not limited to, opening
multiple SMS DEEN Accounts or abusing promotions which SMS DEEN may
offer from time to time, or
- if you are in breach of
this Agreement.
- You will be permitted to
transfer the balance in your SMS DEEN Account after ninety (90) days have
elapsed following SMS DEEN Account deactivation or cancellation unless
such transfer is prohibited by a valid subpoena, court order, order from
a regulatory authority, or otherwise prohibited by law. You are
responsible for arranging the transfer by way of physical withdrawal of
gold or movement of funds to a bank account after your SMS DEEN Account
deactivation or cancellation.
- You will not be charged for
cancelling your account and will only be required to pay for those SMS DEEN
Services used that are subject to charges. If any transaction is in a
pending state at the time your account is cancelled or suspended, such
transaction may be cancelled and/or refunded as appropriate. You may not
cancel your account to evade an investigation or avoid paying any amounts
otherwise due to SMS DEEN.
- Upon suspension or
cancellation of your account, you authorize SMS DEEN to cancel or suspend
pending transactions and hold the funds associated with such transactions
until SMS DEEN is certain that funding reversal windows are complete. In
the event that SMS DEEN closes your account or terminates your access to
the SMS DEEN Services, or deactivates or cancels your account, you will
remain liable for all amounts due hereunder.
- Any accrued rights,
remedies, obligations and liabilities of the parties as at termination
shall not be affected, including the right to claim damages in respect of
any breach of the Agreement which existed at or before the date of
termination. Any clauses of this Agreement which expressly or by
implication have effect after termination shall continue in full force
and effect.
- In the event that a
technical problem causes system outage or account errors, SMS DEEN may
temporarily suspend access to your SMS DEEN Account until the problem is
resolved.
- DEATH OR INCAPACITY
- If you die or otherwise
become incapacitated, and evidence of such is produced to us by your
legal personal representative(s), which we deem to be sufficient in our
absolute discretion, you authorize us to sell the gold in your SMS DEEN
Account at the prevailing market price and release the funds (after
deducting all applicable fees and charges) to your legal personal
representative. In such an event, your legal personal representative
shall be the only person(s) recognised by SMS DEEN as having any title or
legal rights to your SMS DEEN account.
- Nothing in this Agreement
shall release the estate of a deceased Customer from any liability in
respect of the SMS DEEN Account.
- TAX
- You are responsible for paying
all local taxes and tariffs that are or may be applicable to purchases,
conversion, sale or custody of gold, and any associated charges.
- INTELLECTUAL PROPERTY AND
CONFIDENTIALITY
- You acknowledge that any
and all of the intellectual property rights including, without
limitation, the SMS DEEN trademark, any other trademarks, trade names,
copyright and other rights used or embodied within the SMS DEEN Platform
are and will remain SMS DEEN’s sole property.
- All information and
material which we supply to you, excluding your account balances and
other information specific to your account, constitutes part of our
confidential and proprietary information except for any such information
or material in the public domain through no fault of yours. You may not
reproduce, copy, or disclose such confidential and proprietary
information without our prior written consent.
- You warrant that you will
not, nor will you attempt to, tamper with, modify, reverse engineer, gain
unauthorised access to, or in any way alter any of our software or the SMS
DEEN Platform. You understand that we may close your account immediately,
and may take legal action against you if you breach, or we reasonably
suspect that you may have breached, this warranty.
- MISCELLANEOUS
- Assignment
- SMS DEEN may at any time
assign, transfer, charge, subcontract or deal in any other manner with
all or any of its rights under this Agreement and may subcontract or
delegate in any manner any or all of its obligations under this
Agreement to any third party or agent.
- You shall not, without the
prior written consent of SMS DEEN, assign, transfer, charge,
subcontract, or deal in any other manner with all or any of its rights
or obligations under this Agreement.
- Right of set-off
- You shall be under an
obligation to pay all amounts due under this Agreement in full without
any deduction or withholding except as required by law and you shall not
be entitled to assert any credit, set-off, or counterclaim against SMS
DEEN in order to justify withholding or disputing payment of any such
amount in whole or in part.
- SMS DEEN may, without
limiting its other rights or remedies, set-off any amount owing to it
(or to any of its affiliates) by you against any amount payable by SMS
DEEN to you.
- Currency
- Any and all monetary
amounts displayed in the SMS DEEN Platform are in the local currency
selected by you.
- Currency conversions are
performed from time to time.
- SMS DEEN itself does not
charge currency conversion fees and shall not be liable for any fees,
charges, or conversion rates on international transactions which may be
charged by credit card issuers, financial institutions, or banks.
- Entire agreement
- This Agreement constitutes
the whole and only agreement between the parties relating to the subject
matter of the Agreement. Each party to the Agreement acknowledges that,
except in the case of fraud, in entering into this Agreement, it is not
relying on any pre-contractual statement which is not repeated in this
Agreement.
- Except in the case of
fraud by either party, no party shall have any right of action against
the other party arising out of or in connection with any pre-contractual
statement except to the extent that it is repeated in this Agreement.
- This Agreement applies to
the exclusion of any other terms that you may seek to impose or
incorporate, or which are implied by trade, custom, practice or course
of dealing.
- Variation
- Except as set out in this
Agreement, any variation, including the introduction of any additional
terms and conditions, to the Agreement, shall only be binding when
agreed in writing and signed by an authorised signatory of SMS DEEN.
- We shall have the right,
by notice in writing to you, to add to, alter, vary, supplement, or
modify all or any parts of the Agreement at any time as we may consider
necessary or desirable in order to reflect changes in the law, to meet
regulatory requirements or to reflect new industry guidance and codes of
practice or changes to our notices, policies and operating procedures.
- We may vary or amend the
terms or provisions of this Agreement (including those relating to
fees), by giving you written notice of any variation or amendment, which
notice, if posted to your SMS DEEN Account or email address, shall be
deemed to have been received by you on the day it was posted.
- You shall be deemed to
have agreed to any variation or amendment of the terms or provisions of
this Agreement if you continue to use our services after the date
specified in the notice as the effective date of such variation or
amendment. If you do not wish to be bound by any variation or amendment
notified to you in accordance with this clause 17.5, you may terminate
this Agreement in accordance with clause 13.1 and must notify us in
writing without delay and, in relation to variation or amendment under
clause 17.5(c), before the expiry of the notice period.
- Severability
In the event any provision (or part of any provision) of this Agreement shall for any reason be held by a court or any other competent authority to be invalid, illegal, or unenforceable, that provision, to the extent required, shall be deemed deleted and the remaining provisions shall remain valid and enforceable. - Rights of third parties
A person who is not a party to this Agreement shall not have any rights under or in connection with it. - No agency or partnership
Except as otherwise expressly provided for in this Agreement, nothing in this Agreement is intended to, or shall be deemed to, constitute a trust, partnership or joint venture of any kind between any of the parties, nor constitute any party a fiduciary or agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way. - Notices
- Any notice or other
communication required to be given to a party under or in connection
with this Agreement shall be in writing and shall be sent to the other
party, such notice shall be deemed to have been duly received on the
same day as it is sent.
- This clause 17.9 shall not
apply to the service of any proceedings or other documents in any legal
action, which documents must be sent to SMS DEEN’s registered address,
as published on the SMS DEEN Website from time to time.
- No waiver
- A waiver of any right
under this Agreement is only effective if it is in writing and shall not
be deemed to be a waiver of any subsequent breach or default. No failure
or delay by a party in exercising any right or remedy under the
Agreement or by law shall constitute a waiver of that or any other right
or remedy, nor preclude or restrict its further exercise. No single or
partial exercise of such right or remedy shall preclude or restrict the
further exercise of that or any other right or remedy.
- Unless specifically
provided otherwise, rights arising under the Agreement are cumulative
and do not exclude rights provided by law.
- Governing law
- This Agreement is governed
by the laws of Malaysia applicable therein. In the event of a dispute
but subject to clause 17.11(b) below, you agree that the courts of
Malaysia will be competent to hear such dispute, and you agree to be
bound by any judgment of that court.
- Any dispute, controversy
or claim arising out of or relating to this Agreement, or the breach,
termination or invalidity thereof, shall be decided by arbitration in
accordance with the Rules for Arbitration of the Asian International
Arbitration Centre. The number of arbitrators shall be three. The place
of arbitration shall be Kuala Lumpur. The language used in the
arbitration proceedings shall be English. Any award of the arbitrator(s)
will be final and binding on each of the parties and may be entered as a
judgment in any court of competent jurisdiction.
- Void where prohibited
Although the SMS DEEN Platform is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the SMS DEEN Platform are available to all persons or in all geographic locations, or appropriate or available for use outside of Malaysia. SMS DEEN reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the SMS DEEN Platform is void where prohibited. If you choose to access the SMS DEEN Platform from outside Malaysia, you do so on your own initiative and you are solely responsible for complying with applicable local laws. SMS DEEN is not responsible or liable for any legal action, loss or damage arising from or in connection with any illegality or breach of law arising from you accessing or initiating a transaction on the SMS DEEN Platform outside Malaysia. - Language
The parties to this Agreement have requested that this Agreement and any related document be written in English.
Notwithstanding any other provision of this Agreement, any translation of this Agreement is provided solely for your convenience. The meanings of terms, conditions and representations herein are subject to definitions and interpretations in the English language. Any translation provided may not accurately represent the information in the original language of English. - Stamp Duty
The stamp duty for this Agreement shall be borne by the Customer.
C. Subject to Availability
As per our online service platforms, they are programmed to be automated with self-invoicing technology. However, our automation technologies will have limitation due to but not limited to the physical world limitation such that the stock or items agreed in the automated invoice might not be available or with subject to price changes. As such, SMS DEEN will have the rights to cancel orders based on subject to availability of an item in the online services as and when it is suitable, with a reasonable justification clause pertaining to the market industry.
D. System Limitation
In the case of market distortion, volatile market, systems (including third party systems upon which SMS DEEN is reliant) being hacked and/or market disruption, SMS DEEN reserves the right to cancel an order if the metal quotes received from SMS DEEN's data source, when the order was placed, is found to be incorrect. SMS DEEN will notify you once the order is canceled via email immediately due to the incorrect data and/or system error.
E. Copyright/Trademarks
We reserve the rights on all the pictures, writings and other means of media contents of the Online Service website, www.smsdeenjewels.com.my. Using content of this website for any non-personal, commercial and profitable means of use will be penalized to heavy lawsuit under the governing laws of Malaysia.
The SMS Deen Jewellers Sdn Bhd logo is fully owned by SMS Deen Jewellers Sdn Bhd with the trademark clause and misuses of the logo in any other third-party websites will be fined and penalized to heavy lawsuit under the governing laws of Malaysia.
F. Termination
We may terminate or suspend access to our Online Service immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.
All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. Create your own Terms of Service
G. Links to Third-party Web Sites
Our Service may contain links to third-party web sites or services that are not owned or controlled by SMS Deen Jewellers Sdn Bhd.
SMS Deen Jewellers Sdn Bhd has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that SMS Deen Jewellers Sdn Bhd 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 web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.
H. Governing Law
These Terms shall be governed and construed in accordance with the laws of Malaysia, without regard to its conflict of law provisions.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Online Service, and supersede and replace any prior agreements we might have between us regarding the Online Service.
I. Changes
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. Once this Terms been revised, the notice prior to any new terms taking effect is immediate without further delays from publication. What constitutes a material change will be determined at our sole discretion.
By continuing to access or use our Service after those revisions become effective, you agree to be bound by the newly effecting revised terms. If you do not agree to the new revised terms, you may immediately stop using our Online Service.