1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2(d).
Business Day: a day other than a Saturday, Sunday or public holiday in Malaysia when banks are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.
Customer Data: the data inputted by the Customer, Authorised Users, or FMH on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Documentation: the document made available to the Customer by FMH online via https://support.foodmarkethub.com/knowledge or such other web address notified by FMH to the Customer from time to time which sets out the user instructions for the Services.
Effective Date: the date of this agreement.
Initial Subscription Term: the initial term of this agreement as set out in Schedule 2.
Mandatory Policies: FMH’s business policies listed in Schedule 3, as amended by notification to the Customer from time to time.
Normal Business Hours: 9.30 am to 6.30 pm local Malaysian time, each Business Day.
Renewal Period: the period described in clause 14.1
Services: the subscription services provided by FMH to the Customer under this agreement via the Food Market Hub mobile application, its website (https://foodmarkethub.com), or any other application or website notified to the Customer by FMH from time to time, as more particularly described in Schedule 4.
Software: the online and/or mobile software applications provided by FMH as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to FMH for the User Subscriptions, as set out in Schedule 1.
Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Services Policy: FMH’s policy for providing support in relation to the Services as made available at https://support.foodmarkethub.com/knowledge/support-service- policy or such other website address as may be notified to the Customer from time to time.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2. User subscriptions
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, FMH hereby grants to the Customer a non-exclusive, non- transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
(c) each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than once every 30 days and that each Authorised User shall keep his password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to FMH within 5 Business Days of FMH’s written request at any time or times;
(e) it shall permit FMH or FMH’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at FMH’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
(f) if any of the audits referred to in clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to FMH’s other rights, the Customer shall promptly disable such passwords and FMH shall not issue any new passwords to any such individual; and
(g) if any of the audits referred to in clause 2.2(e) reveal that the Customer has underpaid Subscription Fees to FMH, then without prejudice to FMH’s other rights, the Customer shall pay to FMH an amount equal to such underpayment as calculated in accordance with the prices set out in Schedule 1 within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and FMH reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) unless expressly provided or permitted by FMH, use the Services and/or Documentation to provide services to unauthorised third parties; or
(d) subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
(f) introduce or permit the introduction of, any Virus or Vulnerability into FMH’s network and information systems.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify FMH.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3. Additional user subscriptions
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term and if applicable, purchase additional User Subscriptions in excess of the number set out in Schedule 1 and FMH shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify FMH in writing. FMH shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where FMH approves the request, FMH shall activate the additional User Subscriptions within 5 Business Days of its approval of the Customer’s request.
3.3 If FMH approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of FMH’s invoice, pay to FMH the relevant fees for such additional User Subscriptions as set out in Schedule 1 and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro- rated from the date of activation by FMH for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 FMH shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
4.2 FMH shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 3.00 am to 6.00 am Malaysian time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that FMH has used reasonable endeavours to give the Customer at least 6 hours’ notice in advance.
4.3 FMH will, as part of the Services and at no additional cost to the Customer, provide the Customer with FMH’s standard customer support services during Normal Business Hours in accordance with FMH’s Support Services Policy in effect at the time that the Services are provided. FMH may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at FMH’s then current rates, if applicable and where available.
5. Data protection
5.1 Both parties will comply with all applicable legal and regulatory requirements of the Malaysian Personal Data Protection Act 2010 and any other applicable data protection and privacy legislation and regulations in force from time to time in Malaysia relating to personal data, as well as any guidance notes and codes of practice issued by the relevant data protection or supervisory authority which is applicable to a party.
6. Nature of FMH as a platform
6.2 Customers (in the case of merchants) acknowledges, accepts and understands that any order for the supply and purchase of products is a contract entered into strictly between the merchant and the relevant third party supplier and we do not verify, endorse, recommend or guarantee any supplier or any information they provide on our website as they are not part of our Services.
FMH provides a platform for communication and access between merchants and suppliers only and have no control over, or liability with respect to, the actions or omissions of any supplier. FMH makes no representation, warranty, condition or undertaking, either express or implied as to:
- the accuracy of the information and data supplied by suppliers on our website;
- the quality or suitability of the products for any particular purpose;
- the availability of the products; and
- estimated times for deliveries and delivery costs charged by the supplier.
FMH does not provide any warranty in relation to any products advertised on its website by the supplier or other third parties, including but not limited to any representation or warranty that the products are of merchantable quality, fit for the purpose intended, safe for the purpose intended, as described by the supplier or other third party.
Merchants acknowledge, understand and accept that all descriptions of the products are based on descriptions provided by suppliers and FMH makes no representation and accepts no liability for products which fail to correspond with any descriptions of products provided by suppliers.
6.3 Customers (in the case of suppliers) acknowledges, accepts and understands that FMH’s website is a venue which allows suppliers to advertise products for sale. The agreement to supply and purchase products is a contractual arrangement directly between supplier and merchant.
We do not act as supplier’s partner, representative or agent in relation to the products suppliers advertise for sale on FMH’s website. FMH is not a party to any contractual relationship between supplier and merchant or any other third party, even if FMH’s website facilitates orders for supplier’s products. Supplier relies on information provided by merchants resulting from the provision of our Services or supplier’s use of FMH’s website entirely at its own risk and FMH will not be responsible for the terms of any transaction between supplier and any merchant, or for resolving any dispute between supplier and any merchant.
7. FMH’s obligations
7.1 FMH undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to FMH’s instructions, or modification or alteration of the Services by any party other than FMH or FMH’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, FMH will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
(a) does not warrant that:
(i) the Customer’s use of the Services will be uninterrupted or error-free;
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
(iii) the Software or the Services will be free from Vulnerabilities or Viruses.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of, or failure to transfer data over communications networks and facilities, including the internet via the Services, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 This agreement shall not prevent FMH from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.5 FMH warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
7.6 FMH’s back-up procedures for Customer Data are subcontracted to Amazon Web Services (AWS), as set out in AWS’ Relational Database Service (RDS) available at https://aws.amazon.com/rds/faqs or such other website address as may be notified to the Customer from time to time, as such document may be amended by AWS in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against FMH shall be for FMH to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by AWS in accordance with the back-up procedure described in its RDS. FMH shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by FMH to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.
8. Customer’s obligations
8.1 The Customer shall:
(a) provide FMH with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by FMH;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement, including but not limited to all anti-bribery, anti-corruption and tax laws relating to Customer’s activities;
(c) be responsible for and pay all taxes and other charges arising out of or associated with these Services;
(d) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, FMH may adjust any agreed timetable or delivery schedule as reasonably necessary;
(e) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for FMH, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(g) ensure that its network and systems comply with the relevant specifications provided by FMH from time to time; and
(h) be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to FMH’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
9. Charges and payment
9.2 The Customer shall on the Effective Date provide to FMH valid, up-to-date and complete credit card details or approved purchase order information acceptable to FMH and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to FMH, the Customer hereby authorises FMH to bill such credit card:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
(b) its approved purchase order information to FMH, FMH shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
9.3 If FMH has not received payment within 45 days after the due date, and without prejudice to any other rights and remedies of FMH:
(a) FMH may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and FMH shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an monthly rate equal to 1.5% over the then current base lending rate of FMH’s bankers in Malaysia from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in Ringgit Malaysia;
(b) are, subject to clause 13.3(b), non-cancellable and non-refundable;
(c) are exclusive of services tax, which shall be added to FMH’s invoice(s) at the appropriate rate.
9.5 FMH shall be entitled to increase the Subscription Fees and the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 at the start of each Renewal Period upon 90 days’ prior notice to the Customer and Schedule 1 shall be deemed to have been amended accordingly.
10. Proprietary rights
10.1 The Customer acknowledges and agrees that FMH and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 The Customer also acknowledges and agrees that FMH collects and exclusively owns all statistical results, data, trends, analyses, reports, usage information and other documentation resulting from, or generated in the course of or with respect to FMH’s performance and Customer’s use and enjoyment of Services (collectively, “Usage Data”) and FMH shall have the right to use such Usage Data for the purposes of evaluating improvements and enhancements to the Services.
10.3 FMH confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11. Confidentiality and compliance with policies
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
11. 2 Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute FMH’s Confidential Information.
11.6 FMH acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.8 The above provisions of this clause 11 shall survive termination of this agreement, however arising.
11.9 In performing its obligations under this agreement the Customer shall comply with the Mandatory Policies.
12.1 The Customer shall defend, indemnify and hold harmless FMH against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation.
12.2 In no event shall FMH, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than FMH; or
(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by FMH;
(c) the Customer’s continued use of the Services or Documentation after notice of the alleged or actual infringement from FMH or any appropriate authority;
(d) the Customer’s failure to comply with all applicable laws and regulations, including all anti-bribery, anti-corruption and tax laws relating to Customer’s activities; or
(e) the Customer’s failure to pay all taxes and other charges arising out of or associated with the Services.
13. Limitation of liability
13.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. FMH shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to FMH by the Customer in connection with the Services, or any actions taken by FMH at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services and the Documentation are provided to the Customer on an “as is” basis.
13.2 Nothing in this agreement excludes the liability of FMH for death or personal injury caused by FMH’s negligence.
(a) FMH shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) FMH’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
14. Term and termination
14.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(c) to clause 14.2(j) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(l) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
14.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) FMH may destroy or otherwise dispose of any of the Customer Data in its possession unless FMH receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. FMH shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by FMH in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Force majeure
FMH shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of FMH or any other party), failure of a utility service or transport or telecommunications network, act of God, epidemic, pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
20.2 If any provision or part-provision of this agreement is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Entire agreement
21.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
22.1 The Customer shall not, without the prior written consent of FMH, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
22.2 FMH may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
23. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24.1 This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
24.2 Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) by email (in PDF or other agreed format) shall take effect as the transmission of an executed “wet-ink” counterpart of this agreement.
24.3 No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
25.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid registered post or other next working day delivery service; or
(b) email to the address of the relevant party as set out below (or otherwise updated by notice):
FMH Group Sdn. Bhd.
Attention: See Chaur Yih, Director
Address: 100-2.011/013, 129 Offices (Block J2),Jaya One, Jalan Universiti, Seksyen 13, 46200 Petaling Jaya, Selangor, Malaysia
[CUSTOMER COMPANY NAME]
Attention: [NAME, POSITION]
Email: [EMAIL ADDRESS]
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid registered post or other next working day delivery service, at 9.00 am on the third Business Day after posting; or
(c) if sent by email, at 9.00 am on the next Business Day after transmission.
26. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Malaysia.
27. Dispute Resolution
27.1 In the event of any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination (the Dispute), the parties to the Dispute shall first attempt to resolve the same by negotiation in good faith between the appointed representatives of such Parties (the Negotiation).
27.2 In the event that the Dispute shall remain unresolved within thirty (30) days of the start of any Negotiation, any Party to the Dispute shall be entitled to refer the same for final resolution to arbitration administered by the Asian International Arbitration Centre (AIAC) in accordance with the Arbitration Rules of the AIAC for the time being in force (the AIAC Rules), which rules are deemed to be incorporated by reference to this Clause 12.9(b). Unless the Parties to the Dispute unanimously agree otherwise, the arbitral tribunal shall consist of three (3) arbitrators to be appointed in accordance with the AIAC Rules. The language of arbitration shall be English. The seat of arbitration shall be Malaysia. All awards may, if necessary, be enforced by any court having jurisdiction in the same manner as a judgment in such court. The costs of such arbitration shall be determined by and allocated between the parties to the Dispute by the arbitration tribunal in its award.
Schedule 1 Subscription Fees
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Schedule 2 Subscription Term
1. Initial Subscription Term: One (1) year.
Schedule 3 Mandatory Policies
The Mandatory Policies are:
Schedule 4 Scope of Services
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