SERVICE TERMS & CONDITIONS
1. INTRODUCTION
1.1 SEVENTEEN NETWORK SERVICES SDN. BHD. (Registration No.: 201801033816 (1295843-X)), a private limited company incorporated in Malaysia and having its registered address at B-3-2, Intan Business Centre 2, Lebuh Medan Ipoh, Bandar Baru Medan Ipoh, 31400, Perak (hereinafter referred to as “Company”) is the owner and operator of the online platform known as “Lokein”. The Company provides an e-commerce solution for businesses, allowing businesses to build an online business and presence. 1.2 The Merchant has completed and submitted a deep dive form (“Deep Dive Form”) to the Company. The Merchant warrants and represents that the information and documents submitted and included in the Deep Dive Form are true, accurate and without material omission, failing which the Company shall be entitled to revise the Target Transaction Volume (as hereinafter defined) without obtaining the prior written agreement of the Merchant. 1.3 By using the Services, the Merchant agrees to be bound by this Agreement which covers the terms and conditions of the Services to document the agreement of the Parties on their respective rights, obligations and responsibilities in relation to the Services.
2. DEFINITIONS AND INTERPRETATION
2.1 In this Agreement, unless the context otherwise requires, the following expressions shall have the following respective meanings:
“Affiliates”
means with respect to any entity, any other entity controlling, controlled by or under common control with such entity. For the purpose of this definition, "control" (including the terms "controlling", "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise;
“Agreement”
means this Agreement and any commercial terms and Schedules hereto as the same may be amended, varied, modified or supplemented by the Parties by agreement in writing from time to time;
“Applicable Laws”
means, with respect to any person, any and all applicable constitutions, treaties, statutes, laws, by-laws, regulations, ordinances, codes, rules, rulings, judgments, rules of common law, orders, decrees, awards, injunctions or any form of decisions, determinations or requirements of or made or issued by, governmental, statutory, regulatory, administrative, supervisory or judicial authorities or bodies (including without limitation, any relevant stock exchange or securities council) or any court, arbitrator or tribunal with competent jurisdiction to which such person is subject;
“Business Day”
means a day except a Saturday, Sunday or public holiday (gazetted or ungazetted and whether scheduled or unscheduled) on which commercial banks are open for business in Perak;
“Calendar Month”
means the period commencing on the 1st day of each calendar month and ending on the last day of the same calendar month;
“Confidential Information”
means any information having designated in writing to be confidential or proprietary or if given orally, is confirmed promptly in writing as having been disclose as confidential or proprietary or otherwise by the disclosing party to the recipient, details (including contact details, telephone numbers, network configuration, location information, billing name, billing amounts, credit history and other payment details), information of a commercial, technical or financial nature relating to this Agreement, the disclosing Party or any of its Affiliates including all trade secrets, know-how, show-how, patents research, development or technical information, confidential and proprietary product or information, Intellectual Property Rights, business plans, operations or systems, financial and trading positions, details of customers, suppliers, debtors or creditors, information relating to the officers, directors or employees of the disclosing party or any of its Affiliates, marketing information, printed matter, rates and rate tables, contracts, all regardless of form, format or media whether machine readable or human readable, including written, oral or tangible form and also includes information communicated or obtained through meetings, documents, correspondence or inspection of tangible items;
“User(s)”
means any buyer, purchaser and/or user accessing and using the Platform for the purchase of Products from the Merchant;
“Force Majeure”
means any event arising or caused beyond a Party’s reasonable control, including but not limited to: (i) an act of God, explosion, flood, tempest, fire or accident; (ii) war or threat of war, sabotage, insurrection, civil disturbance or requisition, act of terrorism or civil unrest; (iii) Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; (iv) import or export regulations or embargoes; (v) interruption of traffic, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company, or of a third party); and (vi) health epidemics declared by the World Health Organization;
“Merchant”
means any person or entity who has made the first payment of the Service Fee as stipulated under Clause 5.1 to the Company;
“Intellectual Property Rights”
means all patents, utility models, trade marks, trade or business names, logos or straplines, domain names, copyright, moral rights, rights to prevent passing off or unfair competition, database rights, rights in designs, know-how and all other intellectual or industrial property rights, in each case whether registered or unregistered including applications or rights to apply for them and together with all extensions and renewals of them, and in each and every case all rights or forms of protection having equivalent or similar effect anywhere in the world;
“Platform”
means the landing page and such other channels developed by the Company as part of the Services;
“Products”
means the goods, products and/or services offered, supplied and provided for sale by the Merchant on the Platform;
“Sales Proceeds”
means any and/or all payments made by the Customers for the purchase of the Products, whereby the Merchant agrees that such payments shall be collected by the Company through its designated payment gateways;
“Previous Sales Volume”
means the total amount and volume of the previous sale and purchase transaction for the Products, for the latest three (3) months between the Merchant and its customer(s), as substantiated based on the various documents and information provided by the Merchant;
“Services”
means the Services provided by the Company, as set out in Clause 4 and Schedule 2 of this Agreement;
“Renewal Term”
shall have the meaning ascribed to it as set out under Clause 3.2 of this Agreement;
“Ringgit Malaysia or RM”
means the lawful currency of Malaysia;
“Target Transaction Volume”
means the targeted sales volume for the Product to be achieved during the Initial Term, as more particularly stated in Section 1 of Schedule 1 of this Agreement;
“Term”
means the Initial Term and the Renewal Term(s), as the case may be; and
“Transaction”
means each and every sale and purchase transaction between the Merchant and the Users in relation to the Products under the Platform.
2.2 Reference to any statutory provision shall include such provision as shall be amended from time to time, whether before, on or (in the case of any re- enactment, or consolidation without substantive amendments) after the date hereof, and shall be deemed to include provisions of earlier legislation which have been re-enacted (with or without modification) or replaced (directly or indirectly by such provision) and shall further include all statutory instruments or orders from time to time made pursuant thereto.
2.3 References to “this Agreement” or any other agreement or document shall be construed as a reference to such agreement or document as amended, modified or supplemented and in effect from time to time and shall include a reference to any document which amends, modifies or supplements it, or is entered into, made or given pursuant to or in accordance with its terms.
2.4 All index, headings and sub-headings herein are inserted for convenience only, and they shall not affect the construction of this Agreement.
2.5 Words and expressions denoting the singular include the plural and vice versa.
2.6 Words and expressions denoting any gender include all genders.
2.7 Words and expressions denoting the whole include any part.
2.8 Words denoting persons include its respective heirs, personal representatives, successors-in-title and any other permitted assigns, for the time being deriving title under it.
2.9 A day, month or year means a day, month or year, as the case may be, reckoned according to the Gregorian calendar.
2.10 Where a word or phrase indicates an exception to any of the provisions of this Agreement and a wider construction is possible, such word or phrase is not to be construed ejusdem generis with any foregoing words or phrases and where a word or phrase serves only to illustrate or emphasise any of the provisions of this Agreement, such word or phrase is not to be construed, or to take effect as limiting the generality of such provision.
2.11 Unless prohibited by law, no rule of construction applies to the disadvantage and detriment of the Party responsible for the preparation of this Agreement.
2.12 Any reference to “writing”, or cognate expressions, includes any communication effected by facsimile transmission, electronic mail or other comparable means agreed by the Parties.
3. TERM
3.1 This Agreement shall become effective starting from the date of receipt of the Merchant’s first payment of the Service Fee as stipulated under Clause 5.1 by the Company (“Subscription Date”), and shall remain in full force and effect during the subscription period as stated in the Deep Dive Form or as stipulated, determined and communicated by the Company to the Merchant (“Initial Term”) unless earlier terminated by the Parties in accordance with Clause 7 below.
3.2 Upon the expiration of the Initial Term, this Agreement shall be automatically renewed for a further period equivalent to the length of the Initial Term (“Renewal Term”) upon the following conditions being met and satisfied by the Parties unless, at least thirty (30) days prior to the expiration of the Initial Term, either Party gives the other Party written notice of its intent to not renew the Agreement:
(a) The Parties have at all times, performed their respective obligations of this Agreement in a good manner and have not committed any breaches of this Agreement and or any part thereof; and
(b) The Merchant has paid the Service Fee and all fees due to the Company under this Agreement.
3.3 During the Renewal Term, with the exception of the Service Fee which may be the subject of further negotiation between the Parties, the terms, conditions and provisions set forth in this Agreement shall remain in effect (including the further renewal term) unless modified in accordance with Clause 16. For the avoidance of doubt, this Clause shall apply, mutatis mutandis, for the subsequent terms after the expiry of the Renewal Term, whereupon each subsequent term shall be referred to and construed as a Renewal Term.
4. SERVICES
4.1 The Company hereby agrees to provide the Services more particularly specified in Schedule 2 of this Agreement (“Services”). The provision of the Services by the Company shall be conditional upon and subject to the Merchant’s due compliance, adherence to and fulfilment of its obligations stated under this Agreement, failing which the Company shall be entitled to suspend the Services and/or terminate this Agreement in accordance with Clause 7.
4.2 The Parties shall be responsible for maintaining and carrying out its own obligations in relation to this Agreement during the Term of this Agreement. In carrying out its obligations and duties under this Agreement, the Parties shall have an implied obligation of good faith.
4.3 The Company is merely responsible for the provision of the Services. The Merchant shall be solely responsible and liable for the Transaction with the Users. The Company, to the extent permissible under the law, shall not be liable for any matter arising from or incidental to the Transaction between the Merchant and the Users, and the Merchant agrees to indemnify the Company on a full indemnity basis from any acts, claims, damages and/or legal demands made by any party (including but not limited to the User) resulting from or incidental to any Transaction between the Merchant and the Users in relation to the Products.
4.4 The Company shall have the right to appoint other sub-providers, sub-agents or other representatives to act on the Company’s behalf to perform any aspect of the Company’s obligations under this Agreement.
4.5 The Parties agree and acknowledge that the Company is an independent contractor and nothing in this Agreement shall be construed to constitute the Company as an employee, co-contractor, agent, partner or other joint venture or enterprise between the Company and the Merchant.
5. SERVICE FEE
5.1 In consideration of the Services and in accordance with the terms of this Agreement, the Merchant hereby agrees to pay the Company a monthly service fee as stated in the Deep Dive Form or as stipulated, determined and communicated by the Company to the Merchant, for the Services rendered (“Service Fee”), the first payment of which shall be payable in advance and subsequently on the anniversary of the Subscription Date of each Calendar Month. The Company shall have the right to suspend the payment of the Sales Proceeds, set-off or withhold the Sales Proceeds against the Service Fee and/or any amounts due and owing by the Merchant to the Company. The Merchant agrees that the Sales Proceeds shall be deposited with the Company, in such manner and on such terms the Company shall deem fit.
5.2 The Company’s determination and computation of the Service Fee shall be final and conclusive. All Service Fee payable under this Agreement shall be calculated and payable in RM to the Company’s designated bank account.
5.3 It is hereby agreed that the Company reserves the right and sole discretion to review and revise the Service Fee at any time, provided that any revision shall subject to the mutual agreement of the Parties.
5.4 All Service Fee under this Agreement shall be exclusive of the sales and services tax, value added tax, goods and services tax, withholding tax and all other applicable taxes and duties in relation to the Services that may be imposed by any relevant governmental authorities having jurisdiction over the Services.
5.5 In the event that the Merchant has failed to make full payment of any portion and/or all of the Service Fee within the stipulated time under this Clause 5, the Company shall be entitled to suspend the Services or any further performance of its obligations without any liability, and the Merchant shall be liable to pay an additional late payment interest at the rate of 8% per annum, calculated on a daily basis from the date such payment falls due until the date of receipt of the actual payment of the Service Fee owed together with the late payment interest by the Merchant. The Merchant shall also be liable for all costs and expenses incurred by the Company to recover any overdue payments including but not limited to legal fees on an indemnity basis.
5.6 Claims and Refund of Service Fee
(a) All claims relating to the Services must be reported as soon as reasonably practicable to the Company in accordance with this Clause. The Parties hereby agree and acknowledge that any and all claims arising out of or in connection with the Services (“Claim”) shall be notified in writing to the Company within three (3) Business Days from the end of the Term. If the Merchant has failed to make the Claim within the stipulated timeline in accordance with this Clause 5.6, the Parties hereby agree that the Company shall have no liability whatsoever and the Merchant shall not be entitled to make any further claims arising out of or in connection with the Services. In any event, the Merchant shall provide the Company with sufficient, necessary and appropriate documentation and/or information to justify and support the nature of its Claim.
(b) All Claims made pursuant to Clause 5.6 shall be accepted or rejected by the Company, in its sole and absolute discretion. The decisions made by the Company in relation to the acceptance or rejection of Claims shall be final and conclusive. All Claims must be made in writing addressed to the Company’s email address or communication address and accompanied by supporting documentation and evidence to the reasonable satisfaction of the Company, failing which the Claim will be considered null and void.
(c) The Company will provide a refund policy (“Refund Policy”), during which the Merchant may be entitled to a full or partial refund of the Service Fee, so long as any Claims are placed within the stipulated timeline and are approved by the Company in accordance with this Clause. For the avoidance of doubt, the Company will not provide the Refund Policy for any Claims that are not submitted within the stipulated timeline and/or any Claims that are rejected by the Company.
(d) The Merchant may be entitled to a refund of the Service Fee in the following limited circumstances, and subject to the following conditions: -
(i) Full refund of the Service Fee is only available if the Merchant terminates this Agreement in accordance with Clause 7.3(b) or if the Company provides a written admission of its failure to perform its obligations under this Agreement, resulting in the Merchant’s failure to meet the Target Transaction Volume.
(e) If the Merchant shall have a Claim, the Parties agree that the mechanism as set out in Clause 5.6(d)(i) shall be utilised as full and final resolution of the Claim.
6. ROLES AND OBLIGATIONS
6.1 Each Party shall be responsible for maintaining and carrying out its own obligations in relation to this Agreement and the Services during the Term of this Agreement. Each Party’s roles and obligations are more particularly set out under this Clause 6.
6.2 The Company hereby agrees to observe and perform the following roles and obligations:
(a) to use its best endeavours to provide the Services in accordance with the terms of this Agreement; and
(b) to comply with all relevant laws, requirements or regulations, as amended from time to time, relating to its obligations under this Agreement.
6.3 The Merchant hereby agrees to observe and perform the following roles and obligations:
(a) to promptly deliver to the Company all necessary and available materials, documentations and/or information relevant and/or incidental to the Products, Transaction and/or Services within three (3) days upon the Merchant’s receipt of the Company’s request, whereby the Company shall not be held responsible for any situation occurred as a consequence of the Merchant’s failure to comply with such obligation;
(b) to provide the Company with all necessary support and assistance in connection with the provision of the Services and to give effect to the terms of this Agreement;
(c) to comply with all relevant laws, requirements, recommendations or regulations, as amended from time to time, relating or incidental to this Agreement;
(d) to reimburse the Company for any extraordinary expenses to undertake the Services during a situation caused by Force Majeure event;
(e) to pay the Service Fee and/or any additional charges set forth under this Agreement within the stipulated timeline, in accordance with the terms of this Agreement;
(f) to obtain all permits, licenses, authorizations and must observe, comply and satisfy such legal requirements of any Applicable Laws applicable to this Agreement;
(g) to hold the Company free and harmless from any actions, suits, third party claims over the Transaction and/or the Products and any matters in relation to the Transaction and/or the Products under the Platform;
(h) to keep the Company promptly and fully informed of any matter relevant, related to and/or incidental to the Services and this Agreement;
(i) to strictly conform, comply, adhere and follow the instructions, recommendations, suggestions, guidance, advices, guidelines and/or directions provided by the Company at all times;
(j) to be responsible for any matter in relation to its Transaction with the Users and to ensure the completeness and legality of the Transaction and this Agreement;
(k) to permit the Company to use the name/logo/image/trademark(s) and any other Intellectual Property Rights of the Merchant for purposes of its marketing efforts and marketing materials under the Platform or any other channel of communication via the internet or any other medium;
(l) to provide the Company with all relevant and necessary information, materials and/or documents which are accurate, complete, correct and without material omissions, as may be requested by the Company from time to time, within three (3) days upon the Merchant’s receipt of the Company’s request;
(m) to be responsible for any and all losses, damages, claims, liabilities and costs suffered by the Users and/or any party in respect of the Transaction and/or the Products, caused in whole or in part by the Merchant;
(n) To carry out and implement the marketing and promoting strategies prescribed by the Company, subject always that the Merchant acknowledges and agrees that the implementation of such strategies shall be at the risk of the Merchant;
(o) to indemnify, defend, and hold the Company, its Affiliates and its officers, directors, employees, representatives and consultants harmless against all claims, damages, losses, costs and expenses (including reasonable legal fees) suffered as a result of the Merchant’s breach of the terms of this Agreement and/or failure to comply with the terms of this Agreement and all other Applicable Laws; and
(p) such other obligations, roles and responsibilities as set out under this Agreement.
6.4 The Company shall not be liable in any manner whatsoever for the Merchant’s failure to achieve the Target Transaction Volume and any other matters as set out in this Agreement in the event Merchant fails to comply with its obligations under this Agreement, including but not limited to its obligations as set out under Clause 6.3.
7. TERMINATION
7.1 Notwithstanding anything contained in this Agreement, either Party shall be entitled to terminate this Agreement immediately by providing one (1) month prior written notice to the other Party without assigning any reason whatsoever. No refund (whether partial or otherwise) shall be permitted in the event of termination of this Agreement within six (6) months from the Subscription Date.
7.2 Notwithstanding the Term, the Company may terminate this Agreement with immediate effect without notice and without any liability to pay any fees, compensation or damages to the Merchant, in the event the Merchant defaults or commits any serious, material or repeated breach, non-performance or non-observance of any of his obligations, covenants, representations, warranties, undertakings or any provisions of this Agreement, or if the Merchant refuses or neglects to comply with any reasonable and lawful directions of the Company or breaches any of the terms of this Agreement.
7.3 Without prejudice to such other remedies that may be available to either Party under this Agreement, at law or in equity, this Agreement may be terminated due to the following circumstances: -
(a) by mutual written agreement between the Parties;
(b) by the Merchant if the Merchant does not accept the Target Transaction Volume stated in the Company’s Report within the stipulated timeline;
(c) by the Merchant if the Company commits a material breach of its obligations and/or undertakings under this Agreement, and in the case of a breach capable of being remedied, fails to remedy such breach within fourteen (14) days of being required in writing to do so by the Merchant;
(d) by either Party upon seven (7) days prior notice of the Force Majeure event to the affected Party if any Force Majeure event continues for more than three (3) months which causes this Agreement to be impossible to perform;
(e) automatically, without need of any action by either Party, if any Party becomes insolvent or goes into administration, receivership or liquidation or becomes the subject of a voluntary or involuntary petition in insolvency or any proceeding relating to insolvency
7.4 Notwithstanding any provisions of this Agreement and/or any remedies applicable in law, which the Company may have by virtue of this Agreement, the Merchant agrees that in the event that the Merchant has committed any breach of any of the provisions under this Agreement, the Company shall have the right to immediately terminate this Agreement in accordance with Clause 7.2, and shall be entitled to the following: -
(a) suspend the provision of the Services;
(b) withhold any amounts and payments payable by the Company to the Merchant under this Agreement;
(c) claim for agreed liquidated damages in the sum of ten (10) times of the Service Fee, payable by the Merchant immediately upon demand by the Company; and/or
(d) claim compensation for all losses, whether direct or indirect, incurred by it as a result of the Merchant’s breach of this Agreement.
7.5 The rights of the Company under this Clause 7 are without prejudice to any other rights that the Company may have at law to terminate this Agreement or to accept any breach of this Agreement on the part of the Merchant as having brought the Agreement to an end. Any delay by the Company in exercising its right to terminate this Agreement shall not constitute a waiver thereof.
7.6 The expiry or earlier termination of this Agreement shall be without prejudice to such other rights and remedies each Party may otherwise have at law (including without limitation, any right to damages and/or specific performance) and shall not affect any pre-existing liabilities of either Party and shall not relieve either Party of those obligations that by their nature shall survive such expiration or termination, including each Party’s warranties and its obligations of indemnity and confidentiality.
8. ADVERTISING, MARKETING AND PROMOTIONAL MATERIALS
8.1 The Merchant shall be entitled to set, develop, carry out, use, issue, publish, specify and/or establish any advertising, marketing and/or promotional policies, procedures, guidelines, directions, instructions, materials and/or activities in relation to the Products.
8.2 The Company may provide the Merchant with basic advertising, marketing and/or promotional guidance from time to time, which includes any advertising, marketing and/or promotional strategies for the Products based on the best practices of the Company (“Marketing Guidance”). The Merchant has the right to accept or decline the adoption and implementation of the Company’s Marketing Guidance for its Products under the Platform.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights and information of the Company which the Company may provide to the Merchant in relation to the Services (including but not limited to any materials, guidelines, policies and/or any documentations and information provided by the Company) shall as between the Parties at all times belong to and remain vested in the Company. For the avoidance of doubt, all rights, title and interest in the Intellectual Property Rights of the Platform and/or the Services are owned by the Company, whereas all rights, title and interest in the Intellectual Property Rights of the Products and any contents in relation to the Products and/or the Merchant under the Platform are owned by the Merchant.
9.2 The Merchant shall not perform any acts or omissions which may affect, imperil and/or are inconsistent with the Company’s ownership of its Intellectual Property Rights. The Merchant agrees not to claim any right, title, or interest in or at any time challenge or attack the Intellectual Property Rights of the Company. Any goodwill resulting from the Merchant's use of the Intellectual Property Rights of the Company shall inure solely to the benefit of and be on behalf of the Company and shall not create any right, title, or interest for the Merchant in the Intellectual Property Rights of the Company. Nothing in this Agreement gives the Merchant any right, title or interest in the Intellectual Property Rights of the Company.
9.3 The Company shall be entitled to terminate this Agreement immediately upon the occurrence of any breach and/or infringement of the Intellectual Property Rights of the Company by the Merchant. The Merchant shall be fully liable for any damages caused by the Merchant’s infringement of the Company and/or any other third party’s Intellectual Property Rights, save where the breach and/or infringement is caused by the Company.
10. REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES
10.1 Each Party hereby represents, undertakes and warrants to the other that: -
(a) (In a case of an individual), it is not a minor and have full power, capacity and authority to enter into and perform its obligations under the Agreement, and any information provided or made available is at all times accurate and complete;
(b) (In a case of a company), it is, and will remain at all times, a business duly incorporated and validly existing under the laws of the country in which the Party is registered and authorised to operate its business and operation;
(c) It has full power, authority and capacity to enter into, perform and comply with its obligations and terms and conditions under the Agreement. The Agreement is legal and binding on the Parties;
(d) This Agreement is enforceable against that Party in accordance with its terms and that all corporate and governmental approvals, consents, licences and permits required for that Party to validly enter into and perform its obligations under this Agreement have been obtained;
(e) It will duly comply with all laws, regulations and directives applicable to it;
(f) It shall promptly inform and notify the other Party in writing of any matter or changes which may affect this Agreement;
(g) It shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either Party hereto reasonably may request in order to accomplish the purposes of this Agreement and the Services;
(h) It will at all times cooperate in good faith and take such actions as may be reasonably required to give full effect to the Services and intent of this Agreement; and
(i) In the event that a Party experiences difficulties and problems in the Services, it will discuss with the other Party and use its best efforts to find a solution in the best interest of the Parties.
11. LIABILITY AND INDEMNITY
11.1 To the maximum extent permitted by Applicable Laws, the Merchant hereby agrees to indemnify, defend and hold harmless the Company, its Affiliates, directors, officers, employees, agents and representatives from and against any and/or all claims, liabilities, demands, causes of action, proceedings, losses, costs, damages and/or expenses (including but not limited to loss of goodwill, reputation, any loss or damage suffered by the Company due to the Merchant’s negligence, act or omission under this Agreement, or reasonable legal fees on a full indemnity basis), which the Company may incur, suffer or sustain, arising out of or incidental to the Merchant’s breach of any of the provisions and terms and conditions of this Agreement.
11.2 Each Party is only liable for the losses, costs, claims, causes of action, damages or liabilities whatsoever or howsoever caused (regardless of the form of action) arising directly or indirectly in connection with the performance or non-performance of the terms of this Agreement and their respective obligations herein. Each Party hereby shall not be held liable for any breach, misrepresentation, non-compliance or any default caused by the other Party.
11.3 The Merchant shall indemnify the Company against any and all claims, actions, suits, regulatory actions, enforcement proceedings brought or threatened to be brought against the Company by a third party (including a governmental or regulatory authority), in relation to this Agreement, arising out of any act, omission or default (whether or not resulting from negligence) of the Merchant and/or in any way arising from or in connection with the Agreement. The Merchant shall pay to the Company all losses, damages, costs (including legal fees on an indemnity basis), fines, penalties and/or any expenses incurred as a result of the Merchant’s breach of this Agreement.
11.4 To the maximum extent permitted under Applicable Laws, the Company’s aggregate liability under this Agreement shall be limited to the total Service Fee that it has received. In no event shall the Company be liable to the Merchant for any incidental, consequential or punitive damages, lost profits or other business interruption damages. Each Party agrees that it has a duty to mitigate damages and agrees that it will use commercially reasonable efforts to minimize any damages it may incur as a result of the other Party’s performance or non-performance of this Agreement. The Company makes no representations or warranties other than those expressly set forth in this Agreement, and expressly disclaims and negates all other representations and warranties, express or implied, including without limitation, warranties with respect to the commercial success of the Services.
12. FORCE MAJEURE
12.1 Neither Party shall be liable to the other Party or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations under this Agreement, if the delay or failure was due to a Force Majeure, provided that such Party shall:
(a) as soon as practicable, serve on the other Party written notice thereof specifying the particulars of the Force Majeure event, the extent to which such Party is unable to discharge or perform its obligations, the cause for the inability of such Party to perform or discharge its obligations and the estimated period during which such Party is unable to perform or discharge its obligations;
(b) where applicable, promptly take and continue to take all action within its powers to minimise the duration and effect of the Force Majeure event on such Party;
(c) in the event that Force Majeure continues and cannot be resolved for up to three (3) months as of the date of the occurrence of the Force Majeure event, then the Party not affected by Force Majeure event has the right to terminate the Agreement by providing seven (7) days prior notice to the affected Party; and in such event, no termination of this Agreement shall relive any Party from any obligations hereunder which are outstanding on, or relate to matters or claims occurring or arising prior to the date of such termination or which survives such termination by their own terms or nature; and/or
(d) the Party that may invoke this Clause shall use commercially reasonable efforts to reinstate its ongoing obligations to the other Party as soon as practicable.
12.2 The earlier termination of this Agreement due to Force Majeure event shall be without prejudice to such other rights and remedies each Party may otherwise have at law (including without limitation, any right to damages and/or specific performance) and shall not affect any pre-existing liabilities of either Party and shall not relieve either Party of those obligations that by their nature shall survive such expiration or termination, including each Party’s warranties and its obligations of indemnity and confidentiality.
12.3 Further, all or any of the performance obligations by the Parties under this Agreement that is affected by Force Majeure event may be eliminated and/or suspended from the operation of this Agreement for such period of time as such performance is prevented by the Force Majeure event, and such failure to perform shall not be considered as a default of this Agreement, provided that the Parties has taken appropriate precautions and exercised due care to carry out the terms and conditions contained in this Agreement.
12.4 For the avoidance of doubt, the occurrence of Force Majeure event shall not affect, suspend and/or relieve the Merchant from the Merchant’s payment obligation which is due and owing to the Company under this Agreement.
13. CONFIDENTIALITY
13.1 The Merchant shall during the subsistence of this Agreement or at any time thereafter:
(a) treat as strictly confidential, the existence and contents of this Agreement and all Confidential Information of the Company (collectively “Information”); and
(b) shall not except with the prior written consent of the Company publish or otherwise disclose to any person any Information.
13.2 In the course of the Company’s performance of the Services under this Agreement, the Company may make available to the Merchant or the Merchant may otherwise have access to the Information including any or all information, data, designs, drawings, specifications and documents in either written or electronic or printed form. During the Term of this Agreement, the Merchant shall not, without the Company’s prior written consent, disclose any Information to any third party.
13.3 The confidentiality obligations in Clause 13.1 and Clause 13.2 above shall not be applicable to the extent that any disclosure is: -
(a) any information obtained from the Merchant to this Agreement which becomes generally known to the public, other than by reason of any wilful or negligent act or omission of that Party or any of their agents, advisers, directors, officers, employees, representatives or consultants;
(b) any information which is required to be disclosed pursuant to any Applicable Laws or to any competent governmental or statutory authority or pursuant to the rules or regulations of any relevant regulatory, administrative or supervisory body (including without limitation, any relevant stock exchange or securities council) or order of a court or tribunal of competent jurisdiction whether in Malaysia or elsewhere; or
(c) any information disclosed by the Company to their respective bankers, financial advisers, consultants, insurers and legal or other advisers for the purpose of this Agreement.
13.4 The rights and obligations of the Parties under this Clause 13 shall survive any expiration or termination of this Agreement and shall have no limitation of time.
14. WAIVER
No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party against which it is sought to be enforced. The delay, omission or failure by either Party to exercise or enforce any of its rights, powers or remedies provided by law or under this Agreement is not a waiver of that Party’s right to later enforce those rights, powers or remedies, nor will any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right.
15. SEVERABILITY
15.1 If any or more of the provisions or part thereof contained in this Agreement should be or become invalid or unenforceable due to whatever reason or reasons, this shall not in any way prejudice, impair or affect the validity or enforceability of the remainder provisions of this Agreement.
15.2 If further lawful performance of this Agreement or any part of it shall be made impossible by the final judgment or final order of any court of competent jurisdiction, commission or government agency or similar authority having jurisdiction over either Party, the Parties shall forthwith use their reasonable endeavours to agree amendments to this Agreement so as to comply with such judgement or order.
16. AMENDMENT
The provisions stipulated in this Agreement shall not be amended, altered, changed or otherwise modified without the mutual consent of the Parties and any such amendments, alterations, changes and modifications shall only be effective if mutually agreed to in writing and signed by the Parties.
17. ANTI-MONEY LAUNDERING AND ANTI-TERRORISM COMPLIANCE
17.1 Each Party undertakes that it has never and would not: -
(a) engage, directly or indirectly, in a transaction that involves proceeds of any unlawful activity; or
(b) acquire, receive, possess, disguise, transfer, convert, exchange, carry, dispose, use, remove from or brings into Malaysia proceeds of any unlawful activity; or
(c) conceal, disguise or impede the establishment of the true nature, origin, location, movement, disposition, title of, rights with respect to, or ownership of, proceeds of any unlawful activity; and/or
(d) involve in any money laundering activity/ies within the meaning of Section 3 of the Anti-Money Laundering and Anti-Terrorism Financing Act, 2001 of Malaysia.
18. NOTICES
18.1 Any notice to be given or sent hereunder to a Party shall be in writing and shall be delivered by hand or by A.R. registered or recorded delivery post or by electronic transmission to the Party concerned at its address first set out above. Addresses for service may be varied by notice given in accordance with this Clause.
18.2 Any notice shall be deemed to have been served and received as follows: -
(a) If delivery by hand, at the time when it is so delivered;
(b) If sent by post, on the day on which it would be received in the normal course of post; or
(c) If sent by electronic transmission, at the time of transmission.
18.3 In proving service, it shall be sufficient to prove that a by hand delivery was made, that the notice was properly addressed and posted or that the electronic transmission was properly addresses and transmitted.
18.4 If a notice is served by hand or is received by electronic transmission on a day which is not a Business Day, or after 5.00 pm (the recipient’s local time) on a Business Day, the notice is deemed to be duly received by the recipient at 9.00 am (the recipient’s local time) on the first Business Day after that day.
19. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of Malaysia and subject to the exclusive jurisdiction of the Courts of Malaysia. Any dispute, controversy or claim arising out of or in connection herewith, shall be referred to and finally resolved by the Courts of Malaysia.
20. ASSIGNMENT, NOVATION AND TRANSFER
This Agreement and all rights and obligations hereunder are personal to the Parties hereto and either Party shall not assign, novate, transfer or attempt to assign or novate or transfer any such rights or obligations to any third party without the prior written consent of the other Party.
21. ENTIRE AGREEMENT
This Agreement replaces any previous agreement, representation, warranty or understanding between the Parties concerning the subject matter and contains the entire agreement between the Parties. This Agreement embodies the entire agreement and understanding of the parties hereto and there are no provisions, terms, conditions or obligations, oral or written, express or implied other than those contained herein and in the event of this agreement being found inconsistent with any other document or documents signed by them prior to the execution of this agreement, the terms of this Agreement shall prevail. For the avoidance of doubt, all earlier rights of the Parties hereto prior to this Agreement are extinguished.
22. SPECIAL OR ADDITIONAL TERMS AND CONDITIONS
It is hereby expressly agreed by the Parties hereto that the general terms and conditions stated in Schedule 3 and the special terms and conditions stated in Schedule 4 of this Agreement, annexed hereto, shall form part of this Agreement, which are in addition to and not in derogation of the other terms and conditions of this Agreement, and the Merchant shall perform, observe, comply with, and be bound by all such terms and conditions stated in Schedule 3 and Schedule 4 of this Agreement.
SCHEDULE 1 (which is to be taken and construed as an integral part of this Agreement)
Section 1 Target Transaction Volume
The Merchant shall within seven (7) days from the Subscription Date upload all the necessary and relevant documents in relation to the Previous Sales Volume of its Products, including but not limited to sales receipts, invoices, sales report and/or any supporting documents evidencing the Previous Sales Volume of its Products and as requested by the Company (“Evaluation”). The Merchant hereby warrants and undertakes that all the documents and information in relation to the Previous Sales Volume submitted hereunder are true, accurate and without material omission.
The Company will provide the Merchant with a report after the Evaluation, stating the reasonable Target Transaction Volume for the Customer’s Products, which shall not exceed three (3) times the Merchant’s Previous Sales Volume (“Report”).
The Merchant shall either accept or reject the Report within three (3) days from the date of receipt of the Report. For the avoidance of doubt, if the Merchant does not reject the Report within the timeline stipulated herein, the Merchant shall be deemed to have accepted the Report, and shall not be entitled to submit and raise any Claim against the Company in relation to the Report and dispute the Target Transaction Volume. In the event that the Merchant rejects the Target Transaction Volume as stated in the Report within the stipulated timeline, the Company may terminate this Agreement in accordance with Clause 7.3(b).
SCHEDULE 2 SERVICES (which is to be taken and construed as an integral part of this Agreement)
1. The Company shall provide the following services: -
(a) To develop, create, implement and provide the Platform and its payment gateways, which allows the Merchant to carry out a Transaction with a User;
(b) To ensure the uptime and functionality of payment gateways on the Platform, in order to facilitate a Transaction between the Merchant and a User; and
(c) To assist the Merchant in the advertising, marketing and promotion of the Products, by providing the Company’s Marketing Guidance to the Merchant.