TERMS AND CONDITIONS
1. INTRODUCTION
1.1 By signing or accepting the Cerev Service Agreement, you are deemed to acknowledge and agree to be bound by all these terms and conditions (“General Terms”) which are applicable to you. These terms and conditions apply to all the services subscribed by you (unless otherwise prescribed in the Service Agreement and/or schedule) shall form a legally binding agreement (“Agreement”) between you and HelixByte Sdn Bhd (“HSB”).
1.2 HSB may amend the terms in the Agreement at any time. Such amendments shall be effective once they are posted on https://cerev.net/terms-and-condition or the Application. It is your responsibility to review the General Terms regularly. Your continued use of the Service after any such amendments, wherether or not reviewed by you, shall constitute your agreement to be bound by such amendments.
1.3 HSB is a technology company which distributes a computerized maintenance management system mobile platform called the Cerev Platform which offers a set of communication, workflow management and convenience tools known as Cerev that are accessible by the Customer.
2. DEFINITION
2.1 The following words and phrases have the prescribed meanings, unless the context otherwise requires, and shall apply to the General Terms and each of the Service Agreement and Schedules.
• “Agreement” means the Service Agreement, the applicable Schedule and the General Terms.
• “Application” means the relevant mobile application(s) made available for download by HSB (or its licensors) to Users and third-party providers respectively.
• “Customer”, “you” or “your” means the customer whose particulars or details are identified in the section referred to as either “Applicant Information”, “Customer Information” or “Customer Particulars in our Service Agreement, online subscription portal or sign-up application;
• “Force Majeure Event” means:
(i) rebellion, civil unrest, riot, acts of terrorism, declaration of war, national emergencies, national disasters, strikes, lock-outs, fire, explosion, acts of God, adverse inclement weather, lightning-strikes, natural disasters, earthquakes, epidemics, pandemics, lock down or movement control orders by the government, damage to or destruction of HSB’s network, including interference to or compromise of HSB’s network caused by third party actions, occurrence of a major power disruption, commercial power failure, disruption of interconnected communications facilities or networks, acts by Government, regulatory bodies, national councils, local authorities or other appropriate authorities or any other event which is beyond the reasonable control of HSB; and
(ii) which materially affects the provision of the Service;
• “Cerev” means the following communication, workflow management and convenience tools which are made available by HSB through the Service, namely: Cerev and any such other services which HSB may make available from time to time;
• “Personal Data” means any information which can be used to identify you or from which you are identifiable or the Users. This includes but is not limited to your name, nationality, telephone number, email address, your image, government-issued identification numbers, biometric data, race and date of birth;
• “Platform” means the relevant HSB or Cerev technology platform that, when used in conjunction with the Application, enables you and Users to access the services which are made available to you and Users by HSB or Cerev platform from time to time;
• “Project” means the property as described in the applicable Service Agreement and Schedule;
• “SST” means Sales and Services Tax as provided under the Service Tax Act 2018;
• “User” means any person who uses Cerev, the Application, Platform, and/or Software;
• “Schedule” means the applicable Schedule as indicated or identified in the Service Agreement or electronic order for the applicable Service subscribed;
• “Service” means the service subscribed by the Customer as specified in the Service Agreement or electronic order;
• “Software” means any software associated with the Application which is made available for download and installed by HSB;
• “Term” means the aggregate of the Initial Term, the Renewed Service Term and/or the period ending on the date of termination of the Service (as the case may be).
3. INTERPRETATION
• Singular words include the plural and vice versa;
• Headings used in the General Terms, Service Schedules or the Schedule are for convenience only, and are to be ignored when construing the provisions of this Agreement;
• If you subscribe for different Services and each Service is either subject to its applicable Service Schedule or subject to different terms within the same applicable Schedule. For the avoidance of doubt, each Service and its applicable Service Schedule or the terms within the applicable Service Schedule (as the case may be) are to be construed as an independent agreement between the Parties;
• To the extent that the provisions of the General Terms, the Service Agreement and a Schedule are inconsistent, to the extent possible such provisions will be interpreted so as to make them consistent, and if that is not possible, then the Service Agreement shall prevail over the applicable Service Schedule and the General Terms, the applicable Schedule shall prevail over the General Terms;
• Reference to “Applicable Law” in this General Terms or in any Schedule, is a reference to any applicable constitution, law, by-law, statute, ordinance, code, rule, regulation, order, judgment or decree of any government, state or political subdivision thereof, courts, regulatory or semi-regulatory or administrative body;
• References to any statute, rule, regulation, order, directive shall be construed as references to such statute, rule, regulation, order or directive as may be amended, re-enacted or as modified by any other statute, rule, regulation, order or directive;
• Reference to a document includes all amendments, supplements to, or replacements of, that document whether paper or electronic/digital, and reference to a “person” includes any individual person, firm, company, corporation, government state or agency of a state or any association, trust or partnership (whether or not having a separate legal personality);
• The words “Ringgit Malaysia” and the symbol “RM” shall be construed as the lawful currency of Malaysia.
4. THE SERVICE
4.1 HSB agrees to provide the Service that you have subscribed as specified and defined in the Service Agreement and the applicable Schedule.
4.2 Unless otherwise expressly agreed in writing or as specified in or modified by the applicable Schedule, these General Terms shall govern all the rights and obligations of the Parties.
5. PROVISION OF SERVICES
5.1 Preconditions to Provisioning
After the Service Agreement is accepted by HSB and the Customer has paid the required Charges that may be imposed pursuant to or specified in the Service Agreement or the Schedule and invoiced by HSB, HSB shall, subject to the terms in the applicable Service Agreement and Schedule, carry out the works to provision the Service by the Service Commencement Date (“SCD”) stated in the Service Agreement and perform the requisite services, subject to Clause 5.3 below.
5.2 Service Acceptance
The Customer shall render all assistance and co-operation required by HSB to facilitate the Service Acceptance (“SA”). Upon completion of the provisioning works in respect of a Service, HSB shall carry out the SA for each Service subscribed. Once the SA is satisfactorily completed, HSB shall provide the SA Form that (i) certifies that the Service is ready for Customer’s use, (ii) specifies the commission or activation date, and (iii) such other relevant particulars to the Customer. You are to sign and return the SA Form to HSB or indicate your acceptance of the SA no later than 3 working days of its receipt, failing which you are deemed to be satisfied with the SA and accept the Service and the SCD of the Service is deemed to be the commission or activation date as specified in the SA Form.
5.3 Service Commencement Date Revision
HSB may revise SCD if the original SCD cannot be met due to circumstances beyond HSB’s control, HSB experiencing delays in performing its works or if you delay or do not perform your obligations as specified in the Service Agreement and/or applicable Schedule. The applicable Schedule may specify additional grounds for the revision of the SCD whether by HSB or by you.
6. CUSTOMER AND/OR USER’S RIGHT TO USE THE SERVICE
6.1 General
(a) Unless otherwise expressly agreed in writing or as specified in the applicable Schedule, the Customer and/or User may only use the Service in accordance with Applicable Law and for their intended use and lawful purpose only, and is neither permitted to sell, resell, hire, lease (including sub lease), licence (including sub-licence), rent, offer, provide or sub-provision the Service, or any portion thereto whether for consideration or otherwise to any third party nor use the Service for any fraudulent, unlawful, illegal or improper purpose or in breach of any applicable laws and regulations, including tampering, altering, adjusting, removing, diverting, abusing or affecting the Service.
(b) the Customer shall ensure that the Device provided by HSB for the Service shall be used and maintained properly in its ordinary use. The Customer agrees to assume full responsibility and liability for all the losses, failure, non-functionality or damages caused to the Device in its possession.
(c) The Customer also agrees that HSB shall not be held responsible and/or liable for any damage to the Device and/or any interruption or suspension caused to the Service due to the fault of the Customer and/or its affiliates, employees, officers, subcontractors and/or agents.
6.2 In the event there is any breach or non-compliance of the terms in Clause 6.1 above, the Customer acknowledge and agree that HSB shall not be responsible for any losses, damages or liabilities that may arise due to the Customer and/or User’s fault. The Customer agrees to assume full responsibility and liability for all the losses, costs, or expenses arising in connection with or related to the Device or Cerevs.
6.3 Cerev Administrator and/or Moderator
If the Customer wishes to add any of its employees, officers and/or agents as a Cerev administrator and/or moderator, the Customer shall notify HSB officially in writing via email for such request.
6.4 Service Modifications
• Unless otherwise specified in the applicable Schedule, no alteration or modification of the Service, at any time during the Initial Term, which reduces or downgrades the Service is permitted.
• If the Customer requires any upgrade to the subscribed Service, which includes subscription of additional services provided by HSB, HSB will provide a fee quote to the Customer, and if the Customer agrees, the Customer shall complete and execute a new Service Agreement. If the additional service is dependent on the continuation of the existing Services being subscribed by Customer, then the Initial Term of existing Services shall be extended by the difference between the original Initial Term and the period the additional service is to be provided calculated by reference to the SCD of the existing Service and that of the additional service. Such extension of the Initial Term is not a renewal but is an increase of the Initial Service Term. A change will restart the Initial Service Term from the new SCD.
7. CHARGES, INVOICING & PAYMENT
7.1 Charges
Unless otherwise specified in the applicable Service Agreement or Schedule, the charges may include a registration fee, monthly charges and/or recurring charges (“Charges”)which are as indicated and detailed in the Service Agreement, and is non-refundable. All Charges exclude applicable SST, or prevailing service taxes (as may be imposed by law from time to time). If any withholding tax is applicable to a Customer making payment to HSB for the Service, then the Customer shall gross up the Charges such that HSB receives the full Charges net of withholding tax.
7.2 Invoicing
• HSB shall issue a tax invoice to the Customer for the Charges and the Customer shall pay and continue to pay the Charges by the due date stated in the invoices.
• Notwithstanding anything to the contrary, the Customer acknowledges and agrees that its obligation to pay all Charges due and payable shall not be waived, absolved or diminished by virtue of its failure or neglect to check, enquire, understand and ascertain the nature of Services subscribed or used by the Customer and the applicable charges associated with such Services, and you further acknowledge that it shall be your responsibility to request from HSB the invoices it has not received for any given billing period. If the Customer fails to pay the invoice by its due date, HSB may impose a late payment charge for such unpaid invoices at the rate of 5% per annum calculated from the due date until full settlement. It is the Customer’s responsibility to request for invoices from HSB that it has not received. The Customer shall be responsible for all reasonable costs incurred by HSB in the collection of any overdue amount.
7.3 Invoice Dispute
Unless otherwise specified in the applicable Service Schedule, all bona fide disputes concerning an invoice are to be raised in writing by Customer within 7 days of the date in the invoice identified as “statement date”, and shall specify the amount disputed, the reasons for disputing the amount and provide documentary records supporting the reasons. The Customer shall pay all amounts in an invoice which are not in dispute by the due date. Upon receipt of the dispute, HSB shall promptly investigate the dispute, and either issue a revised invoice if the dispute is justified or not. If a revised invoice is issued, Customer shall pay the revised invoice within 14 days. If a revised invoice is not issued, Parties shall promptly resolve the dispute in good faith.
8. CONFIDENTIALITY
8.1 You shall maintain in confidence all information and data relating to HSB, its services, products, business affairs, marketing and promotion plans or other operations which are disclosed to you or on behalf of HSB (whether orally or in writing and whether before, on or after the date of this Agreement) or which are otherwise directly or indirectly acquired by you from HSB, or any of its affiliate companies, or created in the course of this Agreement. You shall further ensure that you only use such confidential information in order to use the Service, and shall not without HSB’s prior written consent, disclose such information to any third party nor use it for any other purpose.
8.2 The above obligations of confidentiality shall not apply to the extent that you can show that the relevant information:
• was at the time of receipt already in your possession;
• is, or becomes in the future, public knowledge through no fault or omission on your part;
• was received from a third party having the right to disclose it; or
• is required to be disclosed by law and/or authorities.
9. DATA PRIVACY
9.1 HSB collects and processes your Personal Data in accordance with its Privacy Policy. The Privacy Policy applies to all of the Services and its terms are made a part of this Agreement by this reference.
9.2 Where applicable, you agree and consent to HSB, its subsidiaries and any of its affiliate companies collecting, using, processing and disclosing Personal Data as further described in our Privacy Policy.
9.3 You acknowledge that HSB may disclose Personal Data of other individuals to you in the course of your use of HSB’s Services. You represent and warrant that you will only use such Personal Data for the purpose for which it was disclosed to you by HSB, and not for any other unauthorized purposes.
10. INTELLECTUAL PROPERTY RIGHT
10.1 HSB and its licensors, where applicable, shall own all right, title and interest, including all related intellectual property rights, in and to Cerev, the Software and/or the Application and by extension, the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service.
10.2 The General Terms do not constitute a sale agreement and do not convey to you any rights of ownership in or related to Cerev, the Service, the Software and/or the Application, or any intellectual property rights owned by HSB and/or its licensors. The name, logo, the Service, the Software and/or the Application and the product names associated with the Software and/or the Application are trademarks of HSB or third parties, and no right or license is granted to use them. For the avoidance of doubt, the term the Software and the Application herein shall include its respective components, processes and design in its entirety.
11. LICENSE GRANT AND RESTRICTIONS
11.1 HSB and its licensors, where applicable, grant you a revocable, non-exclusive, non- transferable, limited license to use and access Cerev, the Application and/or the Software to use the Service, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by HSB and its licensors.
11.2 You shall not:
• license, sublicense, sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application and/or the Software and/or Cerev in any way;
• modify or make derivative works based on Cerev, the Application and/or the Software;
• mirror the Application/Software on any other server or wireless or internet-based device;
• except to the extent such restriction is prohibited under applicable law, disassemble, decompile, reverse engineer, decrypt or attempt to derive and code or extract software from, this Application or any software or services made available on or through the Application;
• use any manual or automated program or script, including but not limited to web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, to unduly burden or hinder the operation and/or performance of the Application, to conduct data mining or scraping activities, or in any way reproduce or circumvent the navigational structure or presentation of the Application or its content;
• post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights;
• remove any copyright, trademark or other proprietary rights notices contained on the Application or Platform;
• use the Application to interfere with or disrupt the integrity or performance of the Application or the data contained therein;
• attempt to gain unauthorized access to the Application or its related software, systems or networks;
• impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity; or
• engage in any conduct that could possibly damage our reputation or amount to being disreputable.
12. THIRD PARTY INTERACTIONS
12.1 During use of the Service, you may enter into correspondence or transactions with third parties who display or offer their goods and/or service through Cerev or the Platform or Application.
12.2 Any such communication or agreement is strictly between you and the applicable third party, and HSB and its licensors shall have no liability or obligation for any such communication or agreement.
12.3 Neither HSB nor any of its affiliate companies endorses any applications or sites on the Internet that are linked through Cerev or the Platform or Application, and in no event shall HSB, its licensors or its affiliate companies be responsible for any content, products, services or other materials on or available from such sites or third party providers. Certain third party providers of transportation, goods and/or services may require your agreement to additional or different terms of use and privacy policies prior to your use of or access to such goods or services, and HSB is not a party to and disclaims any and all responsibility and/or liability arising from such agreements between you and the third party providers.
12.4 You acknowledge that such additional or different terms of use and privacy policies may apply to your use of such third party services. HSB shall not be liable for any information that you provide to or authorise us to provide to a third party, or for such third party’s collection, use and disclosure of such information.
12.5 HSB may rely on third party advertising and marketing supplied through the Service and other mechanisms to subsidize the Service and/or to earn additional revenue. You agree to receive such advertising and marketing.
12.6 You agree and allow HSB to compile and release information regarding you and your use of the Service on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take all precautions in all actions and interactions with any third party you interact with through the Service and/or advertising or marketing material supplied by third parties through the Service.
12.7 We may include hyperlinks to other websites or content on the Internet that are owned or operated by third parties (“Third Party Links“). Such Third Party Links are not under our control and we are not liable for any errors, omissions, delays, defamation, libel, slander, falsehood, obscenity, pornography, profanity, inaccuracy or any other objectionable material contained in the content, or the consequences of accessing, any linked website. Any hyperlinks to any other websites or content are not an endorsement or verification of such websites or content and you agree that your access to or use of such linked websites or content is entirely at your own risk.
13. INTERRUPTION OF SERVICE
13.1 HSB does not warrant or guarantee that the Service shall be error free or uninterrupted. HSB shall not be responsible for any unavailability or inaccessibility of the Service that may arises from or due to circumstance(s) which is beyond HSB’s control. The Service may be interrupted due to:
• Technical difficulties or operational issues;
• Interruption or failure of the internet or other means of data transmission over the network or facilities;
• Device used by you being faulty, not connected, switched off or not functioning;
• An occurrence of a Force Majeure Event; or
• An act of third parties.
13.2 In the event that you discovered that there is an interruption of the Service, it is your duty to notify HSB of such interruption of the Service. HSB shall use its best endeavour to restore the affected Services as soon as reasonably practicable upon the notification of the interruption of the Service.
14. HSB’S RIGHT TO SUSPEND THE SERVICE
14.1 HSB shall have the right to suspend the Service by giving written or verbal prior notice to the Customer in the following situation:
• If the Charges or for any Service(s) subscribe invoices remains unpaid or outstanding;
• Breach of Clause 6 of the General Terms;
• An occurrence of a Force Majeure Event;
• Interruption of the Service as stated in Clause 7 of the General Terms;
• Your use of the Service is not in compliance with the Applicable Law; and
• Any order or direction from an authority for HSB to do so.
14.2 HSB may reconnect a suspended Service once the event ceases.
14.3 If the reconnection of the suspended Service is due to the Customer’s fault, HSB may impose a reconnection fee in the sum of RM500 per man day / as specified in the Service Agreement.
14.4 Notwithstanding Clause 11 and 12.1 above, you shall remain liable to pay all the applicable Charges to HSB during the interruption, suspension or loss of Service(s) or any part thereof.
15. TERM
15.1 The Customer agrees that the Services is for the initial term specified in the Service Agreement (or in the applicable Schedule) which starts from the SCD (“Initial Term”).
15.2 The Customer also agrees that the Service subscribed shall automatically be renewed annually (“Renewed Service Term”), unless the Customer has submitted complete and duly executed Termination Request Form to HSB of its intention to terminate the Service in accordance to Clause 16 of this General Terms.
16. TERMINATION
16.1 Termination by the Customer
The Customer may either:
• terminate the Service or the Agreement immediately, if:
(i) HSB is in breach of its obligations herein and/or under the Service Agreement and/or Schedule; and
(ii) the Customer has issued a notice requiring HSB to remedy the same within 30 days and that HSB has failed, neglected or refused to do so;
• terminate the Service upon the completion of the Initial Term by submitting complete and duly executed Termination Request From (please refer to Clause 16.6. for termination request form’s access) to HSB being at least 14 days prior written notice before the expiry of the Initial Term, otherwise, the Service subscribed shall deemed to be renewed automatically as stated in Clause 15.2 above; or
• terminate the Service by submitting complete and duly executed Termination Request Form (please refer to Clause 16.6. for termination request form’s access) to HSB (effective 90 days from date of submission of the Termination Request Form) during the Renewed Service Term only.
16.2 Termination for Convenience
If the Customer wishes to terminate the Agreement before the expiry of the Initial Term, then the Customer shall notify HSB by submitting complete and duly executed Termination Request Form to HSB 30 days before the date of such termination. A penalty fees shall be imposed on the Customer if the Service is cancelled before the Initial Term. The cancellation fees shall be equivalent to the remaining period of the Initial Term, and if applicable, the subsidy, discount and/ or promotion the Customer benefitted during the Initial Term.
16.3 Termination by either Part
Either Party may terminate this Agreement immediately in writing if:
• an order is made or an effective resolution is passed for the winding up, dissolution or bankruptcy of the other Party, or for the reconstruction and amalgamation of the other Party otherwise under any Applicable Law;
• a receiver, receiver and manager, judicial manager, provisional liquidator, liquidator, trustee in bankruptcy or like official is appointed over the whole or substantially the whole of the undertaking of the other Party;
• the other Party shall make any arrangement for the benefit of or enter into any arrangement or composition agreement with its creditors;
• a holder of an encumbrance takes possession of the whole or substantially the whole of the property of the other Party;
• execution is levied against the assets or undertaking of the other Party; and a claim may be made accordingly; or
• the other Party shall have infringed or violated any law or regulation pertaining to the use of the Services and such Party has failed, neglected or refused to remedy such an infringement or violation within the time frame stipulated by the relevant authority.
16.4 Termination by HSB
Without prejudice to any other right or remedy, HSB may immediately terminate this Agreement in the event that:
• after the expiry of 7 days of a demand for payment by HSB for any outstanding invoices or charges in arrears has been issued, and the Customer has not paid the sum demanded;
• the Customer is in breach of any material term in this General Terms and has not remedied the same to the reasonable satisfaction of HSB by the date specified in a prior written notice issued by HSB;
• after the SCD, the Customer is in default of any of its obligations or in breach of the applicable provisions as set out in the applicable Service Agreement and/or Schedule, and the Customer has failed, neglected or refused to remedy such defaults after receipt of a notice from HSB to do so by the date specified in such notice;
• the Customer has breached any agreement it may have entered into with an Affiliate and has failed to rectify and remedy such breach to the reasonable satisfaction of that Affiliate;
• HSB is in receipt of a direction, order or notice issued by an appropriate authority either requiring HSB to terminate the provision of the Service to the Customer, suspend the Service or declaring that the use of the Service is contrary to the Applicable Law; or
the Customer shall infringe or violate the Applicable Law pertaining to the use of the Service and has failed, neglected and/or refused to remedy the infringement or violation within the time frame stipulated by the relevant authority.
16.5 Termination for Force Majeure
• If either party is prevented or delayed in the performance of any of its obligations under this Agreement by a Force Majeure Event, then that party shall forthwith serve notice in writing on the other party specifying the nature and extent of the circumstances giving rise to Force Majeure and shall, subject to service of such notice, have no liability in respect of the performance of such of its obligations as are prevented by the Force Majeure events during the continuation of such events, and for such time after they cease as is necessary for that party, using all reasonable endeavors, to recommence its affected operations in order for it to perform its obligations.
• The party claiming to be prevented or delayed in the performance of any of its obligations under this Agreement by reason of Force Majeure shall take all steps as are necessary to bring the Force Majeure event to a close or to find a solution by which the Agreement may be performed despite the continuance of the Force Majeure event.
• If a Force Majeure Event occurs and continues for 30 continuous days, then either Party may in writing or in the event of such termination by the Customer, by Termination Request Form (please refer to Clause 16.6 for termination request form’s access) terminate the Service Agreement without any liability to each other, save for antecedent breaches and neither Party shall be liable for any breach, failure or delay in performance of its obligations pursuant to or of these terms (excluding Customer’s payment obligations), death or personal injury suffered.
16.6 Termination Notice by Request Form
• Unless otherwise expressly required, any termination by Customer under this Agreement shall be made by completing and submitting to HSB copy(ies) of duly executed Termination Request Form via e-mail to support@cerev.net, containing the reasons of termination and all details required therein.
• Termination Request Form template will be made available upon request made to Cerev’s e-mail (support@cerev.net).
• Any termination by HSB under this Agreement may be made by issuing notice in writing in accordance with Clause 18 of this Agreement.
• By submitting the Termination Request Form to HSB in accordance with Termination Process prescribed in the Form and upon receipt by HSB, the Customer is deemed to have given notice in writing to HSB for termination of this Agreement.
16.7 Consequences of Termination
• If the Customer terminates this Agreement pursuant to Clause 16.2 General Terms or if HSB terminates this Agreement pursuant to Clause 16.3 or 16.4 of the General Terms or pursuant to any other provision in the applicable Schedule that grants HSB a specific right to terminate due to a breach by the Customer, then Customer shall pay HSB the balance Charges, and all Charges in arrears;
• If Customer terminates this Agreement pursuant to Clause 16.1 or 16.3 General Terms or pursuant to any specific provision in the applicable Schedule that grant the Customer a specific right to terminate due to a breach by HSB, neither the Balance Charges nor the Termination Charges shall be payable to HSB but the Customer is required to pay any Charges that are in arrears up to the date of termination;
• If the Agreement is terminated due to a Force Majeure Event pursuant to Clause 16.5 of the General Terms, the Customer shall pay any charges that are in arrears up to the date of termination and HSB shall not be liable to the Customer for any losses, damages or expenses suffered;
• Regardless of the Party terminating the Agreement, the Service shall cease to be provided by HSB on the date of termination; and
17. LIMITATION OF LIABILITY
17.1 Direct Losses
Unless otherwise specified in the applicable Service Agreement and/or Schedule, the liability of each Party to the other for all damages, losses, costs or expenses arising out of, in connection with or related to the Service Agreement, regardless of the legal principle that imposes such liability, whether in contract, equity, intended conduct, tort or otherwise, will be limited to and will not exceed, (in the aggregate for all claims, actions and causes of action of every kind and nature), an amount equal to the aggregate value of the monthly recurring charges payable to HSB (excluding any third party recurring charges) for a 12-month period. This limit does not apply to any charges owed by the Customer to HSB, recovery of the balance Charges and/or any third party recurring charges incurred in order to provide the Service.
17.2 Indirect Damage
Neither Party shall be liable to the other Party under this Agreement for loss of production, loss of profit, loss of use, loss of business or market share, loss of data, revenue or any other economic loss, whether direct or indirect, or for any indirect, incidental, consequential, aggravated or exemplary damages, whether or not the possibility of such damages could have been reasonably foreseen.
17.3 Exclusion of Liability
Unless otherwise specified in the applicable Service Schedule, HSB shall neither be responsible for any third party services or products which you access, use or acquire (whether by yourself or by HSB acting on your behalf) together with the Service, for any loss or damage caused or contributed by such services or products to the Customer nor for any losses suffered by you due to any Service interruption or suspension.
18. NOTICE
Any notice, consent, approval, request or demand (each a “Notice”) permitted or required under this Agreement must:
• be in writing;
• signed by the authorised representative of the Party giving it; and
• be delivered personally or by prepaid registered post or fax or email to the contact person designated stated in the Service Agreement or Schedule.
19. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement is governed by, and to be construed in accordance with, the laws of Malaysia and the parties submit to the exclusive jurisdiction of the Kuala Lumpur Courts of Malaysia.
20. DISCLAIMER OF WARRANTIES
20.1 The Application, the Software, Cerev, its content and any related service(s) is provided to you on an “as is” basis.
20.2 HSB makes no representation or warranties of any kind, express or implied, in connection with the Software, Application, Platform, Service, the General Terms, the content or any related service(s). Although HSB makes reasonable effort to keep the Application up to date, HSB makes no representation, warranties, guarantees, whether express or implied, that such information is accurate, complete or up to date.
20.3 HSB shall not be liable for any direct, indirect or consequent loss arising from the modifications or amendments to the Software, Application, Service, Platform, or term of use.
20.4 You agree that you shall bear all risk arising out of your use of the Service or any other services provided by Third Party Providers and shall have no recourse against HSB in respect of the same.
21. MISCELLANEOUS
21.1 Conclusive Evidence
The Parties agree that a certificate of indebtedness issued by HSB officer in charge of finance shall be binding evidence as to the amount due and owing by Customer to HSB and is conclusive in any legal proceedings, save for manifest errors or omissions.
21.2 Representation
• You represent and warrant that all information required and furnished by you to HSB in connection with the Service and in the Service, are correct and accurate in every material respect and are not false, misleading, deceptive, defamatory and/or unlawful.
• Nothing herein or the applicable Service Schedule shall imply any obligation on the part of HSB to verify the accuracy and authenticity of such information. In addition, you and HSB represent and warrant to each other that:
(i) each Party has the necessary capacity, authority, rights, licences and permissions to enter into and perform its obligations under this Agreement; and
(ii) the Service Agreement together with the General Terms and the applicable Schedule is a valid and enforceable agreement against a Party, notwithstanding any defect, deficiency or omission. Further HSB does not make any representations or warranty, whether express or implied, and excludes any implied warranties (whether arising by operation of Applicable Law, equity or common law) that the Service will achieve the expected functionality, will be error-free or uninterrupted, and/or is of a specified or of any quality.
21.3 Changes in Law
Should a new law or an amendment to an existing law occur that impacts the Service Agreement or the Service, then notwithstanding anything contained herein, the clauses herein shall be deemed to be amended to such an extent as is necessary to enable Parties to comply with such laws.
21.4 Variations of the Terms
Unless otherwise prescribed in the Schedule, HSB may vary, modify, add or delete these terms and conditions including terms in any Service Agreement and Schedule, at any time, and such amendments shall be effective once they are posted on https://jagasolution.com/jagasolution-community-agreement/ or the Application. It is the Customer’s responsibility to review the General Terms regularly. If the Customer uses and/or continues to use the Services after the date on which such variation comes into effect, such use shall be deemed acceptance of such variation by Customer.
21.5 Indemnity
By agreeing to the terms and conditions of the Agreement, the Customer shall indemnify HSB against any and all claims, demands, proceedings or fines made or imposed against HSB by a third party arising out of, in connection with or due to the Customer breach of these terms or in using the Services, including but not limited to the claims for defamation, infringement of intellectual property rights, death or personal injury, property damage.
21.6 Waiver
Only a written waiver of any breach, right or remedy is only effective if it is duly signed by the Party granting the waiver. Any failure or delay of a Party to exercise or enforce (including any partial exercise or enforcement of) any provision contained herein and/or any other indulgence given by that Party shall not be deemed as a waiver by that Party of its right, power, authority, discretion, remedy or right of action against the other Party in respect of any breach by the other Party of its obligations hereunder.
21.7 Recovery of Legal Costs
In any legal proceedings commenced by HSB against you, all legal costs and expense incurred by HSB shall be recoverable from you.
21.8 Entire Agreement
This General Terms and for each service that you have subscribed from HSB, the applicable Service Agreement and the Schedule shall together form the entire Agreement between the Parties.
21.9 Assignment
The Customer shall not assign any rights, interest, remedies and obligations herein without the prior written consent of HSB, whose consent may be withheld at its sole and absolute discretion. HSB, shall be entitled to assign, novate or transfer this Agreement or any of its right and remedies hereunder to any Affiliate without the consent of the Customer PROVIDED ALWAYS that HSB shall provide the Customer with a written notice of such assignment, novation or transfer. Nothing contained herein shall be deemed to confer any rights upon or be enforceable by any person other than the Parties hereto.
21.10 Severability
In the event any provision of this Agreement is held by a court of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect.
21.11 Binding Effect
This Agreement shall be binding upon the permitted assigns and successors-in-title of the Parties hereto. It is further provided that this Agreement shall not be discharged or in any way affected by any change in the composition or identity of the Parties hereto by amalgamation, reconstruction or otherwise.
21.12 Cloud Network Infrastructure
HSB shall use its best efforts to ensure that the appropriate measures are taken to safeguard the security of its Customer’s data in its cloud network infrastructure in accordance to Malaysia laws and regula tion.
Last Updated: 28/03/2023
