This is a service agreement sets forth the general terms and conditions between July.Tech Sdn Bhd [Company No:1061016-A] incorporated under the Companies Act 1965 having an address at Unit 551, Block A1, Leisure Commerce Square, Subang Jaya, Selangor Darul Ehsan, Malaysia [hereinafter referred to as “We”, “Us”, “Our”] will deliver the Services to Our Merchant. [hereinafter referred to as “You”, “Your”]. The specific Services to be delivered to You are detailed in this Agreement.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS AND INTERPRETATIONS
1.1 In this Agreement, unless the context otherwise requires the following words and expressions shall have the meanings respectively ascribed to them hereunder:-
“Application” means mobile application for both iOS and Android devices known as “Tunai”, a visual way to organize all loyalty voucher cards by just a scan.
“Content” means all text, images, videos, graphics which is used to create the Application. Content may be provided by Us via the Services.
“Impression” means the loading and partial loading of Tunai on any platform or device as counted solely by Tunai.
“Services” means the online, web-based software and platform, social network application and embeddable “widgets” provided by Us via http://www.tunai.io/ including associated offline components, and components that interface with third party websites.
“User seat” is defined as an unidentified individual who is entitled to use and receive support or ideation from Tunai. Each User Seat will be provided with a separate loginID in order to access Tunai. Each loginID may only be used by the specific Individual it is assigned to.
“End User Credits” means monetary value converted into vouchers/credits.
1.2 References to natural persons include references to body corporate and vice-versa and unless the context otherwise requires words importing the singular number shall include the plural number and vice-versa and the masculine gender shall include female and neuter genders.
1.3 References to any agreement or documents including this Agreement shall include such agreement or documents as amended, modified, varied, novated, supplemented or replaced from time to time. Any reference to a document being “in agreed terms” means in the terms agreed between the parties and for the purpose of identification signed by the parties to this Agreement.
2. USE OF APPLICATION AND SERVICES
We shall make the Application and Services available to You subject to the terms of this Agreement, which shall include a description of the license package You have subscribed to, the subscription period, pricing and payment terms and the domains where You may deploy the Application. The Application and Services are provided to You “as is” without any representation or warranty except as expressly set forth in this Agreement, and You agree and understand that Your receipt of the Application and Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us or an third party regarding future functionality or features of any Services.
2.1 Acceptable Use Terms. We and You will comply at all times with all applicable laws and regulations with respect to the exercise of rights and obligations hereunder. Without limiting to the foregoing, neither You nor any individual assigned a User Seat by You shall use the Application and Services in connection with any (i) infringement or misappropriation of any intellectual property right of any third party; (ii) defamation, libel, slander, obscenity, or violation of the rights of privacy publicity of any third party; (iii) other offensive, harassing or illegal conduct; or (iv) collection of any Sensitive Personal Information as defined in Section 3.3 (Sensitive Information).
2.2 Service Provision. We shall use commercially reasonable efforts to make the Application and Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 24 hours notice via the Services), or (b) any unavailability caused by the circumstances beyond Our reasonable control.
2.3 Customer Support. We will provide telephone and e-mail customer service support (firstname.lastname@example.org) to You during business hours, 9:00AM –
5:00PM Monday through Friday, excluding national/public holidays, to assist in resolving problems with the Application and Services.
2.4 Proprietary Rights and License Grant. We shall own all right and title in and to the Application and Services. For the term of any subscription periods, We grant You a non-exclusive, right and license, to use in and to all content provided by Us via the Application and Services. Conversely You shall own all right and title in and to any and all content and works You create using the Application and the Services.
2.5 Sweepstakes and Contests. If You use the Application to run a giveaway, promotion or sweepstakes, you accept sole responsibility of the giveaway, promotion or sweepstakes. You must ensure that Your service is in compliance with local, state and federal laws, and the policies of third party sites where Your service appears.
3. DATA PROTECTION
3.3 “Sensitive Information” You may not use the Application and Services to collect Sensitive Information, defined as credit or debit card numbers and security code, personal financial account information, identification card/driver’s license numbers or similar identifiers, or other personal information which are deemed sensitive.
3.4 Protection of Data. We shall maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Your End User Data (“Your Data”, collectively).
3.5 Ownership of Data. We shall retain all rights and title to all Data collected via the Application and Services. We shall grant You a revocable license to use aggregated, non-identifiable “system data” generated by Your Use of the
Application and Services, including individuals’ interactions with Your Services, in order to maintain and improve the Services.
4.1 Invoices and Payment. (i) Fees are quoted and payable in Ringgit Malaysia (ii) Fee is Ringgit Malaysia One Thousand and Three Hundred only(RM1,300.00) per account with unlimited End Users (iii) Fee shall be yearly and are based on per account depending on the branch also known as “lock in account” (iv) payment obligations are non-cancellable and fees paid are non-refundable, except in the case of termination for cause by You subject to the terms and conditions herein. (v) Acceptable payment method shall be to bank into Our Public Bank Account No: 3185255812. If any charges are not received from You by the due date, then at Our discretion such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is greater, from the date such payment was due until the date paid.
4.2 Suspension of Services. If any amount owing by You under this Agreement for Our Services is thirty (30) days or more days overdue We may, in our sole discretion and without limiting Our other rights and remedies, suspend Your access to the Application and Services. Such suspension shall not limit our rights to collect all fees due.
4.3 Taxes. Our pricing excludes all applicable federal, state and local sales, use, excise or other taxes or assessments, however designated or levied, relating to this Agreement. If applicable, We will clearly indicate the amount applicable for any such taxes and You will be responsible to pay such amounts unless You provide a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.1 “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be non-public or confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information shall include, but not limited to, the Application and Services. Confidential Information of each party shall also include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
5.2 Obligation to Protect Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement. A party does not violate its obligations under this Section if it provides Confidential Information in response to a court order or other governmental body or is otherwise required to do so by operation of law; provided, however, that the party required to disclose Confidential Information of the other party shall notify the other party as soon as possible after learning of the disclosure obligation and shall co-operate with the other party, at the other party’s expense, in seeking to limit or prevent such disclosure.
5.3 Publicity. Notwithstanding the foregoing, upon execution of this agreement, We may use your name, logo and any publicly available that You create using the Services for public relations and marketing purposes. This provision shall survive the expiration or termination of this Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1 Our Responsibilities
6.1.1 We warrant that We shall provide the Application and Services as per the terms herein. We further warrant that the Application shall perform materially as presented by Us in marketing and other materials.
6.1.2 We shall provide the Services performed under this Agreement in a professional manner consistent with industry standards, but with no less than reasonable care.
6.1.3 We shall use commercially reasonable efforts to ensure that any software used to provide the Application and Services will not contain Malicious Code, defined as viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs.
6.1.4 In the event that the Application, or any portion thereof is held, or in Our reasonable good-faith business judgment is likely to be held, to infringe the rights of any third party, then We, in Our discretion and at Our expense, will (i) secure You the right
to continue to use such Application or the infringing portion(s) thereof; (ii) replace such Application or the infringing portion(s) thereof with a substantially equivalent, non-infringing item; or (iii) modify such Application or the infringing portion(s) thereof (without materially adversely affecting the functions, features of utility of such Application), so that such Application become non-infringing. In the event that We are unable to remedy the infringement, in accordance with the foregoing sentence, then We may terminate Your right to continue to use the infringing Application or the infringing portion(s) thereof and refund to You the portion of the fees paid for the infringing Application or the infringing portion(s) thereof, applicable to the unutilized portion of the Term.
6.2 Responsibilities. You represent and warrant that You are authorized to enter into this Agreement and shall (i) be responsible for Your employees’, subsidiaries’, affiliates’, owners’ and agents’ compliance with this Agreement; (ii) use commercially reasonable efforts prevent unauthorized access to or use of the Application and Services, and notify Us promptly in writing of any such unauthorized access; and (iii) use the Application and Services in material compliance with the directions We provide and all applicable laws and government regulations. You further warrant that You shall not: (i) sell, license, sub-license, re- sell, rent or lease the Application and Services to any party; (ii) use the Application and Services to create, store, transmit libellous, or otherwise unlawful or tortious material or content, or to create, store or transmit material in knowing violation of third-party privacy rights; (iii) use the Application and Services to promote any website, product, or service that is involved in unlawful or illegal activities, (iv) attempt to gain unauthorized access to the Application and Services or their related systems or networks; (v) access the Application and Services for competitive purposes; or (vi) use the Application and Services to collect or access Sensitive Information.
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OR MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7. MUTUAL INDEMNITY
7.1 Indemnification by Us. We shall indemnify You against any claim, demand, suit or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Application and Services as permitted hereunder infringes or misappropriates the intellectual property rights of the third party and hold You harmless for any damages arising out of such third party allegations, provided that
You (i) promptly give Us written notice of the Claim; and (ii) provide Us all reasonable and necessary assistance in defending such Claim.
7.2 Indemnification by You. You shall defend Us, subsidiaries, affiliates, owners, employees and agents against any Claim made or brought against Us, subsidiaries, affiliates, owners, employees and agents by a third party (a) alleging that Your Service(s) or Your use of the Application is in violation of this Agreement, infringes or misappropriates the rights of a third party or violates applicable law, or (b) any breach of this Agreement by You, and shall indemnify, defend, and hold Us, subsidiaries, affiliates, owners, employees and agents harmless for any damages arising out of such Claim and for reasonable solicitors fees and costs incurred in connection with any such claim, provided, that We (a) promptly give You written notice of the Claim.
8. LIMITATION OF LIABILITY
8.1 Cap on Liability. Except for matters for which we have agreed to indemnify You under Section 7.1 or You have agreed to indemnify Us under Section 7.2, or if either Party breaches its obligations under Section 5.2, Your liability arising out of or in connection with this Agreement, whether based on warranty, contract, tort or otherwise shall not exceed the amount of fees paid or payable in the twelve months preceding the date that the liability arose.
8.2 No indirect Damages. Neither party will be liable to the other for any consequential, incidental, indirect, punitive or special damages whatsoever arising from any cause or connected in any way with this Agreement, even if the possibility thereof is known or should have been known.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence as of the October 2020.It shall be valid as per the term set herein for one(1)year.You may after the 1 year period or at anytime during the subsistence of this agreement terminate the Agreement pursuant to Clause 9.2.
9.2 Termination. Either party may terminate this Agreement: (i) upon ten (10) business days written notice to the other party (ii) termination for cause: a material breach if such breach remains unremedied/uncured at the expiration of such ten (10) day period, or (ii) if the other party becomes the subject of a petition of bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, We may terminate this Agreement for cause without prior notice to You if you violate Section 3.3 (Sensitive Information).
9.3 Effects of Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term after the effective date of termination. However, should this Agreement be terminated for cause without prior notice to You, any prepaid fees paid by You shall be forfeited immediately. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
9.4 Return of End User Credits. During the subsistence or upon termination of this Agreement, We shall not be held responsible and accountable for Your End User Credits. You shall take all necessary measures to return Your End User Credits to Your End Users of Your Services.
9.5 End User Data. Upon termination, all End User Data collected via the Application and Services will not be erased and will remain stored with Our server.
9.6 Surviving Provisions. Sections 2.5 (Proprietary Rights), 3.5 (Ownership of Data),
4 (Payment), 5 (Confidentiality), 6.3 (Disclaimer), 7 (Mutual Indemnification), 8 (Limitation of Liability), 9.3 (Effects of Termination), 9.4 (Return of Your End User Credits), 9.5 (End User Data), 10 (General Provisions) shall survive any termination or expiration of this Agreement.
10. GENERAL PROVISIONS
10.1 Governing Law. This Agreement shall be governed by and construed according to the laws of Malaysia without regard to any conflict of law’s provisions. The parties voluntarily and irrevocably consent to the exclusive jurisdiction of such courts for the adjudication of any such dispute.
10.2 Notices. Any notices required or permitted by this Agreement shall be in writing and shall be delivered to the persons identified (i) by email, or (ii) by registered post, return receipt requested, upon verification of receipt. Notices shall be send to the addressed set forth herein or as amended in writing by the parties.
10.3 Assignment. Neither party may assign this Agreement or any rights or delegate any duties hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without the consent of the other party, in connection with a merger, acquisition, corporate re-organization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any entity that assumes this Agreement agrees to be bound by all of its terms without modification as a condition to the consent to assign the Agreement.
10.4 Waiver and Amendments. The failure of a party to insist upon strict adherence to any terms of this Agreement on any occasion shall not be considered a waiver of that party’s rights or the provision, nor shall it be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. All waivers must be in writing and signed by the party charged with the waiver. This Agreement may only be amended in a subsequently-dated writing signed by authorized representatives of the parties.
10.5 Severability. If any provision of this Agreement is determined to be unenforceable or invalid under applicable law or be so held by applicable court decision, then such enforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. In such event, the invalid or unenforceable provisions shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law and court decisions.
10.6 Independent Contractors. The relationship of the parties under this Agreement is that of independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, employment or agency relationship. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.
10.7 Entire Agreement. This Agreement states the complete understanding and agreement of the parties regarding the subject matter herein. It supersedes all prior or contemporaneous proposals, agreements or other communications between the parties, oral or written regarding the subject matter.