SOFTWARE-AS-A-SERVICE AGREEMENT (Effective Date: 14 September 2023)
1. ACCEPTANCE OF AGREEMENT
- We, STRONGBOX TECH SDN. BHD. (Company No. 1112392-X) are a private company incorporated in Malaysia (“the Company”) and we offer membership management solutions via a software platform bearing the URL address https://epidewan.com/ (or such other URL as may be notified from time to time) and all 3rd party integrated system/ app thereunder as a software-as-a-service (collectively referred to as the “Software Platform”).
- By accessing, browsing or using the Software Platform, or any page thereof, or by using the facilities or services offered and provided in or through the Software Platform (“Service”), you hereby accept and agree to be bound by the following terms and conditions, which may be updated from time to time (“Agreement”). This Agreement constitutes a binding contract between you (“the User”) and the Company in relation to your access to and use of the Software Platform and/or the Service.
- The Company hereby agrees to grant the User and the User hereby accepts the non-exclusive, non-transferrable, non-sublicensable, non-assignable and revocable license to access and use the Service subject to the terms and conditions set forth herein.
- The terms and conditions as contained herein shall apply to your access to and use of the Software Platform and/or Service. If you do not agree to the terms as contained in this Agreement, please immediately discontinue your access to and use of the Software Platform and/or Service, whether via internet, mobile and/or other electronic medium as may be made available by the Company from time to time.
- You hereby represent and warrant that you have the right, authority and capacity to enter into this Agreement. You may not access to and use the Software Platform and/or Service if you are not of legal age to form a binding contract with the Company.
2.1 The term of this Agreement shall be for a period as stipulated in the Subscription Package that the User opts in the Software Platform or in the absence thereof, the period of time whereby the User uses the Service, commencing on the date the Company approves the application of subscription from the User (“Term”).
2.2 This Agreement may be renewed upon the expiry of the Term (if applicable) subject to mutual agreement of both parties and pursuant to the terms and conditions stipulated herein (as may be amended from time to time).
3. SUBSCRIPTION AND PAYMENT TERMS
3.1 The Software Platform is provided by the Company as a Software-as-a-Service and requires the User to have a valid membership subscription. There is no subscription fee payable for the base system features provided in the Software Platform (subject to any changes which may be notified by the Company from time to time), however there may be charges for some of the 3rd party integrated system/ applications, which will be stipulated in the Software Platform. There will be additional charges for advanced features which will be updated in the Software Platform at any time and from time to time.
3.2 If there is any monthly subscription fee payable by the User to the Company, the User shall make payment of the said subscription fee within seven (7) days from the date of invoice from the Company failing which the Company shall suspend the User’s right to use and/or access the Service and Platform until the payment is made. If the Company does not receive any payment from the User at the expiry of fourteen (14) days from the date the payment is due, the Company shall terminate this Agreement and the termination consequences in Clause 14.3 shall apply.
3.3 The User may charge its authorized users, members, customers or clients (collectively referred to as the “Members”) subscription fees or any other fees payable in accordance with the terms and conditions between the User and the Members and the parties hereby agree that the Company shall be entitled to charge the following fees (“Convenience Fee”): -
(a) For payment made via FPX/ eWallet/ DuitNow
2.98% of the transaction sum or RM2.98 (if the transaction sum is RM100 or less)
(b) For payment made via Credit Cards
- Local: 3.68% of the transaction sum
- Foreign: 3.98% of the transaction sum
For the avoidance of doubt, Sales and Service Tax (SST) may be charged on the Convenience Fee, and the User shall bear the applicable SST, if any.
3.4 The User hereby acknowledges and agrees that any transaction sum made via the Software Platform (provided always that the Company shall have received the transaction sum in bank cleared funds) shall be released by the Company to the User within an estimated timeframe of up to thirty (30) days from the weekly cut-off date (i.e. the cut-off date shall fall on every Sunday at 11:59pm) to the User’s designated bank account as provided by the User to the Company.
4. NECESSARY INFORMATION AND DOCUMENTS
4.1 Upon request by the Company, the User shall provide the Company with all the necessary information and documents for the company to carry out verification on the User, including but not limited to, the Company’s registration documents under the Companies Commission of Malaysia, Malaysian Societies Registration Department or any other relevant bodies or authorities; the relevant searches on the entity of the User including its shareholders, directors and representatives and/ or other information and documents as may be required by the Company in relation to this Agreement.
4.2 The necessary information and documents required by the Company pursuant to Clause 4.1 above shall be submitted to the Company within seven (7) days upon request by the Company. The parties hereby agree that the Company shall reserve the rights to reject any subscription applications for membership made to the Company in the event of the following: -
- failure by the User to provide the said information and/or documents requested by the Company; or
- there is discrepancy found by the Company in relation to the information/ documents provided by the User; or
- in the Company’s sole and absolute discretion, that is it of the opinion that the business carried out by the User does not conform to the standard policies of the Company.
5. REPRESENTATIONS AND WARRANTIES
5.1 The User hereby represents and warrants to the Company as follows: -
(a) that it has the power, authority and capacity to execute, deliver and lawfully perform the terms of this Agreement;
(b) that this Agreement constitutes legal, valid and binding obligations on it in accordance with its terms;
(c) that the execution, delivery and performance of this Agreement, will not exceed the power granted to it or violate the provisions of:
(i) any law or regulation or any order or decree of any governmental authority, agency or court to which it is subject; or
(ii) any mortgage, contract or other undertaking or instrument to which it is a party or which is binding upon it or any of its assets and will not result in the creation or imposition of, or any obligation to create or impose, any mortgage, lien, pledge or charge on any of its assets pursuant to the provisions of any such mortgage, contract or other undertaking or instrument;
(d) that all consents of the Public Authorities which are required or advisable for or in connection with the execution, delivery, performance, legality or enforceability of this Agreement have been obtained and are in full force and effect; and
(e) that there is no pending or threatened liquidation proceedings, bankruptcy or winding-up that the party is aware of.
5.2 If any such representations and warranties set out under Clause 5.1 and Clause 6.1 herein shall at any time hereafter be found to have been incorrect in any material aspect or if the User shall fail to make full disclosure to the Company of any material particular concerning the agreement between the parties herein, then and in such event and notwithstanding anything to the contrary herein contained the Company shall have the right at its absolute discretion to terminate this Agreement whereupon the Company shall reserve the right to claim for any loss and/or damages arising due to the breach of such representations and warranties.
6. USER’S OBLIGATIONS AND RESPONSIBILITIES
6.1 The User further undertakes, represents and warrants that: -
- it shall provide commercially reasonable information and assistance to the Company to enable the Company to deliver the Service and the User acknowledges that the Company’s ability to deliver the Service in the manner provided in this Agreement may depend on the accuracy and timeliness of such information and assistance;
- it shall ensure that the business carried out by it is in strict adherence to the regulatory and professional requirements, and all applicable laws, rules, guidelines and regulations of Malaysia;
- it shall comply with all applicable laws, rules, guidelines and regulations in connection with its use of the Service, including those laws and regulations related to data privacy, international communications and the transmission of technical or personal data. The User acknowledges that the Company exercises no control over the content of the information transmitted by the User through the Software Platform;
- it shall not upload, post, reproduce or distribute any information or materials protected by copyright, privacy rights or any other intellectual property rights of any third party without first obtaining the permission of the owner of such rights;
- it shall be solely responsible for the acts and omissions of its users and the Company shall not be liable for any loss of data or functionality caused directly or indirectly by its users;
- it shall grant to the Company a limited and non-transferrable license to copy, store, configure, perform, display and transmit the contents of the User solely as necessary to provide the Service hereunder;
- it shall notify the Company immediately of any unauthorised use of any password or user identifications or any other known or suspected breach of security;
- it shall report to the Company immediately and use reasonable efforts to stop any unauthorised use of the Service that is known or suspected by the User;
- it shall not provide misleading or false information or identity to gain access to or use the Service;
- it shall be solely responsible for collecting, inputting and updating all its users’ contents and data (“User Contents”) stored in the Software Platform and to ensure that the User Contents do not include anything that actually or potentially infringes or misappropriates the copyright, trademark, trade secret or other intellectual property rights of any third party; or contain anything that is obscene, defamatory, harassing, offensive or malicious;
- it shall not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the software used to provide the Service;
- it shall not use the Service or Software Platform in any way that is unlawful, illegal, fraudulent or harmful; or in connection with any unlawful, illegal, fraudulent or harmful purposes or activities;
(m) it shall refrain from disparaging the Company, or from otherwise injuring the reputation and good standing of the Company;
(n) it has obtained all permits, licenses, registrations, approvals and other consents required by every national, local or municipal government or agency, in respect of the performance of its obligations under this Agreement; and
(o) it shall ensure that all licenses and permits are valid during the Term and whenever necessary, obtain the renewal of such licenses, permits, registrations and consents from time to time. The Company shall not be obliged to assist the User in any manner whatsoever in obtaining or procuring any of the said licenses, permits, registrations or consents.
7. SCHEDULED MAINTENANCE AND SUPPORT SERVICES
7.1 The Company may from time to time suspend the Service for the purposes of scheduled maintenance of the Software Platform (“Scheduled Maintenance”).
7.2 The Company shall, where practicable, post a notice in the Software Platform prior to the intended date of the scheduled maintenance that will or is likely to affect the availability and/ or access to the Service and Software Platform. The Company shall use reasonable endeavours to ensure that all scheduled maintenance is carried out outside the business hours of 0900 to 1700 on a Business Day, unless urgent maintenance is required. For the avoidance of doubt, a Business Day means a day other that a Saturday, Sunday or public holiday in Kuala Lumpur and Selangor.
8. LIMITATION OF LIABILITY
8.1 The User acknowledges that: -
(a) complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Software Platform will be wholly free from defects, errors and bugs;
(b) complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Software Platform will be entirely secure;
(c) the Software Platform is designed to be compatible only with that software and those systems specified as compatible in the Software Platform itself; and the Company does not warrant or represent that the Software Platform will be compatible with any other software or systems; and
(d) the Company does not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Software Platform; and except to the extent expressly provided otherwise in this Agreement, the Company does not warrant or represent that the Software Platform or the use of the Service by the User will not give rise to any legal liability on the part of the User or any other person.
- The Company shall not be liable to the User in respect of all or any losses, including but not limited to loss of profits, loss of anticipated savings, loss of revenue or income, loss of business, contracts or opportunities, loss of data, any special, indirect or consequential loss or damage, arising directly or indirectly out from a Force Majeure event (as defined in Clause 10.2 herein), Scheduled Maintenance or any other downtime of the Software Platform that is not within the reasonable control of the Company.
- Further, it is the intention of the parties herein that the Software Platform serves as a software-as-a-service to facilitate management of association members by the User, and as such, it is hereby agreed that the Company shall not be held liable or be responsible for any potential disputes between the User and its Members.
- The parties also hereby agree that it is not the responsibility of the Company to ensure that the transaction sum made via its Software Platform comes from a lawful source or is in compliance with the Anti Money Laundering and Anti-Terrorism Financing Act 2001.
9.1 The User shall indemnify, defend and hold harmless the Company, and its officers, directors, employees, affiliates and agents (the “Indemnitees”) from all claims, damages, losses, costs and expenses (including reasonable solicitors’ fees) (the “Liabilities”) which the Company and/or any of the Indemnitees may incur to the extent that such Liabilities arise out of or result from: -
- any infringement of any patent, copyright or trademark, or misappropriation of any trade secret of any third party by the User or the Members; or
- any infringement of the PDPA 2010 in relation to the collection and processing of the Members information and personal data;
(c) any inaccuracy in, or breach of, any of the representations, warranties, covenants or agreements made by it in this Agreement.
9.2 All indemnification by the User shall be effected by payment of cash or delivery of a banker’s draft in the amount of the indemnification liability within fourteen (14) days of the Company’s demand.
10. FORCE MAJEURE
10.1 Neither party to this Agreement shall be deemed to be in breach of this Agreement or otherwise liable to the other as a result of any delay or failure in the performance of its obligations under this Agreement if and to the extent that such delay or failure is caused by Force Majeure (as defined in Clause 10.2) and the time for performance of the relevant obligation(s) shall be extended accordingly.
10.2 For the purpose of this Agreement, “Force Majeure” means any circumstances which are not foreseeable at the date of this Agreement and not within the reasonable control of the party in question including without limitation, acts of God, natural disasters, any action taken by a governmental or public authority of any kind including not granting a consent, exemption, approval or clearance; any civil commotion or disorder, riot, labour disputes, invasion, war, terrorist act, threat of or preparation for war or terrorist act, any fire, explosion, storm, flood, earthquake, subsidence, pandemic, epidemic, spread of virus or disease or other natural physical disaster; failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks, power failures.
10.3 The party whose performance of its obligations under this Agreement is delayed or prevented by Force Majeure: -
- shall forthwith notify the other party of the nature, extent, effect and likely duration of the circumstances constituting the Force Majeure;
- shall use all reasonable endeavours to minimise the effect of the Force Majeure on its performance of its obligations under this Agreement; and
- shall subject to Clause 10.1 and 10.4, immediately after the cessation of the Force Majeure notify the other party thereof and resume full performance of its obligations under this Agreement.
10.4 If any Force Majeure delays or prevents the performance of the obligations of either party for a continuous period in excess of one (1) month, either party may give notice to the other party to terminate this Agreement, specifying the date (which shall not be less than 7 days after the date on which the notice is given) on which termination will take effect. Such a termination notice shall be irrevocable except with the consent of both parties and upon termination the provisions of Clause 14.3 apply.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 For the purpose of this Agreement, “Intellectual Property Rights” shall mean all intellectual property rights, including but not limited to rights to patents, rights in circuit layouts, trademarks, service marks, trade names, registered designs, copyrights, and other forms of intellectual property or industrial property, know-how, inventions, formulae, creative works, confidential or secret processes, trade secrets and confidential information, and any other protected rights and assets and any licenses and permissions in connection therewith, in each case in any part of the world and whether or not registered or registrable and for the full period thereof, and all extensions and renewals thereof, and all applications for registration in connection with the foregoing.
11.2 The Company retains all ownership and the Intellectual Property Rights to the Service, Software Platform and anything developed and delivered under this Agreement and the Software Platform. The User shall not, by virtue of this Agreement, obtain or claim any right, title or interest in and pursuant to the Service, Software Platform and/ or anything developed in or provided under the Software Platform.
For the purpose of this Agreement, “Confidential Information” shall mean any information or material, orally or in written form, graphic, electronic or other form:
- which is confidential or proprietary in nature, including but not limited to, business plans and strategies, contracts, employment agreements, corporate information, financial information, management information, flow charts, organisational charts, spread sheets, graphs, tables, operational descriptions, customer and product development plans, ideas, improvements, research or development, customer and supplier list, technology, software development tools, inventions (patentable or otherwise), trade secrets, trademarks, confidential operations, processes, schedules, know-how, designs, formulas, computer programs, data bases, techniques, algorithms, computer code, software design and architecture, schematics, forecast, documentation, manuals, budgets, marketing studies, drawings, notes, memoranda and the information contained therein;
- relating to the actual or proposed development, manufacture, analysis, marketing, sale or supply of any products or services by it, and plans for the development or marketing of such products or services and information; and/or
- relating to the contents of this Agreement or any discussion or documents relating, ancillary or entered into pursuant hereto.
12.1 The party receiving the Confidential Information (“Receiving Party”) shall treat as strictly confidential all the Confidential Information disclosed by the other party (“Disclosing Party”).
12.2 The Receiving Party shall not at any time: -
(a) disclose the Confidential Information to any person except to those authorised by the Disclosing Party to know on a need-to-know basis;
(b) use the Confidential Information for its own purposes or for any purposes; or
(c) through failure to exercise all due care and diligence cause or permit any unauthorised disclosure of any Confidential Information.
12.3 Any party may disclose Confidential Information which would otherwise be confidential if and to the extent: -
(a) it is required to do so by law or an order of a court of competent jurisdiction or regulatory or governmental body to which it is subject wherever situated;
(b) it considers it necessary to disclose the Confidential Information to its professional advisers, auditors and bankers provided that it does so on a confidential basis;
(c) the Confidential Information was lawfully available to that party on a non-confidential basis from a source other than any of the other parties prior to any disclosure thereof by any of the other parties, as evidenced by competent proof thereof; or
(d) the Confidential Information has come into the public domain through no fault of that party.
12.4 For purposes of this Agreement, Confidential Information shall not be deemed to be in the public domain merely because individual elements thereof are separately found in the public domain.
12.5 All documents, records and other information delivered by any party to the other party pursuant to or connected with this Agreement shall be returned to the relevant party in the event that this agreement is terminated.
12.6 The provisions of this Clause 12 shall continue to apply after the expiration or sooner termination of this Agreement without limit in point of time but shall cease to apply to information or knowledge which may properly come into the public domain through no fault of the party so restricted.
13. PERSONAL DATA PROTECTION ACT (“PDPA”)
13.1 The User hereby acknowledges and agrees that the Company’s performance of this Agreement may require the Company to process, transmit and/ or store the User’s personal data or the personal data of User’s employees, Members and affiliates. By submitting personal data to the Company, the User agrees that the Company may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling the Company to perform its obligations to under this Agreement.
13.2 In relation to all Personal Data provided by or through the User to the Company, the User will be responsible for complying with all applicable data protection or similar laws such as the Personal Data Protection Act 2010 (“PDPA 2010”) and any other applicable regulations and guidelines in relation thereof.
13.3 The User confirms that the User is solely responsible for any Personal Data that may be contained in the User Contents, including any information and personal data submitted to the User by the Members via the Software Platform. The User is solely responsible for determining the purposes and means of collecting and processing the Members’ Personal Data under this Agreement, including that such collection and processing of the said personal data will not place the Company in breach of any applicable data protection laws.
13.4 The parties hereby further agree that is shall not perform or caused to be performed any act which violates the PDPA 2010 (including their subsidiary legislations and guidelines) and shall exercise a reasonable degree of skill, due diligence, prudence and foresight to comply with all principles set out herein including, registering itself with the Personal Data Protection Commissioner of Malaysia as data user (if required), having in place adequate and reasonable procedures, protection and measures and continue to keep such procedures, protections and measures in place, in order to maintain the confidentiality and prevent unauthorized use and unauthorized disclosure of any personal data which came into possession of the Company in the course of provision of the Service hereunder and that it will not make any copies of the personal data or reproduce any of it in any form.
14.1 This Agreement may be terminated by either party at any time during the Term of this Agreement by giving written notice of termination to the defaulting party upon the occurrence of any events of default as follows: -
(a) if the defaulting party commits a material breach of any obligation under this Agreement which breach is incapable of remedy;
(b) if the defaulting party fails to cure any breach of a material covenant, commitment or obligation under this Agreement within fourteen (14) days after receipt of written notice from the non-defaulting party describing the material breach;
(c) if any party becomes insolvent, or files a voluntary petition in winding up, or has filed for an involuntary petition in winding up; or
(d) such termination is necessitated by any order or directive from any lawful, regulatory, governmental or statutory authority having jurisdiction over the matters herein.
14.2 Notwithstanding any provisions in this Clause 14, the Company may terminate this Agreement at any time during the Term and without assigning any reason whatsoever, by giving three (3) days’ written notice to the User prior to the intended date of termination. In the event that the User terminates this Agreement, there shall be no refund of the subscription fee paid to the Company, if any.
14.3 Upon expiration or termination of this Agreement for any reasons whatsoever, the Company shall cease providing the Service and all usage rights and access granted under this Agreement shall terminate.
14.4 The expiry or earlier termination of this Agreement shall be without prejudice to and shall not affect any pre-existing liabilities of either party and shall not relieve either party of those obligations that by their nature shall survive such expiration or termination, including each party’s warranties and its obligations of indemnity and confidentiality.
14.5 The Company reserves the right to suspend delivery of the Service if the Company reasonably concludes, in its sole discretion, that the User or any of its authorized users’ use of the Service is causing immediate and ongoing harm to the Company or others. In the event that the Company must suspend delivery of the Service based on this Clause 14.5, the Company shall immediately notify the User of the suspension and the parties shall diligently attempt to resolve the issue. The Company shall not be liable to the User or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Service in accordance with this Clause 14.5.
15. INDEPENDENT CONTRACTOR
15.1 The User is as an independent proprietor under its own name or a registered business owned and controlled by the User and not as a partner, representative, agent or employee of the Company and it is agreed and declared that nothing in this Agreement shall be deemed or construed to constitute a partnership or a joint-venture between the Company and User. Except as provided in this Agreement, neither party shall be responsible for the acts and omissions of the other party.
16.1 All notices required to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently served or given for all purposes herein on the respective party if delivered by hand or sent by prepaid registered post to the party to whom it is addressed at the address herein stated or to such address as one party may notify to the other in writing or to their respective solicitors or agents duly authorised and shall be deemed to have been served: -
(a) in the case of delivery by hand, on the date of receipt by the addressee thereof; and
(b) in the case of prepaid registered post, five (5) days after the same shall have been delivered to the postal authorities; and
(c) in the case of delivery by facsimile transmission or electronic mail, on the day of despatch.
17.1 The User hereby acknowledges and consents that the Company shall have the rights to assign or novate any or all of its rights and/ or obligations under this Agreement without consent of the User.
18. GOVERNING LAW
18.1 This Agreement shall be construed, interpreted and governed by the laws of Malaysia and the parties hereby submit to the non-exclusive jurisdiction of the Malaysian courts.
19.1 If any provision of this Agreement is rendered or declared unlawful by reason of any existing or subsequently enacted law or by decree or order of a court of last resort, the remaining provisions of this Agreement will continue in full force and effect.
20. AMENDMENTS AND VARIATIONS
20.1 The Company reserves the right to update, amend or change the content of this Software Platform at any time without notice. If we do this, we will post the changes to the terms of this Agreement on this page and will indicate at the top of this page the new effective date. Your continued use of the Software Platform and/or Service after any such changes constitutes your acceptance of the revised terms and conditions. If you do not agree to abide by this Agreement or any future revised terms and conditions, you shall immediately cease use the Software Platform and/or Service. It is your responsibility to regularly review this Agreement.