PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
IT ALSO CONTAINS A BINDING ARBITRATION CLAUSE IN SECTION 10, WHICH, WITH LIMITED EXCEPTION, REQUIRES YOU TO SUBMIT CLAIMS TO BINDING AND FINAL ARBITRATION.
This agreement is between Arcadia Star Sdn. Bhd., a private company incorporated in Malaysia (MyKedai), and the Customer agreeing to these terms (Customer).
This agreement provides Customer and its Affiliates (defined below) access to and usage of an Internet-based software service, including, without limitation, remote training that MyKedai offers its customers, the service’s features, functions, and user interface, as specified on an order (Service).
Use of Service
a. Customer Owned Data. All data, information and content uploaded by Customer to the Service remains the property of Customer, as between MyKedai and Customer (Customer Data). Customer grants MyKedai a non-exclusive, royalty free, fully paid up, worldwide license to access, use, copy, modify(including the right to create derivative works of), display and transmit the Customer Data for purposes of (a) performing the Services; and (b) improvement and enhancement of the Services. During the term of this agreement, MyKedai will make available Customer Data to the Customer upon request. Customer is solely responsible for accuracy, quality, content and legality of Customer Data and any transfer of Customer Data outside of the Services by Customer or any third party authorized by Customer.
b. Affiliates and Contractors. Customer, including its Affiliates, may enter into orders with MyKedai. An Affiliate entering into an order agrees to be bound by this agreement as if it were an original party hereto. Customer may allow its Affiliates and employees to use the Service, provided Customer is responsible for their compliance with the terms of this agreement, and use by its Affiliates and contractors is solely for Customer’s benefit. Affiliate means any company controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%.
c. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, notify MyKedai promptly of any such unauthorized access; (iv) may use the Service only in accordance with the Service's technical documentation (including without limitation, modules, demos and videos) and applicable law; and (v) comply with the FAQ at this link https://mykedai.is/faq/ (which FAQ may change but will not materially and adversely change without consent of Customer or notice prior to a renewal).
d. Integrated Third Party Services. The Service interoperates with one or more third party services (e.g. loyalty services, logistics partners, hardware providers, payment gateways, payment processors, etc) and depends on the continuing availability and access to such third party service and any data or information interfaces (Third Party Services). Customer must have an account with such Third-Party Services and MyKedai is not responsible for such services. If for any reason MyKedai cannot access or use the applicable Third-Party Service (including without limitation, change in terms or increase in fees charged by a third-party service provider), MyKedai may not be able to provide all of the functions of its Service. No refund or credit will be provided for temporary unavailability of any Third Party Services (for example, third party maintenance windows), however if access to a Third Party Service is permanently not available then Customer may terminate the affected order and MyKedai will provide a refund to Customer of any prepaid and unused fees for that order.
e. MyKedai Support. MyKedai must provide Customer support for the Service under the terms of MyKedai's Customer Support Policy (Support), and the Customer may contact MyKedai at [email protected]
f. 30-Day Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for a 30-day time period (unless extended by MyKedai in writing). The Service is provided 'AS IS', with no warranty during this time period. All Customer Data will be deleted within 15 (fifteen) days after the trial period, unless Customer converts its account to a paid Service.
g. Competitive and Related Restrictions. The Service may not be accessed for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. MyKedai’s competitors are prohibited from accessing the Services, except with MyKedai’s prior written consent.
h. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity or attempt to mask the usage of the Services; (ii)use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii)interfere with or disrupt the integrity or performance or functionality of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; or (v) reverse engineer the Service or the Software and Documentation, except as allowed by applicable law despite this limitation; (v)use the Service for any application that constitutes, promotes or is used in connection with spam, spyware, adware, other malicious programs or code; (vi)Use the Services in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, taxation or governmental reporting obligations or other regulatory obligations;(vii) use the Service in a manner that results in the bandwidth usage or the database usage of such Customer exceeding reasonable standards which may be communicated by MyKedai to the Customer from time to time.
i. Suspension. MyKedai may temporarily suspend the Customer’s use of the Service if MyKedai believes that Customer is in breach of this agreement.
Disclaimer of Warranty and Support Services
a. MyKedai Measures Warranty. MyKedai will undertake necessary safeguards to maintain the availability of the Service (excluding maintenance outages, outages beyond MyKedai's reasonable control, and outages that result from any Customer technology issues). While the functionality or features of the Service and Support may change based on customer requirements, best practices, technological changes and other reasons, MyKedai will not materially decrease, during a paid term, the features and functions of the Service, and the Support, as whole.
b. DISCLAIMER. THE CUSTOMER UNDERSTANDS AND AGREES THAT THE USE OF THE SERVICES BY THE CUSTOMER AND ALL INFORMATION, PRODUCTS OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE IS AT THE SOLE RISK OF THE CUSTOMER. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, MYKEDAI DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION,THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND QUALITY. WHILE MYKEDAI TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, MYKEDAI DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT THE DISCRETION AND RISK OF THE CUSTOMER AND THE CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE CUSTOMER FROM MYKEDAI OR A THIRD PARTY THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
IF CUSTOMER USES ANY MESSAGING SERVICE OR SMS WITHIN THE SERVICE, CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH THE TELEPHONE CONSUMER PROTECTION ACT AS AMENDED AND ALL OF ITS REGULATIONS, AND DECIDES THE CONTENT, TIMING AND RECIPIENT OF ALL MESSAGES.
THE CUSTOMER ACKNOWLEDGES THAT NEITHER MYKEDAI NOR ITS THIRD-PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT NEITHER MYKEDAI NOR ITS THIRD-PARTY PROVIDERS ARE RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, OR OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WITHOUT LIMITING THE FOREGOING, NEITHER MYKEDAI NOR ITS THIRD-PARTY PROVIDERS WARRANTS OR GUARANTEES THAT ANY OR ALL SECURITY BREACHES OR ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES.
a. Fees and Payment. Customer must pay all fees as specified on the order, but if not specified, then within30 days of receipt of an invoice. Quantities cannot be decreased during a paid term. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
b. Credit Card Payments. If a credit card account is being used, MyKedai may obtain pre-approval for an amount up to the amount of the order. Customer must pay for the Services online, and MyKedai may charge its credit card for all purchases and for any additional amounts (including any taxes and late fees, as applicable) owed to MyKedai. CUSTOMER IS RESPONSIBLE FOR THE TIMELYPAYMENT OF ALL FEES AND FOR PROVIDING WITH A VALID CREDIT CARD FOR PAYMENTWHICH THEY ARE AUTHORIZED TO USE. If Customer wants to designate a different credit card or use a bank account or if there is a change in Customer’s credit card status, Customer must change its information online in the account within the Service. If a Customer credit card changes or expires, or is revoked, disputed or not valid for any other reason, MyKedai may suspend, terminate, or both (without liability) Customer’s use of the Services upon 5 days’ notice sent to Customer via email (using its email address in the Service).
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient),whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information).MyKedai's Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below). Customer's Confidential Information includes, without limitation, the Customer Data.
b. Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this agreement; and (ii) limit access to Confidential Information of Discloser to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient containing protections not materially less protective of the Confidential Information than those in this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order but will provide Discloser with advance notice to seek a protective order.
e. Data Security Measures.
i. Security Measures. MyKedai: (i) implements and maintains reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, designed to maintain the confidentiality, security, and integrity of Customer's Confidential Information; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures(as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer's Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of safeguards in place to control these risks(collectively, Security Measures).
ii. Notice of Data Breach. If MyKedai becomes aware that Customer Data was accessed or disclosed in breach of this agreement, MyKedai will so notify Customer within 48 (forty eight) hours from the time of MyKedai’s knowledge of such breach and thereafter immediately act to eliminate the breach and preserve forensic evidence, and provide available information to Customer regarding the nature and scope of the breach.
a. Reservation of Rights. MyKedai and its licensors are the sole owners of the Service and its underlying software, including all associated intellectual property rights, and they remain only with MyKedai. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. MyKedai reserves all rights that are not expressly granted in this agreement.
b. Software and Documentation. All software that runs locally that is provided by MyKedai as part of the Service, and the technical documentation and any training materials (Software and Documentation) are licensed to Customer as follows: MyKedai grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software in accordance with the Documentation, solely in connection with the Service.
c. Statistical Information. MyKedai may compile statistical information related to the performance of the Service and may make such information publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. MyKedai retains all intellectual property rights in such information.
Term and Termination
a. Term. This agreement continues until the 30th day after all orders have expired, unless earlier terminated as provided below.
b. Term of Orders. The term of each order must be specified in the order.
c. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written or electronic 15-day notice/cure period, if the breach has not been cured.
i. Return of Customer Data.
ii. Within 30 days after termination, upon request MyKedai will make the Service available for Customer to export Customer Data as provided in Section2(a).
d. After such 30-day period, MyKedai has no obligation to maintain the Customer Data and may destroy it.
e. Effect of Termination. If this agreement is terminated for MyKedai's breach, MyKedai will refund Customer fees prepaid for the remainder of the term of all orders after the termination effective date. If this agreement is terminated for Customer’s breach, Customer will pay any unpaid fees for the term of all orders. Upon request, following any termination of this agreement, each party will destroy or return all of the other party’s property that it holds, subject to the “Return of Customer Data” section above.
a. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD MYKEDAI HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, LOSSES, DAMAGES, JUDGMENTS, TAX ASSESSMENTS, PENALTIES, INTEREST AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE LEGAL FEES) ARISING OUT OF ANY CLAIM, ACTION, AUDIT, INVESTIGATION, INQUIRY OR OTHER PROCEEDING INSTITUTED BY A PERSON OR ENTITY THAT ARISES OUT OF OR RELATES TO: (A) ANY ACTUAL OR ALLEGED BREACH OF YOUR REPRESENTATIONS, WARRANTIES OR OBLIGATIONS SET FORTH IN THESE TERMS; (B) YOUR WRONGFUL OR IMPROPER USE OF THE SERVICES; (C) YOUR VIOLATION OF ANY APPLICABLE LAW; AND (D) ANY OTHER PARTY’S ACCESS AND/OR USE OF THE SERVICES WITH YOUR UNIQUE NAME, PASSWORD OR OTHER APPROPRIATE SECURITY CODE.
b. EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, MYKEDAI IS NOT LIABLE FOR ANY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, GOODWILL, DATA OR COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE.
c. TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, MYKEDAI'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 3-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TOTHE LIABILITY
Identification for Third-party Claims
a. MyKedai will defend or settle any third-party claim against Customer to the extent that such claim alleges that MyKedai technology used to provide the Service infringes a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies MyKedai of the claim in writing, cooperates with MyKedai in the defense, and allows MyKedai to solely control the defense or settlement of the claim. Costs. MyKedai will indemnify and hold harmless Customer from any infringement claim defense costs it incurs in defending Customer under this indemnity, MyKedai-negotiated settlement amounts agreed to by MyKedai, and court-awarded damages. Process. If such a claim appears likely, then MyKedai may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If MyKedai determines that none of these are reasonably available, then MyKedai may terminate the Service and refund any prepaid and unused fees. Exclusions. MyKedai has no obligation for any claim arising from: MyKedai’s compliance with Customer's specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; Customer Data; or technology or aspects not provided by MyKedai. THIS SECTION CONTAINS CUSTOMER'S EXCLUSIVE REMEDIES AND MYKEDAI’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
b. If any third party brings a claim against MyKedai related to Customer’s use of the Service (other than a claim covered by (a)above) or breach of this agreement, Customer must defend, indemnify, and hold MyKedai harmless from and against all damages, losses, and expenses of any kind(including reasonable legal fees and costs) related to such claim.
Governing Law and Forum
a. Governing Law and Forum. This agreement is governed by the laws of Malaysia (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the courts of Malaysia, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys' fees and costs from the other party.
b. Arbitration and Dispute Resolution. If a dispute, controversy or claim arises out of or relates to this contract, or breach, termination or invalidity thereof, and if such dispute, controversy or claim cannot be settled and resolved through negotiation, then the parties agree first to try in good faith to settle such dispute, controversy or claim through arbitration in Malaysia for the time being in force which Rules are deemed to be incorporated by reference into this clause. The venue and seat of the arbitration shall be Malaysia. The Tribunal shall consist of 1 arbitrator. The language of the arbitration shall be English.
a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by MyKedai.
b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned with notice, without the consent of the other party, as part of a merger or sale of all or substantially all a party's businesses, assets, not involving a competitor of the other party, or at any time to an Affiliate.
c. Compliance. Each party represents that it is not named on any U.S. government denied-party list or UN embargoed country. Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or UN embargoed country or in violation of any applicable export law or regulation.
d. Independent Contractors. The parties are independent contractors with respect to each other.
e. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
f. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
g. No Additional Terms. MyKedai rejects additional or conflicting terms of a Customer's form-purchasing document.
h. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
i. Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
j. Mobile Software. MyKedai may make available mobile software to access the Service via a mobile device (Mobile Software). To use the Mobile Software, Customer must have a mobile device that is compatible with the Mobile Software. MyKedai does not warrant that the Mobile Software will be compatible with Customer's mobile device. Customer may use mobile data in connection with the Mobile Software and may incur additional charges from Customer's wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that MyKedai may, from time to time, issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades. If the mobile device software is acquired from Apple platform (App Store Software), the additional terms set forth on such software shall apply.
k. Feedback. If Customer provides feedback or suggestions about the Service, then MyKedai (and those it allows to use its technology) may use such information without obligation to Customer.