Terms and Conditions of SAAS Agreement
Last Update: February 26, 2019
This is an Agreement entered into between:
(A) SHOPPR LABS SDN BHD, a company incorporated in Malaysia with its registered address at 41B, Damai Complex, Jalan Dato Haji Eusoff, 50400 Kuala Lumpur, Malaysia (the “Provider“); and
(B) The person or entity using the Services and identified in the applicable account record, billing statement, online order process, or Order as the customer (the “Customer“).
By completing the Order and using the Services (as defined herein), the Customer agrees to the terms and conditions herein contained as follows:
1.1 In these Terms and Conditions, unless the contrary intention appears:
“Account Tab” means the tab identified as “Account” located on the Dashboard which contains information of the Customer, the Services, and billing/payment information;
“Add-On” means the additional functions or features such as users, markets or reports which are available for purchase by the Customer over and above those included in the Plan selected;
“Agreement” means this Terms and Conditions and all other documents and materials referred to or linked herein;
“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 any and all charges payable by the Customer to the Provider for the Services as specified in the Order Summary.
“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:
(a) was marked or described as “confidential”; or
(b) should have been reasonably understood by the Provider to be confidential
“Dashboard” means the webpage or control center to which access is given as part of the Services purchased by the Customer and contains the features and functions selected by the Customer in accordance with the Solution and Plan purchased.
“Effective Date” means the date of commencement of the Services as specified in the Order Summary;
“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” means the online order process whereby the Customer selects the Solution and Plan for the Services and accepts the offer of Services to be delivered by the Provider in accordance with this Agreement.
“Order Summary” means the summary of the Customer’s Order located in the Account Tab of the Dashboard, specifying:
(i) the Solution(s), Plan and Add-on(s) selected and/or purchased by the Customer and its’ corresponding Charges;
(ii) Effective Date and Term of the Customer’s Order; and
(iii) Payment Interval of the Charges.
“Payment frequency” means the frequency in which the Charges are to be paid by the Customer to the Provider;
“Permitted Purpose” means the business carried out by the Provider;
“Plan” means the pre-packaged plan containing the certain number of features and functionalities purchased by the Customer for the purpose of utilising the Solutions provided 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;
“Reseller” means the person appointed by the Provider as an authorised reseller of the Services in a particular region or country;
“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 Dashboard, Solutions, Plans, Add-Ons and any off-the-shelf or customised reports;
“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 this Terms and Conditions and/or the Acceptable Use Policy, 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 Services in the form of Solutions and Add-Ons as set out in the Order Summary;
“Solution” means the proprietary software product and/or module developed by the Provider to address data research or analytics needs of the Customer;
“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 completion of the Order which includes the acceptance of these Terms and Conditions apply, subject to any express variation in the Order Summary;
“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 your Order Summary and shall be automatically renewed for the same period as the initial period, subject to termination in accordance with Clause 15.
3.1 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.
3.2 Upon full payment of the Charges the Provider shall grant Dashboard access to the Customer on or promptly following the Effective Date.
3.3 The licence granted by the Provider to the Customer under Clause 3.1 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 by the Customer to the Provider in writing, 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 Summary, 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 3.1 is subject to the following prohibitions:
(a) the Customer must not copy, rent, sell, lease, sub-license, distribute or assign 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;
(e) the Customer must not make, or attempt to make, any alteration to the Services
(f) the Customer must not access or use the Services for the purpose of building a competitive product or service or copying its features or user interface;
(g) the Customer must not remove, alter or obscure any copyright, trademark or other proprietary notices appearing in or on the Dashboard; and
(h) the Customer must not use the Services in a manner that overburdens, or threatens the integrity, performance or availability of the Services.
3.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Dashboard 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. The Provider shall attempt to notify the Customer in the event of the services are expected to be unavailable for more than four (4) hours as a result of any maintenance, repair, modification, upgrades or relocation.
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 Dashboard access 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, the Dashboard 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.
3.13 The Provider shall be entitled to change the Services during the Term provided that the Provider will not materially reduce the capabilities provided by the Services.
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 notify the Customer prior to the application of any Upgrade or Update to the Platform.
4.4 The Provider shall provide the Maintenance Services with reasonable skill and care.
4.5 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 for a period of more than seven (7) days, and the Provider has given to the Customer at least 7 days’ written notice via email, 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 email and helpdesk during Business Hours.
5.3 The Provider shall provide the Support Services with reasonable skill and care.
5.4 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.
5.5 The Provider shall respond within one Business Day to all requests for Support Services made by the Customer.
5.6 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. Charges and Payment
8.1 The Customer shall pay all the Charges for the Term to the Provider as stipulated in the Order Summary in advance of the provision of the Services. All amounts paid are non-refundable unless otherwise provided for in this Agreement.
8.2 The Provider shall issue invoices for the Charges to the Customer in accordance with the Payment Interval applicable to the respective Plan selected and/or purchased by the Customer, as specified in the Order Summary.
8.3 If the Customer pays by way of credit card, the Customer authorises the Provider to charge the Customer’s credit card or bank account for all Charges payable for the Services for the Term. The Customer further authorises the Provider to use a third party to process payments and consent to the disclosure of the Customer’s payment information to such third party. The Customer acknowledges and consents that upon expiry of the Term, the Charges for the renewal Term shall be automatically charged to the Customer’s credit card unless the Customer has notified the Provider of the intention to terminate in accordance with Clause 15.
8.4 If the Customer is paying by bank transfer, the Provider will invoice the Customer before the beginning of the Term and each renewal Term, and other times during the Term when fees are payable in the event any additional Services are purchased by the Customer during the Term. All amounts invoiced are due and payable upon receipt of the invoice.
8.5 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).
8.6 The Provider may revise the amounts payable for the Services for any subsequent renewal Term provided always that at least one (1) month’s notice shall be given to the Customer prior to the commencement of any such revisions to the Charges for the renewal Term.
8.7 All amounts stated in or in relation to this Agreement, unless the context requires otherwise, exclude any applicable value added taxes, goods and services taxes and withholding taxes which will be added to those amounts and payable by the Customer to the Provider.
9. Provider’s confidentiality obligations
9.1 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.
9.2 Notwithstanding Clause 9.1, 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.
9.3 This Clause 9 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.
9.4 The restrictions in this Clause 9 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.
10. Data protection
10.1 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 and the General Data Protection Regulation (EU) 2016/679).
10.2 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.
11.1 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.
11.2 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.
11.3 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.
11.4 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.
11.5 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.
12. Acknowledgements and warranty limitations
12.1 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.
12.2 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.
12.3 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.
12.4 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.
13. Limitations and exclusions of liability
13.1 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.
13.2 The limitations and exclusions of liability set out in this Clause 13 and elsewhere in this Agreement:
(a) are subject to Clause 13.1; 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.
13.3 The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
13.4 The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
13.5 The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
13.6 The Provider shall not be liable to the Customer in respect of any loss of use or production.
13.7 The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
13.8 The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software.
13.9 The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
13.10 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.
14. Force Majeure Event
14.1 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.
14.2 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.
14.3 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.
15.1 Either party may terminate this Agreement by giving to the other party at least one (1) month’s written notice of termination.
15.2 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.
15.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party:
(a) is dissolved;
(b) ceases to conduct all (or substantially all) of its business;
(c) is or becomes unable to pay its debts as they fall due;
(d) is or becomes insolvent or is declared insolvent; or
(e) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(f) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(g) 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).
16. Effects of termination
16.1 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, 8, 9, 13, 16, 19 and 20].
16.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
17.1 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 17.
18.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
18.2 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).
18.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
18.4 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.
18.5 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.
18.6 Subject to Clause 13.1, 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.
18.7 This Agreement shall be governed by and construed in accordance with the laws of Malaysia.
18.8 The courts of Malaysia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
18.9 In the event of any inconsistency between the Order Form and these Terms and Conditions, the provisions of the Order Form shall prevail.
19.1 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.
19.2 The Clause headings do not affect the interpretation of this Agreement.
19.3 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.