Software Subscription Service Agreement
This Software Subscription Service Agreement (the “Agreement”) sets forth the obligations and conditions for the Client’s use of the performance management and human resource management software via the subscription-based platform www.vimigoapp.com (“Website”) and the Vimigo mobile application (including but not limited to the Android and Apple operating system) provided by the Service Provider. Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement. By using the services, you agree to be bound by the terms and conditions of this agreement. If you do not agree to any term of this agreement, do not use the services.
NOW IT IS HEREBY AGREED AS FOLLOWS:-
1.1 In this Agreement, the following expressions shall, unless the context otherwise requires, have the following meanings:
1.1.1 “Account” shall mean an account enabling a person to access and use the Services, including both Initial Account and/or Subsequent Accounts.
1.1.2 “API” shall have the meaning specified in Clause 3.1.1.
1.1.3 “Client” shall refer to any individual or entity who subscribes for or utilizes the Service.
1.1.4 “Confidential Information” shall have the meaning specified in Clause 9.1.1.
1.1.5 “Force Majeure” shall have the meaning specified in Clause 13.9.1.
1.1.6 “Initial Account” shall have the meaning specified in Clause 2.1.1.
1.1.7 “Personal Data” shall mean any information relating to an identified or identifiable individual. This includes but is not limited to your name, national registration identification card number, telephone number, gender, bank and credit card details, email address, occupation, residential status, race, religion, date of birth, marital status and digital signatures.
1.1.8 “Renewal Period” shall have the meaning specified in Clause 7.1.1.
1.1.9 “Service Provider” shall mean Adev Ventures Sdn Bhd.
1.1.10 “Service Provider IP” shall have the meaning specified in Clause 3.1.1.
1.1.11 “Subscription Fees” shall have the meaning specified in Clause 7.1.1.
1.1.12 “Subscription Period” shall have the meaning specified in Clause 7.1.1.
1.1.13 “Subsequent Accounts” shall have the meaning specified in Clause 2.1.2.
1.1.14 “Term” shall have the meaning specified in Clause 6.1.1.
1.1.15 “this Agreement” shall mean the contract entered into between the Service Provider and the Client upon execution of the Software Subscription Service Agreement to which these Terms and Conditions apply.
1.1.16 “Updates” shall have the meaning specified in Clause 2.4.3.
1.1.17 Any reference to a statutory provision shall include any subsidiary legislation made from time to time under that provision.
1.1.18 References to a statute or statutory provision include that statute or provision as from time to time modified, re-enacted or consolidated, whether before or after the date of this Agreement, so far as such modification, re-enactment or consolidation applies or is capable of applying to any transaction entered into in accordance with this Agreement prior to the Effective Date and (so far as liability thereunder may exist or can arise) shall include also any past statute or statutory provision (as from time to time modified, re-enacted or consolidated) which such statute or provision has directly or indirectly replaced.
1.1.19 References in this Agreement to Recitals and Clauses are references to the recitals and clauses to this Agreement (unless the context otherwise requires). The Recitals to this Agreement shall be deemed to form part of this Agreement for all purposes but in the event of any conflict or discrepancy between the provisions of this Agreement and the Recitals to this Agreement, such conflict or discrepancy shall, for the purposes of the interpretation and enforcement of this Agreement, be resolved by; giving the provisions contained in the Clauses of this Agreement priority and precedence over the provisions contained in the Recitals to this Agreement; and
1.1.20 The paragraph headings in this Agreement are inserted for convenience only and shall not affect the construction of this Agreement.
1.1.21 Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing a gender include every gender.
1.1.22 References to a person shall include any individual, firm, body corporate, unincorporated association, government, state or agency of state, association, joint venture or partnership, in each case whether or not having a separate legal personality. References to a company shall be construed so as to include any company, corporation or other body corporate wherever and howsoever incorporated or established.
1.1.23 References to the word “include” or “including” (or any similar term) are not to be construed as implying any limitation and general words introduced by the word “other” (or any similar term) shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things.
1.1.24 If any period of time is specified from a given day or the day of a given act or event, it is to be calculated exclusive of that day; and if any period of time falls on a day which is not a Business Day, then that period is to be deemed to only expire on the next Business Day.
OTHER TERMS are defined in Recitals and/or Clauses of this Agreement shall be deemed to form part of Clause 1 above.
2. Use of Services
2.1 Account Registration
2.1.1 Upon activation of Service by the Client, the Service Provider will provide the Client with one set of login details comprising a username and with a temporary password for the initial account (“Initial Account”).
2.1.2 Once the Initial Account is activated, the Client will be able to create subsequent accounts for its employees (“Subsequent Accounts”). The maximum number of subsequent accounts can be created by the Client is subjected to the Service package subscribed by the Client.
2.1.3 Once the Client and its employee(s) log in for the first time, the Client and its employee are required to change their respective password. The Client and its employee(s) are fully responsible to ensure that the password is secured at all times and is not shared with third parties who are not authorised to access the Service. The Service Provider reserves all rights to temporary suspend or terminate this Agreement if the Service Provider suspects or discovers that the Client and/or its employee(s) have allowed non-authorised person to access the Services.
2.2 Authorized Use for Client’s Employee(s)
2.2.1 The Initial Account and Subsequent Account are only to be accessed by the Client and its employee(s). Client must notify Service Provider immediately of any breach of security or unauthorized use of the Initial Account and/or the Subsequent Account.
2.2.2 Client shall only permit its employees to access the Services through the Subsequent Account. If any of the Client’s employee ceases to be an employee of the Client, the Client must immediately terminate that person’s access to its Subsequent Account and any other access to the Services.
2.3 License Grant
2.3.1 Subject to Client and its employee(s) compliance with all of the terms and conditions of this Agreement, the Service Provider grants to Client and its employee(s) a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to use Service in a manner not exceeding any applicable usage limitation or term, and solely for Client’s internal business use.
2.4 Suspension of Services due to Violation
2.4.1 In the event that Service Provider determines that a violation could: (a) disrupt the Services; (b) disrupt use of the Services by a third party; (c) disrupt the network or servers used to provide the Services by Service Provider; or (d) allow unauthorized third party access to the Services, then Service Provider may immediately without prior notice, suspend the Client’s Account or the Subsequent Account, to the minimum extent required to prevent or resolve that violation. Service Provider shall not be required to compensate Client for any suspension or termination.
2.5 Service Modifications
2.5.1 Service Provider may discontinue or make any changes to the Services at any time. If Service Provider discontinues or makes any changes to the Services that would materially decrease the functionality of those Services, Service Provider will use commercially reasonable efforts to inform Client of the change with reasonable advance notice before it goes into effect, provided that you have subscribed to be informed about those changes.
2.5.2 Service Provider may make the change at any time without any notice to Client, if the discontinuation or change is necessary to address an emergency or threat to the security or integrity of the Services, comply with or respond to litigation, address Intellectual Property Rights concerns, or comply with the law or government requests.
2.5.3 Service Provider may provide updates to the Services including but not limited to, make new features or functionality available from time to time (“Updates”), which Service Provider, at its discretion, may provide at an additional cost as otherwise agreed between the parties
2.6 Access to Devices
3. Intellectual Property Rights
3.1 Service Provider IP
3.1.1 Client acknowledges that all rights, titles, and interests in and to the Services and the Software, together with its source codes and object codes, sequences, derivative works, organization, structure, software architecture, interfaces, any documentation, drawings, data, trade names, trademarks, equipment, techniques, sketches, models, inventions, know-how, processes apparatus, algorithms, software, software programs, software source documents, application program interfaces (“API”), and formulae to the current, future and proposed products and services of the party or other related materials (collectively, the “Service Provider IP”), is, and at all times shall remain, the sole and exclusive property of Provider.
3.2 Reservation of Rights
3.2.1 The Service Provider IP contains trade secrets and proprietary information owned by the Service Provider and is protected by laws of Malaysia. Except the right to use the Services as expressly provided in Clause 2, this Agreement does not grant to Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licences with respect to the Services.
3.2.2 For the avoidance of doubt, nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights or database content from the Service Provider to the Client.
3.3 Right of Use
3.3.1 Subject to Clause 3.2, Client may permit its Authorized Users to use the Services, provided their use is for Client’s benefit only and remains in compliance with this Agreement. Client will be responsible and liable for its employee’s use and access and their compliance with the terms and conditions of this Agreement.
3.4 Prohibited Use
3.4.1 Client and its employees shall not attempt, or directly or indirectly allow any other third party to attempt to: (a) copy, modify, duplicate, create derivative works from, frame, syndicate, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services in any form or media or by any means; (b) use the Services to benchmark the Services or in any manner that is competitive with the Services; (c) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; or (d) access the Services in a manner intended to avoid incurring Fees or otherwise avoiding usage limitations.
3.4.2 The provisions of this Clause 3 shall survive the expiration, termination or cancellation of this Agreement.
4. Accessibility / Performance
4.1 Service Availability
4.1.1 Service Provider shall use commercially reasonable efforts to make the Services available on a 24×7 (twenty-four hours per day, seven days per week) basis during the Term, except for: (a) scheduled system back-up or other on-going maintenance as required and scheduled in advance by Service Provider; (b) unscheduled critical maintenance work; or (c) for any unforeseen cause beyond Service Provider’s reasonable control, including but not limited to cloud and internet service provider or any telecommunications network failures, Client’s computer systems or networks failure or unavailability, denial of service attacks or similar attacks, virus or any force majeure events set forth in this Agreement.
4.2 Right to Monitor
4.2.1 Service Provider will monitor performance indicators on the systems and network infrastructure (its own and that of third-party suppliers, if applicable) in order to gauge the overall performance of its services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Services.
4.2.2 Service Provider further reserves the right to monitor and reasonably restrict Client’s ability to use the Services if Client is using excessive computing resources which are impacting the performance of the Services for other subscribers. Service Provider agrees to notify Client in cases where it restricts such use and would use good faith efforts to determine an appropriate alternative or work-around solutions.
5. Maintenance and Support
5.1.1 Service Provider shall maintain the Services and provide all patches and fixes to the Services at no additional cost during the Subscription Period. Provided, however, the said maintenance shall not include any major releases of new versions of the Software, additional functionality, or custom programming, which Service Provider, at its discretion, may provide at an additional cost as otherwise agreed between the parties.
5.2.1 The Service Provider shall make available technical and application support via email (email@example.com) or WhatsApp communications channel (017-2005182). Client acknowledges and agrees that technical support or other services may require Client to pay additional costs and other fees. These support channels are subject to change from time to time.
6.1.1 The Term of this Agreement shall commence on the date of activation of the Initial Account and shall continue until the end of the Subscription Period (or the Renewal Period, if any).
6.2 Renewal of Subscription Period
6.2.1 The Agreement shall automatically renew for subsequent Subscription Periods unless either party provides written notice of its election not to renew this Agreement at least one (1) month prior to end of the then-current Subscription Period or otherwise terminates this Agreement pursuant to the terms of this Agreement. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Client shall immediately terminate, and the Client shall cease using the Services.
7. Subscription Fees
7.1.1 Client shall pay Service Provider the full subscription fees (the “Subscription Fees”) for the duration that Client has signed up for (“Subscription Period”). At the end of the Subscription Period, THIS AGREEMENT SHALL BE AUTOMATICALLY EXTENDED FOR THE SAME PERIOD AS THE SUBSCRIPTION PERIOD UNLESS TERMINATED BY THE CLIENT (“RENEWAL PERIOD”). THE SERVICE PROVIDER SHALL DEDUCT THE SUBSCRIPTION FEES FOR THE RENEWAL PERIOD PURSUANT TO CLAUSE 4.2.1 BELOW. In the event that the Client does not wish to renew the Services, the Client shall notify the Service Provider by giving a written notice of non-renewal one (1) month prior to the expiration date of the Subscription Period or the Renewal Period.
7.2 Automatic Payment and Default
7.2.1 Client shall provide a valid credit card, bank account information authorized for automatic bill paying, or other acceptable method of payment to Service Provider and shall take all necessary steps to authorize automatic payment of the Subscription Fees. By agreeing to this Agreement, Client hereby authorizes Service Provider to automatically charge said method of payment for the Subscription Period and Renewal Period during the term of this Agreement.
7.2.2 The details provided in Clause 7.2.1 above shall also be utilised for, among others, client identification verification and such records shall be kept by the Service Provider for the maximum legal permitted time limit.
7.2.3 If, for any reason, automatic payment shall be rejected, denied, not received by Service Provider or returned unpaid for any reason: (a) Service Provider may suspend or terminate Client access to the Services until the payment is properly processed; and (b) Client shall pay the applicable Subscription Fees, together with a late payment charge at the rate of ten percent (10%) of the outstanding amount, to Service Provider within seven (7) days of notice from Service Provider.
7.3.1 The amount of the Subscription Fees does not include any applicable taxes. Client is responsible for any and all applicable taxes payable in Malaysia.
8. Default and Termination
8.1 Termination by Service Provider
8.1.1 Client shall be in default of this Agreement if Client fails to make any payment when due and fails to cure said default within five (5) days after receipt of written notice thereof from Service Provider. In addition to the monetary breach described in the previous sentence, either party will be in default of this Agreement if the party is in material breach of this Agreement.
8.1.2 If a party is in default, the non-breaching party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement.
8.1.3 To the extent permitted under applicable law, Service Provider may, immediately terminate Client and its employee(s)’ access to the Services, if Client and its employee(s) was reasonably believed to have abused the Services, or engaged in any fraudulent or deceptive activity in connection with the use of the Services.
8.1.4 In the event Client breaches or attempts to breach any of the provisions of this Agreement, Service Provider shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach, Client hereby acknowledging the inadequacy of any remedy at law.
8.2 Termination by Client
8.2.1 Client may terminate this Agreement (on thirty (30) days written notice to Service Provider) if Service Provider fails to cure any material breach of this Agreement.
8.3 No Liability for Termination
8.3.1 Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of the Term, neither party will be liable to the other due to the termination; (a) for expenditures or commitments made in connection with the Term of this Agreement; or (b) damages caused by the loss of prospective profits or anticipated sales. Both parties acknowledge that termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
8.4 Effect of Termination
8.4.1 Following the termination or expiration of the subscription of the Software: (a) Service Provider shall immediately terminate access to the Services by Client; (b) Service Provider will have no obligation to maintain or provide any data or information to the Client and may thereafter delete such information after thirty (30) days from the date of termination; (c) Client must immediately pay Service Provider any Fees or other amounts owed (if any); and (d) upon Service Provider’s request, Client will use commercially reasonable efforts to return or destroy all Service Provider Confidential Information and/or copies in Client’s possession, custody, or control.
8.4.2 Nonetheless, the Client agrees that the Service Provider may retain, record, process, any data obtained in the course of the subscription to carry out its business operations provided that such data is anonymized and any unique identifiers which allow allocation of a data set to a unique person erased, separated or aggregated.
8.5 Refund Policy
8.5.1 For Client who have subscribed for the Service, there shall be no refund for: (a) any cancellation of subscription by Client or (b) termination of this Agreement by either party.
8.6 Right to Retain Financial and Operational Records
8.6.1 The Client further agrees that the Service Provider shall retain, all financial and operational records relevant to this Agreement in an auditable and accessible format and otherwise required by law and for at least seven (7) years after this Agreement has expired or has been terminated.
8.7 Other Remedies
8.7.1 Termination of this Agreement will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination release either party from any liability which, at the time of such termination has already accrued to the other party or which is attributable to a period prior to such termination.
9. Mutual Recognition and Protection
9.1 Confidential Information
9.1.1 “Confidential Information” shall mean for the purposes of this Agreement:
(a) Software and the Services; and
(b) all commercial information including but not limited to proposed products and services of the party, information concerning demo static pages, proposals, sales and marketing related documents and materials, research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and documentation; and
(c) any and all of the party’s corporate information including but not limited to offering memorandums, compilations, performance forecasts and studies, internal procedures, internal policies, pricing policies, marketing plans and strategies, finances, shareholders and directors’ information that is not required to be made public under the law and employees’ information; and
(d) the party’s customers’ information or the personal data of the party’s customers, clients and users, and any other personal data collected by or in the possession of the party in the course of the party’s business as defined in any legislations, enactments, by-laws, regulations, directives and guidelines in relation to banking information secrecy and personal data protection that is applicable and enforceable in the country of the Engagement; and
(e) any and all information of the party’s affiliates, related companies, customers’ contractors, subcontractors and agents that is identified as confidential or should reasonably be considered confidential based on the nature of the information and the circumstances of its disclosure or is of the same nature as stipulated in (a) to (d) above.
9.2.1 In addition to, and in no way limiting the requirements relating to the Service Provider IP as set forth in Clause 3 of this Agreement, either party shall use its reasonable efforts (but in no case less than the efforts used to protects its own proprietary information of a similar nature) to: (a) protect all proprietary, confidential, and/or non-public information (whether tangible or intangible and in whatever form or medium provided) pertaining to or in any way connected to the Confidential Information; and (b) prevent the theft, disclosure and the unauthorized copying, reproduction or distribution of the Confidential Information.
9.2.2 Either party shall not disclose or publicize the Confidential Information to any other persons without the parties’ prior written consent.
9.2.3 Either party shall agree at all times to use their reasonable efforts (but in no case less than the efforts used to protects its own proprietary information of a similar nature) not to disclose the Confidential Information to third parties except as permitted by this Agreement, and only use the Confidential Information to fulfil its obligations and exercise its rights under this Agreement. Either party will take appropriate measures to ensure that its affiliates, employees, contractors, subcontractors and agents take at least reasonable care to protect the confidentiality of the Confidential Information.
9.2.4 Either party shall not directly or indirectly use, reveal and/or divulge, imply, implicate, suggest and/or insinuate the Confidential Information for their own benefit or for the benefit of any other person, third-party, firm or corporation in a manner that is inconsistent with the purpose of this Agreement.
9.2.5 Either party shall give immediate notice upon learning of any unauthorised use or disclosure of any Confidential Information.
9.2.6 Either party agrees that any breach of any of the confidentiality obligations in Clause 9.2 above by any of its affiliates, employees, contractors, subcontractors and agents or any permitted person to whom the Confidential Information is disclosed shall constitute a breach of this Agreement.
9.3 Lapse of Confidentiality and Non-Disclosure
9.3.1 The terms of confidentiality and non-disclosure contained herein shall expire two (2) years from the date of the termination of this Agreement. However, protection of information constituting a trade secret shall never expire.
9.3.2 Client shall upon written request by the Service Provider promptly return all Confidential Information received from the Service Provider together with all copies, or certifying in writing that all such Confidential Information and copies thereof have been destroyed. Notwithstanding the foregoing, the Client’s accountant may retain in confidence the file copy of their respective work papers and final reports in accordance with their professional obligations.
9.3.3 Notwithstanding the return of the documents and materials containing the Confidential Information, Client shall continue to be bound by the obligations in accordance with the terms of this Agreement.
9.4.1 The restrictions on disclosure shall not apply to information which was: (a) generally available to the public at the time of disclosure, or later available to the public other than through fault of the Client; (b) already known to the either party prior to disclosure pursuant to this Agreement; (c) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others; or (d) to the extent required by law, regulation or court order, provided notice is promptly given to the parties before disclosing the Confidential Information.
9.5 Data Ownership
9.5.2 The Client warrants that he/she has obtained all necessary approval from their employee(s) for the Service Provider to process the Personal Data and the Client shall agree to give an undertaking or indemnity to Service Provider for the same.
9.5.3 Service Provider may disclose the data collected to related entities for marketing and advertising purposes.
9.5.4 Service Provider shall endeavour to take all reasonable steps to keep the Personal Data accurate, complete and up to date. Service Provider will make good faith efforts to provide Client and its employee(s) with access to: (a) correct the data if it is inaccurate or (b) request to delete the data if Service Provider is not required to retain it by law or for legitimate business purposes.
9.6 Data Security
9.6.1 To the extent that the Service Provider processes Personal Data disclosed by the Client, the Service Provider warrants that: (a) Personal Data is stored securely; (b) it shall only process the Personal Data to the extent that the processing is necessary for the performance of this Agreement; and (c) implement appropriate technical, physical, electronic and procedural security measures in accordance with the applicable laws (including the Personal Data Protection Act 2010 and other applicable data protection or data privacy laws / regulations) to prevent unlawful or unauthorised processing of that Personal Data and the destruction of, or accidental loss, damage to, alteration of, unauthorised disclosure of or access to that Personal Data.
9.6.2 Service Provider is obliged to secure the confidentiality of any Personal Data held by them and will always review and update its security measures in light of current technologies. However, Service Provider does not warrant that any data transmission over the internet or any wireless network can be guaranteed to be totally secure. While Service Provider take commercially practical steps to protect Personal Data, Service Provider: (a) do not accept responsibility for any unauthorised access, unlawful interceptions or loss of Personal Data transmitted to or from Service Provider; and (b) are not responsible for the actions of any third parties that may receive any such Personal Data.
9.7 Storage and Transfer of Data Outside Malaysia
9.7.1 Client should be aware that the information technology storage facilities and servers of Service Provider may be located in countries outside Malaysia, including but not limited to instances where any and all Personal Data collected may be stored on servers located outside Malaysia.
9.7.2 In addition, Personal Data may be disclosed or transferred to countries outside Malaysia to obtain secure storage, back-up and data retrieval services and to provide Services. Service Provider will take reasonably appropriate measures to maintain security of the Personal Data both during transit and at the receiving location.
9.7.3 Service Provider will strive to ensure that the country where Personal Data is transferred to has a similar or equivalent personal data protection laws as in Malaysia. Client hereby expressly consent to Service Provider for storing and transferring the Personal Data outside Malaysia for such purpose.
10. Limited Warranty
10.1.1 Service Provider warrants that it has the power and authority to grant the subscription for the Services granted to Client hereunder. Except for the warranty set forth herein, the Services are provided on an “AS IS” basis and Service Provider and/or its suppliers disclaims any and all other representations, warranties or undertakings, express or implied, including without limitation any implied warranties of performance, merchantability, fitness for a particular purpose or non-infringement. Service Provider gives no warranty that the Client’s use of the Services will be uninterrupted, timely, secure, error-free, or free from any viruses or harmful components.
10.1.2 Client represents that it accepts sole and complete responsibility for: (a) the selection of the Services to achieve Client’s intended results; (b) use of the Services; (c) the results obtained from Services; and (d) the terms of any contracts between Client.
10.1.3 While Service Provider endeavours to ensure that the Services are secured, Client acknowledges that the entire risk arising out of the access, use or performance of the Services shall remain with Client to the fullest extent allowed by applicable law.
11.1 Client’s Indemnification
11.1.1 Client shall not assert any claims against Service Provider based upon theories of negligence, gross negligence, strict liability, fraud, or misrepresentation, and Client shall defend Service Provider from any demand or claim, and indemnify and hold Service Provider, its officers, directors, employees, agents, suppliers and third-party partners harmless from any and all losses, costs, expenses, or damages, including reasonable attorneys’ fees, directly or indirectly resulting from Client’s use of the Services, and/or any agreement between the Client and its employee(s) based on or in any way related to the Services.
12. Limitation of Remedy and Liability
12.1 Disclaimer of Damages & Liability Cap
12.1.1 To the maximum extent permitted by applicable law, in no event shall Service Provider or its suppliers be liable for any special, incidental, indirect, consequential, punitive, exemplary damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the Services, whether based upon contract, warranty, tort, negligence, misrepresentation, strict liability or otherwise, even if Service Provider or its suppliers has been advised of the possibility of such damages. In any event, under no circumstances shall Service Provider or its suppliers be liable for any loss, costs, expenses, or damages to Client.
13.1 Notice and Demands
13.1.1 Notice, demand, or other communication mandated to be given by this Agreement by either party to the other shall be in writing and in English language and shall be sufficiently given or delivered to the respective party’s address or the last known address. Any changes on the correspondence address shall be notified in writing and delivered by way of post, fax or email. Unless Service Provider is otherwise notified in writing, the Client’s address for notice purposes shall remain the same as provided in the Client’s billing information.
13.2 Governing Law; Forum Selection
13.2.1 This Agreement shall be governed exclusively by the laws of Malaysia, excluding its conflicts of law rules. Any disputes which cannot be settled amicably by the parties within sixty (60) days shall be finally settled by arbitration under the Rules of Arbitrations at the seat and location of Kuala Lumpur, Malaysia by one arbitrator appointed in accordance with the said Rules. The arbitration proceeding will be confidential and shall be in English language. The decision of the arbitrator shall be final and binding on the parties. The parties irrevocably agree and consent that said forum is convenient and has jurisdiction to hear and decide any such action.
13.3 Compliance with Laws
13.3.1 Client shall use the Services in accordance with any and all applicable local, state, and federal laws.
13.4 Survival of Certain Provisions
13.4.1 Either party agrees that the provisions set forth in Clause 3, 8, 9, 10, 11, 12 and 13 shall survive any termination or expiration of this Agreement.
13.5.1 If any provision of this Agreement shall be held illegal, void, or unenforceable in any respect under any law, the remaining portions shall remain in full force and effect.
13.6 No Waiver
13.6.1 The delay or failure of either party to exercise any right under this Agreement or to take action against the other party in the event of any breach of this Agreement shall not constitute a waiver of such right, or any other right, or of such breach, or any future breaches, under this Agreement.
13.7.1 Client shall not assign or transfer this Agreement to any third parties.
13.8 No Partnership or Agency
13.8.1 Nothing in this Agreement is intended to or shall operate to create a partnership joint venture, association or other formal business organization or agency arrangement between the parties, or authorize either party to act as an agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way.
13.9 Force Majeure
13.9.1 Service Provider will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the Service Provider’s reasonable control, including but not limited to, fire, flood, earthquakes, storm, plague, epidemic, pandemic, disasters, act of God, other natural disasters, war, malicious damage, power outage, network congestion, telecommunications failure, electrical power failures, or any fault, interruption, disruption or malfunction of equipment, tools, utilities, communications, government order or change in any law or regulation which renders the performance impractical.
13.10 Non-exclusive Service
13.10.1 Client agrees that this Agreement provides a non-exclusive service for Client’s employee(s) to use and access the Services.
13.11 Collection and Ownership of Statistical Data
13.11.1 Client acknowledges and agrees that Service Provider may collect, use, process and share non-personally identifiable, aggregated, statistical and/or anonymous data with third parties for the purposes: (a) for data analytics; (b) to produce statistics and research for internal; (c) research for internal and/or statutory reporting and/or record-keeping requirements; (d) to analyse and develop Service Provider marketing strategy; and (e) further improve and enhance the Services.
These statistical data shall remain property of the Service Provider at all times regardless whether this Agreement is terminated or expired.
13.12 Complete Agreement
13.12.1 This Agreement constitutes the entire agreement between the parties with respect to the Services, and supersedes any and all prior or contemporaneous understandings or agreements whether in written or oral.
13.12.2 No amendment or modification of this Agreement will be binding unless reduced to a writing signed by duly authorized representatives of the parties and such writing makes specific reference to this Agreement and its intention as an amendment hereto.
14. Individual Identification Verification
14.1 Identification Verification
14.1.1 Client hereby irrevocably agrees to provide proof of identity for the sole purpose of the verification process to validate this Agreement. Client acknowledged that such document and/or information provided to Service Provider shall be accurate, current and complete. Failure to do so may allow the Service Provider to temporarily suspend or terminate this Agreement.