Friday, 13 August 2010

Inter-Part Moots: Dean Challenge Trophy 2010 - Clarifications No.1

These are clarifications to questions posed by Zuraini Ali Musa. The questions are in the black font, whilst the clarifications are in purple.

1. What is the terms, conditions, and exclusions of the restaurant's wi-fi?

The following are Mamak Shy's Bistro terms and conditions for use of the wi-fi services:


1.1 We will use our reasonable endeavours to make the Service available 24 hours a day, however we will not be liable if for any reason the Service is not available at any time or for any period. Access to the Service may be suspended at any time. If you require any assistance in relation to the Service, you should contact Hotspots 24hr guest support.

1.2 In order to gain access to the Service, you may be required to provide us with certain personal information. We will use such personal information in accordance with relevant data protection legislation. You warrant and undertake to us that all of the personal information you provide is complete and accurate. We will not disclose any personal information which is provided by you to any third party without your permission, other than (i) to any sub-contractors or agents engaged by us to provide any support or administration, facilities management or similar services (subject to such sub-contractors and/or agents undertaking to keep such personal data confidential), (ii) to any company or organisation to which we transfer our responsibilities to provide the services and products to you or (iii) where required by law or made in connection with legal or regulatory proceedings.


2.1 You will pay the fees due in connection with the Service in accordance with the fee schedule published by us from time to time. We reserve the right to increase or decrease fees for the Service at any time and from time to time.

2.2 You will keep confidential any access codes or passwords provided to you in order to access the Service, and will not disclose them to any other person for any reason. You will be responsible for any loss that arises from you losing, misusing or otherwise disclosing any such access codes or passwords. If you lose any such access codes or passwords, you should contact the Bistro's wi fi technical support immediately.

2.3 The Service is intended to allow you to access the internet in order to use, amongst other things, the worldwide web, e-mail, messaging services and chatrooms. You undertake to us that your behaviour while using the Service will be lawful, honest and proper. Without prejudice to any other provision of this agreement, we may terminate your use of the Service at any time without notice if we become aware of any behaviour that has a negative impact on our equipment or network or the use by other customers of our equipment or network or the internet in general, or which damages, or has the potential to damage, our reputation or standing.

2.4 Without prejudice to the generality of paragraph 2.3 above, you may not:

2.4.1 use the Service for any illegal purpose;
2.4.2 access or attempt to access the Service via more than one device;
2.4.3 access or attempt to access the Service provided to any other customer;
2.4.4 use the Service in such a manner as to host a web or other server, send or facilitate the sending of bulk e-mail or collect third party personal data without appropriate consent;
2.4.5 exceed the download limitations relevant to the particular period of use by you; or
2.4.6 resell, or attempt to resell, the Service to any third party.


We shall investigate any suspected breach of the agreement by you, and reserve the right to take such action as we, in our sole discretion deem appropriate, including suspension or withdrawal of the Service with immediate effect and without notice to you.


4.1 You acknowledge that your use of the Service is at your own risk. The Service is provided on an "as-available" basis, and to the fullest extent permitted by law, we hereby exclude all and any warranties or conditions of any kind, whether express or implied, in respect of the Service and any content or data obtained or downloaded from it. Without prejudice to the foregoing generality:
4.1.1 we do not warrant that the Service will be uninterrupted, timely, secure or error-free at all times or will meet your requirements; and
4.1.2 we are not responsible for the security, integrity, accuracy or completeness of any information that you transmit or receive while using the Service.
4.2 The disclaimer under this paragraph 4 is without prejudice to your statutory and other rights as a consumer.


5.1 Nothing in this agreement shall exclude or limit your or our liability for death or personal injury.
5.2 Subject to paragraph 5.1, we shall not be liable to you in contract, tort or otherwise arising in connection with this agreement for any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings), any loss of goodwill or reputation, any special, indirect or consequential losses or any destruction or loss of data.
5.3 Our liability to you shall be restricted to the amount of fees you have paid to us in connection with the services. If no fees have been paid then our liability is effectively limited to zero Ringgit.
5.4 If any part of the Service is not available to you through no fault on our part or where the failure, suspension or withdrawal of the Service is beyond our reasonable control, we shall not be obliged to pay any compensation to you. If the Service is not available to you due to any failure on our part, we may, at our sole discretion, re-imburse you in respect of an appropriate proportion of the fees you have paid which relate to that period of unavailability of the Service, if you have paid for such services.
5.5 You will indemnify us against all and any losses or claims arising from any breach of the agreement by you, and against any claims or legal proceedings arising from your use of the Service which are brought or threatened against us by another person.


6.1 We reserve the right to amend this agreement at any time.
6.2 You acknowledge and agree that all intellectual property rights (including, but not limited to copyrights (including rights in software), trade marks, database rights, patents and inventions) in and relating to the Service are owned by us and our licensors or contractors. Nothing in this agreement operates to transfer any such intellectual property rights to you.
6.3 We reserve the right to assign or sub-contract any of our rights and obligations under this agreement without notice to you.
6.4 If any provision of this agreement is found to be unenforceable by a court of competent jurisdiction, the other provisions will nevertheless remain in full force and effect.
6.5 This agreement is governed by the laws of Malaysia and the parties hereto submit to the non-exclusive jurisdiction of the Malaysian courts, and if there were to be an appeal, to the jurisdiction of the Moot Court of Appeal UiTM.

2. Can we raise new ground of appeals?

No. The appellant has filed an appeal on the grounds given in the notice of appeal. You are to adhere strictly to those grounds of appeal.

3. Brief background of Mr. Toopie Aduslalu.

Mr Toopie Aduslalu's background has been provided by Haryanti Mansuri J in her judgment.

4. when do we have to exchange the bundle of authorities?

There will be no exchange of the bundle of authorities. Just prepare one for the bench, one for your opponent and a suitable number for your own personal reference. On the day of the moot, just hand a copy to the bench and hand over another copy to your opponent. You may retrieve the copies after the moot.

5. Is the doctrine of stare decisis applicable in this case?

As the case was litigated in a High Court in Malaysia and will go before an appellate court in that same jurisdiction, all the relevant laws of Malaysia are applicable, including the principle of 'stare decisis'.

6. Is Aini Lambat a part time employee or full time employee?

Aini Lambat is a full time employee of Mamak Shy's Bistro. She has been working there since last year. Previously, she was employed by Diva Unlimited Sdn Bhd, a company specialising in modelling shoes.

7. How old is Mr. Toopie Aduslalu?

Mr Toopie Aduslalu is past the age of majority. His exact age is not relevant to the legal issues at hand.

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