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1. Terms, Acceptance and Interpretation

1.1 These terms and conditions (Terms) set out the agreement between you and ATX Distribution Sdn Bhd (“ATX”) in relation to your purchase and use of the Service (the Agreement).

1.2 You acknowledge that you have read and understood these Terms. Your use of the Service upon the Start Date constitutes unconditional acceptance to be bound by these Terms as may be amended from time to time.

1.3 Words and phrases which appear in bold are defined in the context which they appear or in the definition in clause 14 below.

1.4 A reference to “you” and “your” means the customer who seeks to enroll or has enrolled for the Service.

2. Service Description and Program

2.1 The MobiCare Program includes the ability to request a Like Mobile Device in exchange for your Registered Device if your Registered Device is in your possession (a Swap) (the Program).

2.2 ATX reserves the right to suspend, modify or discontinue any part or all of the Service or Program at any time at its sole discretion.

3. Enrolment

3.1 Enrolment criteria – In order to apply for enrolment in the Service for an Eligible Device you must:

(a) be an individual subscriber to the Program; and

(b) not be in default of any payment obligations in relation to your Program.

3.2 Time of application – You must make your application at the time you purchase your Eligible Device.

3.3 Acceptance and rejection

(a) Unless ATX notifies you by email, telephone or SMS within 7 days of your application that your application is unsuccessful, you will be enrolled in your Program with respect to your Eligible Device from the date of receipt of the Eligible Device.

(b) Your application will be unsuccessful if:

(i) any of the eligibility criteria in clause 3.1 is not met;

(ii) you have previously been rejected or terminated from the Service or a similar service; or

(iii) for any other reason in ATX’s sole discretion.

3.4 Other conditions

(a) You can only enroll in the Service for one Eligible Device per mobile phone number.

(b) You may apply to register multiple Eligible Devices for the Service (each with a separate Agreement and mobile phone number) but you must pay the applicable Fees for each Eligible Device.

(c) Your enrolment in the Program will continue while your Registered Device remains enrolled in the Program

4. Subscription

You may enroll in the Service on a monthly basis or for a fixed term of 3, 6, 12 or 24 months (Subscription). 

5. Fees

5.1 Monthly Fee – If you enroll in the Service on a monthly basis:

(a) You will pay the monthly fee set out in the table below (Monthly Fee) based on the Tier of your Registered Device:

(b) The Monthly Fee for the first month of your Subscription following the Start Date and your last month of your Subscription following termination in accordance with clause 9 below will be prorated to the days of actual enrolment.

(c) You must make an upfront payment of the Monthly Fee for the first month upon enrolment.

5.2 Fixed Term Fee

If you enroll in the Service for a fixed term, you will pay the one-time upfront fee set out in the table below (Fixed Term Fee) based on the Tier of your Registered Device:

5.3 Service Fee

For each Service Request permitted under these Terms you will pay the Swap Fee set out in the table below based on the Tier of your Registered Device:

5.4 Incorrect Device – If you make a Service Request but the Device claimed to be the Registered Device is not the Registered Device, your Service Request will be rejected.

5.5 SST – SST is not applicable to the Fees in these Terms.

6. Service Request

6.1 You may make a Service Request by contacting the Contact Centre. You cannot make a Service Request at a Retail Store.

6.2 The Contact Centre will only accept your Service Request if:

(a) the IMEI of the Registered Device, subscriber’s name, mobile phone number and National ID under which the account is active are correct and correspond with the information you have given to ATX;

(b) you provide any additional information reasonably requested by ATX including in the form of a signed confirmation or acknowledgment;

(c) you are within the Limit as set out in clause 6.3 below;

(d) ATX has no reasonable belief that you have transferred, retailed, sold, or hired your Registered Device to another person;    

(e) the Service Request is not for a Device Accessory;

(f) the Registered Device has not been the subject of Modification; and

(g) ATX reasonably believes that you are not using the Service in a manner which is, or is reasonably believed to be, fraudulent, illegal or related to any criminal activity; or intended to make a commercial gain. 

You may be notified if your Service Request is not accepted for any of the above reasons at any time before your Like Mobile Device is delivered to you.   

6.3 You may make up to two Service Requests in any rolling 12-month period (Limit) provided you remain enrolled in the Program. If you remain enrolled in the Program for more than 12 months and have made two Service Requests in any rolling 12 months, you can only make another Service Request 12 months after the Shipment Date of your first Service Request in the case of a third Service Request or 12 months after the Shipment Date of your second Service Request in the case of a fourth Service Request, as illustrated below:

6.4 Information – When you make a Service Request, you are not required to establish that your Registered Device is broken, damaged or that any analogous event has occurred.    

6.5 Like Mobile Device

(a) At the time of the Service Request, ATX will indicate to you the Device it will provide as a Like Mobile Device. For the avoidance of doubt, ATX will be deemed to have discharged its obligation to provide a Like Mobile Device to you if ATX offers you a Like Mobile Device in accordance with these Terms.

(b) If you do not wish to accept the Like Mobile Device offered for any reason (not being colour), ATX may (though not legally obliged to do so) in its sole discretion and on a goodwill basis, offer you the option to wait for up to 30 days (Goodwill Period) for ATX to offer you another Like Mobile Device (Second Like Mobile Device).

(c) ATX will contact you before expiry of the Goodwill Period to offer the Second Like Mobile Device. If you do not wish to accept the Second Like Mobile Device for any reason, ATX will have no further obligation in relation to the goodwill offer. Your Service Request will be cancelled without further reference to you and ATX will not be liable to you for your own decision to decline the Second Like Mobile Device.

(d) If you do not wish to accept the Like Mobile Device offered because of the colour when you are offered the same make and model as your Registered Device, your Service Request will be cancelled without further reference to you and ATX will not be liable to you for your own decision to decline the offered Like Mobile Device.

7. Swap

7.1 Preparation – You must turn off any personal lock security feature before returning your Registered Device via the Courier.

7.2 Title and rights – Title in and any rights to the Registered Device shall be transferred to ATX at the time the Like Mobile Device is delivered to you. You hereby assign to ATX all associated rights and benefits of any OEM’s warranty in the Registered Device. You shall not transfer, sell, hire or otherwise deal with the Registered Device in a manner that is not consistent with the ownership rights of ATX.

7.3 Device data – You shall be solely responsible for all data stored in your Registered Device and you shall delete all data from the Registered Device before its collection by ATX. ATX is not responsible for data you left on the Registered Device and will not transfer any such data or information between the Registered Device and the Like Mobile Device. Such data left on the Registered Device or transfer of any data or information off the Registered Device, if done by ATX at your request, will be done entirely at your own risk. In the event there is any inconvenience, delay, loss, misappropriation of or damage to any data or information, you agree not to hold ATX responsible or liable for any such damage to you.

7.4 Service Fee – The Service Fee will be payable to Asurion, as ATX’s service provider, based on the payment method made available to you at the time.

7.5 No representation or warranty – ATX makes no representation or warranty that any Like Mobile Device will be identical, of the same colour or offer the same functionalities as your Registered Device.

8. Delivery

8.1 Address in Malaysia – The delivery must be to your registered or billing address in Malaysia.  ATX will not deliver a Like Mobile Device to a post office box, public transportation station, shopping centre, car park or any other public place. The decision to deliver to any location, including an address that is not your registered or billing address in Malaysia, is in ATX’s sole discretion.

8.2 Timings – The delivery of a Like Mobile Device will be via Courier on a Delivery Day. Delivery times are set out in the table below subject to any extensions as may be required: (i) for force majeure events; (ii) where the Courier delays such delivery; or (iii) where ATX deems it necessary to perform additional verifications relating to your Service Request.

1. * For delivery times not falling on a Delivery Day, the delivery will occur on the next Delivery Day.
2. # On a best efforts basis – the Contact Centre will provide the estimated delivery time.
3. ~ Times calculated from the Acceptance Time. If clause 6.5(b) applies, the delivery times set out above will not apply to your Service Request.

8.3 Costs – Deliveries to an address in Malaysia will be made at no charge to you except that any deliveries after two failed attempts to deliver to you, will be subject to a surcharge to be paid by you in advance by Card.

8.4 The Like Mobile Device will not be delivered in original packaging.

8.5 Delivery formalities – In order to complete the Service Request, the Courier delivering the Like Mobile Device:

(a) will ask for and verify the same National ID you provided when enrolling for your Program;

(b) will verify that the Device you are presenting is the same as the Registered Device (by comparing the make, model and IMEI of the Registered Device against that of the Device you present) and collect the Registered Device from you;

(c) may inspect the Registered Device to see if there is any Modification; and

(d) will deliver the Like Mobile Device (Delivered Device) to you alone (and no proxy will be accepted).

8.6 As of the time of delivery, you acknowledge that the Delivered Device becomes your Registered Device.

8.7 Incorrect Device

(a) If the make, model or IMEI of the Device you present does not correspond to that of the Registered Device, then the Service Request will not be completed.

(b) If ATX discovers that the Device you returned via the Courier was not the Registered Device at the time the Service Request was completed, then you must return the correct Registered Device within 7 days of the Delivery Time at your own cost. If you fail to do so, ATX will return the Device to you at your cost and you must also return to ATX the Delivered Device provided as a Swap. Your Service Request will be considered cancelled. ATX will refund to you the Swap Fee paid following receipt of the Delivered Device.

8.8 Failure to disable locking – If ATX discovers that you did not turn off the personal lock security feature in the Device you returned via the Courier in contravention of clause 7.1, ATX will return the Device to you at your cost and you must also return to ATX the Delivered Device provided as a Swap. Your Service Request will be considered cancelled. ATX will refund to you the Swap Fee paid following receipt of the Delivered Device.

8.9 Modified Devices – If ATX discovers that the Registered Device you tendered to the Courier or returned via the Courier has been subject to Modification, then ATX will at its sole discretion:

(a) reject the Service Request at the time the Registered Device is tendered to the Courier and your Service Request will be considered cancelled. ATX will refund the Swap Fee by the original method of payment; or

(b) where returned via the Courier, return to you at your cost the Device. You must also return to ATX the Delivered Device provided as a Swap. Your Service Request will be considered cancelled. ATX will refund to you the Swap Fee paid following receipt of the Delivered Device.    

8.10 Warranty – You are entitled to a 6-month warranty for each Like Mobile Device against manufacturer malfunctions and defects that starts from the date of delivery of Like Mobile Device. You may request warranty service for a Like Mobile Device by contacting the Contact Centre. Your request for warranty service will be handled in the same way as a Service Request except that it will not count towards your Limit and the Service Fee will not be payable.

8.11 Acknowledgement 

(a) At any time prior to the time of the delivery, ATX may require you to sign an acknowledgment or confirmation form when you make a Service Request.

(b) You acknowledge that:

(i) any Like Mobile Device provided to you as a result of a Service Request is not to be sold, transferred, displayed for sale or hired nor is the Service intended to be used for commercial gain;

(ii) ATX will:

1. delete all data on the previous Registered Device without reference to you; and

2. not return the previous Registered Device to you;

(iii) you have been provided with the opportunity to inspect the Delivered Device as delivered to you by the Courier;

(iv) the Delivered Device is sufficient consideration for you to transfer ownership of the previous Registered Device and you have relinquished all rights in the previous Registered Device;

(v) title in the previous Registered Device is transferred to ATX or its service provider in accordance with clause 7.2; and

(vi) where your Registered Device is replaced under a warranty claim directly with the OEM, you have the responsibility of contacting the Contact Centre to inform of the replacement IMEI number.

9. Term and Termination

9.1 ATX will supply your Program to you from the Start Date until it is terminated in accordance with this clause.

9.2 Termination by you – you can terminate your Program at any time by contacting the Contact Centre.

9.3 Termination by ATX – ATX may immediately terminate your Program and this Agreement at any time if ATX reasonably believes that:

(a) you are using the Service (whether intentionally or not) in a way that may adversely impact the reputation of ATX;

(b) you are using the Service in a manner which is, or is reasonably believed to be, fraudulent, illegal or related to any criminal activity; or intended to make a commercial gain;

(c) you have breached, or are likely to breach, these Terms or have engaged in cheating;

(d) you are or may become bankrupt or unable to pay your debts as they fall due;

(e) you have provided ATX with incorrect, false or incomplete information;

(f) you are likely to create imminent harm or harass or are abusive to any personnel of ATX and its service providers, sub-contractors and agents; or

(g) for any other reason at ATX’s sole discretion.

9.4 Automatic – Your Program and the Agreement will terminate immediately if ATX discovers that you have transferred, sold, displayed for sale, or let on hire your Registered Device.

9.5 Consequences of termination

(a) No refund – To the extent that ATX is not in breach of any of its obligations under these Terms, if your Subscription is terminated under clause 9.2, 9.3 or 9.4, you will not be refunded any part of the Fees you have paid.

(b) No reactivation – If the Service has been terminated for a Registered Device, the Service cannot be reactivated for that Registered Device.

(c) Prohibition – With respect to a National ID, if you have been previously rejected or terminated from the Service or a similar service where Asurion is the service provider, you will not be eligible to apply for the Service.

(d) Service Requests – If you have made a Service Request which is not fulfilled as at the time of the termination, the Service Request may be cancelled.

10. Change of registered device

10.1 Your Registered Device may not change except for:

(a) the change made following a Swap; or

(b) the exchange of your Registered Device under an OEM’s warranty scheme or other applicable scheme for a new Device which is identical to your Registered Device. You must inform the Contact Centre of such change and provide proof of the exchange where necessary for ATX to update its records with the IMEI of such new Device, from which time the new Device will become the Registered Device.

11. Data privacy

11.1 You confirm that you have read, understood and consent to the ATX personal data protection policy and privacy notice which may be found at www.mobicare.my or such other link as may be notified by ATX from time to time (together, the PDP Policy).

11.2 You also agree that by applying for or using the Service:

(a) you are giving consent to ATX and ATX’s service provider (and data intermediary, for the purposes of the Personal Data Protection Act 2010) Asurion to use and/or disclose your personal information collected from you:

(i) in accordance with the PDP Policy;

(ii) for the purposes of:

1. assessing your eligibility to enrol, and continue to be enrolled, for the Program or use the Service;

2. providing you with the Service;

3. generating aggregated and non-personally identifiable data sets;

4. allowing direct and indirect contact with you in connection with the Service; and

5. managing commercial risks, and preventing, detecting, and investigating suspected illegal activity, fraud, or disputes (the purposes in clause 11.2(a)(ii) collectively, the Purposes); or

(iii) to any relevant governmental and/or regulatory authorities where legally required; and

(b) you consent to ATX’s service provider Asurion storing or hosting data with Asurion’s affiliates, partners, subsidiaries and unaffiliated third parties including third-party service providers, whether in Malaysia or other countries, for the Purposes or for any other purpose specified in the PDP Policy.

11.3 ATX is the data user of your personal information at all times and any enquiries on the processing of your personal information will be made in accordance with the PDP Policy.

12. Miscellaneous

12.1 Subject to change, withdrawal, termination and suspension – The Service, these Terms and the Fees are subject to change (and in the case of the Service, withdrawal), termination or suspension at any time. ATX will notify you of the changes through the Website and if you continue your Subscription after such changes are notified, you will be deemed to have agreed to those changes.

12.2 Service providers, contractors and third parties – ATX may mandate a third party to provide the Service and collect any Service Fee on its behalf, but in any case, your sole recourse will be against ATX and not such third party.   

12.3 Governing law – This Agreement will be governed by and construed in accordance with the laws of Malaysia.

12.4 Entire agreement – You hereby agree and accept that the prevailing ATX general terms & conditions available at www.mobicare.my or such other link as may be notified to you (General Terms) apply. These Terms are in addition to the General Terms and both these Terms and the General Terms are applicable to the relationship between ATX and you. In the event of inconsistency between these Terms and the General Terms, these Terms prevail.

12.5 General indemnity – In no event will ATX or their service providers, be liable to you or anyone else for any indirect, special, exemplary or consequential damages, or any damage arising out of or in connection with your access, use of, or your inability to access or use the Service or the performance or non-performance of the Service.

12.6 Limitation of liability – ATX and their service providers’ entire liability in contract, tort (including negligence or breach of statutory duty) or otherwise to you will be limited to RM500.

12.7 Promotions – ATX may from time to time offer promotions relating to the Service. Any such promotion shall be governed by the terms and conditions attached thereto by ATX, and by these Terms to the extent that the promotion’s terms and conditions are silent. In the event of any conflicts between a promotion’s terms and conditions and these Terms, these Terms prevail.   

13. Enquiries

If you have any queries, complaints, claims or feedback regarding the Service, please contact the Contact Centre at 1300 130 113.

14. Definitions

14.1 Acceptance Time means the time when the Contact Centre accepts your Service Request.

14.2 Asurion means Asurion Technology Malaysia Sdn Bhd (Company No. 201301019001 (1048831-V), a service provider appointed by ATX to provide the Service.

14.3 Contact Centre means the contact centre at 1300 130 113 or other means where available for Service Requests or general enquiries.

14.4 Card means:

(a) VISA, MasterCard and American Express credit cards; and

(b) VISA and MasterCard debit cards.

14.5 ATX means ATX Distribution Sdn Bhd (Reg. No. 201401028287 (1104373-X)) and includes Asurion for the purposes of this Agreement and the Terms. 

14.6 Courier means a person appointed to deliver Like Mobile Devices and accept Registered Devices and Service Fees in accordance with the Service.

14.7 Delivery Day means:

(a) for all locations except Kelantan and Terengganu, Monday to Saturday excluding public and state holidays; and

(b) for Kelantan and Terengganu, Saturday to Thursday excluding public and state holidays.

14.8 Device means a mobile cellular device that has a display screen, supports one or more wireless network connectivity options and is operated using voice, touch or a miniature keyboard. It does not include any Device Accessories.

14.9 Device Accessory means anything that is either provided by the OEM with a Device or sold separately to be used in conjunction with a Device. It includes batteries, SIM cards, memory cards, chargers, ear buds, boxes, cases, cables, styli, mounts and docking stations.

14.10 Eligible Device means a Device with a valid IMEI as determined in Asurion’s sole discretion supplied to you:

(a) as new by a Retail Store; or

(b) by the OEM under warranty to replace a defective Device and the related IMEI details have been recorded by you with the Contact Centre to the satisfaction of ATX or any of its approved service providers, agents or subcontractors.

14.11 Fees means the fees set out in clause 5.

14.12 IMEI means the international mobile equipment identity number of a Device.

14.13 Hardware Modification means any modification made to a Device’s hardware not undertaken or authorised by the OEM.

14.14 Klang Valley means Ampang, Bangsar, Bandar Baru Selayang, Bandar Sri Damansara, Bandar Utama, Bangi, Batu Caves, Bukit Damansara, Bukit Kiara, Cheras, Cyberjaya, Damansara Jaya, Damansara Town Centre, Damansara Utama, Gombak, Kajang Town Area, Kepong, Klang, Kota Damansara, Kuala Lumpur, Maluri, Miharja, Petaling Jaya, Port Klang, Puchong, Pudu, Putrajaya, Segambut, Setapak, Sentul, Sri Hartamas, Sri Petaling, Sungai Buloh, Shah Alam, Subang Jaya, Sungai Besi, Taman Melawati, Taman Tun Dr Ismail, USJ and Wangsa Maju.

14.15 Like Mobile Device means a Device, compared to the Registered Device, that:

(a) may be new or refurbished;

(b) is of similar kind, quality and functionality (including memory);

(c) if it is refurbished, it is refurbished by authorized service providers;

(d) may be a different make, model or colour;

(e) has a different IMEI; and

(f) does not include any Device Accessories.

14.16 Limit has the meaning given to that term in clause 6.3.

14.17 Major Cities means Johor Bahru, Melaka, Kuantan, Ipoh, Pulau Pinang, Butterworth, Seremban, Kota Bharu, Kuala Terengganu, Alor Setar, Kangar, Kota Kinabalu and Kuching.

14.18 Modification means Software Modification or Hardware Modification or both.

14.19 Monthly Fee has the meaning given to that term in clause 5.1.

14.20 National ID means a valid identification document issued or accepted for verification of identity in Malaysia.

14.21 OEM means original manufacturer of a Device.

14.22 Other Areas means Sandakan, Tawau, Labuan, Lahad Datu, Bintulu, Miri, Sibu, Beaufort, Kudat, Keningau, Kota Marudu, Kota Belud, Lawas, Papar, Ranau, Sipitang, Semporna, Tambunan, Tenom, Bau, Betong, Kapit, Limbang, Lundu, Marudi, Mukah, Seri Aman, Serian, Seratok and all other areas not within definitions of Klang Valley and Major Cities.

14.23 Registered Device means an Eligible Device that ATX has registered with reference to its IMEI for a Program in accordance with these Terms.

14.24 Retail Store means any retail store in Malaysia owned or approved by ATX to sell ATX services.

14.25 Service means a Swap.

14.26 Service Fee means the Swap Fee.

14.27 Service Request means a request for a Swap permitted under these Terms.

14.28 Shipment Date means the date the Courier delivers the Like Mobile Device to you.

14.29 Software Modification means modification made to a Device’s operating system not undertaken or authorised by the OEM and includes “jail-breaking” and “rooting”.

14.30 Start Date has the meaning given to that term in clause 3.3.

14.31 Swap has the meaning given to that term in clause 2.1.

14.32 Swap Fee means the fee set out in the table in clause 5.3.

14.33 Tier means the tier outlined for your Registered Device as advised in your Agreement and the supported Device list on the Website at the time of your enrolment, based on the recommended retail price of your Device (including SST) on the date the Device was launched in Malaysia.

14.34 Website means the ATX website at www.mobicare.my