Terms and Conditions of SAAS Agreement
SHOPPR LABS SDN BHD, a company incorporated in Malaysia as described in Section 1 of the Order Form, executed as an agreement to which these terms and conditions apply (the "Provider"); and
The company which is identified as the Customer in Section 2 of the Order Form (the "Customer").
Terms and Conditions
1.1 In these Terms and Conditions, unless the contrary intention appears:
"Account" means an account enabling a person to access and use the Services, including both administrator accounts and user accounts;
"Business Day" means any weekday other than a public holiday in Kuala Lumpur;
"Business Hours" means the hours of 09:00 to 18:00 (Malaysian time) on a Business Day;
"Charges" means the following amounts:
the amounts specified in Section 5 of the Order Form (Services particulars);
revised and/or additional amounts required under clause 9; and
(c) such amounts as may be agreed in writing by the parties from time to time;
"Customer Confidential Information" means any information disclosed by or on behalf of the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
was marked or described as "confidential"; or
should have been reasonably understood by the Provider to be confidential
"Documentation" means the documentation for the Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date of commencement of the Services as stipulated in Section 3 (a) of the Order Form;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including [failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Services, and the application of Updates and Upgrades;
“Omnilytics” means the retail data research and analytics software known as “Omnilytics” that is made available by the Provider to the Customer via the Platform and from one or more uniform resource locators.
“Order Form” means the document of the same name executed by the Provider and the Customer evidencing the acceptance by the Customer of the offer of Services to be delivered in accordance with this Agreement.
"Permitted Purpose" means the business carried out by the Provider;
"Platform" means the platform managed by the Provider and used by the Provider to provide access to and use of Omnilytics, including the application and database software for the Services, the system and server software used to provide the Services, and the computer hardware on which that application, database, system and server software is installed;
"Schedule" means any schedule attached to the main body of this Agreement including the related Order Form;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement, and includes Omnilytics, access to the Platform and related Documentation;
"Services Defect" means a defect, error or bug in the Platform having a material adverse effect] on the appearance, operation, functionality or performance of the Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Services;
(b) any use of the Platform or Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Services and any other system, network, application, program, hardware or software not specified as compatible in the Services Specification;
"Services Specification" means the specification for the Platform and Services set out in Section 4 of the Order Form and in the Documentation;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"this Agreement" means the contract entered into between the Provider and the Customer upon execution of the Order Form to which these Terms and Conditions apply, subject to any express variation in the Order Form;
"Update" means a hotfix, patch or minor version update to Omnilytics and/or any Platform software; and
"Upgrade" means a major version upgrade of Omnilytics or any Platform software.
2.1 This Agreement shall come into force on the Effective Date.
2.2 This Agreement shall continue in force for the term specified in Section 3(b) of the Order Form and shall be automatically renewed for the same period as the initial period, subject to termination in accordance with Clause 16.
3.1 The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the Effective Date.
3.2 The Provider hereby grants to the Customer a non-exclusive licence to use the Services by means of a Supported Web Browser for the internal business purposes of the Customer, and for no other purpose, during the Term.
3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
(a) the Services may only be accessed or used by the officers, employees, agents and subcontractors of the Customer;
(b) the Services may only be used by the named users identified in the Order Form, provided that the Customer may change, add or remove a designated named user in accordance with the procedure notified by the Provider to the Customer; and
(c) the Services must not be used at any point in time by more than the number of concurrent users specified in the Order Form, provided that the Customer may add or reduce concurrent user licences in accordance with such procedure as notified by the Provider.
3.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Services;
(b) the Customer must not permit any unauthorised person to access or use the Services;
(c) the Customer must not use the Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Services; and
(e) the Customer must not make, or attempt to make, any alteration to the Services.
3.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Services.
3.6 The Provider shall use all reasonable endeavours to maintain the availability of the Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Services, but does not assure or guarantee availability at all times.
3.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer's computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) any maintenance carried out by the Provider in relation to the Services.
3.8 The Customer must comply with any Acceptable Use Policy that is published by the Provider as such in relation to the use of the Service on its website from time to time, and must ensure that all persons using the Services with the authority of the Customer or by means of an Account comply with the Acceptable Use Policy.
3.9 The Customer must not use the Services in any way that causes, or may cause, damage to the Services or Platform or impairment of the availability or accessibility of the Services.
3.10 The Customer must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of Omnilytics or the Platform, either during or after the Term.
3.12 The Provider may suspend the provision of the Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least seven days’ written notice, following the amount becoming overdue, of its intention to suspend the Services on this basis.
4. Maintenance Services
4.1 The Provider shall provide the Maintenance Services to the Customer during the Term.
4.2 The Provider shall where practicable give to the Customer prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Services or are likely to have a material negative impact upon the Services, without prejudice to the Provider's other notice obligations under this Agreement.
4.3 The Provider shall give to the Customer five (5) Business Days’ prior written notice of the application of an Upgrade to the Platform.
4.4 The Provider shall give to the Customer written notice of the application of any security Update to the Platform and at least five (5) Business Days' prior written notice of the application of any non-security Update to the Platform.
4.5 The Provider shall provide the Maintenance Services with reasonable skill and care.
4.6 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 7 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
5. Support Services
5.1 The Provider shall provide the Support Services to the Customer during the Term.
5.2 The Provider shall make available technical and application support via phone and email during Business Hours.
5.3 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Agreement.
5.4 The Provider shall provide the Support Services with reasonable skill and care.
5.5 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services and the Customer must not use the helpdesk for any other purpose.
5.6 The Provider shall respond within one Business Day to all requests for Support Services made by the Customer through the helpdesk.
5.7 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 7 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
6. Customer Data
6.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement.
6.2 The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
7. No assignment of Intellectual Property Rights
7.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights or database content from the Provider to the Customer, or from the Customer to the Provider.
8.1 Subject to clause 8.3, the Customer shall pay the Charges to the Provider as stipulated in the Order Form.
8.2 If the Customer exceeds usage of the Services contracted for in the Order Form for any period, the Customer shall be liable to pay additional amounts according to the Provider’s schedule of services and charges published from time to time or as notified by the Provider to the Customer.
8.3 The Provider may revise the amounts payable for the Services at any time after the period of three (3) months from the Effective Date and shall give at least three (3) months’ notice to the Customer of any revisions to the Charges.
8.4 All amounts stated in or in relation to this Agreement, unless the context requires otherwise, exclude any applicable value added taxes and goods and services taxes, which will be added to those amounts and payable by the Customer to the Provider.
9.1 The Provider shall issue invoices for the Charges to the Customer in accordance with the payment option stipulated in Section 6 of the Order Form. The Provider shall also issue an invoice for any revised amounts payable by the Customer pursuant to Clause 8.3 above. The first invoice for the Charges shall be issued to the Customer upon execution of the Order Form.
9.2 The Customer must pay the amounts stipulated in the invoice issued by the Provider within the period of 14 days following the date of issue of the invoice. Except in the case of the first payment upon execution of the Order Form, all subsequent charges must be paid before the commencement of the period to which they relate.
9.3 The Customer must pay the Charges by direct debit, bank transfer or cheque (using such payment details as are notified by the Provider to the Customer from time to time).
9.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may charge the Customer interest on the overdue amount at the rate of 1.5% per month (which interest will accrue daily until the date of actual payment and be compounded at the end of each named calendar month).
10. Provider's confidentiality obligations
10.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care.
10.2 Notwithstanding Clause 10.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
10.3 This Clause 10 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known or available through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
10.4 The restrictions in this Clause 10 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
11. Data protection
11.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws (including the Malaysian Personal Data Protection Act 2010).
11.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of that Personal Data;
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data.
12.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
12.2 The Provider warrants to the Customer that the Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person [in any jurisdiction and under any applicable law.
12.3 If the Provider reasonably determines, or any third party alleges, that the use of the Services by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Services in accordance with this Agreement.
12.4 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
12.5 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
13. Acknowledgements and warranty limitations
13.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.
13.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Services will be entirely secure.
13.3 The Customer acknowledges that the Services are designed to be compatible only with that software and those systems specified as compatible in the Services Specification; and the Provider does not warrant or represent that the Services will be compatible with any other software or systems.
13.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
14. Limitations and exclusions of liability
14.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in this Agreement:
(a) are subject to Clause 14.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
14.3 The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
14.4 The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
14.5 The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
14.6 The Provider shall not be liable to the Customer in respect of any loss of use or production.
14.7 The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
14.8 The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software.
14.9 The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
14.10 The aggregate liability of the Provider to the Customer under this Agreement shall not exceed the total amount paid and payable by the Customer to the Provider under this Agreement.
15. Force Majeure Event
15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement[ (other than any obligation to make a payment)], that obligation will be suspended for the duration of the Force Majeure Event.
15.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
15.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
16.1 Either party may terminate this Agreement by giving to the other party at least three (3) months’ written notice of termination.
16.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party fails to meet a payment obligation or otherwise commits a material breach of this Agreement.
16.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement).
17. Effects of termination
17.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 3.11, 7, 9.2, 9.4, 10, 14, 17, 20 and 21].
17.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
17.3 Within 30 days following the termination of this Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
without prejudice to the parties' other legal rights.
18.1 Any notice from one party to the other party under this Agreement must be sent by email to the email addresses provided by each party for the purposes of receiving notification under this clause 18.
19.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
19.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
19.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
19.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
19.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
19.6 Subject to Clause 14.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
19.7 This Agreement shall be governed by and construed in accordance with the laws of Malaysia.
19.8 The courts of Malaysia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
19.9 In the event of any inconsistency between the Order Form and these Terms and Conditions, the provisions of the Order Form shall prevail.
20.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
20.2 The Clause headings do not affect the interpretation of this Agreement.
20.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.